Recognizing the Fundamental Rights to Free Speech and Expression

Recognizing the Fundamental Rights to Free Speech and Expression

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Ng 1 Sharon Ng Professor Skrentny, TA Megan Strom DOC 2 – C06 07 March 2011 Recognizing the Fundamental Rights to Free Speech and Expression Many court cases, including Cohen v. California and U.S. v. O’Brien , have challenged the constitutionality of laws that restrict the First Amendment rights of individuals who deliver negative political messages. In the wake of the shooting of a congresswoman in Arizona, the Elected Official Safety Act was enacted to assure that officials are protected from harm when they make public appearances. The constitutionality of this law was tested at Governor Jerry Brown’s public speech when Tim Smith was arrested for wearing a T-shirt with the words, “GOVERNOR BROWN IS IN OUR SIGHTS!” and passing out rifle optical scopes with the same printed slogan to the audience. Tim Smith should not be subject to the Elected Official Safety Act because it is unconstitutional according to the O’Brien test, as it not only places a heavier limit on expression than necessary, it also infringes on his rights to free speech and expression guaranteed by the First Amendment of the U.S. Constitution. Smith should be able to wear his shirt in public because through doing so, he does not violate the California Penal Code 415 by maintaining the peace of private neighborhoods and not provoking clear and present danger. The Elected Official Safety Act is unlawful because it violates the O’Brien test. In U.S. v. O’Brien , the O’Brien test was developed to validate the constitutionality of a law. This test is comprised of four parts. In order for a law to be considered constitutional, it must pass all four parts. A constitutional law must (1) be within the constitutional power of the government, (2)
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Ng 2 further substantial interest, (3) interest in question should be unrelated to suppressing expression, and (4) if there is some incidental limit on expression, it must be no greater than necessary (O’Brien 217-222). While the law may comply with the first element of the O’Brien test because it is within the government’s constitutional power, it violates the second element because the “freedom of expression which the First Amendment guarantees includes all modes of communication by conduct” (218). Rather than furthering substantial interest, the law hinders Smith from communicating his true opinions by disregarding his rights to free speech and expression. As a result, Smith was prevented from communicating his perspective of Governor Brown’s ideals. This law also disregards the third and fourth elements of the O’Brien test because the interest in question is completely related to suppressing expression. In addition, the limit on expression is much greater than necessary – not only did Smith get punished for wearing his shirt and passing out the optical rifle sights, his First Amendment rights were also disregarded when he was suppressed from harmlessly expressing his viewpoints on Governor Brown’s ideals. Not only should Smith be exempt from the unlawful Elected Official Safety Act, he
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Recognizing the Fundamental Rights to Free Speech and Expression

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