James Benjamin is a Past President of the First Amendment Lawyers’ Association. Daniel Aaronson is the current Vice-President and in July will become President of that esteemed organization. Yet, for both of us the First Amendment is not necessarily absolute, meaning there are times when the First Amendment does not prevail. The easiest example is one often cited, that being that we do not believe that the First Amendment protects giving or disseminating classified information about troop movement to the other side in the time of war. This, is an obvious one. However, there are other times when the conflicts between the First Amendment and other rights and how they should be resolved are not so clear.
One such type of situation involves the public employee speaking in a private setting and whether that public employee can be sanctioned or even fired by that public employer. Years ago, we represented Palm Beach County sheriff deputies who were viewed on an adult site. Their employer, the sheriff, had their jobs terminated. Our defense of course was that they have a First Amendment right in their off duty time to engage in First Amendment protected activities. The Courts however disagreed and ruled that these activities would have a negative impact on their ability to do their job and therefore they were rightfully terminated.
Similarly, a good friend of ours, Gary Edinger in Gainesville, Florida, recently represented an Assistant State Attorney who publically espoused her to some incredibly right-wing views. She also was sanctioned by her employer, the State Attorney. Again, the Courts decided in favor of the employer.
The key component to both of these cases was the Court’s belief that the activities or comments would be both detrimental for the persons to do their jobs and was detrimental to the employer in his ability to carry out his mandate. Of course from our prospective as long as those employees were able to do their jobs, they should have had the right to freedom of speech and expression and should not have been terminated.
Then there are cases and situations involving the right of an accused to get a fair trial versus the right of the media to cover that trial. Here the issue to us is not as exact. Having practiced in the criminal arena for so many years, the rights of an accused to get a fair trial to us is paramount in our sense of justice. Yet, the right of the media to report the news is just as important to us. In this situation it is hard for us to choose one over the other and actually hope that they both can exist. The solution in this situation sometimes requires countless jurors being selected for a jury pool in order to just find a few that have not been tainted by the sensationalism of the news. In this regard extra costs may be expended in order to get that fair trial, but both a fair trial has been guaranteed and freedom of speech and press have been preserved.
Even harder for us are cases in which we find so distasteful the speech that is being spoken. Cases such as the one before the Supreme Court involving a fundamentalist Christian church disgustingly protesting at the funerals of servicemen killed in action because somehow they feel that this will highlight that the country is so to speak “going to hell” because of gay rights. First of all, they certainly have the right to speak. Secondly, when they protest they artfully put themselves in positions where they are not breaking the law, i.e. trespass. Thirdly, there does not seem to be a constitutional right to grieve for one’s relative’s death without idiots disturbing that grieving.
Based upon those factors, we tend to side with those protestors and their right to be despicable. Yet, on a personal level their actions we truly abhor and cause us to wonder do First Amendment freedoms extend so far. And we answer to ourselves, yes, even if it hurts.
Another topic that has arisen of late deals with what has been called “ObamaCare” versus religious freedoms and beliefs. Taking away the political side of the argument and assuming that the government does have the right to mandate some type of health care system, does the government have the right to mandate that religious institutions that do not believe in forms of birth control make those forms of birth control available through health care to those who work for them?
Here, are pitted together the government’s right as far as interstate commerce, and other clauses of the Constitution versus religious freedoms. As you all know religious freedoms are founded in the First Amendment and are as important to this country as any of our fundamental rights. Yet, in a unified health care system how can one segment of the population, those being people who work for religious institutions, not receive the same benefits as everybody else?
To our way of thinking, this is not really a First Amendment issue but rather a health care issue. Yet, we can easily see those who would determine this to be not a health care issue but a First Amendment issue.
Lastly, there is always the imposition of religion as a violation of the First Amendment. Recently, court actions started surrounding a cross that has been standing high on a mountain near San Diego, California. The cross has been there for decades as a symbol of those who have been killed in military service to this country. To many the cross is the symbol of one religion, yet the government is arguing that the cross should stay because it does not have religious significance but rather it is simply a memorial.
One argument goes, how can this cross be offensive if it has not been offensive for so many years. Another argument takes the other view that for so many years one religion has been sponsored by the government to the subjugation of other religions. On issues such as these we side with those who believe that the government should not sponsor any religion yet alone one over the other.
All of these examples are borderline cases. A fact one way or another would change the Court’s decision and possibly our own analysis. It is facts like these and cases like these that make protection of the First Amendment not just a blanket exercise, but one that really does cause great debate and at times soul searching. However, if you noticed a trend, we side with the First Amendment and speech. It is just who we are and what we believe to be of the utmost importance..