Tag Archive for 'free speech'

When Are Halloween Displays Too Scary?

Corpses in the Front Yard

A Parma, Ohio family recently made the news by creating a Halloween display in their yard that was so scary and grotesque that it truly bothered their neighbors and scared elementary school children on the way to school. It included a realistic crucified body, a corpse hanging upside down from a tree, and several other disturbing elements. The Barrett family eventually took the display down after unwelcome visitors came into their yard late at night.

Can the Dead (or Undead) on Display Create a Private Nuisance?

Private nuisances are ongoing, unlawful (unreasonable), and cause some type of harm to others. Though neighbors can often effectively ask other neighbors to stop doing disturbing behaviors, in other situations nuisance lawsuits are the best option. However, courts have been very reluctant to call aesthetic problems with other people’s properties nuisances. While noise or even smell might be considered a nuisance, courts have a hard time drawing a line between “beautiful” and “ugly”… one court in Indiana upheld the rights of a neighbor who decorated his yard with a toilet seat nailed to a pole. So, this probably isn’t a private nuisance.

What About the Young Children’s Brains?

One of the major complaints about the yard full of corpses was that it was near an elementary school and traumatized young children. Sometimes, the government can shield children from gory images even if it affects other people’s freedom of speech. In one 2012 case, for example, the Colorado court system upheld an injunction against anti-abortion protesters, who waved signs with “mutilated fetuses and dead bodies” outside of services held at a particular church. The court found that graphic images could cause psychological harm to young children who attended church services, and that there was a compelling interest in protecting them. Halloween Display

However, in general, “violence is not part of the obscenity that the Constitution permits to be regulated.” For example, California tried to restrict selling violent video games to children where people kill, maim, or assault opponents in the video games. The court in this case declared the law unconstitutional, and noted that other gory materials are often given to children to read for fun: “Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.”

Therefore, it is hard to know if a zoning law or some other type of regulation that protected children from violent “speech” near a school would be upheld.

So, Can My Neighbor Keep Their Corpses?

Yes, probably so. Neighbors might be able to persuade others to tone down Halloween decorations that are too scary… but, ordinarily, even if they scare the children, the dead bodies stay.

For more Halloween cases, see The Top 3 Silliest Halloween Lawsuits. Happy Halloween!

“Operation Boo” Prompts Halloween Lawsuit by Sex Offenders

What is Operation Boo?

Each year for the last 21 years, the California Department of Corrections and Rehabilitation (CDCR) implements “Operation Boo.” Operation Boo requires that some registered sex offenders on parole post signs on their front doors on Halloween saying “We Don’t Participate in Trick or Treating.” This can be required even of sex offenders who have never shown a tendency to victimize children. If sex offenders do not comply, they may face legal consequences.

Some San Diego-area sex offenders are now challenging this requirement. Advocates say that the signs pose a danger to sex offenders, making them “sitting ducks” for harassment or vigilantism. A lawsuit recently filed in federal court also claims that the sign requirement violates the First Amendment’s prohibition on compelled speech.

What is Compelled Speech?

Compelled speech occurs when the government forces a person to say something. The Supreme Court has stated that “[t]here is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees “freedom of speech,” a term necessarily comprising the decision of both what to say and what not to say.” In other words, freedom of speech means having a choice over what is communicated to others. In this case, the sex offenders feel that they have no choice but to post “We Don’t Participate in Trick or Treating,” in violation of their rights.  Operation Boo

However, not all compelled speech violates the constitution. The First Amendment is violated in cases where the government forces an individual to affirm a religious, political, or ideological cause. It is also violated where the government makes “an individual, as part of his daily life…to be an instrument for fostering public adherence to an ideological point of view that he finds unacceptable.” One interesting facet of this case may be whether or not the “Operation Boo” signs convey an ideological point of view (for example, that registered sex offenders are so dangerous that they need to be identified specially on Halloween).

Compelled Speech and Sex Offenders

Registered sex offenders are often treated differently than average citizens. Their behavior can be regulated in certain ways for community safety, particularly under Megan’s Law, a federal statute. Sex offenders are required to register and communities receive notice of their presence. It is also constitutional to restrict where certain high-risk sex offenders live and they may be prohibited from residing near schools, parks, or day care centers. Sex offenders who are on parole often have their location constantly monitored by GPS.

Some challenges to sex offender registration laws have been based on freedom of speech issues. However, as the 5th Circuit held recently in U.S. v. Arnold, sex offender registration and notification does not violate compelled speech.  “When the government, to protect the public, requires sex offenders to register their residence, it conducts an essential operation of government, just as it does when it requires individuals to disclose information for tax collection.”

However, the signs “Operation Boo” may present a different set of issues. In most cases, courts weigh the need of the government to control crime against the rights of sex offenders. As the attorney for the registered sex offenders, Janice Belucci, has pointed out, “there are no reports of a sexual assault upon a child who goes trick or treating.” San Diego County must make a reasonable argument that registered sex offenders are likely to lure children into their homes on Halloween. The court will also have to look at how dangerous these signs are to the sex offenders, who are forced to sit at home on Halloween with what amounts to a target on their houses.

How Can I Protect My Child from Sex Crimes on Halloween?

As the Rape, Abuse, and Incest National Network points out, children should avoid entering the home of any stranger on Halloween. It is better for them to trick or treat in a group and/or with adults. They should avoid “dark and gloomy” houses. They should also have a plan for how to reach parents in case of an emergency.

Following these types of safety tips may be better than singling out registered sex offenders and potentially making them targets. Even without the signs, sex offenders are not allowed to participate in trick-or-treating. Also, importantly, some people who may commit sex crimes have never been caught or punished—and there is no way to know who these people are. Be safe!

Oklahoma’s Fraternity Scandal and the First Amendment

A recent video of members of the University Of Oklahoma fraternity Sigma Alpha Epsilon (SAE) chanting racial slurs has recently exploded on the media throughout the country. The chants were not only undisputedly racist, but especially violent in nature. Specifically they chanted “There will never be a ni**** SAE. You can hang him from a tree, but he can never sign with me.”

oklahoma racism scandalThe University of Oklahoma promptly expelled both students who appeared to be leading the chant in the video. Parker Rice, a 19 year old freshman coming right from Jesuit College Preparatory School was the leader of the chant. Another student, Levi Pettit, was also expelled. Both families have apologized profusely. However, Rice is the only involved student who personally apologized.

Were the Students Protected by the First Amendment?

As shocking as this story is, there are several First Amendment Rights that come into question. Were these boys exercising their First Amendment right to free speech? And if so, was the speech protected and therefore not subjected to any legal action, including expulsion from a public university?

A potential lawsuit has been threatened by SAE against the University of Oklahoma for expelling the students. SAE contends that the two students’ immediate expulsion “runs contrary to due process” and that the university has no right to censor speech, despite its hateful content. Other organizations have joined the bandwagon to “protect” the students’ First Amendment rights, including The Foundation for Individual Rights in Education, which is a civil liberties nonprofit. This organization has stated that, as a public university, the University of Oklahoma has no right to punish students solely because of offensive speech.

The Supreme Court has held that “advocacy of the use of force” is unprotected when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.” However, if it does not meet this test, the speech is protected under the First Amendment. For example, the Supreme Court struck down a criminal conviction of the white supremacy group, the Ku Klux Klan, for “advocating … violence … as a means of accomplishing political reform” because their statements at a rally did not express an immediate, or imminent intent to do violence. One could argue the same for the SAE incident which occurred on a bus full of only SAE kids who mostly shared the same views. Additionally, the factors which would be taken into consideration by a court, when deciding whether the speech was intended to incite violence, are that the video was only seconds long and privately recorded. The ruling essentially does not criminalize “mere advocacy.”

Hate speech is actually protected by the Constitution despite being offensive. If the speech is chanted in a private space, as in this incident, amongst people of similar views, it is protected. However, if directed toward African Americans, then if it was extreme enough to incite violence or imminent lawless action, then there would be no constitutional protection. However, the view of courts that have considered campus speech codes and other campus speech restrictions to be subject to first amendment protections. This is also true for fraternity speech, racist or not.

Unfortunately, the critics of the expulsion are legally correct. The students did have a right to free speech in the context in which they expressed it and, although there is an exception for “inciting violence” according to the legal standard, it likely would not apply to this busload of ignorant, drunk, privileged, white college students. Therefore, the public university likely did not have the legal right to expel them. It cannot punish the fraternity members solely for the content of their expression. With that said, both students would have be wise to leave on their own.

Will Racism Ever Stop Plaguing America?

America likes to think as a whole that we are past racism because overt acts such as these are abhorred by the majority. However, this story clearly shows that racism is still present in our society.

I have noticed that in the last few days the Oklahoma story has digressed from the racist video portrayal to the story of the poor frat boys whose lives are ruined. The media will always frame things the way they choose, which is often influenced by the pressure of institutions. But the community’s voice should always remain on point. In this case, it should be emphasized that the student’s actions were clearly wrong and highly offensive, regardless of whether or not First Amendment protections apply.

“Go Topless Day” Advocate Fights Indecent Exposure Fine

Over the past decade, a woman’s right to breastfeed in public has gained significant traction. In fact, the right to breastfeed during work is an often overlooked portion of Obamacare. The success of the breastfeeding movement has birthed another movement: women’s right to be topless in public.

goLast August, Sonoko Tagami took part in the annual “Go Topless Day” protest in Chicago. The protest is organized by GoTopless, a non-profit that “advocates for the right of women to appear bare-chested in public.” To comply with city indecent exposure ordinances, Tagami had painted over her breasts with opaque body paint. Tagami had participated in the GoTopless protests since 2010, but 2014 was the first time a police officer had ticketed her for violating the indecent exposure law. The officer also seized GoTopless flyers Tagami passed to onlookers.

The city judge upheld the $150 fine. Tagami now appeals to challenge the city ordinances as a violation of free speech and equal protection. On January 22, 2015, the city filed a motion to dismiss he federal lawsuit.

Baring Breasts Should Not Be Unrestricted

Most cities in the United States restrict exposure of female breasts but allow men to walk around exposed above the waist. Cities justify this one-way restriction by claiming that female breasts are sexual while male breasts are not.

Tagami and GoTopless would point out that sexualization of women’s breasts is likely a result of nurture, not nature. Female breasts are sexualized because of culture. Many African and European countries allow women to walk about in public with their chests fully exposed and no eyebrows are raised. On the other end of the spectrum, many Muslim communities restrict the exposure of women’s faces on the theory that the mere sight of a woman is sexual for men. Sex is cultural. Breasts are primarily for breastfeeding infants. If breasts create lust, it’s because we as a society make it so.

However, just because breasts are sexualized rather than sexual doesn’t mean our laws are wrong. Tagami and GoTopless believe that cultural sexualization of breasts means that we should allow women to go topless. That doesn’t change the fact that, in the United States, breasts are sexual symbols. Our laws restrict exposure of other sexual symbols, including vaginas and penises. Although breasts also have nonsexual functions, so do actual sexual parts. Vaginas are used to give birth and penises are how urine leaves a male body. Sexual anatomy might have nonsexual functions, but that doesn’t exclude them from indecent exposure laws.

GoTopless and Free Speech

I believe most indecent exposure statutes are constitutional as written, but Tagami should not be fined in this case. Illinois law allows women to breastfeed in public and women are only prohibited from exposing their breasts in public if their intent is to arouse or satisfy sexual desire. If there’s anything wrong with Chicago’s indecent exposure laws, it’s that it doesn’t focus on the reason the breasts are open for public view.

It’s pretty clear that Tagami was exposing her breasts as a political statement. She was part of a larger protest and organization advocating a change in culture. This protest takes place on a specific day and has occurred annually. Tagami had flyers on her person so that she could explain to onlookers what she was doing. Tagami and GoTopless believe that if they can change the culture of breasts that lawmakers might also change the laws. Painting her breasts demonstrates her commitment to non-violent protests.

I don’t know if Tagami and GoTopless will succeed in changing cultural sentiments, but they have a right to try without government interference.

Peeping Toms Can Legally Take Photos up Women’s Skirts

Hey ladies, you know that creepy guy who tries to peek up your skirt ? Well it’s now legal for him to take a photo of you as well.

upskirt photos legalOne such creep, Christopher Hunt Cleveland, was arrested last June at the Lincoln Memorial on two counts of attempted voyeurism. Park police were suspicious of Cleveland when they spotted him taking photos of women on the steps above him rather than the giant statute of the bearded man. When police searched Cleveland’s camera and car, they found several hundred photos of women’s “private parts.”

At this point, most would expect a plea bargain if not an outright conviction. Unfortunately for decent people, Cleveland’s lawyer convinced Judge Juliet McKenna to suppress the evidence. Judge McKenna ruled that Cleveland’s photographs could not be used as evidence against him because “there is no evidence Mr. Cleveland positioned his camera in any way or employed photographic techniques or illumination, so as to capture images that were not already on public display.” In other words, the photographs were inadmissible as evidence because somehow the women’s crotches were already visible to the naked eye. Score one for the perverts.

Halfway across the country, the Texas Court of Criminal Appeals came to a similar, although slightly different, conclusion. Ronald Thompson was arrested in 2011 after he was caught taking underwater pictures of children in swimsuits. Although police couldn’t charge him with child pornography (the children were clothed), they did try to convict him under a statute which prohibited improper photography or visual recording acquired in public for sexual gratification.

In an 8-1 decision, the Court ruled that the law banning improper photography for sexual gratification violated the free speech clause of the Constitution. The Court agreed that the law was trying to protect citizens from dirty sexual thoughts, but regulation of thoughts is exactly what the First Amendment is designed to protect against.

Is It Always the Woman’s Fault?

Although the two cases and the outcomes were similar, the two courts took two different paths to arrive at these disturbing results. Internet commentators have condemned both rulings as cases that destroy women’s privacy. The outrage is understandable, but criminal prosecution isn’t the route society should take to stop this kind of behavior.

The D.C. Court ruled that the voyeur’s photos were not evidence of a violation of the law because the pictures were not depictions of anything illegal. Judge McKenna didn’t rule that women have no privacy, but that their privacy had not been violated. Indeed, it would be odd if the judge had ruled that women have no privacy because Judge McKenna is only a trial level judge without the authority to make that kind of ruling. Moreover, Judge McKenna is a women; it’s hard to argue that “male privilege” was a factor when the decision comes from a judge who might one day be on the wrong end of her own ruling.

The Texas case is a different beast altogether. Unlike Cleveland, Thompson was already guilty of violating a law. The Appeals Court overturned the law his conviction was built on because the law itself violated free speech. The free speech argument is particularly clever because it subtly shifts the focus of the case from the women’s privacy to the defendant’s right to express himself. In D.C., women’s privacy wasn’t violated. In Texas, women’s privacy was a secondary concern.

What Now?

If criminal prosecution isn’t the answer, what is? Free speech only limits government action. If you feel your privacy has been violated, you’re free to bring a lawsuit yourself. Such a lawsuit could produce a court order to make the pervert stop. The problem is that the camera guy would have to take pictures of the same woman repeatedly for her to bring suit, and voyeurs like Cleveland target different women every day.

On the other hand, if someone like Thompson is taking pictures at a private facility like a water park, the business itself can ban the pedophile from entering. If someone is taking pictures of you or you see someone taking pictures at a restaurant or private park, you should definitely complain to management and/or the owners.