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Archive for the ‘first amendment is not absolute’ Category

The First Amendment is NOT absolute

Posted by oneofthree on September 20, 2007

Contrary to what a lot of people believe, the first amendment is not absolute.   I have pulled some federal caselaw from the Supreme Court to validate what I have posted on other sites, and within my own 

 US v. Albertini., 472 U.S. 675 (U.S. 1985)

” The First Amendment does not bar application of a neutral regulation that incidentally burdens speech merely because a party contends that allowing an exception in the particular case will not threaten important government interests. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 296-297, 104 S.Ct. 3065, 3070-3071, 82 L.Ed.2d 221 (1984) (“the validity of this regulation need not be judged solely by reference to the demonstration at hand”). Regulations that burden speech incidentally or control the *689 time, place, and manner of expression, see id., at 298-299, and n. 8, 104 S.Ct., at 3071-3072, and n. 8, must be evaluated in terms of their general effect. Nor are such regulations invalid simply because there is some imaginable alternative that might be less burdensome on speech. Id., at 299, 104 S.Ct., at 3072.

Or specifically in Florida, dealing with student’s First Amendment rights (this may or may not be directly on point, I’m not sure if the rally was held on school property or not…) M.C. v. State., 695 So.2d 477

We therefore first consider whether the statute is violative of M.C.’s First Amendment rights or is overbroad in the sense that it inhibits protected First Amendment rights of others. M.C. asserts that under this court’s decision in L.A.T. v. State,650 So.2d 214 (Fla. 3d DCA 1995), her loud verbal protests in the school’s office was constitutionally protected free speech under both the federal and Florida constitutions. We disagree and find M.C.’s reliance upon L.A.T. to be wholly misplaced.

In L.A.T.,this court reversed a juvenile’s adjudication of delinquency for disorderly conduct which had been predicated upon the juvenile’s screaming obscenities to police officers who were arresting the juvenile’s friend in a shopping center parking lot. This court found L.A.T.’s conduct to be specifically protected by the First Amendment where L.A.T.’s verbal protests neither “inflict[ed] injury or tend[ed] to incite an immediate breach of the peace.” 650 So.2d at 217 (quoting Lewis v. City of New Orleans, 415 U.S. 130, 133, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974)). While L.A.T.’s loud verbal protests of police actions may be constitutionally protected in the setting of an open public shopping center parking lot, those same protests may not enjoy such constitutional protection in other settings.

The nature of a place, ‘the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.’ Although a silent vigil may not unduly interfere with a public library, Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.

Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972)(footnotes omitted).

The obvious intent of section 877.13 is to ensure that the educational institutions and their administrators are free to perform their lawful functions without undue or unwarranted interference or disruption from others. We note early on that this statute does not seek to proscribe or regulate the content of any particular speech; rather it seeks to regulate expressive activity or conduct which significantly interferes with lawful educational functions. We do not believe that M.C.’s obstreperous protests in the school office were compatible with its normal functions.

*481 [5] Link to KeyCite Notes[6] Link to KeyCite Notes “While it is true that rights protected by the First Amendment are not magically lost when one steps upon school property, ‘neither teachers, students, nor anyone else has an absolute constitutional right to use all parts of a school building for unlimited expressive purposes.’ ” McCall v. State, 354 So.2d 869, 871 (Fla.1978) (quoting Connecticut State Federation of Teachers v. Board of Ed. Members, 538 F.2d 471, 480 (2d Cir.1976)). Contrary to M.C.’s assertion on appeal, she did not have an unlimited right to verbally protest her brother’s arrest while on school property. “Time, place, and manner regulations may be necessary to further significant governmental interests and are permitted.” McCall, 354 So.2d at 871. In assessing the reasonableness of the statute before us, we must determine whether it is narrowly tailored to further the state’s legitimate interest in having the educational institutions of this state function or operate smoothly without material disruption. Id. We find that is does. Our touchstone in making this determination is Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969) wherein the U.S. Supreme Court was called upon to harmonize or reconcile the First Amendment rights with the special characteristics of the school environment. In Tinker, the Court held unconstitutional a school regulation which prohibited students from wearing black armbands on school property in symbolic protest of the Vietnam War. While expressly acknowledging that expressive activity could be restricted in the school setting, the Court announced the test as being whether the forbidden conduct or expression “materially disrupts classwork or involves substantial disorder or invasion of the rights of others….” Id. at 513, 89 S.Ct. at 740. The Tinker Court found the wearing of armbands to be constitutionally protected because “[t]hey neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder.” Id. at 514, 89 S.Ct. at 740.

The clear factual distinction between the statute challenged in Tinker and section 877.13 is that the prohibited conduct in Tinker addressed pure controversial expression which was entirely divorced from actual or potential disruptive conduct by those participating in it. Id. at 505, 89 S.Ct. at 735-36. For that reason, the Tinker Court concluded that the students were entitled to comprehensive protection under the First Amendment. Id. at 505-06, 89 S.Ct. at 735-36

We conclude that section 877.13does pass constitutional muster and is not violative of the First Amendment under the Tinker test because its intended purpose is to prevent only that expression or conduct which materially disrupts or interferes with normal school functions or activities. Unlike the passive, expressive conduct of the students in Tinker, M.C.’s boisterous tirade brought the school office’s normal activities temporarily to a halt. Moreover, but for M.C.’s outburst, the students who joined her in the office would have presumably been involved with their other normal school activities at the time. M.C. thus interfered or disrupted with their normal school regimen as well. Under these circumstances, we cannot conclude that M.C.’s activities were entitled to comprehensive protection under the First Amendment.

And, if you are still reading, Resisting an Officer with Violence is a felony in most states, including Florida.  The statute 843.01 reads –

whomever unlawfully, knowingly and willfully resist, obstruct or oppose a law enforcement officer in the lawful execution of a legal duty, by offering violence or by doing violence is guilty of a 3rd degree felony.

You can commit Resisting with Violence without actual hitting or laying hands on an officer.  That’s why the statute says “by offering violence OR by doing violence.


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