10 Questions with a First Amendment Lawyer

Tomorrow is Thanksgiving (in the United States), a time where traditionally I gush about how thankful I am for the support and enthusiasm of Magical Buffet readers. Which I truly am, but today I’d like to say this, “I am thankful to be an American.”

It’s true. I love this country. No other country gives its citizens the freedoms that America does. Just look through my website, it’s littered with posts about people in other countries suffering because they don’t have the freedoms we have here in America. In my opinion, our Founding Fathers were freakin’ geniuses for our Constitution and Bill of Rights. And as a proud American, I get concerned when I learn that the government is trying to infringe on those freedoms or worse succeeding at it.

This leads to something else I’m thankful for, that there are people willing to help myself and my readers learn more. Take the time to read my interview with Lawrence G. Walters, First Amendment Lawyer extraordinaire.

Have a wonderful Thanksgiving everyone! I’ll talk to you after the weekend!

1. What made you decide to specialize in First Amendment law?
Originally, my practice was involved typical, mainstream, commercial litigation work representing banks, insurance firms and construction companies. After about four years of that nonsense, something happened that would set me on my current course. The State Attorney in my home county started prosecuting “Mom and Pop” video stores for renting films he did not like. He had Sheriff’s Deputies hand deliver letters demanding that certain movies be taken off the shelves, or the stores would face criminal prosecution. Although I had no experience in First Amendment law, that didn’t sound right to me, and I offered to help these small business owners, on a pro bono basis, to fight this apparent abuse of prosecutorial power. Fortunately, we won all of the cases, and forced the State Attorney to back down. After that small taste of defending Free Speech rights, I was hooked.

2. Do you feel there are any common misconceptions about the First Amendment?
Definitely. First, the First Amendment only applies to governmental censorship, not the activities of private corporations or individuals. We constantly get questions from people wanting to sue websites like Yahoo! or Google because they have been banned from participating in certain online groups based on their online communications. Private companies can censor all they want, without violating the First Amendment. The same goes for private employers. However, when the government tries to impose some sort of penalty or prior permission on speech-related activities; that is a problem.

Another misconception results from people trying to also blame the First Amendment for keeping the “prayer out of schools.” Students are free to pray all they want in school without violating the First Amendment. It is only when a Public School forces children to participate in prayer-related activities, or punishes them in some way for failing to do so, that the “Establishment Clause” to the First Amendment is implicated.

3. How is something determined to be slander or libel, as opposed to the exercising of freedom of speech?
The concept of libel/slander, both of which are referred to as “defamation,” can be somewhat complex. But in general, all speech is presumed to be protected by the First Amendment with very narrowly-drawn exceptions. One of those exceptions involves defamation, which is defined as publication of a false statement of fact that causes damage to an individual’s reputation. Importantly, the false statement must relate to an issue of fact, and not one’s opinion. Thus I can say, “Ford Sucks” without any legal repercussion, because that is my opinion. But if I say: “The wheels come off of Ford vehicles if the car exceed 40 mile per hour” I can be sued for defamation, unless I have the facts to back up my statement. Truth is always a defense to defamation, so you can make damaging statements of fact about individuals or companies so long as you have the ability to prove the truth of those matters in court.

4. What are the free expression rights of students in public schools under the First Amendment?
Students do not surrender their Free Speech rights when they enter the classroom. But schools are allowed to impose some restrictions on student speech that would not be constitutional if applied to adults outside the classroom setting. Students’ rights under the First Amendment were the strongest in the late 1960’s, when the Supreme Court, under Chief Justice Warren, decided the case of Tinker v. Des Moines Independent Community School District. Under that case’s holding, students had the ability to express themselves – even through their choice of clothing, so long as that expression did not materially disrupt the educational environment. Although that is still technically the law, later decisions from more conservative incarnations of the Supreme Court have dramatically reduced the scope of student free speech rights, allowing schools to censor student speech even to preserve decency or morality.

5. Is a public school student’s choice of dress Constitutionally protected? Including hair color, piercings, etc.
Today, the schools can probably get away with restricting or mandating student dress code so long as the school policy is not “content based.” In other words, the school cannot forbid Democratic political messages on t-shirts while allowing Republican political t-shirts. If everybody is required to wear a white t-shirt as part of a school uniform, that is not a content-based decision. Things like piercings, hair color, tattoos, etc., have been held not to be protected by the First Amendment, and therefore the schools can most likely regulate those items.

6. Has the nature of the First Amendment changed during the past eight years?
Unfortunately, yes. Constitutional rights in general have been eviscerated during the George W. Bush Administration. As a result of repugnant laws like the Patriot Act, as well as the appointment of numerous conservative federal judges throughout the country, it is becoming more and more difficult to prevail on First Amendment–based legal challenges to government censorship activities. Often, these conservative courts will evaluate the ‘value’ of the specific message at issue in a given case, instead of treating all speech equally, as is required under the First Amendment. So, for example, political speech is given more protection than erotic speech, or sarcastic humor. Hopefully we can begin repairing some of this damage during the next presidential administration.

7. Are there restrictions to how people can assemble and petition the government?
The First Amendment protects the right of people to peaceably assemble and petition the government for redress of grievances. These two aspects of the First Amendment have not been fleshed out by the courts, and there is not much law interpreting these rights. One restriction on assembly rights is the requirement that such assemblies be peaceful, and not advocate any form of violence. Recently, there have been efforts at the state and federal levels designed to force protestors to conduct their assembly in designated “free speech zones.” This is clearly an effort by the government to separate the speakers from the intended recipients of the message. Any restrictions on the time, place, or manner of an assembly must be “reasonable” and must provide for alternative means of conducting the communicative activity.

8. Can employers place restrictions with regard to their employee’s ability to practice their religion, such as attire, garb, prayer needs, or time off for religious observances?
Private employers have more latitude with respect to restrictions on religious activities than governmental employers. However, neither private, nor public employers may discriminate against individuals based on their religion or “creed.” These are protected civil rights under federal law. Unfortunately, employers will often find alternative, non-discriminatory reasons for any adverse employment action, so proving a violation of the First Amendment in such cases can be difficult. But technically, employers are required to make reasonable accommodations for the exercise of one’s religion, so long as it does not interfere with the normal functioning of the employee’s duties.

9. What actions can an individual take if they feel they are being deprived of their First Amendment rights?
The first thing is to stand your ground. So many free citizens capitulate to governmental oppression these days, and that is unfortunate. We only have as much freedom as we demand in this country. Government, by its very nature, will always seek to stifle individual freedoms, and try to grab control. It is essential that citizens of this great country stand up, speak up, and be heard. We have the right NOT to remain silent in America. If the government is doing something illegal, there are hundreds of First Amendment lawyers throughout this nation who are willing to take these cases and fight hard for their clients. The First Amendment Lawyers Association, www.FirstAmendmentLawyers.org, is a good place to start looking for a First Amendment attorney if one is needed.

10. Parting shot! Ask us here at The Magical Buffet any one question.
If you could be guaranteed, for the rest of your life, that you would not be the victim of any crime, harassment, or misfortune, would you be willing to give up your constitutional rights to the government?

That is a very difficult question, and one that I don’t think anyone could honestly answer without being in the actual situation. I’d like to think that when push came to shove I would do the right thing….not give up my constitutional rights. I don’t imagine myself to be particularly brave or heroic, but I’d like to think that I would be willing to die to insure those rights for everyone.

Bio:

Lawrence G. Walters is a partner in the national law firm of Weston, Garrou, Walters & Mooney, which maintains offices in Orlando, Los Angeles, San Diego and Salt Lake City. Mr. Walters has developed an outstanding reputation for representing the interests of the online entertainment community. He has practiced law for almost two decades, concentrating in the areas of constitutional, media and Internet law. He is recognized as a national expert on legal issues pertaining to Free Speech and the Internet, and frequently contributes to television news programs on networks such as NBC, ABC, Fox News Channel, MSNBC, CNBC, and CNN. His high profile cases are regularly followed by the print media, and he’s been quoted in such periodicals as the Chicago Tribune, New York Times, Wall Street Journal, San Francisco Chronicle, Wired Magazine, Business 2.0, Playboy, ABA Journal, St. Petersburg Times, Orlando Sentinel, etc.

He began practicing law in Central Florida in 1988, after graduating from Florida State University, College of Law, with Honors. While in law school, he studied English Common Law at Oxford University and interned with a federal judge in the Northern District of Florida. During his career, Mr. Walters has served as a professor at the University of Central Florida, and acted as a Director for the local Bar Association and the local Chamber of Commerce. Among his many civic and community activities, he has served as Chair of the Legal Panel of the ACLU, Central Chapter, and currently participates on the advisory panels for the University of Central Florida’s Law Studies Program, and the Heifer.org charitable group. He has established and directed numerous non-profit associations and trade groups, including the Internet Freedom Association, the Jacksonville Property Rights Association and the Association of Coastal Property Owners. His efforts in helping fight online child pornography earned him the Annual Service Recognition Award from the Association of Sites Advocating Child Protection, www.asacp.org in January, 2005. Recently, Mr. Walters was recognized as one of the Top 100 News Makers by the media industry group, Xbiz, and was included in the top 10% in the ‘Best of the Bar’ competition, conducted by the Orlando Business Journal.

Mr. Walters’ First Amendment law practice dates back to the late ’80s when he defended numerous video stores in Florida against obscenity charges. In 1997, he formed the Florida Bar’s First Amendment Law Committee, which he currently chairs. He represents hundreds of webmasters across the globe in connection with the regulation and protection of online content. Mr. Walters regularly deals with issues relating to online advertising, Internet gaming, domain name protection and other cutting edge practice areas. His law firm has been established for over 45 years, and handles cases involving constitutional and commercial issues such as civil rights litigation, licensing and zoning suits, intellectual property claims, appeals and complex criminal defense. Larry often represents clients in the fields of online gambling, adult entertainment, online dating and Internet pharmaceuticals. He has initiated over 100 federal law suits, and defended over 30 criminal obscenity cases during his career, many of which involved racketeering charges.

Mr. Walters is a frequent lecturer on Free Speech issues, and has presented seminars across the Country on Internet law, Gaming law and the First Amendment. One of his speeches dealing with the First Amendment and Terrorism, was published in the Representative American Speeches of 2003, along with those of President George W. Bush, Dr. Condoleezza Rice, and Sen. Hillary Clinton. He regularly publishes articles of interest to Webmasters on countless websites and magazines, including legal updates directed at specific industries. His website, www.FirstAmendment.com, receives over 1.5 million hits per month, and is recognized as a global resource on Internet law issues. He operates several other websites including www.GameCensorship.com dealing with legal and legislative attempts to censor video games. Over the years, Mr. Walters has published several law review articles on gambling advertising and obscenity regulation, along with a book chapter on the First Amendment protections of commercial speech. His accolades in the legal field have earned him recognition as an honored member in the Who’s Who Registry of Outstanding Professionals, 2006-07 Edition.

In 2005, Mr. Walters was appointed to the Board of Officers of the First Amendment Lawyers Association, a prominent group of First Amendment practitioners, for which he regularly presents lectures on Free Speech and the Internet. He has earned a “BV” (very high) rating from Martindale Hubbell, the national rating service for lawyers. Mr. Walters is admitted to practice in all state and federal courts in Florida, as well as the 11th Circuit Court of Appeals in Atlanta, Georgia, and the U.S. Claims Court in Washington, D.C. In addition he has been admitted pro hac vice to courts across the country.