First Amendment Coverage

How much can you stuff under the First Amendment to the US Constitution anyhow? Berkeley is still trying to inflate it – here once again to cover what its citizens’ clothes normally do. Is nudity an expression of free speech? I guess you call it ‘body language’?

Monday’s UCB Daily Californian has a front-page article on this local perennial subject:

“Wearing nothing but smiles, approximately 25 naked men and women revealed themselves to visitors of People’s Park.” They also had a parade down Telegraph Avenue.

The City of Berkeley has an ordinance against public nudity. “The group argues the ban on nudity violates First Amendment rights.”

“Last year, the X-Plicit Players filed suit in federal court, claiming that the anti-nudity ordinance is unconstitutional.”

Apparently the police are not arresting anyone this year. The parade organizer says, “When it’s one or two naked people, the police are going to arrest them. When you get to large numbers, they’re afraid of starting a war.” Yikes! Call in the National Guard! Heavily armed nudists attacking!

Well, Berkeley always has a principle behind its antics: “Although the event was billed as a Breast Freedom Parade and its flyers depicted naked women, the majority of the particpants were men.” Weeellll, that just emphasizes “minority rights”, right?

Let’s see now, no 3D on this channel? Well, this was the front-page picture in the DC (slightly modified):
(Graphic deleted - possible copyright violation - Nick)
If you want more fat, click on the DC URL up above.

Hey, but this was a serious legal question: How much can you stuff under the First Amendment?

Ray (The answer is not measured in pounds, USDA or not.)
[Note: This message has been edited by Nickrz]

Well, I don’t have any citations to back me up, but methinks that the First Amendment has NOT been interpereted by any of our Supreme Courts as enveloping so-called body rights. I mean, is there a clause for body paint there?

But I wonder if ever someone arrested or given a ticket for wearing clothes that were outlawed ever had/has a case?

Example: I have a tee-shirt that says Fuck on it. (Several, actually…) It (from what I understand) breaks profanity laws in place in NC (and I imagine elsewhere as well).

If I was arrested or given a ticket for profanity because I wore on of my “Fuck” shirts, would I be able to get off on charges that my First Amendment rights were trampled upon?

I certainly think I have a better case than if I just went outside naked.

And I think the world would prefer me in a shirt anyway, regardless what it might say!


Yer pal,
Satan

Show me on the side of Satan! JMO, but if the Supreme Court can interpret the Constitution’s ‘guarantee’ of freedom of religion to include freedom from religion, it’s not such a stretch to restrict the ‘freedom of speech’ to the extent that someone walking down the street can be protected from the unexpected and personally offensive display of someone’s nekkid ass. And how steep a slippery slope is this – the next thing, will some barebutted jaybird insist that taking a leak or a dump is an act of ‘political expression’ and demand the right to ‘do their business’ in public? Will the Sexual Liberation Front demand the right to hold a ‘screw-in’ and ‘make it’ on the courthouse lawn at high noon?

Goodness, the ignorance of Constitutional Law.

There is no clause in the First Amendment that guarantees ‘freedom of religion.’ What the first amendment says, in pertinent part is:

Which means simply: Gov’t can’t force a religion ON a person, nor keep a person from exercising whaterver religion he chooses.

Which, of course, turns out not so simple as it sounds.

The part that most Christians in this country have difficulty accepting is the enforcement of the ‘establishment’ clause. When the courts prevent public schools, local governments, etc., from exercising Christian religious rituals (i.e. prayer, crosses, Nativity scenes, etc.), they do so because that is deemed to be an attempt to ‘establish’ Christianity as the religion of the land. It’s not 'freedom from religion; it’s ‘freedom from a state religion, an official religion, a government approved and pushed religion.’

As for the freedom of speech issues raised in the OP, walking around naked certainly does express something. It expresses the fact that you think it is ok to be naked in full view of society. But there are always limits to the ability to speak freely (see the raging debate on this in other posted threads). Whether being naked by itself would transcend these limits I don’t know.

Certainly, fornication in public would.

As for the difficulty of Nano to understand expression in nakedness, I suspect he should have read and been influenced by more fairy tales. :wink:

Goodness, indeed! For your ignorance and/or misinterpretation of Constitutional law is indeed appalling, almost as much as your apparent inability to grasp the point, or to correctly interpret what I said.

Ah, yes, another cogently made, well annotated argument, with plenty of reference to source material…<eyeroll>

Didn’t Roth v. US (354 U.S. 476) say that the 1st Amendment’s protection of speech and the press does not extend to anything that goes beyond “the standards of decency in the community” where the speech/press is taking place, or some such?


I’m not flying fast, just orbiting low.

I think the question more properly should concern freedom of EXPRESSION, not merely of speech.

To play Devil’s Advocate for a moment, let us approach the question from the other side. Rather than taking the perspective (pardon me for the editorial liberties about to be taken), “We all agree on how things should be, to whit that the taboos descended to us largely from our Puritan founders are not to be questioned, and THAT over there just doesn’t fit within the bounds,” let’s take it from a larger perspective. Namely, most human cultures and the overwhelming majority of people throughout history have had DIFFERENT ideas about modesty and dress/undress than do we. I don’t think it would stretch credibility too far to further posit that most have been more tolerant of the sight of the human body than are we, currently. (But not all. I’m minded of a report I read once of a remote town (in Ireland?) that had taken the value modesty so far that its inhabitants remained clothed while bathing, for fear of seeing their OWN nudity.)

So if most people, most places have had different opinions from ours on this subject, then there is no absolute truth regarding it. The question then becomes: where do we draw the line when it comes to whose values shall be enforced? Do we allow nothing that is offensive to ANYONE? Majority opinion rules? Minority culture is okay as long as they PRETEND to be the same as the majority?

In a pluralistic society where no group should be empowered to force its opinions on another as long as no one is getting hurt, what’s to say which is the bigger hurt and danger: allowing a naked festival devoted, say, to a religious observance; or stomping that belief and behavior system out as far as possible if it doesn’t meet our (essentially religious moral) codes? ('Cause WE is RIGHT. Am too! Says so right here.) This question may seem strange to those who’ve grown up in a place where everyone is (or at least seemed) ‘the same,’ but so what? The U.S. was DESIGNED to be a place where people could come to be free. And that would appear to apply to anyone, even if they came from a tropical island that valued clothes far less than do we.

As a great philosopher (or at least a guy who got his 15 minutes of fame) once said, “Can’t we all just get along?” Can’t the nudists have their time and place, too? REALLY not? Where is the “clear and present danger” to the commonwealth - and exactly what are we afraid would happen? Can’t we share? After all, you don’t HAVE to go watch the parade…

One thing not to forget is that the current majority culture was greatly influenced by a group of religious fundamentalists whose opinions were deemed so outlandish that they were essentially driven from an entire continent. NOT sufficient reason to say that ‘OUR opinion is the one and only right one, no questions to be tolerated, so sit back down.’ CERTAINLY not a code to be accepted without question.

As for the ‘Sexual Liberation Front’ - I dunno. But that gets back to the question of where and how we draw the line.

My interpretation, which happens to largely coincide with that of the Supreme Court for the last 75 years has been that you can do anything that dose not endanger public health or, “disrupt the peace,” is permitted if it is expressive, so you could outlaw burning flags for heat but not for political expression. About, “disrupting the peace,” you have to generally be inciting someone to violence directly, so for instance, you could stage a huge KKK rally even though it could cause riots among anti-KKKers, but you could not tell a bunch of idiotic red necks to go out and kill blacks or Hispanics.


There is no safety for honest men but by believing all possible evil of evil men.

–Edmund Burke

Honest question for DSYoung:

You said:

Haven’t the courts found that the Constitutional guarantee is not exercising the religion but rather believing it?

In a college course on religion and law, waybackwhen, the prof said that Native American tribes that have tried to assert their right to take peyote as part of a religious rite were denied such right… according to the court (sorry, no cite), they were free to believe that peyote caused a religious experience, but were limited by the confines of the law of the land.


“Where there is clarity, there is no choice. And where there is choice, there is misery. But then, why should I speak, since I know nothing?”

Actually, it’s pretty much the exercise, unless the government has some compelling interest with a law of general applicability in preventing some facet of that exercise (much like the drug example you use below). For example, in Ohio, child abuse laws include neglecting to seek medical attention for a sick or injured child, unless a “program of prayer” is being pursued as treatment. This prevents, among others, Christian Scientists and in some cases Jehovah’s Witnesses from being prosecuted for trying to heal their children with prayers.

If the Federal version of the Religious Liberty Protection Act passes and becomes law, you’ll see this change. It would require government to use the “least restrictive means” to ensure religious freedom. Groups like this will be able to successfuly argue that they are free from these laws for religious reasons. This includes not only the peyote example, but zoning laws and other general laws. Some state versions of this act are specifically not including drug use and other such actions, though.

Well, crazy one, the answer to your question isn’t easy, as it involves evolving constitutional law. I will try to encapsulate it in a ‘nutshell.’

The first real issue of ‘exercise’ that came before the Supreme Court of the US involved the Church of Jesus Christ of Latter-Day Saints (Mormons). In the first case, Reynolds v. United States, 98 U.S. 145 (1879), the Court held that the fact a Mormon believed in polygamy wasn’t a defense to a charge of criminal conduct for transporting a woman across a state line for immoral purposes (polygamy). The ‘belief’ was untouched, the ‘conduct’ was preventable. This distinction continued in various cases involving Mormon practices through the end of the century (read the opinions in Murphy v. Ramsey, 114 U.S. 15 (1885) and Davis v. Beason, 133 U.S. 333 (1890)for sterling examples of ‘Christian’ tolerance).

This distinction was abandoned by the Court in the 1940’s when a number of cases involving Jehovah’s Witnesses came before it. Cantwell v. Connecticut, 310 U.S. 296 (1940) was the first, and it actually dealt with the issue more on freedom of speech grounds. Follow-up cases on this sect are listed by Justice Frankfurter in his concurring opinion in motko v. Maryland, 340 U.S. 268, 273 (1951).

More to the point, the Court reversed itself on the flag salute, refusing to allow schools to prevent attendance by children who refused to so salute. It also in 1963 cast doubt upon the ability of the military to require an oath to bear arms of inductees. Other cases showed a willingness to balance the interest of the government against the burden of the religion. This test was finally set forth fully in Sherbert v. Verner, 374 U.S. 398 (1963), where the Court invalidated a law denying unemployment benefits to a Seventh Day Adventist who refused to work on Saturday. The Court required the following analysis: 1) did the action by the government place a substantial burden on the observation of a central religious belief or practice? 2) Does the government have a ‘compelling interest’ in regulating the area in question? 3) Are there no less restrictive means that can accomplish the goal of the law?

This test was applied to the Amish, in invalidating laws forcing their children to attend ninth and tenth grade (Wisconsin v. Yoder, 406 U.S. 205 (1972)).

But all good things must end, and increasingly this test is being discarded. Taxation laws were found to be least restrictive ways of serving the compelling interest of a workable system of government funding, even paying taxes violated a religious belief. And when the government acts in a way that is religiously neutral, but which violates the belief of some people, the people cannot prevent the state from so acting.

Finally, in Employment Division v. Smith, 494 U.S. 872 (1990), the Court held the state could apply criminal laws regarding drug use to religious use of peyote, and could deny benefits to those dismissed from their jobs for such criminal violations. The ‘free exercise’ clause does not preclude the application of a ‘neutral, generally applicable law.’

In sum: belief and conduct are separate, but at times conduct is protected, at other times it isn’t. :slight_smile:

During Prohibition, how did this effect the use of Communion wine?

In sum: belief and conduct are separate, but at times conduct is protected, at other times it isn’t.

[quote]
During Prohibition, how did this effect the use of Communion wine?*

Well, first of all, it would not have Effected it at all. effect: to cause to happen, to bring about, to accomplish.

It did not Affect it, either.

Amendment XVIII in relevant part.

Communion/Mass wine was not used for ‘beverage purposes’. This was acknowledged in the Volstead Act (1919) which implemented the Amendment into federal criminal law. That Act exempted ‘ritual uses’ of alchohol.

Interestingly, also exempted was home production of limited amounts for home consumption. Remember, it was not drinking tht was proscribed, it was manufacture, sale or transportation. Thus, bathtub gin. :slight_smile:

First, when I said the original Daily Cal front-page photo, containing the Berkeley story mentioned by me here, was at an “URL up above”, I meant the link in my OP that reads “front-page article”.

Satan:

The Berkeley police live with the wearing and selling (on Telegraph Ave.) of shirts that say “Fuck the Police”. Anywhere in CA-US, I doubt that there are laws that are specific as to what can be printed or pictured on a garment that is worn on the street, but I’d sure believe that in many places in this state, you would be officially hassled, and maybe charged with some more general local ordinance, or the state offense of disturbing the peace, for wearing such a shirt. Frankly, I don’t like wearing shirts in public (except maybe T shirts in races or while runing or hiking on trails) with any kind of lettering on them, so I’ve never checked into any law on this subject.

DIF:

Well, no one I know of is trying to make overt sexual behavior in public places in Berkeley unchallengeable by the law. The issue here was only as to simple nudity – where and when in public.

DSYE:

Apparently you are assuming the word ‘establishment’ (of religion) in the First Amendment is used there as an abstract noun; I always took it to be a concrete noun, ‘a place of religion’, rather than ‘an instance of establishing of a religion or something related to one’ or ‘a practice of a religion’. It seems to me that, if any such abstract noun had been meant, the amendment would’ve read ‘no law respecting the establishment of a religion (or any practice of one)’. Is there something in the law somewhere that clarifies this?

Well, I think it’s supposed to be more than that – rather, freedom from any state functioning in a manner that is within any existing religion or groups of religion. Of course, “IN GOD WE TRUST” on all coins violates this, because there are non-theistic religions.

That sort of thinking really irks me no end! First of all, the First Amendment does say “speech” and not “expression”, and since expressions can be almost anything, I think the amenders specifically meant any kind of only verbal speech – spoken, written, etc. But more importantly, performing any given act other than a verbal one, in no way, should be taken as a form of expressing some abstraction, unless there is really some undeniable evidence of this. If you say that going nude in public must always be an expression (that the nudist thinks it is OK), there is no reason why you should not also claim that going draped in public must also always be an expression, at least on a hot day, that the sweating clothed person thinks it is not OK to go nude under such circumstances. If I don’t wear a broad-brimmed hat on a bright sunny day in public, am I expressing my belief that I will not get sunburned? Or am I just not wearing a hat because I didn’t think I’d be in the sun long enough to acquire any such problem? I say that, if you don’t have more information, I’m just not wearing a hat, and that the reason I’m not is immaterial to the law. So, how much of your body you cover in public and how much remains exposed is not inherently an “expression”.

If you substitute ‘expression’ for ‘speech’ in the First Amendment, and then admit any act as an act of expression, then the First Amendment must be considered in regard to every act one can perform. Should we consult the First Amendment as to whether I should walk on a crowded public sidewalk while I have a highly contageous disease – because you say that, if I decide I need to get from A to B on foot, and that takes me on such a sidewalk, I must be “expressing” that I have the right to do so? You seem to say yes. I say we consult other law, but that the First Amendment has nothing to do with this state of affairs, because, even if you do the above substitution, simply feeling a need to get from A to B, under any circumstance – as a public health menace, a person with no clothes on, or whatever – is not an expression of any abstract thesis, but merely a choice of behavior seen as practical under the circumstances.

(Well, I thought it was politically correct for fairies to do whatever they want these days. :wink: )

One cause of defective operation of law is that of a lot of legislators, lawyers, judges, etc. being influenced by a lot of fiction; however, I strongly doubt that they have been influenced much by fairy tales. I’m certainly not saying one can’t express a thesis by going naked where it is not usually done; I’m simply saying that the simple act of going naked, or the omission of the act of wearing clothes, depending on how you wish to view it, need not be one of expressing anything, at least beyond feeling like taking your clothes off or not putting them on – which does not constitute political expression per se. If someone smokes in a public building in front of a ‘NO SMOKING’ sign, and a resulting contest of such forbiddance, or of a penalty therefor, is brought to court, can it receive consideration under the First Amendment – because such act of smoking in front of a sign so worded must be considered, not just an act in violation of applicable law, but an “expression” of a claimed right to do the act forbidden by such law? I say the Judge should refuse to listen to such argument, because, if the First Amendment be applicable in this instance, any contested violation of law would have to be argued on such basis on every occasion it should be brought to court. That would be perpetual abuse of the judicial system, the Constitution and the public coffers. (Except that I plead the Shakespearian right to exterminate any lawyer, based on Hamlet.)

Forster:

“The question”? Does this statement mean you think the word ‘speech’ in the First Amendment should be replaced by ‘expression’? My question is about the First Amendment as she reads.

Well, I don’t know where all that about “absolute truth” comes from or what it is supposed to prove. There’s no such thing as absolute truth as to what members of a society should do (despite what the Natural Law people might say). But also, I don’t accept all that about the majority of the world’s people accepting public nudity under most circumstances. As far as complete nudity, I think there’s more tolerance in CA-US than there is in most of the world, including the least civilized parts. As far as public semi-nudity, I still think it has much more to do with urban concentration vs. rural sparseness, or practical working attire, than what nationality or culture is involved, except for a certain range of Muslim countries.

I can’t figure out what this alternative is. I don’t buy all that about how the US was “designed”, in so far as it was. . .and did not simply evolve. But I think your discussion is all distorted. Immigrants to this country and native-born US citizens of less-advantaged ethnicities are not the ones here

Well, apparently that long URL in my last post was:

  1. Too long for UBB.

  2. Not directly functional for persons computers not registered at the Newsday site.

The options for getting the article addressed are:

  1. Registering at Newsday and then clicking [here](http://newsday.infonautics.com/cgi-bin/display.cgi?id=37ea820c500c0MshakeP11000&doc=frdocument.html&url=http%3A%2F%2Fsorbet%3A10001%2Fservlet%2Fcom.infonautics.panama.content .document_repository.RetrieveDocumentForDisplayServlet%3fpublisherName%3dNewsday%2bInc.%26publicationName%3dNewsday%26providerName%3dNewsday%2bInc.%26publishingDocID%3d13871171999). . .or else clicking here, and then clicking on “MORE NEWS” in the middle of that page, and then clicking “current editions” at the bottom of the righthand collumn on that page, and then searching that page internally with your browser looking for ’ art ’ [include those spaces fore and aft], and then clicking on the news item found.

Ray (If all this doesn’t click, forget it.)

OK, sorry, the second “here” in my prior post should’ve been linked as this here one.

Ray

No, I’m saying the Ohio law exists to clarify something that would otherwise not be made clear by the First Amendment.

The idea is that, in general, neutral laws that are generally applicable should not be considered infringements of religion. Preventing a sick or injured child from receiving medical care would, under nearly all circumstances, be considered abuse. The law provides for prosecuting child abusers.

The CS lobby, however, feels that, as regards their religious practice, it should not be considered abusive since they are praying for the child to get better. Therefore, the law has been written to exempt them from prosecution for abuse in those circumstances. (If the RLPA passes into law, you’ll see a lot more of this, with examples both more and less innocuous.)

Since the Feds would probably be loathe to address this issue at that level, the States are free to take it on. And Ohio, for now, sees fit to allow children to die in the name of religious freedom.

Keep in mind, though, that from era to era the Constitution and its amendments say pretty much whatever the Supreme Court says they do. And if they say “expression” and “speech” are inexplicably intertwined, then that’s the law.

NanoRay, in your last post, I would answer your statements, except it would serve no real purpose. <sigh>

When I engage in discussion of Constitutional Law, I (usually - the GD section has some exceptions) try to talk about it in terms of what the Constitution says, as modified by what the Supreme Court has said over the years. Thus, for instance, in my post on the issue of belief v. content, I mentioned that the Supreme Court itself had drawn a distinction between belief and conduct, initially refusing to protect the latter. I find that too many people think of the Constitution and its provisions in whatever terms THEY wish, without much regard for the actual law as developed over 200 some years (unfortunately, some who do that end up ON the Court (see Scalia)).

Now, no offense, I am not saying that your feelings about the First Amendment ‘freedom of speech’ clause are wrong. They are, however, not correct, if by correct one means the law as defined by the court.

Unfortunately, your discussion, as near as I can piece it out, isn’t based on the ‘law.’ Which makes debate difficult, since it was the ‘law’ that I was addressing. :slight_smile:

One last thing: the discussion in the ‘thread’, as often happens, turned to questions beyond the original post, thus the content v. belief discussion initiated by the question from El Mariachi Loco.

As for fairies, well, they can do what they want, but only if they don’t tell and we don’t ask. :wink:

Error in my last post:

The “How Berkeley Can You Be” parade in Berkeley is this Sunday, not Saturday.

Ray