Clear and Present Danger
Where speech presents a grave and immediate danger to the public interest, which the state may lawfully protect, the speech may be restricted. Most states make it illegal to threaten another person with death or great bodily injury because the state has an interest in controlling crime. These laws are constitutional because the speech prohibited threatens to inflict evil, injury or damage to another person, or to perform an illegal act. Threats of terrorism are impermissible under the "clear and present danger" doctrine.
Stalking statutes prohibiting certain speech are another example of regulations that pass constitutional muster. Where a person is in fear for his or her life from another individual, that individual may be restrained from speaking or writing to, calling or approaching the victim.
Is criticism of law enforcement and derogatory remarks about police officers permissible?
Yes. The First Amendment protects speech directed at police officers. Only speech that is "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest" is impermissible. For example, using profanities and screaming "this is a police state" is protected speech.
Can speakers at rallies encourage participants to resist arrest?
No. Resisting arrest is a criminal act. Speech inciting others to criminal activities, such as resisting arrest, is never protected.
Is speech ever illegal?
Yes, when its expression violates a law. For example, you cannot spray paint billboards with political slogans. Your right to express your political beliefs is protected but not in that manner. A criminal activity with a "speech component" does not make the act less criminal.
My son is on trial for a serious crime and the judge has placed a gag order on our family. Is this permissible?
Yes. Although gag orders are uncommon, in some situations, comments of participants and family members may pose a "clear and present" danger to the defendant's ability to get a fair trial.
SIDEBAR: Media coverage, such as the ability of reporters to speak to participants, can also be restrained if pretrial and trial publicity endangers a constitutional right to a fair trial. Typically, fair trial concerns involving sensational publicity are resolved by moving the trial to another location.
Can I keep protestors away from my business?
No. However, if you and your employees have been threatened and feel like an immediate threat of danger or harm exists, the police can stop the protest.
My neighbor's son talks openly about abducting a government official's daughter. Are his comments protected as free speech?
No. He is threatening a member of a public official's family. Not only is the speech unprotected because it is a threat, the threat also violates a specific federal law protecting government officials.
I publish a newsletter that is extremely negative towards the current administration, officials and their families. Can what I write be construed as a threat?
No-as long as you are not advocating or condoning criminal actions toward government officials. Speech that is not a true threat, however negative and critical, is protected free speech.
SIDEBAR: Threatening speech promises or conveys intent to cause present or future harm. True threats are never protected by the First Amendment.
Your actions can turn normally protected speech into a "true threat." For example, yelling profanities at National Guardsman patrolling an airport becomes a threat (rather than an expression of contempt) when the individual starts running toward the guardsman and reaching for something in his or her pocket.
TIP: In the post 9/11 world, people may express their ideas, but their body language should remain neutral when speaking with public officials and law enforcement personnel.
Are threats against high-ranking public officials always treated as "true threats"?
No. Comments such as "I would like to shoot Official X" are not true threats when made in jest, idle talk or political argument. However, if a reasonable person would believe the speaker intends to carry out his or her threat, the speech is a true threat and not protected by the First Amendment.
SIDEBAR: Letters and other communications made directly to officials, law enforcement, the military and other federal and state entities are considered true threats. For instance, an inmate who writes to the FBI threatening to kill the President of the United States and referencing weapons is a true threat.
I have received several letters from my ex-husband promising to hurt me and vowing he will get even. Can he be arrested?
Yes. Your husband is not expressing ideas; he is conveying a very real intent to harm you. The First Amendment does not protect his "speech."
After posting fliers containing "KKK" and threats to minorities in our neighborhood and telling a real estate agent he would burn down any house she sold to minorities, my cousin was arrested for harassment. Does the First Amendment protect his distribution of the fliers?
No. The fliers reinforced his threat to the real estate agent and promised criminal activity. If your cousin had not communicated an intent to commit a crime to the real estate agent, the fliers could arguably be protected as expressions of belief and ideas.