Free Speech?

Even if you never paid attention to history class in high school, one of the main things you likely remember is the fact that you have the right to free speech. This is one of the benefits that you can enjoy by just living in the United States — even non-citizens have this right. 

However, there are limits to it, and it’s important to know what those are so you can avoid breaking the law through your words.

Where Does Free Speech Come From

Your right to free speech comes directly from the First Amendment in the United States Constitution.

“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.”

This amendment actually has five-or-six promises depending on how you count them. Among them is speech. The government cannot retaliate no matter what you say, usually.

For example, let’s say you think the president looks like Gollum from the Lord of the Rings movies, and you share a meme about it on Facebook. In the United States, no one would bat an eye at this because it’s protected by the Constitution. 

However, in places like Turkey, the citizens don’t have the same rights, and a doctor there almost got in trouble for that very thing. He ended up getting acquitted because his lawyers proved that Gollum wasn’t considered an “evil” character.

The Standard: Clear and Present Danger

So when is free speech actually limited? The Supreme Court of the United States came up with a standard known as “clear and present danger” in a 1919 case called Schenck v. United States.

This case concerned a law that the federal government had previously passed called the Espionage Act of 1917. This made it illegal to do a few things that the U.S. saw as unloyal, including interfering with the country’s attempts to recruit troops.

A man named Charles Schenck printed and distributed material that was critical of the draft to men who had been drafted. He was charged for violating the Espionage Act, and the Supreme Court ruled against Schenck. 

Justice Oliver Wendell Holmes wrote the majority opinion, saying that the way to judge whether speech should be limited is whether or not the words “create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Interestingly, he wrote that under this standard, circumstances are everything. If you say “fire” in a crowded theater, and there is no fire, you could get in trouble for that speech. However, if there actually is one, you wouldn’t face penalties. 

He applied that to this case because Schenck distributed that material while the U.S. was at war. Had Schenck done this at any other time, he would have been protected by the First Amendment.

Clear and Present Danger in Utah

In Utah there is a law that explicitly limits speech and uses the clear and present danger standard. That law is threat of violence. This makes it illegal to threaten that you are going either kill someone or cause bodily injury to them.

This can be either explicit or implicit. In other words, it’s illegal to tell someone flat out, “I’m going to kill you.” It’s also illegal to point your fingers in the shape of a gun as a way to tell the other person that you intend to harm them.

There is a caveat to this. In order to receive this charge, you have to put the other person in a position where they are afraid of being seriously injured. So if you are obviously making a joke with a friend, you probably wouldn’t get in trouble. In other words, there has to be a clear and present danger that you intend to make the action.

Violating this law is a class B misdemeanor, which means up to six months in jail and up to $1,000 in fines. If you actually carry out the threat, this charge can be added on top of the crime that you commit. 

The law also says it is not an exception to say that you never carried out the offense. So the threat itself could put you behind bars.

What To Do If You Are Arrested For Threat of Violence

Let’s say you uttered the words, “I’m going to kill you,” but you clearly meant it as a joke. However, the police don’t see it that way, and they arrest you. 

They take you in for questioning, telling you that if you just tell them what happened, you can clear your name and go home. What should you do? It’s an obvious misunderstanding, so should you just tell the police your side of the story?

The correct answer is no. You should not talk to police without having an attorney by your side. If you feel this was all a mistake, you should tell your lawyer instead. 

Your lawyer is someone who wants what’s best for you. They’re knowledgeable about the legal process, and they’ll be able to help you prove that what you said did not amount to the clear and present danger standard.

The attorneys at Brown, Bradshaw and Moffat have been practicing law for more than 20 years. For a free consultation, call (801) 532-5297.

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