Criminal Law Advice
Attorney Lauren Thomas from Sinsheimer & Associates provides her weekly Criminal Law Advice.
Freedom of speech doesn’t mean you can say anything you want. Some speech can land you in jail.
In honor of last Saturday’s “Rally to Restore Sanity and/or Fear” hosted in Washington D.C. by Comedy Central’s Jon Stewart and Stephen Colbert I thought I would focus on Freedom of Speech. The First Amendment to the United States Constitution protects American’s right to freedom of speech. This amendment was very important to the founding fathers because people were being jailed for speaking out against the British government. But this amendment does not mean you have the right to say anything you want whenever you want—you can still be jailed just for speech.
First I’m going to explain a little about speech. Speech, in a legal sense, is not just words. Pictures, gestures and actions also count as speech because they can be used to communicate. For example, in the movie People v. Larry Flynn, in one scene the character of Larry Flynn wore an American flag as a diaper to court. He certainly intended that to send a message.
So, what kinds of speech can land you in jail….
As a country we have always tried in one way or another to legislate morality. What is obscene changes over time because it is based on current community standards. This area is where artists can frequently be the ones testing limits of the law. Is the photograph of a naked 4 year old child art, a cute family photo, or pornography? Is the photo of an erect man’s penis next to a champagne glass art, advertising or pornography? Some interesting cases have explored some of these questions. One artist who is famous for pushing this envelop was Robert Mapplethorpe.
It is illegal to threaten to hurt a person or a person’s property if the person threatened actually believes that you can and will follow through. This one is tough because, in reality, we are punishing someone for what might happen but has not yet happened and may never happen. However, it does allow us to do something real to prevent crime.
This is also known as “fighting words” and any language that could create “imminent lawlessness.” This is where yelling “Fire!” in a crowded theater falls. This is also where you could get in trouble if you are harassing and egging someone else on until a full out meyley starts.
As much as you might want to, you can’t spread mean rumors around about the people you don’t like. If you start spreading rumors about a person and it begins to affect their standing in the community or their ability to get work, could lead to legal trouble for you. However, truth is always a defense. If what you are saying about a person is the truth, then you are welcome to say it to whoever you want and as much as you want no matter how it affects their life.
Of all of the speech that can give you a problem it is this one. Negative and threatening speech that involves someone’s race, religion, gender, ethnicity or sexual orientation is now a factor that takes a crime and the penalties up a notch. In some cases it can even land you in Federal Court. Federal laws are usually a lot stricter and the penalties are almost always much harsher. What this means is that there is no law against using racial slurs; but if you use racial slurs while you are beating and kicking someone this could be an aggravating factor that affects sentencing.
The type of speech listed is not meant to be an exclusive list. There are a number of different areas that are also affected like advertising and politics.
At a minimum, the thing to remember about speech and the law is that honesty is usually a safe bet; and if you have to say something, saying something nice will likely keep you out of hot water.