Freedom of speech consists of a hallmark of a democratic society. In the US, this fundamental freedom is guaranteed by the constitution in the First Amendment. It states that Congress shall not make any law that limits or violates this right. This right is also to be guaranteed and protected by states through the incorporation doctrine. This paper will focus on two speech-related laws, the third sections of 13SVA1026 and 13SVA1027, and analyze how freedom of speech is protected in those two laws using two abstract cases.
Limitations of Free Speech
The constitutional freedom of speech balances one person's rights with those of others and, as such, is open to a few set limitations. Limitations that restrict a speech's content are generally unconstitutional unless they pass the scrutiny test. A few types of speech are not accorded the recognition and protection in the First Amendment. These include speech intended to incite lawlessness, incite a breach of peace by causing fights, true threats that pose a danger to the hearer, showing child pornography, obscene speech, and tortious speech such as defamation and invasion of privacy (ACLU, n.d.). Hence not all speech qualifies for constitutional protection.
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There are time, place, and manner restrictions that are required to be content-neutral. Such, therefore, requires that the restriction would apply even if the accused or anyone else had been communicating any other type of message. These restrictions are only applicable if the conduct or speech being challenged is incompatible with the normal or ordinary practices of a specific place at a specific time (ACLU, n.d.). The Supreme Court established this doctrine by holding out the government could restrict speech under these circumstances since free speech is not an absolute right. Therefore, time and place are critical considerations. They should also serve a specific government purpose, be narrowly applied, and there must be other ample alternatives to communication channels.
Disorderly Conduct in Example 1
A charge under 13SVA1026 requires one’s actions to be deliberately calculated to cause public annoyance and inconvenience. The offense requires the use of obscene or abusive language or recklessly creating a public risk (Justia, n.d.). In the present case, the man is protesting against abortion. This is protected speech, and the fact that it is directed at those visiting the planned parenthood is not grounds for offense. He is neither disrupting those on their way by blocking traffic or drawing large crowds nor making noise for those indoors. Therefore, he is not creating inconvenience for anyone as required under this rule. He is also not cursing, insulting, or threatening anyone, and therefore his language is not offensive or obscene. The damnations and phrases he is using are the themes of his viewpoint. Therefore, they are not directed to offend anyone in particular but rather advocate his cause and draw attention to his message. The polite way he addresses the police is a further indication of his non-offensive conduct in general. He carries a sign which could be disputed to be obscene. For this part, the court will have to apply the Miller test established by the US Supreme Court in Miller v California (CLS, n.d.). For the conduct to be considered obscene, the three parts have to be satisfied. These are whether an average person applying societal standards upon viewing the whole work would find it obscene, whether the work offensively depicts excretory functions or describes sexual conduct and whether the work in its entirety lacks serious artistic, scientific, political, or literary value. The banner showing the fetus has scientific value in this case since it shows the extent of fetal development affected by abortion and is also not offensive to the ordinary person in a society where such scientific depictions are well explored and available in many books and the internet. Therefore, even if it is indeed an offensive depiction as laid in the second test or by the man's admission, the charge fails the test. Therefore, this man cannot be prosecuted under this law even if he causes public annoyance by using a banner that is offensive to some people.
Disorderly Conduct by Electronic Device or Telephone in Example 2
Part a) of 13SVA1027 makes it a crime to disturb or attempt to disturb by making repeated phone calls or other electronic communications whether or not conversation ensues, which violate the peace, quiet, or right to privacy of any person. Also, such calls when made with the intent to terrify, intimidate, harass, or annoy another constitute a crime under this section (Vermont General Assembly, n.d.). In the present case, a politician calls a homeowner who refuses to pick the phone, and upon calling again, he is notified not to call again. He calls several other times, and on the sixth call, when the owners pick up, he yells “BOO!” He then repeats this pattern for another hour, thereby forcing the homeowner to call the police, and he admits to the crime. This politician is indeed annoying the homeowner and disturbs the peace and quiet of the homeowner. The fact that he shouts into the phone when they pick up is another proof of the intent to annoy. This politician is guilty of disorderly conduct. His conduct is not free speech and falls under the time, manner, and place limitation. The Supreme Court opposed the view that free speech protects one's right to speak anything, anywhere, and anytime. Therefore, the politician is a nuisance to the homeowner and cannot rely on protected speech as a defense.
References
ACLU. (n.d.). Freedom of expression . American Civil Liberties Union. https://www.aclu.org/other/freedom-expression
CLS. (n.d.). Obscenity . LII / Legal Information Institute. https://www.law.cornell.edu/wex/obscenity
Justia. (n.d.). 2012 Vermont statutes: Title 13 crimes and criminal procedure: Chapter 19 breach of the peace; Disturbances: § 1026 disorderly conduct . Justia Law. https://law.justia.com/codes/vermont/2012/title13/chapter19/section1026/
Vermont General Assembly. (n.d.). Vermont laws . Vermont Legislature. https://legislature.vermont.gov/statutes/section/13/019/01027
