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How many times will the courts have to remind politicians and bureaucrats that free speech isn’t a privilege permitted by government but a right granted by God?
Increasingly, governments believe they should have the right to regulate certain kinds of speech. That’s what two legal firms are pushing back on after a Christian was told he would need a permit to hold a religious sign on a public street in South Carolina and a student was barred by a public university from putting up flyers for Students for Life of America.
On October 23, First Liberty Institute sent a letter to the mayor and police chief of the town of Chapin, South Carolina, claiming they had violated Ernest Giardino’s First Amendment rights.
Giardino held a 20 inch-by 24-inch sign, which read, “Trust Christ He paid the price” on one side and “He saved others — Jesus — He’ll Save You” on the other. Giardino claims that he had held similar signs for the previous eight months with no issue.
Yet this time, as he was leaving, a police officer told him he needed the permission of the town to hold a sign.
The next day, Giardino spoke with the Code Enforcement Officer and the Chief of Police, both of whom, while cordial, reiterated that he would need to submit a permit application. They also explained that if approved, Giardino would only be allowed to hold his sign for 30 minutes at a time and would have to switch street corners every 15 minutes. In addition, he would be required to give 14-days advance notice of his intent to hold a sign.
The letter from First Liberty argues that requiring a person to get a permit to hold a sign on a public sidewalk violates the First Amendment.
Citing United States v. Frandsen, the letter states, “‘A prior restraint on expression exists when the government can deny access to a forum before the expression occurs.’ Chapin ordinance is a prior restraint because it prohibits any person from engaging in a demonstration or picket ‘unless a permit to perform such actions has been secured.’”
First Liberty also cited Bantam Books v. Sullivan, arguing, “The classification is significant because a prior restraint ‘bear[s] a heavy presumption against its constitutional validity.’ The presumption is fitting. Permit schemes, like the one found in Chapin, have the effect of freezing speech before it is uttered.”
Finally, they cited Nebraska Press Association v. Stuart, explaining, “Permit schemes are thus viewed skeptically, being ‘the most serious and least tolerable infringement on First Amendment rights.’”
First Liberty argued that the permit scheme is not content-neutral, noting that town officials automatically deny a permit if the applicant is in a cult or practices discrimination. It also argues the process is not narrowly tailored because it applies to individual speech, which would not cause a disturbance for the town, and that the advance notice and 30-minute requirement serve no legitimate purpose.
Chapin Town Administrator Nicholle Burroughs responded to the lawsuit with this explanation: “Our goal is to balance the right to free speech with the need for reasonable regulations on the size, placement, and duration of signage, as well as the use of amplification devices.”
She said that all permit requests brought to the town have been approved.
“As a town, we are committed to upholding the fundamental right to free speech, recognizing that the ability to express ideas, opinions, and beliefs is essential to a healthy and vibrant community,” Burroughs said in a statement.
“In order to protect the shared interests of all residents and maintain the character and functionality of our public spaces, it is equally important that we regulate the use of signage and amplification devices. These tools, while valuable for expressing messages, must be managed in a way that respects the rights of others and prevents disruptions to daily life.”
First Liberty Senior Counsel Nate Kellum pushed back on that assertion by explaining,
“Mr. Giardino does not need the Town’s permission to express his faith in public. The First Amendment is his permit, allowing any citizen in any city in America to peacefully share their religious beliefs on a public sidewalk. The additional requirements on his peaceful speech – 14-day advance notice, 15-minute relocation, and 30-minute cap, compound the constitutional concerns. Chapin’s ordinance is overbroad, unconstitutional, and must be repealed or enjoined.”
Meanwhile, Alliance Defending Freedom (ADF) yesterday argued on behalf of a high school student before the U.S. Court of Appeals for the Seventh Circuit, claiming that an Indiana school district violated her First Amendment rights when it refused her request to put up a pro-life flyer.
Three years ago, the student met with the principal of Noblesville High School asking to form a Students for Life of America chapter.
She hoped the club would, “educate [her] peers on the issue of abortion and empower [her] peers in a local community with pregnancy-related items”.
The club was recognized, but after she posted flyers around the school that featured pictures of students standing in front of the Supreme Court building holding signs which read, “I Reject Abortion,” “Defund Planned Parenthood,” and “I Am the Pro-Life Generation.” School staff told her to take the flyers down because they were “political” and the club was derecognized.
The district court ruled in the district’s favor, but ADF appealed.
In a statement ADF Legal Counsel Matthew Hoffman argued,
“Students don’t lose their First Amendment right to free speech when they walk into a school building. This isn’t just about a flyer; this is about a school telling a high-schooler that she can’t publicly express messages that are important to her. School officials punished the student because she sought to share flyers that expressed pro-life messages. While other student groups at the school are allowed to express messages that are important to them, this club was specifically punished because of the messages on the flyers. We are urging the court to recognize the free speech rights of all students, not just those who agree with the opinions of school officials.”
In the case of Giardino, there is no reason to believe that the town is engaging in discrimination or censorship. The officials were cordial to Giardino and we have no reason to believe that if he had applied for a permit he would have been denied one considering all requests have been approved.
With that being said these types of encroachments on rights must be resisted. The issue is not that the town was trying to stop Giardino’s message; the issue is the government has no right to require you to obtain a permit so you can exercise your rights. Your rights aren’t permitted by government, they are given by God.
Government increasingly seems to think that it can put restrictions on our right to free speech, free thought, and free exercise of religion, and that has led to cases like Jack Phillips in the United States and the numerous arrests and a conviction in the U.K. for the silent prayer.
The same is true with the case of Noblesville School District. A school district may not silence a student’s expression on a topic of public interest, especially when they let others freely opine.
Courts have repeatedly ruled against schools that have violated the rights of students and student clubs by discriminating against them and have also repeatedly upheld the right of staff and students to engage in religious expression at school. This district had no right to ban the student’s flyers or the club.
The government doesn’t have the authority to stop people from speaking. Hopefully, the courts in these two cases, and all others, will reaffirm that truth.
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