Free Speech Symbolic Speech and Prohibited Speech

Citizens’ Rights and Equal Rights

The First Amendment guarantees several freedoms: freedom of speech, religion, the press, assembly, and the right to petition the government for a redress of grievances. Freedom of speech means that individuals have the right to express their opinions, even if they are unpopular or offensive. Freedom of religion means that individuals have the right to practice their religion without interference from the government. Freedom of the press means that the press has the right to report on events without censorship. Freedom of assembly means that individuals have the right to gather together for peaceful purposes. The right to petition the government means that individuals have the right to express their grievances to the government (American Government, n.d.).

The Fourth Amendment protects against unreasonable searches and seizures. This means that the government cannot search a person's property or seize their belongings without a warrant or probable cause. The amendment also requires that warrants be issued based on probable cause and that they describe the place to be searched and the things to be seized.

The Eighth Amendment prohibits excessive bail, fines, and cruel and unusual punishment. This means that the government cannot impose bail or fines that are so high as to be unreasonable or excessive, and cannot impose punishments that are cruel or inhumane.

The Tenth Amendment reserves powers not delegated to the federal government to the states or to the people. This means that the federal government has only the powers that are specifically granted to it by the Constitution, and that any powers not granted to the federal government are reserved for the states or the people.

None of these rights are absolute, as they may be subject to limitations in certain circumstances. For example, freedom of speech does not protect speech that incites violence or creates a clear and present danger, and the Fourth Amendment may not apply in certain emergency situations.

The Lemon test is a three-part test used to determine whether a law or government action violates the Establishment Clause of the First Amendment, which prohibits the government from establishing a religion (Rubin, 2021). The test was established by the Supreme Court in the 1971 case Lemon v. Kurtzman. The three parts of the test are:

1. The law or government action must have a secular purpose.

2. The primary effect of the law or government action must neither advance nor inhibit religion.

3. The law or government action must not result in an excessive entanglement between government and religion.

If a law or government action fails any one of these three parts of the Lemon test, it is considered to violate the Establishment Clause.

The Brandenburg v. Ohio case (1969) established the current test used to limit free speech: the "incitement to imminent lawless action" test. This test allows for restrictions on speech only if the speech is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action. The test was established in response to the conviction of Ku Klux Klan leader Clarence Brandenburg for advocating violence during a rally in Ohio (American Government, n.d.).

Symbolic speech is a form of expression that communicates an idea or message through nonverbal means, such as gestures, clothing, or actions (Nimmer, 1973). Examples of symbolic speech include burning the American flag as a form of political protest, wearing a black armband as a symbol of mourning or protest, and using sign language to communicate a message. Symbolic speech is protected by the First Amendment.

However, not all speech is protected. The Supreme Court has established several categories of speech that are not protected, including: