MALDEF

Does the First Amendment Protect all Speech?

On February 4, 2008, Janet Murguia, president and CEO of the National Council of La Raza, appeared on Lou Dobbs Tonight to promote the website, WeCanStopTheHate.Org. During the heated discussion, Dobbs made this accusation:
DOBBS: I’m going to fight you with every resource I have, because you have stepped over the line. And you are trying to tear apart the First Amendment. 1
The First Amendment to the United States Constitution generally prohibits government regulation of speech, even when the speaker’s opinions are reprehensible to the general public. The First Amendment does not, however, protect all speech. It does not, for example, protect speech that leads to illegal activity and/or imminent violence, obscenity, defamation, and libel.

The First Amendment also does not protect speakers from liability for the foreseeable consequences of their speech. In cases where speakers encourage their audience to commit certain illegal or inherently dangerous acts, liability may rest with speakers and the forums that they use.

For example, in 1975, in Weirum v. RKO General, Inc. 539 P.2d 36, the Supreme Court of California held that a radio station was legally liable for holding a broadcast contest that inspired listeners to drive recklessly. Two listeners, in their pursuit of a radio station vehicle that held a reward, negligently forced a car off the road, killing the driver. The Supreme Court of California affirmed a jury’s verdict that the radio station was liable for negligence for the “foreseeable results of a broadcast which created an undue risk of harm . . . .” Weirum, 539 P.2d at 43-45.

When a statement that creates a foreseeable risk of harm is broadcasted, therefore, the First Amendment does not protect the speakers and broadcasters from the consequences of their speech. Speakers and broadcasters who incite violence against immigrants and/or Latinos, for example, may be legally required to make injured parties whole through financial or other means.

Also, Lou Dobbs has no First Amendment right to a nightly program on CNN that features abusive commentary about a major American community. Any private broadcaster can generally be released from employment if he or she is bad for business or the image of the employer. See Don Imus.
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1. Lou Dobbs Tonight. CNN. February 4, 2008

Copyright 2009 MALDEF — Mexican American Legal Defense and Educational Fund