Freedom of Speech

With the comments by President Donald Trump and the protests by NFL players being highlighted in the media, it is important to consider what our laws say about “Freedom of Speech” and this right granted to ALL of us in the United States.

This right is not absolute. State, local and federal governments can limit how people express themselves. Threats and incitations to violence – aren’t protected at all.

Free Speech entitles us:

  1. Not to speak (the right to not salute the flag.)
  2. To protest war
  3. To use offensive words and phrases to convey political messages.
  4. To contribute money to a political campaign.
  5. To advertise commercial products and services (with restrictions)
  6. To engage in symbolic speech (flag burning in protest etc.)

Additionally, free speech isn’t limited. We have these same rights every day. This means, that even speech that other people do not like or agree with is legal. The First Amendment protects speech even if most people find it offensive, hurtful or hateful. The government cannot determine what can and cannot be said.

Your right to protest in public places can be limited. And, your right to protest is protected as long as it is peaceful. The First Amendment doesn’t offer protections for a gathering in which a clear, present danger of riot, disorder and interference of traffic or an immediate threat to public safety exists.

For even more information on your right to Freedom of Speech, visit Us Courts
and Cornell Law

Factors Judge Considers During Sentencing

Judges determine the punishments for a crime. (Capital punishment cases the jury will decide life in prison or death). The 8th amendment to the U.S. Constitution states that “excessive bail shall not be required, nor excessive fines imposed nor cruel and unusual punishments inflicted.”

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Once a person has been found guilty in the court of law or pleads guilty, sentencing will be the next step. A judge will need to review relevant information and consider many factors. The mandatory minimum along with social factors, severity of crime and victim statements all play a part in the sentencing.

Additionally, the crime must fit the punishment. A Judge will consider the punishment and then consider “aggravating” or “mitigating” circumstances. A few of these factors considered include:

  • First time or repeat offender
  • Main offender or accessory
  • If anyone was hurt or if crime was unlikely to hurt anyone
  • If crime was committed under stress
  • If offender was very cruel
  • If offender is remorseful

Provisions state that the court must give counsel an opportunity to speak on behalf of the defendant. Defendant will be allowed to prevent any information or make a statement on his own behalf. In many states, a victim or victims family may also be given the opportunity to address the court and recommend leniency or strictness.

If you need help and want to know more about the sentencing laws in Washington State, contact Charles A Johnston law.

The First Amendment: Free Speech

What exactly does “freedom of speech” mean?

The First Amendment protects our right to free speech specifically stating,

“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.”

When the Bill of Rights was drafted, the First Amendment was put first because many of our Founding Father’s believed these were fundamental, basic rights. It is labeled as a human right, the Universal Declaration of Human Rights declares that,

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”15722ec

The U.S. Supreme Court has struggled often to determine what exactly constitutes free speech and what should be covered under this particular law.

Freedom of speech includes:

  • The right not to speak (salute the flag): West Virginia Board of Education vs Barnette, 1943
  • Students can wear black armbands to school to protest war: Tinker vs Des Moines, 1969
  • Contributing money (under certain circumstances) to political campaigns, Buckley v. Valeo, 1976
  • Symbolic speech, Texas v. Johnson, 1989
  • To use certain offensive words to portray political message, Cohen v. California, 1971

 

Freedom of speech is not:

  • Inciting actions that would harm others, Schenck v. United States,1919
  • Make/distributing obscene materials, Roth v. United State, 1957
  • Burn draft card to protest war, O’Brien v. United States, 1968
  • Printing articles in the school newspaper that are objected by the school administration, Hazelwood School District v. Kulhmeier, 1988
  • Students advocating illegal drug use at a school-sponsored event, Morse v. Frederick, 2007

 

Source: United States Courts- uscourts.gov

 

Legal Terms 101: What is the Fourth Amendment?

The Fourth Amendment is one of the parts of the Constitution that is a legal safeguard. Specifically the Fourth Amendment protects individuals from “search and seizure.”  These protections pertain to:

  • Searches of items or places in which you have a legitimate expectation of privacy. This can include clothing, on your own body, luggage, your car, your home, your place of work, hotel room etc.
  • Unlawfully seized items cannot be used as evidence in criminal cases.

What circumstances does the Fourth Amendment apply to?

  • You are stopped for police questioning while walking down the street.
  • You are pulled over for a minor traffic violation and the officer searches the vehicle’s trunk.
  • You are under arrest.
  • You are arrested at your place of residence.
  • Police enter your place of business to search for evidence.

When can my property be searched or seized lawfully?

  • If the officer has a valid search warrant.
  • If the officer has a valid arrest warrant.
  • There is belief and probable cause that you have committed a crime.

What do I do if my rights were violated?                     

If you believe an unlawful search and/or seizure has been committed, contact Charles A. Johnston Law. We will ensure that any of the evidence obtained during this search will be discarded from potential evidence. This could include a search of your home or workplace without a warrant.

Search-warrantWhen can a search be lawful without a warrant?

There are a few specific instances in which a warrant is not needed.

  • You give an officer consent to the search.
  • There is probable cause to search.
  • If any items are in plain view.
  • During a lawful custodial arrest a full search can be completed.

 

This is an overview of the Fourth Amendment, your rights and specifics of the law. For legal advice please contact our team at 253-473-3090.

 

Source: Cornell University Law School