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Freedom of Speech at the state and local level

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genericuser

Junior Member
What is the name of your state (only U.S. law)? Georgia

The First Amendment only seems to prohibit Congress from preventing freedom of speech. It would seem from my (naive) interpretation that state and local governments are not bound by this rule and could inhibit freedom of speech as they see fit. Is there law on this matter and has it been tested in court?

The reason I ask is because I don't see how public protest (peaceful) could take place without some guarantee of the right. Would police officers be able to force someone to leave public property for peacefully protesting? Would this be a freedom of speech matter or would this fall under public disturbance?
 


Zigner

Zigner

Senior Member, Non-Attorney
genericuser said:
What is the name of your state (only U.S. law)? Georgia

The First Amendment only seems to prohibit Congress from preventing freedom of speech. It would seem from my (naive) interpretation that state and local governments are not bound by this rule and could inhibit freedom of speech as they see fit. Is there law on this matter and has it been tested in court?

The reason I ask is because I don't see how public protest (peaceful) could take place without some guarantee of the right. Would police officers be able to force someone to leave public property for peacefully protesting? Would this be a freedom of speech matter or would this fall under public disturbance?
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Did you have a legal question about an actual situation? Or are you just asking "hypothetically?"
 
justalayman

justalayman

Senior Member
you also need to study how your Constitutional rights apply to you at all times and cannot be restricted by the laws at any level. In other words, a state or local government cannot enact a law that restricts your constitutional rights unless it is allowed within some exception (such as restricting your freedoms when they lock you up when you break the law)
 
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Mass_Shyster

Senior Member
The original Bill of Rights was intended exactly as you read: To prevent the Federal Government from infringing on the rights of citizens.

The 14th amendment is the where those protections are extended against infringement by the states:

(From section1)No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
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and

(Section 5)The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
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musicman654321

Member
genericuser said:
What is the name of your state (only U.S. law)? Georgia

The First Amendment only seems to prohibit Congress from preventing freedom of speech. It would seem from my (naive) interpretation that state and local governments are not bound by this rule and could inhibit freedom of speech as they see fit. Is there law on this matter and has it been tested in court?

The reason I ask is because I don't see how public protest (peaceful) could take place without some guarantee of the right. Would police officers be able to force someone to leave public property for peacefully protesting? Would this be a freedom of speech matter or would this fall under public disturbance?
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Your view that out freedom of speech is not protected from the state's prospective would be correct, before the 14th amendment AND its incorporation to the states. Oddly, the state can still force you to quarter soldiers and other things prevented by the federal constitution.

I support free speech when it agrees with my viewpoint.
 
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ecmst12

Senior Member
State-level legislation can only grant you MORE rights then you have under federal law, never less.
 
FlyingRon

FlyingRon

Senior Member
darktsunami said:
supremacy clause? The federal government always overrules what the state and local government may impose.
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Nope. First off that's not what the Supremacy Clause says. It says the Constitution, Federal Statutes, and Adopted Treaties trumps the states. It doesn't say everything the federal government does trumps the local governments. In quite just the opposite, the tenth amendment pretty much says if the Constitution doesn't grant powers explicitly to the federal government, those powers belong to the states.

The answer others gave was the correct one. The 14th amendment is what protects the various individual rights from state infringement:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
 
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TotoLaw1

Junior Member
Although this question seems to be fairly well beaten to death, I did want to chime in briefly to correct one mistatement I've seen repeated here more than once (and perhaps to clarify for the original poster, in case he didn't follow the somewhat obtuse responses).

Many of the people posting here were correct when they said that the U.S. Supreme Court has applied many of the protections of the First Amendment (and several other protections in the Bill of Rights) to the states by virtue of the Fourteenth Amendment. That process has been called the Doctrine of Selective Incorporation. For instance, the U.S. Supreme Court first held that the free-speech provisions of the First Amendment applied to the states in Gitlow v New York, 268 US 652; 45 S Ct 625; 69 L Ed 1138 (1925).

However, several people here have cited to the "privileges and immunities" clause of the Fourteenth Amendment as the legal authority for the Doctrine of Selective Incorporation, and that is not correct. The U.S. Supreme Court has consistently based the Doctrine of Selective Incorporation on the Due Process Clause of the Fourteenth Amendment. Critics have long said that this approach makes no sense, but some people believe that the Supreme Court's decision in the so-called Slaughter House cases foreclosed the Court's use of the "privileges and immunities" clause for Selective Incorporation later.

For all practical intents and purposes, it doesn't make much difference for you. But, in the practice of law, the distinction is important for pleading and arguing constitutional cases.
 
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Captian Picard

Member
TotoLaw1 said:
but some people believe that the Supreme Court's decision in the so-called Slaughter House cases foreclosed the Court's use of the "privileges and immunities" clause for Selective Incorporation later.

QUOTE]

Just an FYI .. the Slaughter House case has been overturned by the McDonald v. Chicago case of last year.

end communication
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