First Amendment rights: guaranteed but not unlimited

FREEDOM of speech is a constitutional guarantee. But that doesn't mean it is absolute or not subject to some limitations. In a free society, however, the burden of proof should be on those who would curtail speech to prove that a particular form of expression would seriously encroach on other individual rights or create a health or safety risk.

It is often assumed that liberals are more protective of free speech than conservatives, but that is not always true. For instance, militant feminist groups have of late favored restricting, or even outlawing, pornographic books and movies, which they say are offensive to women. Many of these same advocates staunchly oppose censorship on a broad basis.

The US Supreme Court in recent decades - under both liberal and conservative majorities - has boldly upheld the concept of free speech, including freedom of the press. It has drawn lines, however, in individual cases.

It recently struck down a local ordinance that gave the mayor of Lakewood, Ohio, ``unbridled discretion'' over which newspapers were allowed to place coin-operated newsracks on public property.

This power, ruled the court, could be abused to penalize those publications that politicians did not like.

The decision in Lakewood v. Plain Dealer Publishing Company appeared to be a decisive victory for newspapers and their publishers and a sharp rebuff to governmental control of the press.

It really wasn't. The justices' curtailment of the mayor's authority over placement of news racks came on a narrow 4 to 3 vote. And the court left open the possibility that cities could constitutionally totally ban these newspaper dispensers from public property.

Associate Justice Byron White, one of the dissenters, wrote that ``there is no constitutional right to place news racks on city sidewalks over the objection of the city.'' And he added that ``cities remain free after [this] decision to enact such bans.''

Associate Justice William Brennan, writing for the majority, perhaps drew the biggest cheer from newspaper groups by stressing that the First Amendment gives the media the right to challenge any licensing or regulation of news racks on public property when it ``gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or speakers.''

The press in the United States has staunchly fought even the hint of licensing or public restrictions that is imposed on the media in totalitarian nations.

But even Mr. Brennan - the court's most outspoken civil libertarian - suggested that cities may regulate the locations and perhaps other aspects of news racks for safety or esthetic reasons so long as they do not discriminate based on the content of the publications.

Lakewood, for these reasons, could be only a temporary - and bittersweet - victory for the press. Almost certainly it has opened the door to broader debate over media rights versus government autonomy. An increasingly conservative court - and one that leans towards governmental authority - might well come down for the latter at some time in the near future.

Meanwhile, First Amendment free speech rights may ultimately be served well by a high court ruling on picketing of a private residence - although the decision itself appeared to limit public expression.

In Frisby v. Schultz, the justices - by a 6 to 3 vote - upheld a Brookfield, Wisconsin ordinance that bans picketing aimed specifically at someone's home.

The case involved an anti-abortion group that demonstrated in front of the private residence of a medical doctor who performs abortions. The picketers carried signs suggesting the physician was a baby-killer.

Opting for individual privacy over the public's right to free expression, the majority of the court said that ``there simply is no right to force speech into the home of an unwilling listener.''

At the same time, the justices rejected the Brookfield argument that public streets in residential neighborhoods are not the type of traditional ``public forum'' where freedom of speech is protected.

Therefore, the court indicated that it would likely strike down an ordinance than banned picketers from marching through a residential neighborhood or even along a specific block as long as they did not target a particular home for their message.

Associate Justice John Paul Stevens challenged this reasoning, suggesting that youngsters who wanted to carry a sign to the home of an ailing friend to cheer him up might be banned from doing so under this ruling.

Mr. Stevens and fellow dissenters suggested that an alternative to the Brookfield ban would be regulation of residential picketing so it does not disturb the peace or intimidate a homeowner. But then local police or other authorities would have to determine what was disruptive or intimidating. Some might feel compelled to view an anti-abortion demonstration differently from a ban-the-bomb protest, for example.

Like the Lakewood issue, the Frisby question is almost certain to return to the court in another case - giving the justices further opportunity to define a ``public forum'' for free speech purposes and to weigh the sometimes competing rights of privacy and expression. A Thursday column