Does the 1st Amendment Freedom of Speech mandate an involuntary audience? How about swearing?

Lady Macbeth:
Out, damn'd spot! out, I say!—One; two: why, then
'tis time to do't.—Hell is murky.—Fie, my lord, fie, a soldier, and
afeard? What need we fear who knows it, when none can call our
pow'r to accompt?—Yet who would have thought the old man to
have had so much blood in him?
Macbeth Act 5, scene 1, 36–40

There are two different stories in the news which both appear to address Constitutionally protected rights.  One is a denial of the right to pass out Bibles at a Gay Pride event in Minneapolis, Minnesota , and the other is the passage in Middleborough, Massachusetts of a law prohibiting profanity.  Both stories involve freedom of speech and to a lesser degree, freedom of assembly; and what both have in common is the issue of their right to inflict that speech, when unwelcome, on the audience of other people, although in very different ways.
from my favorite reporter, Dan Browning at the STrib:

Judge says man can't hand out Bibles at Twin Cities Pride fest

• Article by: DAN BROWNING , Star Tribune
• Updated: June 11, 2012 - 8:22 PM

At issue was freedom of speech, Pride event's accommodations.

A Wisconsin man who wants to hand out Bibles at the 40th Annual Twin Cities Pride festival in Loring Park this month will have to confine himself to a booth just outside of the event.
Chief U.S. District Judge Michael Davis issued a 41-page order Monday denying Brian Johnson's request for an injunction that would force the Minneapolis Park and Recreation Board to allow him unfettered access to the festival grounds, reasoning that his constitutional challenge was unlikely to succeed.
Dot Belstler, Twin Cities Pride's executive director, said the ruling came as welcome news.
But it's unlikely to end the matter, which has been bouncing around the courts since 2009.
Nate Kellum, chief counsel with the Center for Religious Expression and Johnson's lead attorney, issued a statement Monday indicating that other legal options are being explored.

"We are certainly disappointed in this ruling that fails to take Mr. Johnson's First Amendment freedoms into account," Kellum wrote. "Mr. Johnson should be allowed to hand out Bibles in a public area during a public festival and not be relegated to a 'no pride' zone where nobody bothers to go. Without an audience, Mr. Johnson is utterly deprived of his right to free speech." 

I was stunned to see this statement, as there is nothing in the Constitution of which I am aware that guarantees you a right to an audience.  The First Amendment guarantees you the right to be free from oppression by the GOVERNMENT in your public speech.  It does not empower one individual to force their views, including their religious views, on others.

It is my impression and understanding that when a group arranges for space in a public park - which presumably this group hosting Gay Pride has done -- it is their right to hold that event without intrusion.  If it were a family reunion of a large group of people, or some local organization, say a theoretical group such as the Loring Park Marching Band and Chowder Society that had booked the grounds, those entities could exclude whomever they liked.

If I pay for a park pavilion for a group event, I can ask anyone that is not a part of that event to pack up their picnic lunch and move somewhere else, out of the area of the event, if I so choose. 

The Gay Pride folks so choose in opting not to lease this person booth space, and to not have this person inflicting his unwelcome religious views forced on them, views which are insulting and demeaning - including other people who celebrate a different variation of that same religion. 

photo from Loring Park, Minneapolis MN, a previous Gay Pride event

Photos like this one, from a previous year's Gay Pride event demonstrate precisely how this kind of
hostile proselytizing interferes with those who are attending.  These unpleasant people have the right to their opinion, but not the right to scream it in other's faces.  This sort of intrusive behavior turns a celebration into a conflict, with speakers trying to shout over each other.

I would feel just as strongly if a Roman Catholic entity were having their church picnic at the same park, and they wanted to be free of one of the protestant denominations that assert the pope is the Antichrist wandering around handing out their catechisms making that claim.

The religious right will claim all sorts of things, including that this is the demise of the nation.  It is not, and they are wrong, and more than that they fundamentally (pun intended) fail to understand the guarantees of either our state or the federal Constitution.  Each of us is free to say what we believe, to print what we believe; and each of us is free to choose NOT to listen to what some other private individual has to say, or to opt NOT to read what they are writing (or handing out).

This is true at events by organizations booking space in a public park; this is true on city streets, and other public places, it is true on our private property, and it is true of places like this blog where we can say what we like and reject what we deem should be rejected. 

I am still doing further research, but this is a fascinating area of the law to peruse, because there are so many kinds of defined speech.  I look forward to expanding on this in future posts.

But then we have the second story on free speech, or more precisely $20 speech, from Middleborough, Massachusetts prohibiting 'bad language'.  It is interesting in that it decriminalizes foul language, reversing a 1968 law.

The law is something of an omnibus legislation, in that it also decriminalizes marijuana, and shoveling snow into the street in the same proposal, while at the same time increasing the penalties for these very disparate offenses.

It sounds as if even in the intent, this is a local law or ordinance intended to have very inconsistent application, which I would think on the face of it would cause legal objection.

The law/ordinance is intended to stop groups of teens from screaming obscenities back and forth at each other in a way that is disruptive and discouraging to other users of public spaces, and in particular is disruptive to local business by offending customers.

When I first heard the proposal, my thoughts were that perhaps rather than restricting the content, the local law enforcement might have a better time policing the volume, as it is less vague, and is measurable.  The law allows obscenities between people in conversation -- why not define a volume limit after which is is no longer conversation?  That would exempt the police from being the morals and verbal content police, and at the same time make it easier for them to pursue this in court if they have to do so.

But then the reference to the quotation at the beginning of this piece came to mind.  Is there no public theater in this town?  No community theater, high school plays, or volunteer / amateur theater in the park?  I can think of many plays, ranging from Shakespeare;s 'Scottish play' McBeth to Albee's "Who's Afraid of Virginia Woolf" that could be performed in public, resulting in offensive language 'at volume'.

And how reasonable is it that the local gendarmes are going to catch these ill-behaved teens that are the offenders the law is aimed at stopping, or that they will have $20 if they are caught and fined?  Better by far to redefine the offending actions as loitering, or being a public nuisance, because that is the essence of the problem, not just the loud vulgarity.

There needs to be some balancing of the right of teens to assemble and engage in speech, and the right of other people not to have to have them in their face, interfering with their reasonable use of that same public space.  A vague and inconsistent law that is intermittently applied to a targeted group is inherently unfair, and presumably might not even be legal. 

It is legal however to make reasonable limits on the freedom of speech, as outlined in the STrib article quoted above and again excerpted below:

Judge: Booth is close enough

Davis noted that the booth area set up by the Park Board this year is at Oak Grove St. and Lyndale Av. S. It's near one of the park's main entrances, he said, and is "contiguous with the festival's 'Purple Zone,' which includes a dining area, a food court, an entertainment stage and roughly 100 booths for festival participants."
The Park Board argued that the approach allows for safe, efficient crowd management.
In denying Johnson's motion for a restraining order, Davis noted that "free expression in a public forum is a core liberty that must be guarded with vigilance." But he said it must be balanced with the rights of others and with legitimate government concerns.
"Courts therefore recognize that, when the government seeks to regulate the time, place or manner of speech in a public forum and does so in a content-neutral manner, its actions are constitutional so long as they are narrowly tailored to serve a significant interest and allow alternative channels of communication," Davis wrote.


I would hope that Middleborough might find a similarly effective way of balancing rights, and better enforcing the freedom that is inherent in the public good.  They might be better off though if they skipped the right wing punitive model, and went with some alternative that gave the foul mouthed teens a better alternative to being a pain in the public neck, like park programs, or summer youth programs that would get them off the street and doing something more productive.  I'm reminded of the difficulties the boards that rule on personalized license plates face; they have a heckuva time keeping up with every possible vulgar slang expression.   I'm persuaded that if the teens of Middleborough put their minds to it, they could yell offensive things to each other, that the local LEOs wouldn't even know were obscene.  Keeping up with that is not a task with which to burden the law.