FIRST AMENDMENT CLAIMS DON'T ALWAYS WIN

The First Amendment's five freedoms ensure that
government doesn't run roughshod over our
religious-liberty and free-expression rights.

But sometimes, the First Amendment doesn't win out.

Thankfully, it's not all that often. When it does
happen, generally the situation involves
balancing one of the First Amendment freedoms =AD
religion, speech, press, assembly and petition =AD
against other parts of the Bill of Rights.

The threat of terrorism is one such area. Critics
of unrestrained speech by our enemies =AD and
sometimes, of opponents at home =AD have observed
that the First Amendment is not "a suicide pact.=94

At other times, constitutional collisions involve
personal safety, public health, individual privacy or religious rights.

The U.S. Supreme Court just days ago refused to
rehear a Colorado Supreme Court decision
involving a ban on actors' smoking on stage as
part of their performances. The state court, in a
6-1 ruling, ranked public-health concerns over
the free-speech argument raised by three creative groups.

In its decision, the Colorado court acknowledged
the free-expression argument, but said, =93Even
assuming that theatrical smoking actually can
amount to protected expressive conduct under some
circumstances, the law doesn't infringe on free
speech because it's 'content neutral'" =AD not
aimed at one brand or type of cigarette or cigar,
presumably =AD and was =93narrowly tailored to serve
the state's substantial interest in protecting the public health and
welfare.=94

Smoking=94 of a different character also was
involved a recent decision in the 10th U.S.
Circuit Court of Appeals, where judges said
founders of a self-styled church could not use
the =93cover of religion to pursue secular drug trafficking activities.=94

The founders of the Church of Cognizance, which
calls marijuana a deity and a sacrament, were
arrested in 2006 and charged with crimes related
to drug possession and distribution. In their
appeal, they claimed the First Amendment
protected them from government interference in
their sincerely held religious beliefs and
practices. Not so, said the 10th Circuit. A
unanimous three-judge panel said, =93As the
district court noted, numerous pieces of evidence
in this case strongly suggest that the ...
marijuana dealings were motivated by commercial
or secular motives rather than sincere religious conviction.=94

There's a short list of exceptions to First
Amendment protection =AD true threats, fighting
words, criminal solicitation, libel, obscenity,
child pornography and perjury among them. And
government can regulate the time, place and
manner of expression. A vigorous political speech
that is highly protected when delivered at noon
in the public square likely would not be =AD though
the content is the same =AD when shouted at 3 a.m. under your bedroom
window.

Recently, two important cases tested First
Amendment freedoms. One involved
spending-as-speech in the political arena, the
other the legitimacy of a ban on distasteful
videos in which animals are killed. In both
instances, unfettered speech was the victor.

This fall, the U.S. Supreme Court will consider a
challenging case involving a Kansas family group,
organized as a church, which regularly protests
at the funerals of men and women killed while
serving in the U.S. military. They believe such
deaths are God's punishment of America for tolerating homosexuality.

In 2006, the group protested at the funeral of
20-year-old Marine Matthew Snyder =AD reportedly
carrying signs that read, =93Thank God for Dead
Soldiers=94 and =93You're going to Hell.=94 In a brief
filed May 26, lawyers for the Marine's father,
Albert Snyder, said the group's protest
interfered with the funeral, =93a religious
ceremony entitled to constitutional protection."
They also said the group's =93freedom of speech
should have ended where it conflicted with Mr.
Snyder's freedom to participate in his son=92s
funeral, which was intended to be a solemn religious gathering.=94

It's likely that the Kansas group=92s tactics and
message offend most Americans. But it's also true
that the words spoken in national debates over
most important issues throughout the nation's
history have offended many, from civil rights to
women's suffrage, from health-care policy to taxation, to name but a few.

Sometimes we need to hear fully the ideas we
dislike if only the better to oppose them.

Gene Policinski is vice president and executive
director of the First Amendment Center, 555
Pennsylvania Ave., Washington, D.C., 20001. Web:
www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org