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July 19, 2010 07:14 PM UTC
34 Comments
Unlawful restriction on political (and free) speech.
you’ll be thrilled to know this:
That depends entirely on who’s doing the undressing! There are definitely some people whose free speech in this manner I would hate to stifle! (I’m pretty sure that Seth Brigham isn’t among them, though). 🙂
(I’m kidding, completely. I disagre with Dave Barnes, and don’t think these rules will, or should, have any trouble passing constitutional muster. Personally, I couldn’t care less whether everyone is formally dressed, casually dressed, or completely undressed in city council meetings, but I get that we live in a culture in which such things are truly important to many people, and not completely irrelevant to most people, and that those popular sensibilities and social rituals should be appropriately accommodated).
Sorry, Steve, popular sensibilities and social blah blah would prohibit flag burning and other constitutionally protected actions that qualify as political speech. The First Amendment doesn’t exist to protect popular speech, or popular sensibilities.
I didn’t mean to suggest that all popular sensibilities trump or should trummp all acts styled as speech acts. But the first amendment is not, has never been, and will never be some sort of monolithic guarantee that all speech of any kind is absolutely protected from everyone under all circumstances. In fact, there are legally established qualifications adhering to each of those dimensions.
First amendment analysis has become a pretty well established and well-elaborated system, involving consideration of the kind of speech (political speech being more protected than non-political speech, for instance), the forum (whether its a public forum, a semi-public forum, or a private forum), whether it occurs in a school (where, after affirming in Tinker that school kids have free speech rights, the Supreme Court gradually created a series of special carve outs), and so on.
And, in fact, anything can be claimed to be speech, but that claim has never been considered a carte blanche that protects the bearer from being prosecuted for committing a crime that he wants to classify as “speech”. I can’t contest the constitutionality of a law against public urination just because I managed to write “life sucks” in the dirt with my urine. Why? because the public sensibility prohibiting public urination trumps my right to write “life sucks” with my urine in public.
So the questions here are: 1) How protected is the speech in question, and 2) how strongly held is the popular sentiment against the behavior that is being claimed as speech. Those are both perfectly legitimate, and universally considered, questions in a first amendment analysis (the latter is usually couched as “legitimate state interest” rather than “popular sentiment,” but, in this case, it is popular sentiment which determines the legitimate state interest.
Whether I’m right or wrong in this case that the “legitimate state interest” would be deemed by just about any court to be greater than “the burden on free speech” (both terms of art used in first amendment analysis) is almost beside the point: Maybe, maybe not. But the analysis would occur, and would come to some conclusion, employing the considerations I’ve identified.
from everyone under all circumstances
No, and no one is making that absurd argument but you straw man.
But this specific law is directed at specific actions that are political, without question, in a civic forum, where political speech should have be at its most unrestricted.
The Boulder City Council got a case of the vapors because Seth stripped down to his skivvies. If they can’t handle that, how can we expect them to handle the real problems they face on the council.
I don’t think you’re right (about this specific case), though I may be wrong. Dress codes in court and in other government forums have already been upheld as constitutional. In this case, it’s a semi-public forum (because the agenda is set, with topics designated and speakers allotted specific times in which to speak), and whether disrobing is political speech or not would be a highly contested matter.
The more important point is, I think, incontravertable: This isn’t by any means a clear-cut and incontrovertable case of a first amendment violation.
I wasn’t attempting to set up a strawman argument, but merely to point out that there is an analysis to be made, and that this instance, at the very least, falls within the bounds of “we’d have to do the analysis to come to the conclusion that it’s a first amendment violation.” (Frankly, I still lean in the direction of, “this is pretty clearly not a first amendment violation,” but with at least a shadow of a doubt).
that would be breief for you 😉
Otherwise, it gets pretty messy….
for corporations to peddle their bare-assed lies using every form of mass media, but it’s illegal for an individual citizen to speak the truth while bare?
Something is wrong, and it ain’t just in Denmark.
“no shirt no shoes no service” signs and, as far as I know, that isn’t considered a free speech issue. The same seems to go for communities barring, say, walking the streets naked.
Prohibiting a T-shirt that proclaims a particular view is a free speech issue but is appearing in nothing but boxers speech and, if so, must retail establishments (private sector) and communities (public sector) drop bans on any state of undress?
The answer to that question will go a long way toward determining if this is a free speech issue. Of course those attending City Council meetings in a near naked state probably should not expect to be well received or taken seriously in any case.
My recommendation would be to put on a pair of pants and a shirt or at least to avoid stroking one’s own hairy chest while pontificating, particularly if coffee and cake are being served. Just a suggestion.
Asking people to wear clothes to a city meeting doesn’t seem like it’s asking too much. You don’t have to require someone to wear a shirt and tie, but some type of shirt isn’t a reach.
The First Amendment only prohibits government infringements on free speech. Commercial enterprises are free to ban any and all speech in their establishments. That’s why the bars can kick me out when I get drunk and start shouting mean things about Republicans. Or start taking off my clothes.
that ban public nudity, female toplessness etc. My post clearly points out that I’m using both public sector and private sector examples, in fact in exactly those words. It is not at all clear that choosing to go completely or very nearly unclothed has been considered a free speech issue where as actual speech, writing on a T-shirt for instance, has been so considered.
But a surviving brain cell somewhere in the back of my head says there was a case involving a city ordinance that banned strip clubs, and that ban was reversed because it impinged upon the free speech rights of the strippers. If my memory is correct and that case hasn’t been reversed or overruled by later cases, then maybe the Boulder City Council should consider installing a pole in their chambers.
One guy stripped down to his shorts, and did so to make a point. And they make it a crime. This shows a total lack of perspective on the council’s part.
Was simply pointing out that no one on this site has established that, whatever one thinks of the matter, it is a free speech issue. If anyone can demonstrate that it is, I’ll bow to confirmation via sourced precedent. I don’t care much whether or not Boulder bans naked hairy chests at City Council meetings. My aesthetic preference would no doubt be influenced by the hotness or lack thereof the hairy chest in question but that is hardly germane.
Voyageur confirming that the Supreme Court has ruled twice that nude dancing is not speech. This would probably make it more difficult for a ban on public nudity or a requirement for a certain degree of dress at City Council meetings to be overturned on free speech grounds.
Considering the shape the average person is in, even here in the nation’s least obesity saturated state, I can’t say that I am displeased with the fact that, at least so far, I have yet to be treated to nudity on the street, especially right before lunch.
It’s apparently OK to claim there is no fire, when there is indeed a fire …
Even though claiming there is a fire when that’s not true, is not protected speech (at least in crowded movie theaters).
If you’ve incorporated and have got millions of dollars to launder through a, well, laundry list (!) of lobbyists and politicians, it’s ok to lie your ass off.
But, individual citizens are prohibited from showing their individual asses off?
I repeat, something is really and truly wrong with our priorities.
The manner of dress is expressive, and potentially protected under the 1st Amendment. Reasonable restrictions are allowable, but the City Council’s proposal appears to be too vague and overbroad to pass muster.
as long as they are content neutral.
Requiring both liberals and conservatives to wear pants passes muster.
Requiring only conservatives to wear pants but letting liberals go naked, or vice versa, would not be content neutral.
So, yeah, Boulder can require a shirt and pants.
to ban flag burning, so long as both conservatives and liberals are prohibited from burning flags? Well, that settles it!
because the act is a statement of protest against the United States: That’s its content. It is not simultaneously a statement of support for the United States (except in some very tortured argument that really wouldn’t convince anyone).
Disrobing, however, has no clear “viewpoint” inherent to it. The opposite of “content neutral” is “viewpoint discrimination,” which is almost always prohibited (except in some instances in public schools, such as involving alcohol and drug use).
It did in this case.
It could have meant the opposite in a different situation, by a different person. A prohibition against disrobing is content neutral, it does not involve viewpoint discrimination.
After doing some research at another not-to-be-named media outlet (one known for its coverage of Boulder issues), I found that this guy disrobed in protest of a proposed anti-nudity law. Without seeing a video of that meeting, however, it’s hard to judge whether a) he could have made his point without disrobing, and b) whether all he really achieved was making a scene. (The subsequent hoopla shows that he did make a scene; we just don’t know if that’s all he did.) Therefore, I can’t conclude whether banning this would mean his free speech is impinged.
In 2000. SCOTUS ruled 6-3 to uphold an Erie, Pa., ordinance banning public nudity and requiring dancers in adult clubs to don at least pasties and a G-string before appearing on stage. In 1998, the Pennsylvania state supreme court struck down the ordinance, rejecting the city’s argument that the nude-dancing ban was justified to combat crime.
According to the New York Times, The court upheld a similar nude dancing ban in 1991 in a badly splintered decision that left the grounds for a ban murky.
Anybody is entitled to argue that going naked is a form of free speech. But the courts don’t agree — and that is in the private setting of a private club where the nudity doesn’t offend anybody since they don’t have to go there and give their money to the dancers if they don’t want to.
So, can Boulder require pants. Yes. And is that further proof that fascist repression has gripped the People’s Republic…(yawn)
Oh, maybe not.
is making a campaign contribution while naked protected?
Just wondering where the line is …
is from a corporation.
I appreciate your refreshing my recollection on this issue. And I’m somewhat relieved….
as I said above a few times, in fairness, the case you cite isn’t completely dispositive. Speech in a city council meeting, for political purposes, is more protected than speech in a strip club for entertainment purposes. Still, I don’t think that that distinction is enough in this instance; banning disrobing in city council meetings is almost certainly not a free speech violation.