Summer 2021 - 121

LEGAL CORNER
FIRST AMENDMENT
T
he First Amendment is a cornerstone of
American law and jurisprudence. It is most
certainly one of the laws that distinguishes our
country from others. The First Amendment guarantees
freedom of expression, among other rights. Furthermore,
it prohibits Congress from restricting the rights of the
press or of individuals' free speech rights. That being
said, there is speech that is not protected by the First
Amendment, meaning that it can be restricted or that it
receives little to no protection. These categories are speech
that is considered, obscenity, fraud, child pornography,
speech used to carry out illegal conduct, speech that
incites imminent unlawful conduct, speech that violates
intellectual property law, true threats, defamation,
and commercial speech, for example advertising. Also,
necessary to understand how speech
impacts our culture is the knowledge
that the First Amendment does not
only apply to spoken words, but also to
written words, and even expressions
of speech that have no words. That
makes the First Amendment a rather
broad and far reaching protection of
how those in the United States may
express themselves.
DISPLAYING PRODUCTS FOR SALE
There is no law that states explicitly
that one cannot sell or display
profanity on products or within their
place of business. However, profanity has always been
an area where the courts have had issues. It can be a grey
area so to speak. Although, generally speaking, one could
display products with profanity, if those products were
considered obscene or if those products incited violence,
then maybe those products would not receive protection
if someone decided to challenge them being displayed.
This is not to say that one cannot display products that
have obnoxious or repugnant sayings or even artwork,
however when the speech crosses the line into obscene or
inciteful, it will not be considered protected by the First
Amendment.
NAMING A BUSINESS
While historically, both state and federal laws have
prohibited businesses from naming their entity something
indecent or something that would illicit pornographic
thoughts. A recent 2019 Supreme Court case seems to
suggest that law could be shifting. In that case, an apparel
brand sought to register several trademarks that contained
phrases with the F-word. Although the F-word was
spelled incorrectly, it still phonetically was evident that
it was pronounced like the F-word. In the majority ruling
the Court stated that, " there are many immoral and
scandalous ideas in the world and the First Amendment
covers them all. " So, again, there is no bright line test. It
seems in this situation, if one feels strongly about naming
one's business with profanity, they may have to defend
that name. Knowing that upfront may be helpful.
POSTING PROFANITY
This is an area where the law gets really complicated
because there are several laws at play. On the one hand
there is free speech. However, on a platform that is owned
by a company, not a government entity, the law applies a
bit differently.
" There is no law that
states explicitly
that one cannot sell
or display profanity
on products or
within their place
of business. "
- Angie Avard Turner, J.D., LL.M
Here is how one scenario could play out. If a person
posts profanity on a social media platform, that post may
be deemed allowable. Depending on how much profanity
and what the specific content is,
on the other hand it may not be
allowable. It depends on whether it
is violating the terms and conditions
set out by the social media platform.
Now, if a person posts profanity and
it is in regard to a work situation or
union situation, that may be allowable
regardless of the terms and conditions
of the social media platform as there
are certain rules and regulations that
protect that type of speech and the
ability of workers to voice a concern
within the workplace.
In another situation, if someone
posts speech that falls within those unprotected categories
mentioned above, then the speech is not protected, and
most likely it will violate the social media platform's terms
and conditions. Best practice would be to steer clear of that
type of speech.
CONCLUSION
The First Amendment has a far-reaching effect on all of
our lives, both personal and professional. It is often easy to
oversimplify the issues surrounding the First Amendment.
However, the First Amendment has a long history in our
nation; it is not going anywhere. That being the case,
it makes sense to gain a deeper understanding of how
various forms of expression can impact one's business.
DISCLAIMER: The materials available in this article are
for informational purposes only and not for the purpose of
providing legal advice. You should contact your attorney to
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Use of and access to this website do not create an attorneyclient
relationship between Angie Avard Turner Law and the
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