The balance of free speech rights with public safety has risen to the top of consciousness recently in the wake of last summer’s Unite the Right rally that injured dozens of demonstrators and killed one, as well as rallies for gun control across the U.S. after the mass shooting at Marjory Stoneman Douglas High School in February.
Conditions for when the government can restrict speech are certain only in their uncertainty. The constitutional right can sometimes butt up against public safety concerns, and those charged with protecting the two sides of the balance acknowledge the same shaky qualifier: Governments’ ability to restrict expression depends on the circumstances. As Boulder City Attorney Thomas Carr explained in a CLE session Tuesday, the consideration is especially important when speech at issue causes controversy or outrage, because the First Amendment does not allow governments to discriminate based on whether they like the speech.
“There are people who want to say things that are offensive to me, to most people in this room, to most people in America, but they have the right to say that,” Carr said. “And that’s an uncomfortable conversation to have with your elected leaders who don’t necessarily want that speech.”
Courts consider restrictions on speech in the context of where it takes place. Places fall into four broad classifications: A traditional public forum, a limited public forum, a designated public forum or a non-public forum. Each setting has different implications for how much the government can restrict speech within them. But content- and viewpoint-based restrictions in each type are kryptonite for a government’s justification, because they seldom stand up to the strict scrutiny to which courts subject them.