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300.16 First Amendment

    300.16.1 Constitutional Claims: Freedom Of Speech (1st Amendment)
    300.16.2 Constitutional Claims: Freedom Of Association (1st Amendment)
    300.16.3 Constitutional Claims: Freedom Of Religion (1st Amendment)

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PRACTICE NOTE: "A law which regulates the content of speech, as opposed to conduct, violates the First Amendment." (Cook and Hermann, Criminal Defense Checklist (West, 1998 ed.) § 7.01(1); see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 2.14(b).)

    "The First Amendment generally prevents [the] government from proscribing speech,...or even expressive conduct,... because of disapproval of the ideas expressed. Conduct-based regulations are presumptively invalid." (R.A.V. v. City of St. Paul (1992) 505 US 377, 381-82 [112 SCt 2538; 120 LEd2d 305]; but see [NF] Virginia v. Black (2003) 538 US 343 [123 SCt 1536; 155 LEd2d 535] [statutory prohibition of cross-burning with the intent to intimidate did not violate respondents' right to freedom of speech, since the statute banned intentional intimidating conduct rather than expression].)    

    The Supreme Court has consistently held that the First Amendment protects verbal criticism, challenges, and profanity directed at police officers unless the speech is "shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." (City of Houston v. Hill (1987) 482 US 451, 461 [107 SCt 2502; 96 LEd2d 398].) Furthermore, the "fighting words" exception to First Amendment protection requires a narrower application in cases involving words addressed to a police officer "because a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.’" (Hill, 482 US at 462. (Citation and internal quotation marks omitted.).) This rule requiring narrower application of the fighting words doctrine with respect to words addressed to a police officer is also compelled by "the constitutional shield [that protects] criticism of official conduct." (New York Times Co. v. Sullivan (1964) 376 US 254, 273 [84 SCt 710; 11 LEd2d 686].) "The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." (Hill, 482 US at 462-63.)

    Accordingly, a person may not be convicted of disorderly conduct (36 CFR 2.34(a)(2)) merely for yelling profanities at a National Park Service ranger.

    See also NCJIC 99.3.3 [Resisting Arrest: Defense Theory That Verbal Statements Are Not Sufficient].

    See also NCJIC 258.1 [First Amendment Defense: Specification Of Prosecution's Burden].

    See also NCJIC 103.10.3.4 Extortion: ["Threat" As Used In Extortion Statute As Violation Of The First Amendment].

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PRACTICE NOTE: "The right of association, like the right of belief...is more than the right to attend a meeting; it includes the right to express one’s attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful." (Griswold v. Connecticut (1965) 381 US 479, 483 [85 SCt 1678; 14 LEd2d 510].)

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 VOLUME 16 - CHAPTER 300

PRACTICE NOTE: See LaFave & Scott, Substantive Criminal Law (West, 1986) § 2.14(c).