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free speech, or not? Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances." That's the First Amendment. Simple, right? Not always. Consider each of the following free speech cases. After you cast your vote, I'll tell you what the courts decided.

Cecilia Lacks instructed her 11th grade students in Berkeley, Missouri to write and videotape short plays. Many of the plays, which dealt with issues such as gang violence, included words such as fuck, shit, ass, bitch and nigger. The 40-minute video compilation contained more than 150 of these words. The student-discipline code bans profanity, but Lacks said she believed the code applied only to behavior toward others. After the school board fired her, Lacks sued, arguing that she had been a facilitator for her students' creative expression and that her rights had been violated.

Free speech, or not free speech?

VERDICT: Not free speech, according to the U.S. Supreme Court, which upheld an appeals court decision that said school employees should "promote generally acceptable social standards." The lower court had ruled that "a school district does not violate the First Amendment when it disciplines a teacher for allowing students to use profanity repetitously and egregiously in their written work."

In 1995 Allstate began a campaign to encourage accident victims to settle claims against its policyholders without hiring lawyers. The insurance giant sent a conciliatory letter ("we consider you our customer") and a flier titled "Do I Need an Attorney?" The answer, predictably, was not necessarily. "Before you decide to see an attorney, you may wish to seek an offer with Allstate," the flier noted, pointing out that legal fees take up a good portion of any judgment. It cited an industry study that found people "generally settle their claims more quickly" if they don't hire counsel. It suggested that victims who hire counsel insist that the contingency fee apply only to the money that was more than Allstate's offer before the lawyer got involved. The campaign was a success. According to one report, it reduced by nearly ten percent the number of Allstate settlements in which the claimant hired an attorney.

Free speech, or not free speech?

VERDICT: Not free speech, according to several states. In West Virginia, the state bar association ruled that the flier violated a state statute against "unauthorized [legal] practice." In Connecticut, the insurance commissioner ordered Allstate to stop distributing the flier, citing a 1997 law that makes it illegal to "discourage the retention of an attorney" in cases involving injury or death. In Pennsylvania, the attorney general sued Allstate, saying the flier violated unfair-trade and consumer protection laws. Under pressure from trial lawyers, the New York attorney general told Allstate to reword the flier, stop using the word customer and pay $15,000 in administrative costs. State officials in Indiana, New Jersey, North Carolina and Texas also pressured the company to make changes.

Richard Barrett, head of the Mississippi-based Nationalist Movement, travels the country to warn against the "Mexicanization, Africanization and homosexualization" of America. In 1994 he applied for a permit to parade down West Broadway in South Boston. He said he and 300 "pro-majority" supporters wanted to follow part of the route of the annual St. Patrick's Day parade, which organizers had canceled rather than allow gays and lesbians to participate. The city denied Barrett's request, citing concerns about traffic congestion and public safety during a busy Saturday afternoon shopping period. The city had approved Saturday afternoon marches by other groups, but the mayor later said he had feared violence.

Free speech, or not free speech?

VERDICT: Free speech, according to a federal judge. He struck down the city's parade permit ordinance, saying it gives officials too much power to ban marches. After hearing testimony, the judge concluded that officials denied Barrett's permit not because of congestion or public safety but because they disagreed with the "nature and content of the Nationalist Movement's message." He added that Boston officials had "behaved like a latter-day Watch and Ward Society, guarding against offensive political opinion," but noted the irony that "much of the law that protects Barrett's rights developed as a result of the courage of the pioneers of the civil rights movement." The court ordered the city to pay Barrett $700 in damages, and his attorneys $51,000 in fees.

In 1992, San Francisco mayor Frank Jordan appointed the Reverend Eugene Lumpkin (pastor of the Ebenezer Baptist Church) to the city's Human Rights Commission. The following year Lumpkin told a newspaper reporter, "It's sad that people have AIDS and what have you, but it says right here in scripture that the homosexual lifestyle is an abomination against God." Two weeks later, on a television talk show, the pastor refused to disavow an Old Testament passage that says a man who has sex with another man should be stoned to death. That same day, the mayor fired Lumpkin, saying the pastor had "crossed the line from belief to behavior to advocacy" and "implied that he condoned physical harm." Lumpkin took his case to federal court, saying that the First Amendment gave him the right to express his religious beliefs.

Free speech, or not free speech?

VERDICT: Not free speech, according to a federal court. While Lumpkin had the right to express his views, "the First Amendment does not assure him job security when he preaches homophobia" while serving as an ambassador for human rights. The U.S. Supreme Court agreed.

Robert Thomas and his wife, Carleen, operated a lucrative online pornography business, the Amateur Action Bulletin Board System, from their home in Milpitas, California. For $55 every six months, adult subscribers received a password that allowed them to download any of thousands of images from the Thomases' computers. The couple promoted Amateur Action as "the nastiest place on earth" and, like carnival barkers, affixed graphic descriptions to each image. The board's images included standard hard-core fare, such as oral sex and come shots, along with bestiality, sadomasochism and implied incest. Robert Thomas said he scanned the photos from porn magazines purchased at adult bookstores in San Francisco. The Thomases also sold fetish videos, some of which featured urination, enemas and simulated rape.

Free speech, or not free speech?

VERDICT: Not free speech, according to the Supreme Court. It upheld the Thomases' convictions for distributing obscene materials across state lines. Robert Thomas received a 37-month sentence, his wife 30 months. The couple was arrested after a postal inspector in Memphis joined the bulletin board under a fake name, downloaded images and ordered videos. He also mailed Robert Thomas a package of "action magazines" and "unusual stuff" that was actually government-seized kiddie porn. Ten minutes after the package was delivered, police raided the couple's home and seized their computers. In Utah, meanwhile, undercover agents downloaded 16 nude and seminude images they said depicted minors and to which the Thomases had affixed explicit descriptions. Robert Thomas pleaded guilty to one count of distributing child porn (15 other counts were dropped) and received a 26-month sentence that ran concurrently with the Memphis judgment.

Christ's Bride Ministries of McLean, Virginia purchased advertising space at public transit stations in Philadelphia, Baltimore and Washington, D.C. Its posters claimed that "women who choose abortion suffer more and deadlier breast cancer" and included a tollfree phone number for a group called the American Rights Coalition. A federal health official complained to the D.C. transit authority that the ad was "misleading" and "unduly alarming" and "does not accurately reflect the weight of the scientific literature." After learning of the health official's comments, the Southeastern Pennsylvania Transportation Authority immediately removed the posters, expressing concerns about their accuracy. The ministry cried foul, saying it had a First Amendment right to display the ads.

Free speech, or not free speech?

VERDICT: Free speech, according to a federal court. It ruled that advertising space within transit stations is a public forum, and that Septa had violated the ministry's rights because it had no consistent policy to regulate ad content and had allowed controversial campaigns in the past. The U.S. Supreme Court agreed.

Cartoonist Mike Diana distributed a photocopied zine called Boiled Angel. His work deals with ugly topics such as religious hypocrisy, violence and abusive parents. Diana's publication included caricatures of priests sodomizing children, deformed humans with monster-like genitalia and women being raped and brutalized, among other grotesque images. It also featured letters and fiction by convicted killers and a 12-step list titled "How to Be a Successful Serial Killer." Diana distributed his zine by mail order and unwittingly fulfilled a request made by an undercover cop.

Free speech, or not free speech?

VERDICT: Not free speech, according to a jury in Pinellas County that convicted Diana of distributing and advertising obscene drawings. The cartoonist was imprisoned following the verdict, and four days later, the judge sentenced him to three years' probation and fined him $3000 and 1248 hours of community service. The judge also told Diana that he could not draw during his probation, even for his own enjoyment. The U.S. Supreme Court refused to hear Diana's appeal. According to the ACLU, Diana "is the only cartoonist in America known to have been jailed on an obscenity charge, and appears to be the only artist in any medium in America who is prohibited from freely engaging in artistic expression in the privacy of his own home."

Gareth Rees hosted a monthly live cable access show in Austin, Texas on which he discussed safer sex and other issues of gay life. During an episode of Infosex that aired at midnight, Rees took calls from viewers about "using sexual fantasies to your advantage." Shortly before two a.m., he introduced a threeminute clip from Midnight Snack, an explicit safer-sex video produced by the Gay Men's Health Crisis Center of New York. The clip showed a man masturbating and two men engaging in oral sex using a condom. Rees said the video demonstrated that sex does not have to include intercourse, and that safer sex can be erotic. "Hopefully we can be mature about what I showed," he told viewers. The next day, the county prosecutor said he had received about 25 complaints about the segment.

Free speech, or not free speech?

VERDICT: Not free speech, according to the U.S. Supreme Court. A jury found Rees and the show's producer, Terrell Diane Johnson, each guilty of a misdemeanor obscenity charge, and the high court upheld the convictions. Rees and Johnson were each sentenced to a year's probation and 200 hours of community service.

Pro-life activists distributed Wanted posters featuring photos of abortion providers. The posters offered a $5000 reward for "information leading to arrest, conviction and revocation of license" of the doctors and provided their home addresses. Meanwhile, a website known as the Nuremberg Files called for the "baby butchers" to be put on trial for crimes against humanity and included personal information such as the doctors' addresses and the names of their children. The site also indicated which providers had been murdered by placing a line through their names.

Free speech, or not free speech?

VERDICT: Not free speech, according to a federal jury in Portland, Oregon. The Supreme Court has held that speech that is likely to cause "imminent lawless action" can be restricted; the Portland jurors were asked to decide if a reasonable person would construe the posters and site as violating a 1994 law that prohibits the use of force or threats against abortion clinic employees and patients. The defense argued that abortion providers have been scorned for years and that the posters and site, while provocative, were not enough to make someone act violently. The jury awarded a group of doctors and the local chapter of Planned Parenthood $107 million in damages.

Street artists in New York City's Soho neighborhood often sell original paintings, sculptures and carvings on public sidewalks. After residents and merchants complained about pedestrian traffic jams, police began arresting artists who did not have vendor licenses. The artists said the general vending statute violates their First Amendment rights, especially since it allows sidewalk merchants to sell books, magazines and pamphlets without obtaining a permit.

Free speech, or not free speech?

VERDICT: Free speech, according to a federal court, which said that licensing street artists is unconstitutional. Nine months later, however, after the U.S. Supreme Court upheld the ruling, the city parks department began ticketing unlicensed artists outside the Metropolitan Museum of Art. The city argued that the earlier ruling does not apply because the museum plaza is park land, not a public street. A federal judge agreed. Many artists currently sell art on the street without permits as the case makes it way through the courts.

In 1995 John Muldoon hired attorney Kevin Hendrickson to represent him in a probate case. Muldoon was awarded about $130,000. Hendrickson later told reporters that Muldoon had agreed to pay a $20,000 fee and that he allowed his client to make monthly installments for two years with no money down. Eighteen months later, Muldoon appeared in front of Hendrickson's office with a hot-pink posterboard that read "Unfair Legal Fees Charged." The 60-year-old former car salesman picketed from 8 a.m. to 11 a.m. and again from 4 p.m. to 5 p.m. for five days, until Hendrickson took him to court.

Free speech, or not free speech?

VERDICT: Not free speech, according to a circuit court judge. Cynthia Cox ruled that Muldoon could not protest, picket or come within 500 feet of Hendrickson's firm, which is next to the courthouse, because he was causing the attorney "irreparable harm." She also ordered Muldoon not to make false statements about Hendrickson (the lawyer claimed Muldoon's placard libeled him) or draw any adverse attention to the attorney's offices. Hendrickson said Muldoon's picketing amounted to blackmail. "Picketing for an unlawful purpose is not protected speech," he said. "This is not an issue of freedom of speech."

By Chip Rowe. This article first appeared in Playboy, August 1999.
© 1999 Playboy. Reproduced by permission.

See also: Free Speech, or Not? Part 2

Links: Free Expression News (site); The Real First Amendment? (site)

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