II. Free Speech Claims

• Library: Litigating Religious Land Use Cases (ABA) (2016 Ed.)

II. Free Speech Claims

Another clause in the First Amendment provides that Congress cannot pass a law "abridging the freedom of speech" of citizens of the United States.⁸¹ Free speech can be implicated in a very wide range of cases because communication is so inextricably tied to almost all that we do. Again, while the Free Speech Clause may seem straightforward enough, federal courts are constantly addressing issues that have arisen in relation to the nuances of the provision.

First Amendment liberties under the Free Speech Clause are broader than the act of speaking itself. "[S]peech" is not to be construed literally. The clause encompasses communication broadly, including the nonverbal or symbolic, as well as the right to "receive information and ideas."⁸² The Supreme Court does not agree with "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea."⁸³ Yet it still acknowledges that conduct "sufficiently imbued with elements of communication" is subject to First Amendment protection.⁸⁴

The level of scrutiny a court will apply to a regulation that impedes speech depends on two key considerations: the forum of the speech and whether the content - regulation is neutral.⁸⁵ Different environments afford different levels of protection to the speaker, depending largely on an historical expectation to be able to engage in expressive activity at a particular location. Such forums cascade on a spectrum from public to nonpublic. Speech in traditional public forum, such as a public park, is afforded the most First Amendment protection. Government may regulate speech with reasonable restrictions specifying the "time, place, and manner" that one may engage in speech, but if its restrictions discriminate on the basis of the content of speech, that law will be subject to strict scrutiny. Where government creates limited public forums, such as public meeting rooms, it may impose reasonable limitations on who may use the forum but content discrimination is still subject to strict scrutiny. But in a nonpublic forum, such as a jail, government may by reasonable regulation make content-based curtailments of speech. However, in no forum may the government restrict speech because of the opinion expressed about particular content.

As noted, court interpretations of the Free Speech Clause have shifted over the years. A review of a few recent cases will help illustrate some of the jurisprudential issues that judges continue to grapple with in the area. The Supreme Court addressed the issue of freedom of speech in relation to picketing soldier funerals in the 2011 case of Snyder v. Phelps.⁸⁶ Plaintiff, the father of a deceased military service member, brought suit against the Westboro Baptist Church for various torts, including intentional infliction of emotional distress, based on the church picketing the funeral of plaintiff's son.⁸⁷ The church frequently picketed military funerals in an attempt to spread its message that God was punishing the United States for its sins, particularly for its tolerance of homosexuality.⁸⁸ In this instance, the church informed authorities in advance that it planned to picket the funeral, and the picketing occurred on a designated piece of public land.⁸⁹ Church members did not attend the funeral, enter the church property where the funeral was held, or incite any violence involving its protests.⁹⁰

The district court found the church liable for several million dollars in damages, but the Fourth Circuit reversed based on the conclusion that the First Amendment protected the church's statements.⁹¹ The Supreme Court agreed with the Fourth Circuit that the First Amendment shielded the church from tort liability based on its picketing of the plaintiff's son's funeral.⁹²

The crux of the case was whether the content of the church's speech concerned matters of public or private concern, as the First Amendment heavily protects speech on matters of public concern.⁹³ Here, the Court determined that the speech conveyed on the churches picketing signs related to public issues, namely, "the political and moral conduct of the United States and its citizens, the fate of the nation, homosexuality in the military, and scandals involving the Catholic clergy."⁹⁴ This overreaching theme of public speech was not affected by a few of the signs targeting a specific individual.⁹⁵ Also, the inappropriateness or controversy surrounding the church's statement was wholly irrelevant to a determination of whether the statement concerned a public matter.⁹⁶

Additionally, the fact that the church chose to picket a high-profile military funeral to increase publicity for its cause, and the fact that its speech may have been especially hurtful, did not justify affording the speech less constitutional protection.⁹⁷ The Court further determined that the church lawfully conducted its protest on public grounds, which qualified as a traditional public forum that is properly used as a means to engage in public debate and assembly.⁹⁸ Thus, based on the fact that the church's protest occurred in a public space and discussed matters of public concern, the church's speech received special protection under the First Amendment.⁹⁹ This special protection thus negated any potential tort liability and damages against the church.¹⁰⁰

The Court specifically mentioned the narrowness of its holding and further emphasized the power of speech, and it noted that the United States has chosen "to protect even hurtful speech on public issues to ensure that we do not stifle public debate."¹⁰¹ While this decision to protect hurtful speech may sometimes appear to produce unjust results, the Court explained that it cannot make a decision to punish a speaker based on its reaction to the hurt that speech may cause.¹⁰²

Justice Alito filed the lone dissent, arguing that the country's "commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case."¹⁰³ He explained that the church members had numerous avenues through which they could express their opinions, such as writing books and articles, speaking in public forums and venues, engaging in peaceful picketing, appearing on TV or radio, writing on the Internet, and distributing e-mails.¹⁰⁴ However, he noted that words "that form 'no essential part of any exposition of ideas,' and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."¹⁰⁵

Here, the church specifically issued a press release to notify the public of its intent to protest this particular soldier's funeral, in the hopes of stirring up a media frenzy and increasing the church's publicity.¹⁰⁶ In addition, Justice Alito mentioned that the emotional well-being of grieving individuals is especially vulnerable at funerals, and allowing these individuals to grieve in peace for a few hours without being subjected to the church's harassment would not significantly undermine public debate on the issues the church sought to publicize.¹⁰⁷ Based on this analysis, Justice Alito would have held that the plaintiff was able to recover for the tort of intentional infliction of emotional distress based on his being a private figure and based on the speech the church conveyed being a matter of private, not public, concern.¹⁰⁸

More recently, the Supreme Court resolved a free speech dispute over a municipality's sign use regulation that placed stricter regulations on religious signs than others with different content. In Reed v. Town of Gilbert¹⁰⁹ Gilbert, Arizona, adopted a comprehensive code to regulate the public display of signs. The sign code prohibits the display of outdoor signs in the town without a permit with 23 exemptions.¹¹⁰ Signs subject to the most stringent regulations, however, are those directing the public to a nonprofit group's meeting. These are significantly limited with respect to size, the number that can be placed on a property at one time, and display time. Clyde Reed, the pastor of Good News Community Church in Gilbert, used temporary signs to inform the public about the shifting locations for his church's worship services. Gilbert's sign code compliance manager soon took notice and began citing the church for violations. Reed attempted to seek an accommodation but was denied, prompting him to file suit under the First and 14th Amendments.¹¹¹

The Court found the sign code "content based on its face" and that it should therefore be subject to strict scrutiny.¹¹² Since other categories of displays such as political signs would invoke different regulatory restrictions solely because of differing communicative content, signs are viewed differently under the law because of their messages. It did not matter that Gilbert may not have adopted the code out of disagreement with a message or out of a regulatory concern unrelated to the content of the sign. In the Court's view, "an innocuous justification cannot transform a facially content-based law into one that is content neutral."¹¹³

Gilbert proffered two compelling interests to justify the differential sign code treatment: "preserving the Town's aesthetic appeal and traffic safety."

For the sake of argument the court treated these as compelling but found them "hopelessly under...