Free Speech Protection and Speaker’s Intent

An interesting article tackles the difficult and topical subject of free speech protection and the speaker’s intention.

First Amendment precedents can be confusing, non-linear, and seemingly not based upon common sense.  Professor Eugene Volokh in “The Freedom of Speech and Bad Purposes” scrutinizes whether a speaker’s improper purpose can actually lose protection for speech.  Using a wide spectrum of examples, from both the civil and criminal contexts, Professor Volokh concludes “the protection of speech should not turn on what a factfinder concludes about the speaker’s purposes.”

Free Speech - Criticize the Courts

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Professional Speech Doctrine

Under the First Amendment individuals have the right to the freedom of speech.  But in the instance of when professionals speak it can conflict with government’s right to regulate professions for the health and well-being of individuals, called police powers.  In the balancing of the competing rights an individual’s right to free speech is not lost when one enters into a profession,1 giving rise to the professional speech doctrine.

Three recent United States Court of Appeals decisions, from three separate circuits, are reinforcing the idea there are constitutional limits to the regulations governments may impose upon professional’s speech.  The regulation of professionals extends from doctors and lawyers to even fortune tellers.2

This issue involves a collision between the power of government to license and regulate those who would pursue a profession or vocation and the rights of freedom of speech and of the press guaranteed by the First Amendment.3

Professional speech is defined when the government’s right of licensing and regulation through police powers outweighs an individual’s right to free speech.

This article will explain the facts of the three separate United States Court of Appeals decisions and how the courts analyzed the issues presented to them.  Hopefully, this article will illustrate the modern trend of analyzing issues arising under professional speech.

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Neutral Pharmacy Rules Upheld Over Religious Objections

In a religious freedom decision, the Ninth Circuit Court of Appeals upheld the state of Washington’s rules requiring the timely delivery of prescription medication over two pharmacists religious objections. The pharmacists objected to delivering emergency contraceptives on the grounds of religious freedom.

The issue presented is whether a pharmacist must timely delivery emergency contraceptives when the state’s rules for pharmacies are neutral and generally applicable. The federal appellate court upheld the state’s pharmacy rules because “the rules are neutral and generally applicable and that the rules rationally further the State’s interest in patient safety.”1

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Sign Regulations and Content Discrimination

Gilbert Arizona’s quirky sign laws which creates different categories of signs, with different privileges, is unconstitutional ruled the United States Supreme Court in the summer of 2015.

A unanimous Supreme Court found the Town of Gilbert’s (Town) sign laws unconstitutionally restricting Good News Community Church’s (Church) right to free speech. The Court thoroughly explained what constitutes content based restrictions on speech, and debunked each of the court of appeals arguments in reversing its decision.

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License Plate Design, Government Speech

Governments can speak too, and the United States Supreme Court held in the summer of 2015 that a specialty license plate design falls under the category of government speech and governments can speak for themselves.

Government Speech
Government Speech

Usually, free speech is not thought about in terms of the government.  But when government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.  The government is free to promote an idea, or take a position.1

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Washington State Legislative Records — Constitutional?

There are two public records laws in Washington — Public Records Act1 and Legislative Records.2  Each law was passed in a different year.  Each law uses a different definition for what a public record is and is not.  Each law applies to different areas of government.  They are very different laws.

Washington State Capitol Building
Washington State Capitol Building

Legislative Records are a restrictive form of public records that is only applicable to to the Washington State Legislature.  The main problem with the Legislative Records law is it unconstitutionally allows individual Legislators arbitrarily determine what is or is not a record to be disclosed, violating long-held free speech principles.

It should be be scrapped completely and the Washington State Legislature should be subject to the standards of the Washington Public Records Act same as every other governmental agency.


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Denver Broncos Viewpoint Discrimination

My fellow Washingtonians it appears we may not we welcome at the Denver Broncos v. New England Patriots playoff game this coming weekend because of an unconstitutional policy violating free speech rights based upon viewpoint discrimination.

In sports a home field advantage is usually cherished.  The players are then able to play in front of a friendly crowd who supports and cheers them on. Ideally home field advantages are created by the sheer popularity of the home team buying up all the tickets.

The Denver Broncos football team is not taking that chance in their upcoming playoff game against the New England Patriots — even though they have secured a home field advantage through the playoffs, except if they make it to the Superbowl.  The mile high football team is placing geographical restrictions on ticket sales most likely to ensure the home field advantage continues for the Denver Broncos.

Sporting news organizations are reporting the Denver Broncos are only selling tickets to the AFC Conference Championship game to people who are located in a select group of surrounding states.  Even when I tried to look for tickets on Ticketmaster’s website the night of Jan. 20, 2016, I was greeted with the following disclaimer:

“Tickets will only be available to those with a billing address in the Rocky Mountain region including Colorado, New Mexico, Wyoming, Nebraska, Montana, South Dakota and Western Kansas.  Orders outside the restricted zip codes are subject to cancellation.”

Denver Broncos Tickets
Denver Broncos tickets screen grab from Jan. 20, 2016

This article will argue the ticket ban for individuals who do not have a billing address in one of the surrounding states is an unconstitutional restriction on protected speech — the right to cheer for whatever team you want.

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