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State Law Protecting Free Expression

The federal Constitution establishes the minimum amount of freedom that must be afforded to individuals under the First Amendment. State constitutions may offer their residents more freedom of speech than is offered under the federal Constitution, but not less. Below is a sampling of state court cases decided at least in part based on their own state’s constitutional provisions governing freedom of speech and expression.

ARKANSAS: A state statute penalizing night-riding did not abridge the freedom of speech guaranteed by the state or federal constitutions. Johnson v. State, 126 S.W.2d 289 (Ark. 1939).

ALABAMA: A city’s ordinance forbidding a business from permitting consumption of alcoholic beverages and nude dancing at the same time regulated conduct and not individual expression; thus, the ordinance did not violate the state’s constitutional right to freedom of speech. Ranch House, Inc. v. City of Anniston, 678 So. 2d 745 (Ala. 1996).

ARIZONA: The state’s statutory ban on targeted residential picketing was a valid accommodation for the right to freedom of speech explicitly protected by the state constitution. State v. Baldwin, 908 P.2d483 (Ariz. App. 1995).

CALIFORNIA: The free speech clause in the state constitution contains a state action limitation and, thus, that clause only protects against government regulation of free speech and not private regulation thereof. Golden Gateway Center v. Golden Gateway Tenants Ass’n, 29 P.3d 797 (Cal. 2001).

ILLINOIS: The defendants’ arrest for protesting on the premises of an abortion clinic did not violate the defendants’ state constitutional right of free speech, since the clinic’s policy required removal of all demonstrators from the clinic’s premises regardless of their beliefs, and there was no indication that the clinic’s policy of excluding demonstrators was ever applied in a discriminatory manner. People v. Yutt, 597 N.E.2d 208 (Ill. App. 1992).

MAINE: The state’s statute allowing the State Employees Association to pay 80% of the collective bargaining unit dues for association members, while contributing nothing toward the dues of nonmembers, violated neither the state nor federal guarantees to freedom of speech. Opinion of the Justices, 401 A.2d 135 (Me. 1979).

MARYLAND: A county zoning ordinance for adult entertainment businesses violated the federal and state constitutions because the ordinance failed to leave open adequate alternative channels of communication. The land in the county that was available for adult businesses was less than one-tenth of one percent of the land available for commercial enterprises in the county. Pack Shack, Inc. v. Howard County, 832 A.2d 170 (Md. 2003).

MASSACHUSETTS: A conviction for threatening to commit a crime does not violate a defendant’s free speech rights under the federal or state constitution if the evidence is sufficient to satisfy each element of the crime, since those elements are defined in a way that prevents a conviction based on protected speech. Commonwealth v. Sholley, 739 N.E.2d 236 (Mass. 2000).

MICHIGAN: A state administrative rule prohibiting simulated sexual conduct in licensed liquor establishments did not violate the state’s constitutional provision guaranteeing free speech. Kotmar, Ltd. v. Liquor Control Comm’n, 525 N.W.2d 921 (Mich. App. 1994).

MINNESOTA: Differences in terminology between the free speech protection in the federal Constitution and the free speech protection under the state constitution did not support a conclusion that the state constitutional protection should be more broadly applied than the federal. State v. Wicklund, 589 N.W.2d 793 (Minn. 1999).

NEW JERSEY: Although the right to free speech under the state constitution is broader than the corresponding right under the federal Constitution, nothing in the state constitution gives a person the right to videotape public proceedings. Tarus v. Borough of Pine Hill, 886 A.2d 1056 (N.J. Super. 2005).

NEW YORK: A state statute banning the televising of any court proceeding in which the testimony of a witness by subpoena is or may be taken denies free speech guarantee by the state and federal constitutions. Coleman v. O’Shea, 707 N.Y.S. 308 (N.Y. Sup. Ct. 2000).

OHIO: The state constitution’s separate and independent guarantee of free speech applies to defamatory statements only if those statements are matters of opinion, and citizens who abuse their constitutional rights to freely express their sentiments by uttering defamatory statements of fact will remain liable for the abuse of that right. Wampler v. Higgins, 752 N.E.2d 962 (Ohio 2001).

OREGON: A statute prohibiting a “live public show” during which participants engage in “sexual conduct” violated rights to freedom of expression under the state constitution. However, a statute prohibiting the promotion of prostitution was not unconstitutional. State v. Ciancanelli, 121 P.3d 613 (Ore. 2005).

PENNSYLVANIA: Regulations that barred nude dancing in public places violated both the federal and state constitutions. Pap’s A.M. v. City of Erie, 812 A.2d 591 (Pa. 2002).

TEXAS: The state constitution offers greater free speech protection than the federal Constitution for political speech, but this greater protection does not extend to exotic dancing businesses. Society has a lesser interest in protecting material on the borderline between pornography and artistic expression than it does in protecting the free dissemination of ideas of social and political significance. Kaczmarek v. State, 986 S.W.2d 287 (Tex. App. 1999).

WASHINGTON: Nude dancing receives constitutional protection under the free speech guarantees of the First Amendment and the state constitution, although nudity itself is subject to the police powers of the state. DCR, Inc. v. Pierce County, 964 P.2d 380 (Wash. App. 1998).

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