Freedom of Speech in Pennsylvania
The First Amendment to the United States Constitution guarantees the freedom of speech, which is a fundamental right that has been interpreted and applied in various contexts within Pennsylvania law. The Pennsylvania Constitution, specifically Article I, Section 7, also provides robust protections for freedom of speech and expression, often affording greater protections than the First Amendment to the United States Constitution. Pennsylvania courts have frequently analyzed and compared these constitutional provisions to ensure that the rights of individuals are fully protected under both state and federal law.
The First Amendment to the United States Constitution prohibits Congress from making laws that abridge the freedom of speech. This protection extends to the states through the Fourteenth Amendment, ensuring that state actions also respect this fundamental right. J.S. v. Manheim Twp. Sch. Dist., 263 A.3d 295.
The Pennsylvania Constitution, Article I, Section 7, guarantees the free communication of thoughts and opinions, allowing every citizen to speak, write, and print on any subject, being responsible for the abuse of that liberty. This provision is considered broader than the First Amendment as it explicitly affirms the invaluable right to free communication. Pap's A.M. v. City of Erie, 571 Pa. 375. The Pennsylvania Supreme Court in Pap’s A.M. highlighted that Article I, Section 7 of the Pennsylvania Constitution provides broader protections than the First Amendment, particularly in the context of expressive conduct such as nude dancing. Pap's A.M. v. City of Erie, 571 Pa. 375.
In Oberholzer v. Galapo, 322 A.3d 153, the court reiterated that the Pennsylvania Constitution's protection of free speech is broader than the First Amendment, emphasizing the right to free communication of thoughts and opinions. Oberholzer v. Galapo, 322 A.3d 153. In Friends of Devito v. Wolf, 658 Pa. 165, the court addressed the First Amendment and Article I, Sections 7 and 20 of the Pennsylvania Constitution, discussing the right to free speech and assembly in the context of COVID-19 restrictions. Friends of Devito v. Wolf, 658 Pa. 165.
In Sprague v. Porter, the court highlighted the historical significance of the Pennsylvania Constitution of 1776, which was the first state constitution to provide for free speech and press, serving as a template for the First Amendment. Sprague v. Porter, 2013 Phila. Ct. Com. Pl. LEXIS 368.
But where else does the First Amendment apply? Well, it can apply to assembly rights, religious rights, and to certain organizations that are determined to be government actors or receive significant funding from government sources (ie Public Universities) Private organizations however are generally exempt from First Amendment requirements, and not all forms of assembly are “lawful.” Assembly can be unlawful if it is particularly disruptive (say, blocking a highway) or otherwise causes large tumult or violence.
Also importantly, students in schools have different first amendment rights than adults in public – particularly if the student activity is disruptive or serves no purpose. Speech is important in American society but it is important to know that there are boundaries. It is not unlimited, and the Courts over time have somewhat curtailed any claim to an “absolute” right to speak. For example, yelling fire in a crowded theatre is not protected speech, nor is possessing and displaying obscene material to the public.
