Five Ways Free Speech Isn't Free

/ Source: Discovery Channel

The battle over free speech -- hatched in the First Amendment to the Bill of Rights more than 200 years ago -- continues to play out around the world in political conventions, courtrooms and the streets of the Middle East, where Libyan demonstrators protesting a U.S.-made anti-Muslim video killed the U.S. ambassador in Beghazi yesterday.

The incident puts into focus the ways different people view speech that can range from merely annoying to blasphemous.

In fact, the meaning of free speech has been evolving over time as the nation's court system has balanced individuals' First Amendment free speech rights with the rights of authorities to maintain order. This battle is most evident during this political season, as protestors complain they're being harassed while candidates say they want to the right to speak without being drowned out.

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"The big dividing line is whether the government is trying to control content or just the time, place and manner (of protests)," said Susan Low Bloch, a First Amendment expert and professor at Georgetown University School of Law. "The government has more leeway and latitude when it's regulating time place and manner. It should have no control over content. Certainly political speech is the most protected. That's what the law says."

Still critics are watching new battlegrounds between the rights of the individual versus the government. Here are five ways where free speech is bumping up against authority:

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Anti-Muslim images: While cartoons and videos depicting the prophet Mohammed may be protected free speech in the United States, as well as the right to burn the Koran, such activities have provoked Muslims who say it violates, and in fact, blasphemes their religion. Perceived attacks against Islam have led to riots, assassinations and attacks on U.S. soldiers in Afghanistan. U.S. leaders have walked a tightrope, condemning the violent attacks as well as the anti-Muslim images that spawned them. The controversy over the anti-Muslim film produced by an Israeli living in California will likely grow in the coming days as Washington tries to figure out an appropriate response that doesn't make the situation even worse.

Political conventions: Over the past few political conventions, local city and county governments have written more stringent rules that keep protesters far from the sight of convention delegates, rules that are often announced too late for a court challenge before the event. ACLU attorney Ben Wizner says city officials have decided that removing protesters ahead of time is less expensive than the litigation that often follows over First Amendment rights. "Instead of having protests in the same TV shot of the event, they are pushed further and further out for protest zones," Wizner said.

Litigation is still ongoing from the 2004 Republican convention in New York, when hundreds of people were arrested by police. During the 2012 conventions, only 25 were arrested in Charlotte and only two in Tampa, according to the Huffington Post. Foul weather dampened turnout at both locations this year. But think back to past years, where there were bloody riots at the 1968 Democratic convention in Chicago, and mass protests at the 1972 Republican convention in Miami.

Occupy Wall Street: Occupy protesters in New York, Washington and dozens of other cities faced legal fights with police and municipal authorities over what kind of "occupation" was legal. In Washington, DC, a judge set ground rules for the protesters and the encampment lasted from October

2011 until June 2012. "Most of the courts that considered Occupy challenges came to the conclusion that protestors don't have the right to protest indefinitely," Wizner said.

In other parts of the country, Occupy protesters clashed violently with police who were less tolerant of encampments. While the Occupy movement failed to become a political group like the conservative Tea Party, their tactics brought back to public attention traditional methods of protest in public parks. "It was an opportunity to debate what's been an issue for two centuries of American history," said Timothy Zick, a First Amendment scholar at the College of William and Mary.

Schools versus students: The ACLU's Wizner expects the battle between principals and rebel youth to only grow over the next decade. Already there are cases under litigation about what students can wear in or out of class, what they can post on their private accounts, and to what extent can school officials extend discipline in the name of anti-bullying rules. A U.S. Court of Appeals in Philadelphia ruled in

2011 that two Pennsylvania school districts went too far in suspending students for mocking their principals on a parody Myspace pages. The students activities took place after school hours, but the schools suspended them for 10 days anyway. Wizner expects these cases to mushroom.

"It used to be easy to determine whether something was in school or out of school," Wizner said. "With social networking, it's a lot harder to do."

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Wikileaks: International muckraker Julian Assange sits in asylum at the Ecuadoran embassy in London, awaiting trial in Sweden on sexual assault charges. But the real case is whether Assange will ever be prosecuted by U.S. officials by his role in publishing stolen intelligence material from U.S. embassy cables. A federal grand jury has been empaneled to hear the case, but critics say Assange's Wikileaks website is no different than a newspaper publishing material from the Vietnam War – the so-called Pentagon Papers case that solidified First Amendment press freedoms in the early 1970s.

One twist: Assange is a foreigner, could the First Amendment shield him? "It would be a fascinating First Amendment case," Zick said.