Eleanor Finch
Free speech is a fundamental human right that is protected by both the US Constitution and the California Constitution. The First Amendment of the US Constitution guarantees freedom of expression, allowing individuals to express their opinions, even if they are unpopular. Similarly, the California Constitution goes beyond this by explicitly stating that individuals have the right to freely speak, write, and publish their sentiments on all subjects. This right is protected in various contexts, including on college campuses and in designated public forums. However, it is important to note that there are certain restrictions to free speech, such as libel, slander, and speech that incites violence or law-breaking. The interpretation and protection of free speech rights under these constitutions have been the subject of numerous court cases, with California's constitution being recognised as one of the nation's most influential in terms of protecting individual liberties and rights.
| Characteristics | Values |
|---|---|
| Right to free expression | Protected by the First Amendment to the US Constitution and Article 1 § 2(a) of the California Constitution |
| Right to privacy | Protected by Article I, Section 1 of the California Constitution |
| Right to free speech on private property | Does not exist unless you own or lease the property, or have the owner's permission; however, this does not apply to shopping malls, where free speech is protected |
| Right to free speech on public property | Protected by the First Amendment; once the government treats a public venue as available for non-commercial speech, it must be made available to all |
| Right to free speech in educational settings | Students may not make obscene speeches or advocate illegal drug use at school-sponsored events, but they do not shed their constitutional rights at the schoolhouse gate |
| Right to free speech in non-public forums | Reasonable prohibitions and restrictions may be upheld, as long as they are objectively applied and do not favor one side of an issue over the other |
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What You'll Learn
- Free speech in California is protected by the state constitution and the First Amendment
- The right to free speech in California includes the right to privacy
- Free speech is allowed on private property if permission is granted by the owner
- Free speech does not extend to libel, slander, obscenity, or speech inciting violence
- The California Supreme Court has found California's free speech clause to be more protective than federal law
Free speech in California is protected by the state constitution and the First Amendment
> Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
The First Amendment of the US Constitution guarantees freedom of expression, and the California Constitution further confirms this freedom for individuals and the press. The California Constitution also protects free speech rights in privately owned shopping centres, as long as the activity does not interfere with the primary commercial purpose of the mall. This was established in the seminal case of Robins v. Pruneyard Shopping Center, where it was decided that state constitutions could be more protective of individual rights than the federal Constitution.
California's constitution is one of the most influential in the nation, protecting direct democracy, limiting taxation, and securing individual liberty. The state Supreme Court has found California's free speech clause to be more protective than its federal counterpart, partly due to textual differences. The California Constitution also covers topics not addressed by the federal Constitution, such as water rights, direct democracy, and labour relations.
While free speech is protected, there are some restrictions. The First Amendment does not give the right to engage in free speech activities on private property unless permission has been granted by the owner. The police and other government officials may also place certain narrow restrictions on the exercise of speech rights, for example, in the case of libel, slander, obscenity, true threats, or speech that incites imminent violence or law-breaking.
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The right to free speech in California includes the right to privacy
The First Amendment to the United States Constitution and the California Constitution both protect the right to free expression. The California Constitution explicitly states that:
> Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
However, this right does not extend to libel, slander, obscenity, "true threats", or speech that incites imminent violence or law-breaking. The government may also place certain narrow restrictions on the exercise of speech rights. For example, the use of amplification devices is allowed as long as the intent is to communicate a message and not to disturb the peace.
The right to free speech in California also includes the right to privacy. In 1972, California became the first US state to include an explicit right to privacy in its constitution. This right has helped protect citizens' homes, families, bodies, thoughts, and associations from invasion by government and corporate interests. For instance, in the case of Nguon v. Wolf, it was ruled that students have a protected privacy right under the California Constitution, and that they do not waive their reasonable expectation of privacy simply because they are out in one context and not another.
The right to privacy also extends to protection from police spying and intelligence-gathering activities, which may violate constitutional guarantees of freedom of speech or privacy if they are targeting groups or individuals engaged in First Amendment activity without any connection to suspected criminal activity.
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Free speech is allowed on private property if permission is granted by the owner
The First Amendment of the United States Constitution and the California Constitution protect citizens' right to free expression. However, this right is generally restricted to public spaces, and does not extend to private property unless you own or lease the property, or have the owner's permission.
The First Amendment does not grant citizens the right to engage in free speech activities on private property without the owner's consent. Private property owners can set rules for speech on their property, and these rules must be adhered to. However, shopping malls are an exception to this rule in California. California courts recognise large malls as the modern-day "functional equivalent" of a traditional public gathering place, inviting the public to meet, congregate, and engage in activities typical of a public forum. Therefore, the California Constitution protects free speech rights in privately owned shopping centres, as long as the activity does not interfere with the primary commercial purpose of the mall.
Similarly, when it comes to photography and video recording, individuals have the right to photograph anything in plain view when lawfully present in a public space, including federal buildings and the police. However, on private property, the owner may set rules related to photography and videography. The police cannot confiscate or view photographs or videos without a warrant and may only order citizens to cease activities that interfere with legitimate law enforcement operations.
It is important to note that free speech rights also extend to counterprotesters, and police must treat protesters and counterprotesters equally. They are permitted to keep antagonistic groups separated while allowing them to remain within sight and hearing of each other. Additionally, individuals can canvass door-to-door in residential areas unless the homeowner has put up a "no solicitors" sign.
In conclusion, while the First Amendment and California Constitution protect free speech rights, these rights are generally limited to public spaces. On private property, free speech is permitted if the owner grants permission, with certain exceptions, such as in the case of shopping malls in California.
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Free speech does not extend to libel, slander, obscenity, or speech inciting violence
The First Amendment of the US Constitution and Article 1, Section 2 of the California Constitution protect an individual's right to free expression. However, this right is not absolute and does not extend to certain forms of speech that cause harm or pose a threat to public safety. Libel and slander, which fall under the legal concept of defamation, are not protected by the First Amendment. Defamation involves disseminating false statements that harm an individual's reputation and can be made in written (libel) or spoken (slander) form. Courts must balance protecting free speech while providing redress from reputational harm.
Obscenity is another category of speech that is not protected by the First Amendment. In Miller v. California (1973), the Supreme Court outlined a three-pronged test to determine if material is legally obscene: whether it appeals to the "prurient interest", depicts sexual conduct in a patently offensive way, and lacks literary, artistic, political, or scientific value. If material meets all three criteria, it does not receive First Amendment protection, and the government may regulate its transmission.
Additionally, speech that incites imminent violence or law-breaking is not protected by the First Amendment. While mere advocacy of law-breaking or violence is protected speech, it crosses the line when it is intended to and likely to provoke immediate unlawful action. In Virginia v. Black (2003), the Supreme Court defined "true threats" as statements where the speaker expresses an intent to commit violence, even if they do not intend to carry out the threat.
It is important to note that the California Constitution provides further confirmation of freedom of speech for individuals and the press. This includes protection for free speech rights in privately owned shopping centers, as long as the activity does not interfere with the primary commercial purpose of the mall. Designated public forums, such as public auditoriums and plazas in front of public buildings, also receive the same protection as traditional forums. However, non-public forums like military bases and airport terminals may uphold reasonable prohibitions and restrictions on speech.
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The California Supreme Court has found California's free speech clause to be more protective than federal law
The First Amendment of the US Constitution protects the right to free expression. This includes the right to express an opinion, even if it is unpopular. However, this right does not extend to libel, slander, obscenity, "true threats", or speech that incites imminent violence or law-breaking. The First Amendment also does not give individuals the right to engage in free speech activities on private property unless they own or lease the property, or have permission from the owner.
The California Constitution also protects the right to free expression, for both individuals and the press. The California Constitution goes further than the First Amendment by confirming freedom of speech for both individuals and the press. In California, free speech rights are also protected in privately-owned shopping centres, as long as the activity does not interfere with the primary commercial purpose of the mall.
In addition, California courts sometimes use a different test than the Federal Forum Analysis to evaluate limits on speech on public property. This test, called the "basic incompatibility" test, prohibits expressive activity on government property only if the speech is incompatible with the normal activity of the venue.
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Frequently asked questions
The First Amendment to the United States Constitution protects your right to free expression. This includes the right to express your opinion, even if it is unpopular, and to criticize the government without fear of retaliation. However, this right does not extend to libel, slander, obscenity, true threats, or speech that incites imminent violence or law-breaking.
The California Constitution also protects the right to free speech and freedom of the press. California courts have interpreted the state's free speech clause to be more protective than its federal counterpart, particularly in regards to equal protection. For example, California's constitution protects free speech in privately owned shopping centers, as long as the activity does not interfere with the primary commercial purpose of the mall.
The right to free speech in the US includes the right to not salute the flag, wear black armbands to school to protest a war, and burn the flag in protest. Students do not lose their right to free speech in school settings.
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