YOUR FIRST AMENDMENT RIGHTS

February 8, 2005

The following is a brief outline of matters affecting your time in public places expressing your religious views. Your rights to free speech and freedom of religion come from the United States Constitution’s First Amendment. This amendment is clear regarding the rights you have to express your opinions in public places.

The First Amendment reads: Amendment I 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.

There are several factors to consider when exercising your First Amendment rights. One consideration is the nature of the property where you are. Public property that is opened for expressive activities is known as a public forum. These public areas are parks, sidewalks, and streets. The Supreme Court of the United States (SCOTUS) has spoken regarding this type of property: Streets, sidewalks, and parks “wherever the title [] may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” Hague v. CIO, 307 U.S. 496 (1939)(emphasis added..)

Furthermore, religious speech is highly protected speech. According to SCOTUS: “Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression….Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet with the prince.” Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995)(emphasis added.).

The government cannot regulate the freedom of speech for the purpose of abridging or deny such speech. Again, SCOTUS has this to say regarding regulation: as rights to freedom of speech, press, and assembly are supremely precious, even such laws as those barring obstruction, or excessive noise are closely reviewed by the courts to ensure that “in the guise of regulation” the government does not seek to “abridge or deny” such rights. Hague v. CIO, 307 U.S. 496 (1939)(emphasis added.).

It is also not appropriate for government officials to stop leafleting on the basis of prevention of littering. If littering is a problem government officials must target the litterers, not the leafletters. Long ago the Supreme Court declared unconstitutional city ordinances which prohibit leafletting in order to prevent the problems associated with litter. Schneider v. State, 308 U.S. 147 (1939).

There is also a need to understand the difference between solicitation and distribution. Many government officials attempt to stop speech by classifying it as solicitation. SCOTUS considered this issue when they held that “one need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone’s hands, but one must listen, comprehend, decide and act in order to respond to solicitation.” U.S. v. Kokinda, 497 U.S. 720 (1990)(emphasis added).

If you are giving away information and not taking donations you are not soliciting or panhandling. In fact, the distribution of literature and free speech are neither solicitation.

Another false accusation is that you are loitering. “Loitering” is a legal term of art that means you have no legitimate purpose or business in a certain place. Any time you are in a public place to share the Gospel you cannot, by definition, be “loitering” because you have a legitimate purpose.

It is also not enough to stop your free speech that a person is annoyed by your presentation. “The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of anti-social behavior….It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed.” Coates v. Cincinnati, 402 U.S. 611 (1971)(emphasis added).

Government officials can put in place reasonable time, place, and manner restrictions. [T]he government’s ability to permissibly restrict expressive conduct is very limited: the government may enforce reasonable time, place, and manner regulations as long as the restrictions “are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication”…Additional restrictions such as an absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling government interest. United States v. Grace, 461 U.S. 171 (1983)(emphasis added).

In order to stop your speech in a public forum government officials must show that there is a clear and present danger of riot, disorder, or interference with traffic. SCOTUS stated that: The State may suppress protected speech in a public forum only when there is a “clear and present danger of riot, disorder, interference with traffic upon the streets, or other immediate threat to public safety, peace or order.” Cantwell v. Connecticut, 310 U.S. 296 (1941(emphasis added))

It is not enough to move to another location. It goes without saying that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Grayned v. City of Rockford, 408 U.S. 104 (1972).

You should not assume that a government official asking you to stop is giving you a legitimate order. Having said that, you should always show respect to officers, even when they are not showing respect. Be helpful when possible (there might be a location that works for both you and the police). Move to another location if it resolves the issue. Do not obstruct pedestrian or vehicular traffic. Do not allow a crowd gathering to hear you block the flow of traffic, either pedestrian or vehicular.

You should always work in groups of two or more and video or audio tape encounters with police when possible.

by International Human Rights Group