“When the speech condemns a free press, you are hearing the words of a tyrant.”
Imagine you’re at a sporting game with your children. After all, it’s a great way to spend time with the family, and you’ve been meaning to get out more together. You have great seats, and your team is even winning – a rarity for some. It’s looking to be the perfect day.
Next thing you know, the guy sitting in front of you takes off his shirt to reveal several highly offensive tattoos. And, these aren’t just crass images or inappropriate words, but the kind of things that horrify you on a personal level. These are things that shake your core, as they are a direct attack on your faith, or even ethnicity.
Is this free speech? Or, is this hate speech and completely unacceptable in today’s day and age?
We’re going to find out.
Well, that’s exactly what happened at a Cleveland Indians’ game on July 23rd, 2017. Martin Gecovich was at a baseball game with his kids, when the man directly in front of him (sec. 160. Row BB Seat 1 to be exact) took his shirt off to reveal two swastika tattooed on his back. Mr. Gecovich was so appalled, that he took to Twitter to notify the ballpark.
In this blog post, we’re going to take you through:
- The definition of free speech
- What free speech zones are
- The First Amendment
- Free speech vs. hate speech
- The limits of free speech
- Several exceptions to free speech
Furthermore, we’re going to walk you through who to contact and how to contact them in order to assist you in formulating a legal claim or answering your questions.
Free Speech Tip: Note that “freedom of expression” is recognized as a fundamental human right under Article 19 of the Universal Declaration of Human Rights and further enshrined in the International Covenant on Civil and Political Rights. Do note that freedom of expression may sometimes be used interchangeably with freedom of speech.
At Minc Law, we handle all matters defamation and issues relating to freedom of speech and expression. As there is a substantial intersection between defamation and free speech claims, we are well versed in the law, so reach out to us today if you’re unsure of what constitutes free speech or have been the victim of online defamation.
We boast a nearly 100% online defamation removal rate, and have secured the removal of over 25,000 pieces of defamatory and false online content – and, all for a flat, reasonable fee. With the rise of technology and the Internet, free speech and defamation claims are evolving rapidly, so we strongly suggest you consult an experienced internet defamation attorney if you have any questions.
We’re here to fight for you.
What is Free Speech? Free Speech Definition & The First Amendment
First, before we tackle the above instance in greater detail, let’s start with a simple question; What is free speech?
Also known as freedom of speech and expression in the United States, free speech is defined as the fundamental right to express one’s opinions, ideas, and information free from government censorship and restrictions based on its content. Furthermore, free speech should only be subject to “reasonable limitations” by government, which come in the form of reasonable:
- Place, and
- Manner restrictions.
In the United States, free speech is guaranteed by the First and Fourteenth Amendments to the U.S. Constitution. Specifically, the First Amendment reads:
“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.”
Do note that the First Amendment’s instilment of free speech is applicable to both local and state governments, and only applies to government restrictions on free speech, not restrictions foisted by private entities.
Additionally, the First Amendment also protects a person’s right to receive information.
Rules of Conduct & Free Speech Zones
The core question is, was this tattooed gentleman sitting in section 160 merely practicing his free speech? Or, did the offensive images (the swastikas) on his body go against Progressive Field’s rules of conduct.
The Facts: Are the Tattoos Protected Under Free Speech?
When interviewed by the Cleveland Jewish News, I (Aaron Minc) provided the following response, “
“The man has the right to show the tattoos to practice his freedom of speech unless it goes against Progressive Field’s rules of conduct. I think an argument could be made that it’s a public place with rules of conduct, legitimate rules of conduct, that may end up resulting in the individuals expulsion from the place.”
This view was also backed by David Malik, a civil rights attorney who was likewise interviewed by the Cleveland Jewish News.
So, the question begs, if the man’s tattoos do violate Progressive Field’s rules of conduct, should the Cleveland Indians have removed the shirtless man with swastika tattoos?
According to Progressive Field’s rules of conduct, “Abusive or inappropriate language or conduct deemed disorderly, unruly or disruptive including inappropriate dress may constitute grounds for ejection. The solicitation of contributions and/or the distribution of literature at Progressive Field is prohibited.”
With First Amendment rights a rather grey area in the area of sports, it’s still relatively unclear how ballparks and other sports stadiums factor into the free speech debate. For example, many stadiums are publicly funded, which potentially stands to turn them into a quasi-public facility, and thus, First Amendment rights should exist within. However, as many sports clubs and facilities are also privately owned, courts have struggled to define a proper scope of constitutional restrictions.
If you’re unsure of whether conduct or speech is protected under the First Amendment and freedom of speech, reach out to an experienced defamation attorney today. Doing so will help clarify any uncertainty surrounding the nature of a statement or action, and enable you to better understand your rights and remedies under state and federal law.
What are Free Speech Zones?
While the tattoos and overall statement (removing of one’s shirt to reveal such tattoos) was made within a ballpark with their own defined rules of conduct, there is an interesting debate that may arise from such censorship. Should a shirtless man with swastika tattoos only be able to express himself (by removing his shirt) in a predefined zone?
In the United States, there are certain public areas and places set aside for the furtherance and purpose of political protest and free speech – such zones are referred to as free speech zones.
As noted above, free speech must be reasonably regulated, and as such, it is regulated by time, place, and manner (TPM). Free speech zones are the answer to U.S. case law and court decisions which have ruled on time, place, and manner restrictions, and have been used for numerous political gatherings and protests.
So, what’s the purpose of free speech zones?
At its simplest, free speech zones are established in order to protect those protesting and gathering. They protect both sides.
Clearly, the man’s removal of his shirt was not in protest or in a free speech zone, however, it is important to note the existence of such zones.
For example, during the 2004 Democratic National Convention, the free speech zones in Boston (outside the FleetCenter) were used as a “mock prison camp” by persons protesting the Iraq invasion and War. While such zones may be used to convey points of protest and expressions which might otherwise be looked down upon or taboo to the general public, they have also been lambasted as excessive limits on free speech. Furthermore, they have been criticized as being “Orwellian,” or destructive to the idea of an open and free democracy/society.
So, the question is, what is the proper balance? That is still to be determined.
Free Speech Fact: Although free speech zones were in effect before George W. Bush’s presidency, it was during his tenure that their scope was ultimately widened, with such push forward also supported by Barack Obama. And, while free speech zones were extremely popular at universities and colleges during the Vietnam war era, countless schools have since removed such restrictions following student lawsuits and protests.
So, how was the situation with Martin Gecovich and his family resolved?
The situation was reportedly resolved after the Cleveland Indians moved Martin Gecovich and his children to new seats, away from the man with swastika tattoos. However, the Cleveland Indians’ Twitter account (@Indians) had no comment on the matter.
And, Gecovich has since either deleted his account, or changed his handle name after his Tweet received mass attention – attention in support of BOTH parties.
It’s his body & a free country. I don’t agree with it but unless he’s physically harming you or threatening harm, he can do what he wants.
— George Davidson (@GeorgeDavidson8) July 23, 2017
It's his body & a free country. I don't agree with it but unless he's physically harming you or threatening harm, he can do what he wants.
— George Davidson (@GeorgeDavidson8) July 23, 2017
Those tattoos are terrible but they are his right as an American. You also have the right to say something. Good luck!
— Mark Scanes II (@Toltribe) July 23, 2017
The Indians don't have to allow hate speech in their park. Then again, this is the same team that maintains a drunken Indian logo in 2017.
— Seth (@slinnick) July 23, 2017
They're a private entity. They can ask anyone they want to leave
— Eric Anderson (@emande) July 23, 2017
For reference, below are two links to the Cleveland Jewish News and Cleveland 19, who both reported on the manner.
If you’re unsure of whether a person’s actions (or tattoos) cross the line from free speech into hate speech, we strongly recommend you consult an experienced internet defamation attorney. Not only do the defamation lawyers of Minc Law know the ins and outs of defamation law, they are constantly dealing with fundamental issues affecting the general public’s’ rights to free speech.
We’re here to keep you informed.
Free Speech vs. Hate Speech
Now that we know the definition of free speech and the fundamental rights guaranteed under the U.S. Constitution’s First Amendment, let’s define what hate speech is and see how it differs from free speech.
To start, hate speech is defined by most of the world (except the United States) as any speech that attacks a group or person of a protected class (race, color, religion, national origin, sex, sexual orientation, etc…). But wait, hate speech isn’t just language and speech that attacks a group or person, but extends to:
- Writings, or
- Displays which incite prejudicial action or violence against such protected classes of persons.
Compared to other democracies and Common Law jurisdictions in the world, the United States still has a relatively unregulated and ill-defined scope of hate speech.
So, how does the United States define hate speech?
In the 1952 case of Beauharnais v. Illinois, the Supreme Court upheld the constitutionality of Illinois’s codified hate speech laws, which punished speech and expression which was offensive to both religious and racial groups. Such case was the first real instance where the scope of hate speech was defined and enforced in the United States.
However, in 1969, the U.S. Supreme Court ruled in favor of a Ku Klux Klan member’s speech, creating the modern day test for hate speech in the U.S. – the “imminent danger” test. Specifically, only speech that poses an immediate or imminent danger of violence or unlawful action to a person may be restricted and punished under U.S. law. Brandenburg v. Ohio, 395 U.S. 444, at 447 (1969).
Free Speech Fact: Just as freedom of expression is an extension of freedom of speech, so is freedom of information. Specifically, freedom of expression is an extension of the fundamental right of freedom of speech in the context of the Internet. Furthermore, the freedom of information may also extend to the right of privacy and a user’s rights to not having their private information disseminated and used improperly.
To recap, the fundamental difference between free speech and hate speech is the incitement of imminent danger or unlawful action (hate speech), and only then will it be censored and punished.
Let’s end with a quote summarizing hate speech in the United States by Associate Justice of the Supreme Court, Samuel Alito:
“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” Matal v. Tam, 137 S.Ct. 1744 (2017).
Limits of Free Speech & Several Fundamental Exceptions
According the U.S. Constitution and the application of the First Amendment, free speech does not extend to certain conduct and types of speech. Moreover, “exceptions to free speech” is actually an inaccurate designation, and should be more correctly labelled as a “limitation” on speech.
Such limitations are placed on forms of speech which exceed the definition and boundaries of free speech.
For example, below are several core limits to free speech in the United States:
- Obscenity: Under the “Miller Test,” as established in Miller v. California, speech will not receive protection if a person applying community standards would find the subject (taken as a whole) “appeals to a prurient interest,” describes sexual conduct outlined under state law, and lacks value (artistic, political, scientific, literary).
- Child pornography: If in any way, a form of speech falls under the child pornography exception, it will not be protected under U.S. law. Specifically, such speech will not be protected if it “visually depicts” children who are minors, or shows minors performing sexual acts or exposing their private parts.
- Speech essential for illegal conduct: If speech gives rise and is essential for the commission of a crime or other illegal conduct, it will not be protected under free speech in the United States.
- False assertions and statements of fact: In the landmark case of Gertz v. Robert Welch, the United States Supreme Court ruled that there was “no constitutional value in false statements of fact.” What’s so intriguing and complex about this statement is that there is no definite rule governing the exact speech which will and will not receive constitutional protection.
- Speech inciting immediate lawless action or violence: As we touched on above, hate speech, or speech inciting imminent violence or lawless action, is not protected under the right of free speech.
Above are just several of the core limits of free speech in the United States.
Free Speech & Internet Censorship Fact: Look no further than Justine Sacco, a senior director of corporate communications at IAC, who sent out a careless tweet before boarding her plane to Cape Town, South Africa. After landing 11 hours later, Justine was the number one worldwide trend on Twitter, and out of a job.
Work With the Nationally Recognized Defamation Removal Lawyers of Minc Law Today!
At Minc Law, we know the ins and outs of United States defamation law – an area of law heavily intertwined with First Amendment rights and free speech – so rest assured when working with us that you are in good hands.
Furthermore, we’ve removed over 25,000 pieces of defamatory and false online content from various websites and online forums, have litigated in over 19 states and 3 countries, and have worked tirelessly with website administrators, content managers, and third-party arbitration firms. The experienced defamation removal lawyers of Minc Law know who to work with and how to work with them in order to secure a swift and permanent online defamation removal and takedown.