No. Sometimes government officials can require payment of a small fee for the exercise of First Amendment rights, such as for a permit for a large group to march in a public park or gather in the public streets for a parade. However, the case is much different for a yard sign, because there are no city expenses to defray or offset. Furthermore, the U.S. Supreme Court has been vigilant in prohibiting taxes based on the content of speech. In City of Ladue v. Gilleo, the U.S. Supreme Court specifically pointed out that yard or window signs are “an unusually cheap or convenient form of communication” and that “especially for persons of modest means … a yard or window sign may have no practical substitute.”

No, the First Amendment, if anything, provides greater protection for political speech than commercial speech. Political speech is said to represent the core values that the First Amendment was designed to protect. The Supreme Court has created what has come to be known as the commercial-speech doctrine, saying that commercial speech represents a subordinate place in First Amendment jurisprudence. For example, content-based restrictions on political speech are subject to the highest form of judicial review, called strict scrutiny. On the other hand, content-based restrictions on commercial speech are subject to a lesser form of review, called intermediate scrutiny. What this legalese means, in essence, is that yard signs on political topics are entitled to at least as much (and probably more) protection as commercial signs.

Probably. A 10-minute limitation likely would qualify as a reasonable time, place and manner restriction on speech. It is a content-neutral provision that on its face does not discriminate against certain types of speech. The question would be whether the government was applying the time limitation evenhandedly. If the government imposed the limitations on speakers with whose views it disagreed, but waived the requirement for those with whom it agreed, there would be a constitutional problem. For example, the 6th U.S. Circuit Court of Appeals held in 1994 that the president of a school board was allowed to restrict the amount of time given for comments because of high attendance at a particular meeting. The court held that the school board’s policy at this meeting, which limited the public comment session to 45 minutes and each speaker to five minutes, “was a permissible content-neutral restriction on the time, manner, and place of the plaintiffs’ speech and did not violate the plaintiffs’ First Amendment rights. Where regulation of speech is content neutral, is narrowly tailored to serve a significant governmental interest, and leaves open ample alternative avenues for communication, it is constitutionally valid. … [I]n this case, the regulation affected the timing of the speech, not its content.” Hansen v. Westerville City School District Board of Education, 1994 U.S. App. LEXIS 31576.

Yes. Such associations are private entities not covered by the First Amendment. Sometimes the contracts residents sign in order to live in the condo or neighborhood specify restrictions or prohibitions on such displays.

No. The danger would be that the government was silencing a person because it disagreed with the content of that person’s speech. The government can violate the First Amendment by suppressing the speech of someone based on the speaker’s identity. The fear is that the government could camouflage viewpoint discrimination in such a situation.

Such a regulation would probably be OK as long as the government applied it evenhandedly. On its face, this requirement appears reasonable and does not discriminate against speech on the basis of content or viewpoint.

No. A federal district court in California, for instance, ruled that such content-based restrictions are unconstitutional, invalidating a school district bylaw that prohibited people at school board meetings from criticizing school district employees. During a school board meeting, the plaintiff had attempted to address the job qualifications and performance of the district superintendent. When the plaintiff mentioned the superintendent’s qualifications, the board president interrupted her and stated that the plaintiff “was moving into a personnel issue.” The president told the plaintiff that, pursuant to a bylaw, her criticisms could not be made in a public board meeting. The court reasoned that the bylaw’s prohibition on any criticism, “complaint or charge against an employee of the District” violated the plaintiff’s First Amendment rights. Leventhal v. Vista Unified School District, 973 F. Supp. 951 (S.D. Cal. 1997). Similarly, a federal district court in Virginia struck down a school board bylaw that prohibited personal attacks during public comments at meetings. Bach v. School Board of the City of Virginia Beach, 139 F.Supp. 2d 738 (E.D. Va. 2001).

The California Supreme Court addressed this issue in 1970 in the case of In Re Kay, 1 Cal.3d 930. “Audience activities, such as heckling, interrupting, harsh questioning, and booing, even though they may be impolite and discourteous, can nonetheless advance the goals of the First Amendment. For many citizens such participation in public meetings, whether supportive or critical of the speaker, may constitute the only manner in which they can express their views to a large number of people.”

The court continued: “‘Disturbances’ of meetings arise in a wide variety of forms; the modern techniques of the ‘politics of peaceful confrontation’ frequently result in a clash of ideological expressions which may, in many senses, ‘disturb’ a meeting. Without doubt petitioners’ conduct in the instant case, including clapping … was ‘closely akin to “pure speech”’” (quoting Tinker v. Des Moines Independent Community School District).

It depends. Though it is open to the public, a shopping-mall parking lot is the private property of the mall owners and they may decide whether to allow fliers.

States take different approaches to allocating time for public comments at public meetings and courts across the country have provided some guidance on this issue. Most states do not expressly require, via statutes or legal precedent, time for public participation in public meetings, although it has become a customary practice to allow individuals to speak. Often in the case of school board meetings, members of the public are required to provide notice, or to register, with the board well before the meeting to be allowed to make a comment.

The Florida Supreme Court has recognized that public comments in open meetings are important in maintaining an open government. The court has stated that government bodies “should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.” Board of Public Instruction of Broward County v. Doan, 224 So. 2d 693,699 (Fla. 1969). Furthermore, the Florida Code expressly provides that members of the public have a right to participate in local government meetings regarding land use, but the comment time can be regulated by the decision-making body. Fla. Stat. § 286.0115(2)(b).

California has a statute that requires public bodies to allow for public comments at meetings. Cal. Gov. Code § 54954.3(a). A California case provides legal precedent for when a public meeting is continued to a later date for some reason. In Chaffee v. San Francisco Library Commission, 115 Cal. Rptr. 3d 336 (Cal. App. 2004), a public meeting was continued to a later date after the meeting body lost its quorum to continue. A California citizen bought suit alleging that the state sunshine laws (or open-meeting laws) required public comments at every meeting of a public body, not just a comment section on each agenda. The California Court of Appeals in the 1st Appellate District held in favor of the public body by holding that public comments are mandated only once per agenda, not once per body meeting. Allowing for public comments at each meeting regarding the same meeting would cause a “surplusage,” the court said.

Some states, such as Wyoming, statutorily make it a right of a public body to prevent willful disruption of a meeting by removing anyone causing a disruption or by taking a recess. Wyo. Stat. § 16-4-406.

If a city has an ordinance that is 1) content-neutral, 2) narrowly tailored to serve a significant government interest, and 3) leaves open ample alternative channels of communication, it could constitutionally restrict the placement of fliers on windshields.

Yes.

The U.S. Supreme Court, in its 2003 ruling Virginia v. Black, said true threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat.” The Court also explained that “[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

Before Black, the 1969 ruling Watts v. United States was the controlling case for true threats. In Watts, the Supreme Court reversed a lower court that found a student’s statement at a political rally was a true threat. The high court looked at three elements of the statement to determine that it was merely political hyperbole and not a true threat. The justices looked at 1) the context of the statement, 2) the expressly conditional nature of the statement, and 3) and the reaction of the listeners. These factors are still considered by the courts.

The lower courts have handled true-threat cases in different ways. Most courts have adopted something called the “objective test.” Basically, it “focuses on whether a reasonable person would interpret the purported threat as a serious expression of an intent to cause a present or future harm” (United States v. Dinwiddie 76 F.3d 913 (8th Cir. 1996).) One problem with this test is that different circuits use different “actors” as the reasonable person. Some use the reasonable-speaker test and ask “whether a reasonable person standing in the shoes of the speaker would foresee that the recipient would perceive the statement as a threat.” Other circuits use a reasonable-recipient test where the question is, would a reasonable person in the recipient’s place view the statement as a threat. The last objective test is the reasonable-person test where it is asked, would a reasonable third party, hearing the statement, interpret it as a threat.

In addition, some circuits have also tacked on a “subjective” element to the test where courts seek to determine the intent of the speaker. Courts will try to determine whether the speaker intended his statement to be a threat, regardless of intent to carry out the threat. An additional subjective element, trying to determine whether the speaker intended to actually carry out the threat, has fallen out of use and is no longer considered in true-threat cases.

In Dinwiddie, the 8th U.S. Circuit Court of Appeals developed a list of factors to determine if a statement would be interpreted as a true threat. The 8th Circuit wrote, “the reaction of the recipient of the threat and of other listeners, whether the threat was conditional, whether the threat was communicated directly to its victim, whether the maker of the threat had made similar statements to the victim in the past, and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence. This list is not exhaustive, and the presence or absence of any one of its elements need not be dispositive.”

Yes. In Watts v. United States (1969,) the U.S. Supreme Court noted that “the statute under which petitioner was convicted (18 U. S. C. S. § 871) is constitutional on its face. The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence.”

There are some special considerations when looking at true threats and student speech. A school must maintain a safe and effective learning environment; to this end the school administration “need not tolerate student speech that is inconsistent with its ‘basic educational mission,’ even though the government could not censor similar speech outside the school” (Hazelwood School District v. Kuhlmeier (1988).) This means that school officials may regulate student speech when they can demonstrate that such speech would “substantially interfere with the work of the school or impinge upon the rights of other students” (Tinker v. Des Moines Independent Community School District (1969).)

The bottom line is student speech is subject to more regulation than adult speech. In addition many schools implemented “zero-tolerance” policies after the Columbine attack. These policies allow the schools to quickly suspend or expel students found to have violated the law or school policies. These factors change the analysis for true threats when applied to student speech. There is one other element that courts look at where student speech is concerned: did the speech occur on or off campus? Courts have ruled that speech that takes place off-campus is entitled to more First Amendment protection, while speech that occurs on-campus can be regulated (Porter v. Ascension Parish School Board, 393 F.3d 608, 613 (5th Cir. 2004).)

In 1969, the U.S. Supreme Court ruled in Brandenburg v. Ohio that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

In its 1973 ruling Hess v. Indiana, the Supreme Court clarified what constitutes imminent lawless action. The Supreme Court said that the speech involved in Hess, “was not directed to any person or group of persons” therefore “it cannot be said that [the speaker] was advocating, in the normal sense, any action.” The Court also said that “since there was no evidence, or rational inference from the import of the language, that [the speaker’s] words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a ‘tendency to lead to violence.’”

The Supreme Court has said that for speech to lose First Amendment protection, it must be directed at a specific person or group and it must be a direct call to commit immediate lawless action. The time element is critical. The Court wrote that “advocacy of illegal action at some indefinite future time … is not sufficient to permit the State to punish Hess' speech.” In addition, there must be an expectation that the speech will in fact lead to lawless action.

They may attend a protest as long as their superior has not issued a direct order telling them not to. However, they must be off-duty, attend only as spectators and not be in uniform.

For the most part, no. Military personnel are allowed, and encouraged, to participate in the political process, but they are forbidden from participating in “partisan” political activity. Partisan political activity is defined by the Defense Department as “Activity supporting or relating to candidates representing, or issues specifically identified with, national or State political parties and associated or ancillary organizations or clubs.”

The military can limit news-media access based on reasonable time, place, and manner restrictions. In addition, a federal appeals court has held that the press does not have a constitutional right to travel with the military during combat operations.

Military personnel are allowed to write to their elected representatives without sending the communication through official channels. They also may write letters to the editor expressing their political views and they may identify themselves as member of the military. They must, however, make clear that the opinions expressed are their own and are not those of their branch of service.

Members of the Armed Forces can circulate and collect signatures to petition their elected representatives. This must be done while off duty, as a private citizen and not as a representative of the Armed Forces. In addition, military personnel may not circulate petitions on a military base unless they have the base commander’s permission.

You will find the FAQs within the downloadable Balancing Act: Public Employees and Free Speech document in this section.

A vanity plate refers to a license plate with a unique message requested by a particular individual. Vanity plates differ from individual to individual. Specialty plates, on the other hand, refer to plates requested by an organization that can then be purchased by individuals. Many states have organizational schemes established for specialty license plates. They refer to various environmental, political, social and other causes. In many states, specific laws must be passed before a specialty license plate can be issued.

Good question. Government officials argue that license plates are government speech since they issue the plates. They argue this because under the government speech doctrine, the government can selectively choose its own speech and messages. However, if the speech is classified as private speech, then the government generally may not restrict speech based on the viewpoint expressed on the plate. Many courts and commentators have tended to reach the legal conclusion that license plates are more properly analyzed as private, not government, speech. However, the question has not been settled definitively.

The answer is less than clear. The government certainly has an obligation and a legal duty not to discriminate against persons based on race. But if a plate is truly private speech, the question becomes whether the state can prevent an individual from requesting a racially insensitive message. One federal appeals court ruled that the state of Missouri violated the First Amendment when it refused to issue the vanity plate “ARYAN-1.” According to the court, the state’s department of motor vehicles “may not censor a license plate because its message might make people angry.” Likewise, a few courts have determined that a state may not prohibit Confederate flag logos when it allows other specialty license plates to contain logos. However, a state could advance a compelling interest in prohibiting the issuance of license plates that contain explicit racial slurs.

The U.S. Supreme Court in its leading case on the subject, Chaplinsky v. New Hampshire, defined fighting words as those words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The court later used the terms “epithets” and “personal abuse” in discussing fighting words.

No, it doesn’t — at least for many courts. For example, in a later decision, Cohen v. California, the Supreme Court determined that the words on a jacket “Fuck the Draft” worn in a courthouse did not constitute fighting words. Other courts have determined that curse words did not constitute fighting words when they were not accompanied by threatening behavior or other similar conduct. Some courts, however, have determined that curse words are fighting words. Basically, the lower courts are not uniform on this issue.

It is important because fighting words is a category of unprotected speech in First Amendment jurisprudence. The issue often arises when an individual is charged with violating a disorderly conduct or breach-of-the-peace statute or ordinance. The individual may argue that the statute is too broad and applies to critical, offensive speech that should retain First Amendment protection. Many state supreme courts have upheld such statutes by interpreting them to apply only to fighting words. This is what is known in legal terms as a limiting construction.

Bumper stickers are a form of protected speech because they convey messages on an endless variety of topics. In fact, many bumper stickers contain political speech, the core type of speech protected by the First Amendment. Protected speech can take many forms, from black armbands to buttons to decals to flags to other forms of nonverbal expression.

Yes, the First Amendment protects even a profane bumper sticker unless the sticker meets the legal definition of obscenity or constitutes fighting words. The First Amendment protects a great deal of expression that many people find offensive. However, it would be a rare case for a bumper sticker to be considered legally obscene or fighting words. It should be noted that a few states do have laws that prohibit obscene and patently offensive bumper stickers.

There are special bodies of case law in First Amendment jurisprudence for public employees and public school students. Both public employees and public school students retain a measure of free-expression rights at work and school. That’s because public employers are government officials who must respect the protections of the Bill of Rights. However, the courts often give deference to public employers and particularly public school officials in First Amendment cases.

Cabaret laws were put into effect in 1926 to combat multiracial jazz clubs in Harlem. By law a cabaret is defined as "any room, place or space in the city in which any musical entertainment, singing, dancing or other form of amusement is permitted in connection with ... selling to the public food or drink, except eating or drinking places, which provide incidental musical entertainment, without dancing, either by mechanical devices, or by not more than three persons." In places where cabaret laws are in effect, bars and nightclubs need to obtain a permit for dancing just as one would obtain a permit for alcohol.

In 1989 the Supreme Court removed social dancing from First Amendment protection in the case City of Dallas v. Stanglin, stating that social dancing is not defined as either association or as expression.

What you’ve heard is right — if you joke about having a weapon or a bomb at the airport or on an airplane, you can be prosecuted. Moreover, no court has ever held that such laws violate the First Amendment.

These laws don’t punish you for joking about a bomb, exactly. They punish you for threatening to do something against the law or for saying that you know somebody who is going to do something against the law, when you really don’t. Some courts, however, have ruled that “just joking” about a bomb will result in only a light penalty, while making a serious, though false, bomb threat will result in a much heavier one.

Regardless, just as you shouldn’t yell “Fire!” in a crowded theater that is not ablaze or make a false report to the police, you definitely shouldn’t even joke about bombs or weapons when you’re at the airport or aboard an airplane.

There is no clear-cut answer to this question. There is no U.S. Supreme Court case specifically addressing whether civilians can be penalized for wearing law enforcement apparel. However, the Court has dealt with the issue of unauthorized wearing of military uniforms. In the case Schacht v. United States, 398 U.S. 58 (1970), an actor in a peaceful antiwar demonstration was arrested and convicted under a federal statute which makes it a crime for any person to wear the uniform, or a distinctive part of the uniform, of any of the U.S. armed forces without authority. The Court acknowledged that, when considered on its own, the law was valid and that the government could regulate who could wear such uniforms. However, the conviction was overturned because another statute authorized a person to wear a military uniform when portraying a member of the military in a theatrical or motion-picture production only if the portrayal did not tend to discredit the armed forces. This was considered a content-based restriction on speech, which is unconstitutional.

The next place to look for an answer to this question would be the lower courts. For instance, in 1996, the Arizona Court of Appeals upheld a Phoenix city ordinance which prohibited the unauthorized use of a public officer’s insignia on clothing. In Arizona v. McLamb, 932 P. 2d 266, the appeals court found the ordinance to be content-neutral, in that it “neither attempts to regulate or restrict the content of the defendant’s expression, nor is it directed at the communicative aspect of the defendant’s conduct.” The court also found that the city of Phoenix had a legitimate interest in regulating the use of its official insignia.

However, in 2005, the Florida Supreme Court ruled unconstitutional a state law that made it illegal for any unauthorized “individual to exhibit, wear, or display any indicia of authority … or to display in any manner or combination the word or words ‘police,’ ‘patrolman,’ [etc.] … which could deceive a reasonable person into believing that such item is authorized … .” In its decision in Sult v. State of Florida, the court ruled that the law was “unconstitutionally overbroad,” saying that “with no specific intent-to-deceive element, the [law] extends its prohibitions to innocent wearing and displaying of specified words.”

The wording of each state’s statute concerning the wearing of “indicia of authority” and, of course, the individual circumstances involved, will determine whether it is unlawful to wear such items.

Public school context
Many courts would likely evaluate such cases using the “plainly offensive” standard established in Bethel School District No. 403 v. Fraser. In Fraser, the U.S. Supreme Court ruled that public school officials could punish a high school student for delivering a speech containing sexual innuendos to the student body. The Court reasoned that “it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” These words gave rise to the “plainly offensive” standard that many courts use in examining messages on T-shirts.

There have been no cases directly ruling on a T-shirt that reads “Kill A Cop,” but there have been various other cases relating to messages on T-shirts. In 2000, the 6th U.S. Circuit Court of Appeals ruled in Boroff v. Van Wert City Board of Education that a student’s T-shirt was plainly offensive by promoting “disruptive and demoralizing values.” Nicholas Boroff's T-shirt featured musician Marilyn Manson with a three-faced Jesus and read “See No Truth. Hear No Truth. Speak No Truth” followed by the word "BELIEVE" with the letters "LIE" highlighted. In this case, the public school officials won because the court found the shirt to be “plainly offensive.”

“Plainly offensive” has been interpreted differently by other courts. For example, the 2nd Circuit in 2006 ruled in Guiles v. Marineau that Vermont school officials violated a student’s First Amendment right by punishing him for his T-shirt that referred to President Bush as "Chicken-Hawk-in-Chief" and included text and drawings alluding to his alleged past drug and alcohol abuse. Using the Fraser standard, the court found that Zachary Guiles' shirt was not “plainly offensive.”

Typically, the more political a message is, the more First Amendment protection it is granted. This was the case in the landmark 1969 ruling Tinker v. Des Moines Independent Community School Dist. The U.S. Supreme Court ruled that public school students could wear black armbands to school to protest U.S. involvement in the Vietnam War. The Court noted that the students were engaging in a form of symbolic speech that was “akin to pure speech.” In later decisions, courts have recognized that students have more protection when they engage in political speech, whether that expression is on a T-shirt or otherwise articulated.

On the other end of the spectrum, in 1992 a federal court denied a Virginia student’s First Amendment claim that she should not be punished for wearing a “Drugs Suck” T-shirt to class. Even though the message on Kimberly Broussard's shirt spoke to an important political topic, the court determined that the word “suck” was too vulgar and could be prohibited as being plainly offensive under the Fraser standard.

A court would likely side with a school that disciplined a student for wearing a shirt that read “Kill A Cop” because such language would be determined to be “plainly offensive” under the Fraser standard.

Other contexts
Outside the public-school context, a government official would have to believe that the message on a person's T-shirt constituted some sort of true threat or fighting words in order to demand that the shirt be covered up or removed.

The U.S. Supreme Court ruled in the 1942 ruling Chaplinsky v. New Hampshire that “fighting words”— words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace” — are prohibited and unprotected by the First Amendment.

Another form of speech that is not protected under the First Amendment is a “true threat.” The courts have defined a “true threat” as a threat which involves statements with serious expressions of intent to commit an act of violence to an individual or group of individuals. The Supreme Court in its 1969 ruling Watts v. U.S. also labeled a “true threat” as a real threat to one’s personal safety.

In 2003, an interesting case came out of Michigan's Court of Appeals regarding a courtroom spectator. Henry Dudzinski was ordered in contempt of court for failing to remove his T-shirt after the judge asked him multiple times to do so. The T-shirt read “Kourts Kops Krooks.” The judge found that the shirts “affected the fair administration of justice.” Dudzinski served a 29-day jail sentence.

In another extraordinary case, Venus “Star” Morgan, a 21-year-old Murray State University student, was issued a harassment citation by the police for wearing a T-shirt to a public festival which depicted Marilyn Manson and this phrase: "I Am The God of F***" from the song, "White Trash." In 2001, the Kentucky Court of Appeals ruled that the statute used to convict Morgan defines harassment as conduct as opposed to speech, and the panel of judges held that wearing the T-shirt could not be considered a form of conduct. Since the case was decided upon as conduct, and not as speech, it is not strictly a First Amendment free-speech case.