The 1st Amendment and Private Property - contradictory?

[Imran Siddiqui]

It doesn't say anything about the States. It doesn't say anything about individuals. It doesn't say anything about corporations. It just says that Congress shall make no law abridging the freedom of speech, or of the press.

Repeat three times for imprinting purposes: Congress. Congress. Congress.

Um... John. The Supreme Court has, many times, in incorportation the 1st Amendment to the states (though the 14th Amendment) has said that 'Congress' stands for all 'State Action'. So, no, the state can't vote against Satanism because they are now covered under the Amendment.

[JohnT]

Thanks for the info. Do note the clause I had about "State Constitutions" and all that, but I do appreciate the clarification.

[Imran Siddiqui]

Well the State Constitutions are only relevent if they give greater protection. This is also why state religions are no more. The Establishment Clause applies to the states as well.

This is also why the Court strikes down local towns having (only) Nativity scenes inside the City Hall or Courthouse. Because it is violating the Establishment Clause.

Just remember that any government organization is subject to most (but not ALL) of the provisions in the Bill of Rights. There are, IIRC, 3 or 4 provisions that haven't been incorporated to the states, such as the 2nd Amendment, and the 7th Amendment right to trial by jury in civil cases.

[David Floyd]

That is of course correct, Imran, but the 1st Amendment really does not apply against corporations. The wording states "Congress", and the 14th Amendment, by virtue of the, IIRC, Gitlow decision, incorporates the 1st to apply against the states.

Businesses, though, have every right to tell people what they can and can't talk about on the grounds of the business, and escort them off the premises if they so choose.

For example, I work at Best Buy. If a customer came into the store with a megaphone, stood in the center of the store, and started screaming into the megaphone about hating Best Buy, could Best Buy make him leave? Certainly they can, and I find it hard to believe even Dracon or Kidicious would debate that point, either from a legal standpoint or from the standpoint of what SHOULD be legal.

[Dracon II]

For example, I work at Best Buy. If a customer came into the store with a megaphone, stood in the center of the store, and started screaming into the megaphone about hating Best Buy, could Best Buy make him leave? Certainly they can, and I find it hard to believe even Dracon or Kidicious would debate that point, either from a legal standpoint or from the standpoint of what SHOULD be legal.

From a common sense viewpoint, your argument makes sense. But a shop is a single purpose space... it's not exactly designed to be a tool of communication, or an area where people congregate. What I was thinking was mass media, telecommunications and de facto public spaces like shopping malls and parks and such. But you have a point about the best buy megaphone thing. Like I said, I'm not talking in absolutes. I just want to establish the limits of free speech/assembly, and see if there are any problems with them.

Speaking of congress... when people were saying about how only congress is required to protect freedom of speech and assembly, I couldn't help but remember the Simpsons episode where an incredibly drunk Homer Simpson walks into the House shouting "You call this a bicameral legislature???"... whereupon he was promptly stifled, beaten and carried away. I doubt Best Buy would be that harsh

[Kidlicious]

Originally posted by David Floyd
Certainly they can, and I find it hard to believe even Dracon or Kidicious would debate that point, either from a legal standpoint or from the standpoint of what SHOULD be legal.

Of course that shouldn't be legal, but it is possible to get a court order to compel a business to allow you to speak freely on their property as long as the court finds that it doesn't disturb the business, as it should be.

[David Floyd]

Of course that shouldn't be legal, but it is possible to get a court order to compel a business to allow you to speak freely on their property as long as the court finds that it doesn't disturb the business, as it should be.

Imran, care to comment on that? If that is correct, I can only imagine it would be applicable in VERY LIMITED circumstances, for example, possibly a business holding a political debate paid for with public money.

Dracon,

I just want to establish the limits of free speech/assembly, and see if there are any problems with them.

Well I think the limit is that you can speak and assemble all you want on private property, until the property owner objects.

[Dracon II]

Hmmm... I think this thread begs another debate; that being about the scope and extent of power that property owners should be able to wield over their property and the people that frequent it.

*Hands debate over to Kid and Floyd, huddles in bunker awaiting the result*

[Kidlicious]

Public areas should not be owned by individuals. I was just commenting on the way US law is now. I remember a case from my Business Law class. I may be forced to dig up my old textbook.

[David Floyd]

If property is owned by an individual then it is obviously not a public area

[Flubber]

Originally posted by Dracon II
From a common sense viewpoint, your argument makes sense. But a shop is a single purpose space... it's not exactly designed to be a tool of communication, or an area where people congregate. What I was thinking was mass media, telecommunications and de facto public spaces like shopping malls and parks and such. But you have a point about the best buy megaphone thing. )

Well in public places like shopping malls etc you could face criminal sanctions depending on how "expressive" your speech happened to be. Most jurisdictions have sanctions for "disturbing the peace" which could apply to the megaphone wielder. Imagine I have my family in that park and the megaphone guy starts going full tilt, startling my son etc. Does everyone have to sit and listen? Is my only recouse to leave? If you say we can't prevent him because its "free speech", I guess then I should just get a bigger loudspeaker and drown him out with some music in my own expression. If her can't be limited then I guess neither can I.

[Flubber]

Originally posted by Dracon II
Hmmm... I think this thread begs another debate; that being about the scope and extent of power that property owners should be able to wield over their property and the people that frequent it.

*Hands debate over to Kid and Floyd, huddles in bunker awaiting the result*

Simple-- a great deal of power in a sense , Its not quite absolute since I agree with limitations related to discrimination and safety.

I just don't see it as wuielding power OVER people. Everyone that enters my property is free to leave at any time. If my rules are two strict, the nearest property line is 50 feet away.

Someone can exercise their free speech and call me an ******* and then I can exercise my property rights and invite them to leave

[Flubber]

Originally posted by David Floyd
If property is owned by an individual then it is obviously not a public area

That seems self-evident but people seem to miss the point.

If an oil company creates a small park amd allows the public to use it, they are deemed to have invited the public at large to use the space. However they remain the property owner and would still be liable for injury on the property. As long as they retained ownership, they would also be able to revoke that invitation to use the property and could tell the megaphone wielder to get lost. That Megaphone guy could then retreat to the sidewalk and continue his address and any further action would be on the police to determine if the guy was breaking any laws

[Kidlicious]

Originally posted by David Floyd
If property is owned by an individual then it is obviously not a public area

Best Buy is a public area. Take a look around. It's built to function that way.

[Imran Siddiqui]

Kid, just admit you are wrong, k?

Malls are considered semi-public areas, but that is obviously different from a store which is set up to move merchandise. Malls are set up like parks with stores around it. Though even there, there isn't full free speech rights.