Arrested for ‘Free Speech?' Things the First Amendment Doesn't Guarantee

The owner of a truck with a “F__k Trump” sticker was released from jail Thursday night after her husband posted her bond.

Mike Fonseca said his wife, Karen, was picked up Thursday afternoon for an outstanding warrant from August. He posted her bond Thursday night, and she was released from jail about an hour later.

Fonseca made headlines Wednesday after The Fort Bend County Sheriff Troy Nehls threatened to arrest her for the anti-Trump sticker on her pickup.

Nehls posted a photo of the truck on Facebook Wednesday: "I have received numerous calls regarding the offensive display on this truck as it is often seen along FM 359. If you know who owns this truck or it is yours, I would like to discuss it with you," the post read. "Our Prosecutor has informed us she would accept Disorderly Conduct charges regarding it, but I feel we could come to an agreement regarding a modification to it."

After the story went viral and thousands of commenters defended the sticker as free speech, Nehls has since deleted the post.

While Fonseca wasn't arrested for free speech, the threat had many people wondering if the sticker illegal and if can you really be arrested for something many considered free speech?

In short, unless someone became confrontational or violent toward the truck’s owner, and there’s a police report stating that happened, it doesn't count as disorderly conduct or inciting.  

The words on the truck might be seen as obscene to some. Obscenity is not protected by the First Amendment, but the court would have to prove the material is in fact obscene. In the US, profanity is not under the definition of obscenity and courts have ruled the government cannot prosecute someone solely for the use of profanity, unless it was used to incite riots, harass people or disturb the peace.

What does free speech mean?

The First Amendment states “Congress shall make no law…abridging freedom of speech.” But the First Amendment doesn't protect you from everything.

Freedom of speech includes the right

  • Not to speak (specifically, the right not to salute the flag).
  • Of students to wear black armbands to school to protest a war
  • To use certain offensive words and phrases to convey political messages.
  • To contribute money (under certain circumstances) to political campaigns.
  • To advertise commercial products and professional services (with some restrictions).
  • To engage in symbolic speech, (e.g., burning the flag in protest).
     

Freedom of speech does not include the right

  • To incite actions that would harm others (e.g., “[S]hout[ing] ‘fire’ in a crowded theater.”)
  • To make or distribute obscene materials.
  • To burn draft cards as an anti-war protest.
  • To permit students to print articles in a school newspaper over the objections of the school administration. 
  • Of students to make an obscene speech at a school-sponsored event.
  • Of students to advocate illegal drug use at a school-sponsored event.
     

In addition, if you work for a private company and are fired for something you say in public or online, it’s not a First Amendment issue.

Also, if you are banned from a social media platform, it’s not a First Amendment issue.  The law only protects you from the government punishing or censoring you. If Twitter bans you, you cannot make a claim in court for the First Amendment.

© 2017 WFMY-TV


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