The First Amendment Never Rests

  • In 2010, the First Amendment's right to free speech was tested by bizarre videos, the KKK, and faces a new test by a high school students
  • The cases show how, after 200 plus years, there's nothing "old" about the First Amendment


How do you think it would feel to be tugged at, pulled, twisted, bent, and fought over by people for over 200 years? That's how the First Amendment must feel. After 200 plus years, our right to freedom of speech is almost always in a legal tug-of-war.

2010 Sampler

In 2010, the First Amendment faced some interesting tests, with some yet to be decided.


Robert Stevens ran a business named “Dogs of Velvet and Steel" where he sold videos of dog fights. He was arrested and convicted under a federal law making it illegal to sell videos showing animal cruelty. He was sentenced to over three years in prison.

Stevens appealed, claiming the law violated his First Amendment free speech rights. The US Supreme Court agreed. The Court ruled the law was too broad in that it could be used against someone selling hunting or other videos that aren't necessarily "cruel."


The "Traditionalist American Knights of the Ku Klux Klan" (KKK) planned to hold a picnic at Fort Davidson in Missouri. It's the site of a Civil War battle where about 1,000 Confederate soldiers were killed. The KKK's application for a permit was denied, however, because, according to state officials, a flyer the KKK planned to hand out at the picnic showed a Confederate flag that was different than the flag that actually flew above the Fort.

The KKK filed a lawsuit claiming it was treated unfairly and in violation of its First Amendment rights. A federal judge agreed and ordered the state to allow the KKK to hold its picnic.

Shirts at School

In May 2010 (specifically May 5th, or Cinco de Mayo), a group of teenaged student wore shirts with the US Flags on them to Live Oak High School in California. School administrators ordered the students to remove their shirts or leave the school premises. The administrators feared fights would break out between the students and others who were celebrating Cinco de Mayo.

Three students and their parents filed a lawsuit in federal court against the school district and two school officials. The suit claims the students' First Amendment rights were violated. They want a court order barring the school district from banning pro-USA messages.

No Rest

As you can see, the First Amendment doesn't rest. And these cases are perfect examples of how the Amendment is supposed to work. Generally, we have the right to speak or express ourselves without having to worry about the government. A government has to prove it has a very good reason before it can regulate the content of your speech. And it can't over-regulate it, either.

So, there may be a good reason to outlaw videos and magazines that show animals being tortured or killed. But, as the Court noted in the Stevens case, the law needs to be narrowly tailored to that purpose so that other forms of legitimate, protected speech aren't covered by the law.

And, as a general rule, a government can't regulate speech even if society as whole finds the speech repulsive. Not all of us share the KKK's message and philosophy. But no matter how much we disagree with it, the KKK has a right to speak.

There are some exceptions, too. Some forms of speech have little or no First Amendment protections. For example, obscenity isn't protected by the First Amendment. Nor is speech that threatens the health and safety of others. Yelling "fire!" in a crowded movie theater when in fact there is no fire is a classic example unprotected speech.

Another good example is speech at school. As a general rule, a student's doesn't lose his right to free speech when he enters a school building. As long as the speech doesn't seriously disrupt the school's ability to educate or carry on its business. It's arguable the California High School was justified in ordering students to remove their flag shirts. The school has to prove the students did in fact create a serious disruption in the school, which may be hard to do. We'll have to wait and see if it can do that.

The take away of all this: Be tolerant. You don't have to agree with or like everything you see or hear. But, in most cases, the person saying it has a right to say it, and that right should be respected, even defended, by us all.

Questions for Your Attorney

  • Can a group be held legally liable if fighting breaks out between members of the group and protesters who disagree with the group's message?
  • Do I have to let my employees wear US Flag pins or buttons?
  • Can my son start a prayer group at his public high school?
  • Why aren't slander and libel protected by the First Amendment?
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