Sunday, April 17, 2016

Tell Us How You Really Feel: How America’s Free Speech Laws Allow Negative Advertising without Consequence

St. Augustine Beach, Florida currently houses a billboard that states: “Islam Bloody Islam, DOOMED BY ITSDOCTRINE!” This billboard has been met with scrutiny from over 15,000 individuals around the world, all of whom have signed a petition asking for the county government to remove the billboard. This petition is housed on the website Care2 and the petitioners have explained that they do not think that Free Speech covers messages which stem from “hate” and ignorance.” The billboard has not been removed and a St. Johns County official stated that the billboard is protected under the First Amendment right of Free Speech.

This is not the first time that a media campaign of this nature has met public scrutiny. Pamela Geller is a Jewish American and the head of the American Freedom Defense Initiative. Ms. Geller has run ad campaigns that are critical of Islam in New York City and in other cities around the country. She has stated, “Muslims and Islamic apologists are working furiously to bring the oppressive Shariah state of hate to America…Islamic law commands Islamic Jew-hatred, creed apartheid, gender apartheid, and criminalization of free speech. Everywhere voices of freedom and dignity speak, these fascists shut them  down.” She ran a $100,000 anti-Islam media  campaign in 2014 on MTA property. Mayor Bill de Blasio believed that the hateful messages were wrong  and had no place on New York City ad space. However, the local court deemed these advertisements to be constitutional and the mayor was unable to ban them since the ads are not covered under defamation law, regardless of the accuracy of their content. After Ms. Geller’s ads ran on the MTA in 2014, the MTA issued a blanket ban on all viewpoint ads, which would ban all forms of political speech on MTA subways and buses.

Geller's advertisements which were placed on
New York MTA subways and buses 
The St. Augustine case is different than any of the other free speech cases that we have encountered in class because this speech is not government endorsed. The billboard does not promote a specific religion, nor does it portray government endorsement of one particular religious sect. However, it does portray a very negative view of Islam. When does Free Speech infringe upon the Establishment clause? According to the Lemon Test there are three important questions, which we must ask to determine if something violates the Establishment Clause: does the statute have significant secular purposes? Does it not have the primary effect of advancing or inhibiting religion? Does it foster excessive entanglement between government and religion? The billboard has a primary secular purpose, which is to education the people of St. Augustine on the dangers of Islam within their community. The government does not pay for this billboard nor is it on government property; therefore there is no question of endorsement or entanglement. Opponents to this billboard may argue that it clearly places other religious sects above Islam, and could potentially be seen as government supported animus towards Islam. However, since this billboard is not connected to the government in any way, it does not violate the Lemon Test.

This case is similar to Good News Club v. Milford Central School (2001), which is one of the few cases we have examined in class that deal with private speech. In 1992, Milford Central School created a community-use policy for organizations that may want to use its buildings after school. This became possible when New York State authorized local school boards to create their own regulations concerning buildings. One of the restrictions was utilizing the school building for any religious worship or instruction. The Good News Club felt as though its Free Speech rights were being infringed upon due to the restrictive nature of the school board’s regulations. Justice Thomas explains in the Court Opinion that it is important to understand that Milford operates under a limited public forum, which means that the State does not have to allow individuals to engage in every type of speech in this forum, which differs from a public or open forum. According to Rosenberger v. Rector and Visitors of University of Virginia the State can, “reserve[e] [its forum] for certain groups or for the discussion of certain topics” (Muñoz, 483). However, Milford school district violated Good New Club’s free speech rights because it restricted the club on the basis of its viewpoint, which is not constitutional according to Cornelius v. NAACP Legal Defense for Education Fund, Inc. Justice Thomas also explains that the Supreme Court cannot limit private conduct. For those of you who may have agreed with the dissent in the case of Good New Club, it is important to understand that content matters in deciding these cases. The St. Augustine billboard differs from Good News Club in two ways; the billboard is not part of government property, unlike the school and the billboard is part of an open forum. This means that the restrictions on free speech are even more limited than the restrictions that the Good News Club faced. Removing the billboard in St. Augustine would clearly be viewpoint discrimination. The message on the board does not violate any hate speech or defamation laws and would only be taken down because people disapprove of the viewpoint that the billboard displays. This is a form of discrimination in itself and violates the First Amendment rights of the individual who paid for the advertising space. Thus, even though it is possible to interpret limited open forum restrictions in different ways, there is no justice who would argue that it is constitutional to restrict public forum speech on private property (according to the Nevada Law Journal- private property can be considered a public forum).

It is very important to understand what classifies hate speech in order to understand this case and its legal basis. The Washington Post published an article, “No, there’s no ‘hate speech’ exception to the First Amendment,” which explains how hate speech is protected by the First Amendment. Therefore, if you would like “hate speech” to be banned, you must take it up with Congress and not the Supreme Court. Hateful ideas are protected under the First Amendment and according to the Washington Post article, “One is as free to condemn Islam- or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens- as one is to condemn capitalism or Socialism or Democrats or Republicans.” There are a few types of speech that are not protected by the First Amendment: obscene speech, pornography and fighting words. Fighting words are considered face-to-face personal insults that are addressed to a specific person that will likely incite a fight. The Supreme Court rules that prohibition of bigoted fighting words is unconstitutional in R.A.V v. City of St. Paul (1992). Threatening to kill someone because of their identity or inciting others to immediately attack someone because of their identity is illegal, however not due to hate speech laws but because it is illegal to make true threats and incite crimes against anyone or any reason.

If the individual who paid for the St. Augustine billboard is taken to court, I believe that the billboard should be ruled constitutional. There is clear evidence that these types of speech are permissible and have been ruled as such by both local courts and the Supreme Court. Denying this individual advertising space would be viewpoint discrimination and a violation of their Free Speech rights under the First Amendment. Although the billboard shows a marked animosity towards Islam, this speech is not being endorsed by the government and thus does not violate the Establishment Clause according to the Lemon Test. We are all advocates of free speech until it pertains to topics with which we disagree. It is important that we protect individual rights and that we do not try to act on behalf of Congress, nor do we ask that of the Supreme Court. It is not the job of the court to write legislation and currently there are no laws in place, which prohibit this billboard under the Constitution or under any defamation, or libel laws. This billboard may be distasteful, however it is certainly legal.


Rebecca J said...

I agree with Caroline that this billboard does not violate the Establishment clause and that the billboard should be allowed in order to promote free speech. Because the billboard is privately funded and is private speech, there is no real threat to any of the Lemon Test prongs. However, I think it is interesting to note that the billboard's attack to one religion could be seen as promoting all other religions or non-religion over one specific religion. Some could argue that this is an issue since it is negatively impacting a minority religion. Yet, the key is that the government is not the one doing so, but rather a private group, so the message is protected by free speech and not subject to the establishment clause. Additionally, I think it is important to note that if this billboard is protected, all other similar forms of speech much be as well. This implies that if a group sponsored a billboard that spread a negative message about Christianity, this billboard must too be allowed. If private messages against Islam are protected by free speech, then private message against any other religion must also be protected. It does not matter if it is a majority or minority religion being targeted, they still must be treated equally.

Sara G. said...

I do think that the billboards are constitutional. I don't think they pose an Establishment threat as they are paid for privately, and I don't think they pose a violation of free speech issue either. Hate speech is protected free speech as long as it isn't personally threatening. As much as we may all agree that the messages are hurtful, they simply do not make a direct threat to anyone and therefore must be ruled legal. We can't make an exception for these billboards because of their hurtful messages, as much as we may want to. If we make an exception to the limits of free speech for these billboards, that puts into question the true freedom of our speech and opens up a very large slippery slope. If these billboards are found to be illegal, it then stands that free speech can be regulated based on the popularity of the content. It also opens up a slippery slope, as it suggests that offensive or hurtful speech is no longer protected. A billboard representing any other religious viewpoints could also be found to be offensive to the countering faith, and a slippery slope would form as the definition of offensive is not set.