Home > The Study > First Amendment > Strange but True facts on the First Amendment

Strange but True facts on the First Amendment

By Curt Hazlett
Special to J-Ideas  

(Editor's note: The First Amendment has been the subject of many controversies, some amusing, some strange - but all true. Here's a rundown.)  

Cleveland 1, protesters 0

When it comes to expressing an opinion, you need to be careful not to get burned.

On the opening day of the 1998 baseball season, a group of protesters burned a three-foot-tall model of the Cleveland Indians' mascot outside the ballpark. They said they were expressing their belief that using the mascot was racist, and they believed the First Amendment gave them that right. The police who arrested them didn't see it that way.

The Ohio Supreme Court ruled that the protesters did have a right to burn the model, but it agreed with the police that the arrests were justified because the fire threatened the public's safety.

Burning an effigy - an object that bears someone's likeness - is by itself protected by the First Amendment, the court said, but when it's burned in a place where people could get hurt, the government has the right to stop the protest.

The point? Free speech is protected, but not when it might threaten someone's safety.

The freedom to be annoying

In Pierre, South Dakota, George Ferebee and his neighbor Steve Hobart just can't seem to get along. In fact, Ferebee complained about Hobart so many times over the course of 20 years that Hobart finally went to court to stop him. A judge sympathized and issued an order that Ferebee couldn't file any more complaints with the government unless the judge first said it was okay.

But the South Dakota Supreme Court had a complaint of its own about that ruling, which it said violated the First Amendment's guarantee of free speech and the right to petition government. No court, it said, can exercise what's called prior restraint - the act of stopping someone from expressing an opinion ahead of time.

Hard as it is for some people to understand, the First Amendment protects even obnoxious speech.

The Ku Klux Klan klean-up krew

Speaking of obnoxious, the Ku Klux Klan hate group wanted to join Missouri's volunteer litter-cleanup program - most likely not because it believes in keeping the environment clean, but because the volunteers get to put up highway road signs with their names on them.

For Missouri officials, that was too much, and they rejected the KKK's application to join the Adopt-a-Highway program. They said the program wasn't open to groups that discriminate according to race or to those with a history of violence. Besides, they said, putting up KKK signs along the road might cause unhappy drivers to toss out even more trash.

But the Klan cried foul. Its lawyers claimed that the group's right to participate was a matter of free speech and was protected by the First Amendment, and the courts agreed.

So the Klan is free to start cleaning up roads. That doesn't mean the court likes what the KKK has to say - just that when it comes to the law, everyone, even hooded hate-mongers, should be treated equally regardless of their beliefs.

Note to KKK: Win some, lose some

The Klan had less success in New York, where it sued to overturn an 1845 state law that prohibits people from wearing masks at public gatherings.

The Klan wanted to be able to hold a public rally wearing face masks, its traditional method of keeping members' identities secret. But New York courts ruled that the law didn't prevent anyone from expressing their opinions.

Oddly enough, the Klan was supported by the American Civil Liberties Union, which told the judges that other people had been allowed to demonstrate with masks before without facing arrest. "Even the most reviled members of our society are entitled to the fair and evenhanded application of the law," the ACLU said.

In rejecting the Klan's argument, an appeals court judge wrote that "while the First Amendment protects the rights of citizens to express their viewpoints, however unpopular, it does not guarantee ideal conditions for doing so." In other words, the law allows hate-filled speech, but it doesn't have to make it easier for people to spew it.

The right to be negative

Your grandmother probably says it all the time: "If you can't say something nice, don't say anything at all." It was advice that an Oklahoma school board thought it should follow.

School officials in Mounds, Oklahoma, adopted a rule that people attending its meetings could only say positive things - no complaints, no whining. "You could say all the positive things you wanted," noted one local attorney. "Once you said something negative, it was 'sit down and shut up or we'll call the police.'"

People who were treated that way didn't like it, especially when they wanted to make valid points about how the schools were being run. So they sued, and a federal judge agreed with them that the government was using its power to restrict free speech.

Your grandmother might not agree - unless she was the one trying to complain.

Sit down and shut up!

Another school board, this one in Mobile, Alabama, discovered the hard way that a government agency like itself can't silence people just because they don't like what they're saying.

A third-grade teacher took the microphone at a board meeting and began to speak about the grueling workloads her school's teachers carried. As she spoke, the 200 or so other teachers in the room cheered and clapped. That's when the school board president told the teacher, in effect, to sit down and shut up.

The teacher took the board to court, and a local judge sided with her, saying that public comments can't be cut short just because people in the room clapped and cheered. And to allow her to make her point, the judge ordered the school board to schedule another meeting and allow her to speak - this time without interruption.

A predictable outcome

Is fortune-telling free speech, or is it fraudulent baloney that ought to be stopped?

That was the question a judge had to decide in Tennessee after the city of Dickson told a tarot-card reader that she couldn't charge a fee for telling fortunes. City officials believed they were protecting people from being ripped off, but lawyers for the woman thought they had gone too far.

A federal judge agreed with the fortune-teller, ruling that "predictions are only fraudulent if the speaker knows of facts that will prevent a prediction from coming true." He ruled that the First Amendment allows the woman to say what she wants, without the government stopping her.

The fortune-teller no longer does that line of work, but she was happy about the judge's ruling. "The Constitution of the United States was written for freedom of speech, freedom of expression, freedom of religion," she said. "I think people should be able to express themselves and believe how they want without having other people try to control them."

They should have seen it coming.

No right to lie

The First Amendment protects many forms of expression, but it doesn't protect speech that is intended to defraud others.

A tax protester named Irwin Schiff learned that the hard way. Schiff wrote a book in which he claimed that paying federal income taxes is voluntary - big news to most people. Of course, that isn't true, but that didn't stop Schiff from trying to sell the book.

A federal court told Schiff he couldn't do that, because the false claim was "fraudulent commercial speech" and wasn't protected. The First Amendment, the court concluded,
"does not shield fraud."

	This web site is produced by J-IDEAS
	J-IDEAS is funded in part by the John S. and James  L. Knight Foundation's High School Initiative and Ball State University.		J-IDEAS Department ofJournalism Ball State University, Muncie, Ind. 47306 (765) 285-8923 Terms of Service