Freedom of Speech Does Not Mean You Can Say What You Want

by Bob Schwartz

I recently had a potential new client call to discuss his legal remedies for (what he said was) the violation his civil rights. As with every potential new client, I asked him to tell me what happened, whereupon he told me that he had been arrested because he cursed at a business establishment employee. He believed his civil right to freedom of speech protected this speech, and that his civil rights had been violated when he was arrested. To his amazement and extreme disappointment, I told him his civil rights had not been violated and that while the U.S. and Texas Constitutions protect the right to free speech, laws also exist that protect those who might be offended by that speech. In the Texas Constitution, offending those who might hear one’s free speech can be considered an abuse of that privilege.

The First Amendment to the United States Constitution, entitled Freedom of Religion, Press, Expression and ratified on December 15, 1791, states the following:

  • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (Emphasis added.)

Every state has a constitution that, like Texas’, protects freedom of speech, with limitations. In Texas, you can say what you want if you do not abuse the privilege:

  • Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.” Texas Constitution, Article 1. Bill of Rights, sec. 8. Freedom of Speech and Press; Libel. (Emphasis added.)

The caution to not abuse the privilege of free speech is contrary to what most of us believe are our constitutional rights, and we must realize that freedom of speech is not absolute. By that I mean that we cannot say whatever we want, to whomever we want, whenever we want. Civil and criminal laws exist in all 50 states that are designed to protect those who might be offended by that speech. So, while every person shall be at liberty to speak, write or publish his opinions on any subject, if those words offend or put another person in fear for their safety or life, you can be silenced.

Below are examples of Texas criminal statutes that are likely identical to criminal statutes in every state that restrict free speech:

  1. A person cannot intentionally or knowingly use abusive, indecent, profane or vulgar language in a public place, make an offensive gesture or display in a public place, or make unreasonable noise in a public place. Texas Penal Code, Title 9. Offenses Against Public Order And Decency, Chapter 42. Disorderly Conduct And Related Offenses, Sec. 42.01.
  2. A person cannot intentionally or recklessly hinder an official proceeding by noise or violent or tumultuous behavior or disturbance. Texas Penal Code, Title 8. Offenses Against Public Administration, Chapter 38. Obstructing Governmental Operation, Sec. 38.13. Hindering Proceedings By Disorderly Conduct.
  3. A person cannot threaten to commit any offense involving violence to any person or property with intent to cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies. Texas Penal Code, Title 5. Offenses Against The Person, Chapter 22. Assaultive Offenses, Sec. 22.07. Terroristic Threat.
  4. A person cannot speak through any written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person’s reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person’s honesty, integrity, virtue or reputation, or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule or financial injury. Texas Civil Practice And Remedies Code, Title 4. Liability In Tort, Chapter 73. Libel, Sec. 73.001. Elements Of Libel.
  5. A person may not stalk another on more than one occasion and engage in harassing behavior, the result of such harassing behavior places in the recipient reasonable fear for his safety or the safety of a member of the his family, and has violated a restraining order prohibiting that harassing behavior while engaged in harassing behavior, by acts or words threatened to inflict bodily injury on the recipient or to commit an offense against the recipient, a member of the recipient’s family or the recipient’s property. Texas Civil Practice And Remedies Code, Title 4. Liability In Tort, Chapter 85. Liability For Stalking, Sec. 85.001.

So, the next time you feel an urge to let your freedom of speech fly, you might remember that may cause you to make a rather bumpy landing in jail. Freedom of speech is not absolute, but the good sense to think before opening your mouth is.

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