Violation of Freedom of Expression

The First Amendment does not actually mention expression.

The First Amendment protects the rights of individuals to express themselves. Government action (by legislation, law enforcement or other means) that places a restraint on these freedoms constitutes a First Amendment violation. Those with possible First Amendment problems should seek legal counsel.

First Amendment

The First Amendment of the U.S. Constitution does not explicitly mention the word "expression." Among other things, the First Amendment protects the rights of freedom of speech and free assembly, as well as the right to "petition the government for redress of grievances." These three rights, collectively, form the basis of what we now call the right to freedom of expression. Federal courts have established a complex framework of analysis to determine whether government action is justified or illegal under the First Amendment.

Regulation of Speech

"Freedom of speech" actually covers both speech and conduct related to speech. The content of speech enjoys more protection than conduct. Government regulation of the content of speech will violate First Amendment rights unless the government can show that two things: that the regulation was "necessary to achieve a compelling state interest," and that the regulation was of the narrowest scope required to achieve that interest.

Regulation of Conduct

The government has the power to restrict speech-based conduct (meaning, conduct intended to convey a message in the same manner as speech), so long as those restrictions are not dependent on the content of the speech. Analysis of First Amendment violations in restraint of speech-based conduct is often dependent on the public or private nature of the forum. A public forum is public property, on which speech or speech-based conduct has generally been allowed (for instance, parks or town commons.) Should the conduct in question occur in a public forum, any restraint on that conduct must be "narrowly tailored to achieve an important government interest." However, in a non-public forum, the law allows broader government restraint; such restraint will not violate First Amendment rights so long as it bears a reasonable relationship to a legitimate government purpose.

Freedom of Assembly

The First Amendment protects the right of peaceable assembly, interpreted as the right of citizens to join together to express themselves. The government may infringe on this right, but only with a compelling state interest at stake, one which cannot be achieved by any less restrictive means. For instance, the government may penalize active, knowing association with certain groups whose activities are illegal. Such a compelling state interest, if properly proven, may also theoretically justify government demands for disclosure of group membership.

First Amendment Challenges

Should a citizen allege that a government action violates his First Amendment rights, he may challenge that government action if he has standing to do so. An individual has standing when he fulfills three requirements: the individual has suffered an injury, the injury was a consequence of the government action, and a court's decision to invalidate the government action would theoretically provide redress for the individual's injury. Consequently, an individual who merely dislikes a law in an abstract may not bring a First Amendment challenge; first he must suffer an injury as a direct result of the law, and then he may challenge it in court.

References

• U.S. Constitution, First Amendment
• "Constitutional Law: Cases, Materials and Problems"; Weaver, Russell L. and Steven I. Friedland and Catherine Hancock and Wendy B. Scott and Donald E. Lively; Aspen Publishers; 2006.
• Cornell LII: First Amendment