Emily Gillingham, Washington, DC, USA, Blog Correspondent

Every now and again, someone in a newspaper editorial, blog post, or conversation will argue that a law or policy restricting street harassment violates Americans’ First Amendment right to free speech. Though these people’s dedication to their desire to hurl sexual remarks at strangers or defend those who do so is admirable, here’s why that assertion is way off-base.

The First Amendment to the United States Constitution reads in pertinent part, “Congress shall make no law . . . abridging the freedom of speech . . . ” This is about things that Congress does; an easy way to think about it is whether the government is restricting the speech.

The First Amendment protection against government abridgement of free speech is not absolute. While the First Amendment has been found to protect rights to things like the speech of protestors outside of abortion clinics, it has been found to not protect “speech” like public school students holding a banner at a school event that reads “BONG HITS 4 JESUS” and unsolicited mailing of graphic brochures advertising pornographic books. For how often the old adage that the First Amendment doesn’t protect falsely shouting “fire” in a crowded theater is brought up in free speech arguments, no such set of facts was ever before the US Supreme Court, and in fact the case from which the concept sprung has since been overruled. But the basic premise remains: First Amendment rights are not absolute.

The U.S. Supreme Court has upheld laws restricting public place speech before. For example, in Chaplinsky v. State of New Hampshire, a man was convicted of violating a state law that read, “No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation” for standing outside City Hall in Rochester, New Hampshire and saying things like, “[y]ou are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.”

The Supreme Court upheld the constitutionality of the state law over Chaplinsky’s argument that the law violated his First Amendment rights because the law was limited in scope, Chaplinsky’s words lacked social value, and the law did not “unduly impair liberty of expression.” The Court wrote that Chaplinsky’s words “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

First Amendment cases use several different rules and rationales because they are so heavily fact-dependent. And we don’t have a Supreme Court case directly on this issue to compare. But one line of cases focuses on whether the restriction focuses on the content of the speech, or instead the “time, place, or manner” of the speech, which is scrutinized under a less stringent standard. This line is drawn in several Supreme Court cases.

An anti-street harassment law which regulated the content of speech, like a law that prevented shouting “compliments” at strangers in public, might fail. But a law that prohibited a certain manner of speech, like unwanted verbal contact with another person on public transportation, should pass constitutional muster. Not to mention, street harassment can sometimes be prosecuted criminally or civilly as hate speech, sexual assault, threats, defamation, intentional infliction of emotional distress, “fighting words,” intimidation, or obscenity, which receive limited or no First Amendment protection.

Street harassment is about exerting power over others who dare to enter a public space to go to work or the grocery store. The man who rode his bike dangerously close to me to force me to make eye contact and then hissed “I WANT TO TASTE YOUR PUSSY” was not trying to pay me a compliment. He was not trying to make friendly conversation. He was not informing me about a political issue he’s concerned about. He was not asking the time. He was not letting me know that I dropped a glove a half block back. He was not wishing me a good morning or remarking on the weather. His speech was not designed to convey an idea; it was intended to intimidate, dehumanize, and subjugate me.

Street harassment impacts what I wear, how I travel to work, how late I stay out, and whether or not I feel safe outside. Would educating and persuading street harassers to change their ways be a preferable course of action to legislating against that type of behavior? I think so. But that isn’t going to change attitudes overnight, and frankly, certain people, like “TASTE YOUR PUSSY” guy, probably aren’t going to change short of a criminal or civil statute giving him a reason to change that he cares about (because intimidating strangers is clearly not enough).

So while it’s an easy cop-out to blurt “BUT MAH ‘MERICAN FREEDOMS” when the government acts to prevent people from making others feel unsafe, the First Amendment argument falls flat. If this topic interests you, I’d strongly suggest reading Cynthia Grant Bowman’s wonderful Harvard Law Review article on the subject and articles and a book by Dr. Laura Beth Nielsen.

Disclaimer: this article is an opinion and is not intended to be used as legal advice.

Emily is a 3L at Michigan State University College of Law, and the president of her school’s chapter of LSRJ. Follow her on Twitter @emgillingham.