Types of Permissible Speech

With narrow exceptions, any expression that is considered to be speech, symbolic or otherwise, is protected and no person can be prohibited from the exercise of his or her right to free speech.

  • Offensive Speech

The First Amendment protects even extreme, offensive and hateful speech. Thus, the Ku Klux Klan cannot be denied a permit to march and express their beliefs, however reprehensible.

Does the city have to issue a permit to a Nazi group for a protest march?

Yes. Demonstrations, including protest marches and picketing are permissible expressions of speech. Further, angry and inflammatory speech may not be prohibited unless it directly incites lawlessness or is likely to produce criminal behavior.

Sidebar: Speech may not be censored before it occurs. The First Amendment prohibits "prior restraints," or regulating speech because it might incite illegal behavior. Criminal activity that is intertwined with free speech is only punishable after it occurs.

Sidebar: Courts have expressly held that city streets and sidewalks are public and permissible forums for free speech.

  • Distribution of Literature and Symbols

Bans or prohibitions against handing out literature are unconstitutional. The right to distribute information to the public is one of the most protected aspects of First Amendment rights.

Can I distribute religious pamphlets at a shopping center?

Maybe. First Amendment rights do not prohibit a property owner from regulating speech on private property. If the shopping center owners do not permit distribution of materials, you do not have the right to give out the pamphlets.

TIP: Some state laws and city codes require that some types of free speech be allowed in private areas. Check with local government officials. Often, distribution of certain materials or the gathering of signatures cannot be prohibited at large malls and shopping centers.

My homeowner's association wants to regulate door-to-door solicitors. Can we put up a sign prohibiting them from going to residents' doors?

No. You cannot completely ban individuals from knocking on doors. However, you may regulate the time, place and manner by placing signs that say, for example, "After 6 p.m., soliciting is prohibited." An individual can always post a "no solicitors" notice on their own residence door.

My neighbor is flying the Confederate flag. Is this permissible?

Yes. The government cannot regulate the display of symbols, even those that are offensive to others.

Why is flag burning not prohibited?

It is a permissible form of symbolic speech. However, the burning of flags, crosses and similar activities must be done peaceably and in compliance with local fire regulations.

Do I have the right to advertise my beliefs in the newspaper?

Yes. However, a privately owned newspaper is under no compulsion to accept your ad, or anyone else's for that matter.

Sidebar: College newspapers, although located at publicly funded universities, can also reject content since courts have ruled they are under student, not government, control.

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