There is a striking difference between access to public information and access to locations that cross police or fire lines. Without a doubt, journalists and the general public have equal access to information filed publicly. There is, however, the courtesy of press credentials [1] that police commissioners distribute only to news-gathering organizations. Unlike the Joe Schmoe citizen, the media has a compelling duty to impartially cover items that are of public interest and/or newsworthy. These press passes do not necessarily grant all reporters access to certain locations that cross police lines, but they do serve as ways to identify journalists “who should be admitted if members of the media are to be admitted.” [1] I will argue that police commissioners can deny press passes to reporters in the event that access to certain locations poses a threat to public safety. I will support the argument that the police commissioners should cap the distribution of press passes to a certain number of reporters only if they provide specific and legitimate reasons why their access is being denied.
Three journalists (Rafael Martinez Alequin, Ralph E. Smith, and David Wallis) filed a lawsuit against New York City on Nov. 12 after the New York Police Department refused to renew their press identification cards. [2] Ideally, press passes must be renewed each year in order for journalists to cross the police or fire lines. After going a year without using their press passes and being denied the renewal of their press credentials again this year, these journalists insisted that the police department’s actions were unconstitutional under the First Amendment. On Feb. 20, the journalists filed suit in state court challenging the Police Department’s “refusal to disclose information about its policy for issuing press passes to journalists.” [3] Arguably, these journalists were denied their First Amendment right to gather information that would eventually be published. These police officers took a vague approach in deciding who could and could not access scenes that are behind police and fire lines. Since the NYPD was not specific in its reasons for refusing these reporters access to the scene, there is too much discretion on the government’s part. The reporters cannot predict or determine whether or not their ability to access certain locations and to ask questions to certain local authorities will be restrained. These press passes are the vital tools that provide clarity and certainty that these reporters have access to the certain newsworthy scenes to which the public would otherwise have no access. It is important that the journalists do their job of serving the public interest without the hindrance of an overly vague police restriction.
Not only would some argue that the police department’s actions were unconstitutional based on vagueness, but they also thought they discriminated against journalists who do not cover police or fire related stories on a regular basis. It is possible that the police categorized them into the less privileged body of news-gathering organizations. However, these three journalists held press credentials in the past and worked for legitimate news organizations. Wallis had his press identification from 1994 to August 2007, when “his petition to obtain the card again was denied without explanation.” [2] He does news coverage for over 1,500 publications worldwide. Smith publishes on a website for black law enforcement workers. He had his press credential from 1996 to January 2007, when the police refused to renew his press pass. Smith went as far as to ask for a written explanation for the denial but has not received a response yet. For Alequin, he had been working for a publication in New York from 1983 to 2001. When his wife passed away, he decided to launch an online publication in 2003 and start blogging in 2007. He had a working press card from 1986 to 2000 and from 2005 to 2006. [4]
These journalists sued New York City based on the belief that the police denied their press passes arbitrarily and that the police had no authority to deny their recognition as journalists. That is not the case. It turns out that the Police Department issues two forms of identification that distinguishes the reporters who cover “spot or breaking news on a regular basis such as robbery scenes, fires, homicides, train wrecks, bombings, plane crashes” from the reporters who do “not normally cover spot or breaking news.” [4] This categorization is not discriminatory and is necessary in situations where the presence of the mass media is harmful or slows down the police or fire department from reaching the scene. Although the plaintiffs already applied for press passes, there is no guarantee that they will receive them, since they did not send their request directly to the Board of Supervisors. [5] Also, according to section 6 of Los Angeles Free Press v. Los Angeles, there is no constitutional requirement that the police officers “show uniform treatment to all publications or news media in issuing Press Passes, the only requirement being that there be a reasonable basis for the classification imposed.” So within reason, the NYPD could limit the number of reporters who had access to the scene that day. The only problem was that the police kept the reasons for denying press passes vague and assumed the issuance of two different journalistic credentials was sufficient enough to convey the message that only certain reporters were welcomed across the police lines.
Also, the three reporters questioned the police officers’ authority to deny them their credibility as journalists. After all, the purpose of press passes is to help them express their identity as journalists. If even this freedom of expression is refused because the police commissioners withheld the press passes, that is certainly unconstitutional conduct. This impedes the journalists’ ability to report on the news and serve the public interest as well. However, the city code gave the police commissioners full discretion to limit the number of press passes to the plaintiff’s staff. [5] That means the police commission has to classify groups of news organizations that can and cannot receive press passes. By the gesture of journalists asking police commissioners for press passes, they are demonstrating that they acknowledge the police as the legitimate authority. Therefore, Wallis should not have to question whether or not the NYPD should be “in the business of deciding who is” a journalist. [2] The police are granted the authority to issue press passes, and they are merely doing their job. That area leaves little room for contention.
At the same time, the duty of the sheriff in facilitating assistance to and from people in accident scenes or riots deserves equal attention. Although not specified in the NYPD case, there are times when the police must necessarily limit the press’ access to certain locations. In the Los Angeles Free Press Inc. v. Los Angeles case, "the number of Press Passes issued by Respondents is now restricted, the purpose of such restriction being to protect the public safety, health and welfare and to contribute to the efficient performance of policing duties.” [5] There is reason to believe that the police officers are using their best discretion when denying access to certain scenes because of their role as authority figures under the government. In an emergency, no one would question the police officers in their line of duty. It would be more practical and urgent to get out of their way to ensure that they rescue and reach the maximum amount of people as quickly and safely as possible without endangering the lives of the public bystanders or victims. Thus, the fact that the police commissioners denied members of the media press passes does not necessarily step over the boundary of their freedom of the press when there are bigger issues at hand.
The police commissioners should at least provide an explanation as to why some reporters are denied press passes instead of sending away reporters thinking that they were denied their freedom of the press and short-changed in their ability to pose questions to the authority figures on the scene. None of the three received specific reasons why their requests for press passes were denied. They were not given due process either, so they were uncertain about the role of government in monitoring and limiting the scope of press coverage to certain news-gathering organizations and not others. Even though the police officers clearly distinguished the VIP reporters who carried working press cards from those who carried press identification cards, which was based on showing courtesy to those “employed by a legitimate news organization,” this is still a vague rule of regulating the flow of the press into certain scenes that are behind police lines.
This uncertainty in the realm of reporting prevents journalists from gathering information in an unfettered marketplace of ideas. The fact that they did not receive due process of the law causes the journalists to experience chilled speech because they are unable to discern whether they have a right to petition the government for questionable police actions. Police forces have the responsibility of providing legitimate reasons for denying members of the media access to certain scenes. The next time these reporters attempt to cover breaking news behind police lines they will automatically seek less access because of the unnecessary barrier originally created between the press and government because of a vague regulation. Thus, when the police do not give a legitimate reason for denying the press access to a certain patrolled location, they abate the press’ duty to be the eyes and ears of the public.
Sources:
[1] Press passes may help you get in
http://www.rcfp.org/places/presspassesmayhelpyougetin.html
[2] Journalists fire back at NYC with lawsuit over credentials
http://www.rcfp.org/newsitems/index.php?i=7134
[3] Lawsuit over police press passes
http://cityroom.blogs.nytimes.com/2008/02/20/lawsuit-over-police-press-passes/
[4] N.Y.P.D. is sued over denial of press credentials
http://cityroom.blogs.nytimes.com/2008/11/12/nypd-is-sued-over-denial-of-press-credentials/
[5] Los Angeles Free Press Inc. v. City of Los Angeles
http://www.cfac.org/handbook/cases/LAFreePress_v._LA.pdf
Thursday, November 20, 2008
Tuesday, November 11, 2008
Police charges disorderly conduct against photographer, Is police order a legitimate leash that should constrain First Amendment rights?
Photography is a form of free expression and an art of silent speech. It is a golden tool for journalists who use their freedom of the press to capture a thousand words and release it in the medium of their choice. Moreover, photographs are the most direct proof that an event or action occurred, which could be the springboard to a potentially newsworthy story. Placing a restriction that burdens the manner in which one displays, publishes, or broadcasts photographs is certainly an unconstitutional abridgment to the aforementioned freedoms. However, there are cases where reporters have been denied their First Amendment right to take pictures, even in a public setting where newsworthy events are happening on the spot.
A Penn State student and The Collegian photographer Michael Felletter was charged with a failure to disperse, disorderly conduct, a second-degree misdemeanor, and a third-degree misdemeanor because he chose not to leave the scene during a mass riot in the streets despite several police orders. [1] Instead of leaving, Felletter took photographs of the police officers as they arrested people and bascially followed the officers around. Felletter was merely fulfilling the assignment from his photo editor to take photos of the events that took place after Penn State's victorious football game in October. His intention for taking photographs was to capture a newsworthy topic. The fact that the event was newsworthy is a legitimate reason to provide Felletter with his First Amendment rights. When Felletter identified himself as a member of The Collegian staff, he said the officers didn't object to him being present. Later, State College Police Officer Nick Argiro told Felletter to leave the scene three times before he confiscated the photographer's drivers license. This implies that the officer wanted Felletter to stop taking photographs. Right then the officer demonstrated a restriction on the photographer's right to take these pictures, which were meant to be published in the Unversity newspaper. The officer's action leads ultimately to condoning the photographer from freely exercising his freedom of expression and eventual freedom of the press should his photographs be published. However, it is important to note that the officer clearly didn't make the judgment call to dismiss the photographer based on Felletter's character or intent. Both Felletter's character and intent seemed innocuous and unintentionally threatening to the rioters, so it is very unlikely that the officer dispersed the speaker's speech based on these two criteria. [11] Since it is difficult for law enforcers to spot out unlawful intent instead of arbitrarily conducting police procedures, it would seem easier for the police to censor all speech. That is a dangerous route that the law enforcers do not want to travel down. Arresting speakers for intent or character of their speech is unconstitutional because it takes a content-based approach to abridging speech.
Felletter wasn't trespassing on private property[4], nor was he harrassing any of the subjects he was photographing [5]. Both of these are ways that limitations could be placed on photography. Keep in mind that the riot is happening downtown out in the open where anyone outdoors would have seen it. That closes up the possibility that this case dealt with the tort law of intrusion because the streets are not a private location. [3] Also, there is no specific person claiming injunctive relief on the basis that Felletter's photos offended him or her by revealing private facts that would offend a reasonable person or not be considered concern to the public. [2] Clearly, there is no target that the photographer is trying to offend by taking pictures of the riot. However, Officer Argiro could reasonably argue that he was being portrayed in a false light because Felletter followed him around closely and took several shots over his shoulder. Although photographs are meant to capture precise and transitory instances [7], there's no telling whether or not Felletter tried to take as many pictures of Officer Argiro as possible to capture a moment when his actions appeared more malicious than they were intended to be. For instance, when Officer Argiro holds out two cans of pepper spray in Felletter's face and threaten to arrest him if he does not leave the premises, Felletter could have snagged a quick photograph and left the scene with a perfectly legitimate picture. The caption then could alter the photograph's meaning and end up portraying the Officer in a false light. However, this was not the case. It is merely my fickle imagination of the possibility in which the false light test could prevent Felletter from taking photographs.
Let's examine the act of taking pictures for a moment. There is no guarantee that taking photographs is an expressive activity. [6] After all, the photographs do not contain the meaning that one produced through internal thoughts, but they are captured forms of real life images that are outside of their ability to create or alter. Arguably, Felletter's First Amendment rights may have just been surrendered then and there because the law enforcers called him out on disorderly conduct. The police officers were trying to control the crowd in pandemonium, and the photographer's presence could instill more anger and hostility and add fuel to the riot. The way Officer Argiro puts it, Felletter's action of taking pictures "was causing the crowd to become more exhuberant [sic], excited, and destructive." [1] Then, Felletter mist be subject to the police authorities' order to stop taking pictures and leave the premises regardless of the fact that he just gave up his First Amendment rights to freedom of expression. In situations where the interest of the state in eliminating the danger produced from the speaker's First Amendment rights conflicts with the speaker exercising his or her First Amendment rights, the law enforcers hold the longer end of the stick. In other words, law enforcement officers make the on-the-spot decisions as to whether or not First Amendment rights of the speaker can be hampered if there is a hostile audience. [10] Once the police officers have full authority over the situation, they can charge the speakers exercising their First Amendment rights for disorderly conduct.
There are situations in which police officers' decision to charge for disorderly conduct is legitimate. For instance, in the City of Oak Creek v. King case (Wis. 1989), a reporter followed police officers through a road block to an airplane crash site. [8] A detective spotted the reporter and escorted him out. The reporter managed to break free, hop over a fence, and run up a hill to take pictures of the crash. When the detective caught up to the reporter and told him to leave, he refused. The reporter was arrested for disorderly conduct. This is a prime example of a way that the law enforcers can constrain one's First Amendment rights. The reporter trespassed in a location where road blocks were clear indicators that the site was not open to the public. Reporters do not receive preferential treatment. The public and the press are served the same way, and if a location is not open to the public, it is certainly not open to the media. That is a mistake on the reporters part in this case, so the charge of disorderly conduct was not unconstitutionally limiting the reporters' First Amendment rights.
However, law enforcers cannot charge speakers for disorderly conduct to mollify every hostile audience. In April, an undercover police officer, dispatched by the Harvard University Police Department, arrested two Harvard students.[9] Lisa Nieves refused to turn over photographs that were taken of the undercover police officer taking pictures of a student demonstration on public property. The cop promptly arrested her. Following the arrest, another student Patrick Keaney said if Nieves was going to be arrested he would have to go too. The undercover police officer does not provide clear reasons why he arrested Nieves, but one wild guess points straight to the fact that he wanted to prevent her from distributing those photographs of him. In the article, Nieves said her intent was to distribute the photos from the demonstration to the students. Therefore, the undercover cop would be in a sticky situation if it turned out he arrested her based on intent, which once again is unconstitutional.
Although there are instances where the police authority supercedes the speakers' First Amendment rights to prevent stirring up a violent audience, there lacks consistency and specificity in these police procedures. [12] Ultimately, arbitrarily charging speakers for disorderly conduct creates much vagueness in which there is no certainty whether or not the speech or expression is protected. This creates chilled speech, which causes speakers to say less speech, not more. In a free marketplace of ideas, speakers are entitled to the robust exchange of ideas, which should not be stifled even by vague police orders.
Sources:
[1] http://www.collegian.psu.edu/archive/2008/11/07/photographer_receives_misdemea.aspx
[2] http://www.rcfp.org/photoguide/intro.html
[3] http://www.jstor.org/stable/1342012?seq=4
[4] http://www.jstor.org/stable/1342012?seq=5
[5] http://www.jstor.org/stable/1342012?seq=6
[6] http://www.jstor.org/stable/1342012?seq=7
[7] http://www.jstor.org/stable/1342012?seq=11
[8] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=wisctapp2%5C1q00%5C99-2317&invol=1
[9] http://www.thecrimson.com/article.aspx?ref=523024
[10] http://www.jstor.org/sici?sici=0026-2234(197611)75%3A1%3C180%3AHCPCAF%3E2.0.CO%3B2-6
[11] http://www.jstor.org/stable/1287856?seq=7
[12] http://www.jstor.org/stable/1287856?seq=8
A Penn State student and The Collegian photographer Michael Felletter was charged with a failure to disperse, disorderly conduct, a second-degree misdemeanor, and a third-degree misdemeanor because he chose not to leave the scene during a mass riot in the streets despite several police orders. [1] Instead of leaving, Felletter took photographs of the police officers as they arrested people and bascially followed the officers around. Felletter was merely fulfilling the assignment from his photo editor to take photos of the events that took place after Penn State's victorious football game in October. His intention for taking photographs was to capture a newsworthy topic. The fact that the event was newsworthy is a legitimate reason to provide Felletter with his First Amendment rights. When Felletter identified himself as a member of The Collegian staff, he said the officers didn't object to him being present. Later, State College Police Officer Nick Argiro told Felletter to leave the scene three times before he confiscated the photographer's drivers license. This implies that the officer wanted Felletter to stop taking photographs. Right then the officer demonstrated a restriction on the photographer's right to take these pictures, which were meant to be published in the Unversity newspaper. The officer's action leads ultimately to condoning the photographer from freely exercising his freedom of expression and eventual freedom of the press should his photographs be published. However, it is important to note that the officer clearly didn't make the judgment call to dismiss the photographer based on Felletter's character or intent. Both Felletter's character and intent seemed innocuous and unintentionally threatening to the rioters, so it is very unlikely that the officer dispersed the speaker's speech based on these two criteria. [11] Since it is difficult for law enforcers to spot out unlawful intent instead of arbitrarily conducting police procedures, it would seem easier for the police to censor all speech. That is a dangerous route that the law enforcers do not want to travel down. Arresting speakers for intent or character of their speech is unconstitutional because it takes a content-based approach to abridging speech.
Felletter wasn't trespassing on private property[4], nor was he harrassing any of the subjects he was photographing [5]. Both of these are ways that limitations could be placed on photography. Keep in mind that the riot is happening downtown out in the open where anyone outdoors would have seen it. That closes up the possibility that this case dealt with the tort law of intrusion because the streets are not a private location. [3] Also, there is no specific person claiming injunctive relief on the basis that Felletter's photos offended him or her by revealing private facts that would offend a reasonable person or not be considered concern to the public. [2] Clearly, there is no target that the photographer is trying to offend by taking pictures of the riot. However, Officer Argiro could reasonably argue that he was being portrayed in a false light because Felletter followed him around closely and took several shots over his shoulder. Although photographs are meant to capture precise and transitory instances [7], there's no telling whether or not Felletter tried to take as many pictures of Officer Argiro as possible to capture a moment when his actions appeared more malicious than they were intended to be. For instance, when Officer Argiro holds out two cans of pepper spray in Felletter's face and threaten to arrest him if he does not leave the premises, Felletter could have snagged a quick photograph and left the scene with a perfectly legitimate picture. The caption then could alter the photograph's meaning and end up portraying the Officer in a false light. However, this was not the case. It is merely my fickle imagination of the possibility in which the false light test could prevent Felletter from taking photographs.
Let's examine the act of taking pictures for a moment. There is no guarantee that taking photographs is an expressive activity. [6] After all, the photographs do not contain the meaning that one produced through internal thoughts, but they are captured forms of real life images that are outside of their ability to create or alter. Arguably, Felletter's First Amendment rights may have just been surrendered then and there because the law enforcers called him out on disorderly conduct. The police officers were trying to control the crowd in pandemonium, and the photographer's presence could instill more anger and hostility and add fuel to the riot. The way Officer Argiro puts it, Felletter's action of taking pictures "was causing the crowd to become more exhuberant [sic], excited, and destructive." [1] Then, Felletter mist be subject to the police authorities' order to stop taking pictures and leave the premises regardless of the fact that he just gave up his First Amendment rights to freedom of expression. In situations where the interest of the state in eliminating the danger produced from the speaker's First Amendment rights conflicts with the speaker exercising his or her First Amendment rights, the law enforcers hold the longer end of the stick. In other words, law enforcement officers make the on-the-spot decisions as to whether or not First Amendment rights of the speaker can be hampered if there is a hostile audience. [10] Once the police officers have full authority over the situation, they can charge the speakers exercising their First Amendment rights for disorderly conduct.
There are situations in which police officers' decision to charge for disorderly conduct is legitimate. For instance, in the City of Oak Creek v. King case (Wis. 1989), a reporter followed police officers through a road block to an airplane crash site. [8] A detective spotted the reporter and escorted him out. The reporter managed to break free, hop over a fence, and run up a hill to take pictures of the crash. When the detective caught up to the reporter and told him to leave, he refused. The reporter was arrested for disorderly conduct. This is a prime example of a way that the law enforcers can constrain one's First Amendment rights. The reporter trespassed in a location where road blocks were clear indicators that the site was not open to the public. Reporters do not receive preferential treatment. The public and the press are served the same way, and if a location is not open to the public, it is certainly not open to the media. That is a mistake on the reporters part in this case, so the charge of disorderly conduct was not unconstitutionally limiting the reporters' First Amendment rights.
However, law enforcers cannot charge speakers for disorderly conduct to mollify every hostile audience. In April, an undercover police officer, dispatched by the Harvard University Police Department, arrested two Harvard students.[9] Lisa Nieves refused to turn over photographs that were taken of the undercover police officer taking pictures of a student demonstration on public property. The cop promptly arrested her. Following the arrest, another student Patrick Keaney said if Nieves was going to be arrested he would have to go too. The undercover police officer does not provide clear reasons why he arrested Nieves, but one wild guess points straight to the fact that he wanted to prevent her from distributing those photographs of him. In the article, Nieves said her intent was to distribute the photos from the demonstration to the students. Therefore, the undercover cop would be in a sticky situation if it turned out he arrested her based on intent, which once again is unconstitutional.
Although there are instances where the police authority supercedes the speakers' First Amendment rights to prevent stirring up a violent audience, there lacks consistency and specificity in these police procedures. [12] Ultimately, arbitrarily charging speakers for disorderly conduct creates much vagueness in which there is no certainty whether or not the speech or expression is protected. This creates chilled speech, which causes speakers to say less speech, not more. In a free marketplace of ideas, speakers are entitled to the robust exchange of ideas, which should not be stifled even by vague police orders.
Sources:
[1] http://www.collegian.psu.edu/archive/2008/11/07/photographer_receives_misdemea.aspx
[2] http://www.rcfp.org/photoguide/intro.html
[3] http://www.jstor.org/stable/1342012?seq=4
[4] http://www.jstor.org/stable/1342012?seq=5
[5] http://www.jstor.org/stable/1342012?seq=6
[6] http://www.jstor.org/stable/1342012?seq=7
[7] http://www.jstor.org/stable/1342012?seq=11
[8] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=wisctapp2%5C1q00%5C99-2317&invol=1
[9] http://www.thecrimson.com/article.aspx?ref=523024
[10] http://www.jstor.org/sici?sici=0026-2234(197611)75%3A1%3C180%3AHCPCAF%3E2.0.CO%3B2-6
[11] http://www.jstor.org/stable/1287856?seq=7
[12] http://www.jstor.org/stable/1287856?seq=8
Tuesday, November 4, 2008
Foot tapping is not free speech?
Over a year has elapsed since the arrest of Idaho Republican Sen. Larry Craig at the Minneapolis-St. Paul airport for soliciting sex using hand gestures and foot tapping in a bathroom stall. Craig’s lawyer Billy Martin resurrected the case this past September arguing First Amendment rights were at stake and that Craig‘s sexual gestures were protected (Foot). Craig makes the fundamental argument that the foot tapping and hand gestures were not offensive to the public since only an undercover officer spotted him. Even the argument that hand and foot gestures were non-offensive and did not breach the peace by stirring violence are valid reasons for Craig to defend his freedom of speech. I will agree with prosecuting attorney Chris Renz, who dismissed Martin’s argument that foot tapping is protected under the First Amendment to make it clear sexually themed expression is not always protected if the intent is to offend and if there is no way not to offend someone. Then, I will attempt to analyze why the Court disagreed by bringing up similar cases involving sexually themed expression. I will address the distinction between sexually themed expression demonstrated in public by a publicized political figure versus a joe-schmoe citizen.
A basic concept brought to light by the First Amendment is that everyone carries a shield of rights that provides a barrier between the speaker and government. As long as one’s free speech doesn’t come into conflict with another’s free speech, he/she will always stay protected in a bubble that’s unsusceptible to governmental interjections. Craig’s lawyer certainly thought he carried the shield with him when he used the “no one saw it” argument to justify that Craig’s sexual gestures did not offend anyone. I would have to agree that out of context, someone can make hand motions to direct people’s attention or call them over and tap one’s foot impatiently to show that there is a long wait. These two gestures, unlike the unmistakably unquestionable symbol of “shooting the bird” or “flicking one off” bear no offensive innuendo. There’s no historically offensive or universally repugnant meaning attached to these actions. Also, these gestures do not breach the peace (Texas v. Johnson). This means Craig’s acts did not stir any violent and angry feelings because the expression itself is not meant to cause a fight but still a surreptitiously crass way to catch someone’s attention enough to convey the message that he is seeking individuals who want to have sex.
However, there’s suppressed evidence in the aforementioned argument that since no one saw the sexual gestures, the sexual gestures bore no offense. If the argument was true, one could arguably say that since no one saw someone walking around nude in a public area then it was perfectly protected free speech and that action wasn’t offensive because people, the ones that take offense, were not present at the time and location. That doesn’t rid the idea of walking around in the nude in public as acceptable or protected because there was intent to offend someone. One does not decide to walk around nude in public in hopes of not offending anyone, but they actually accept that they are offending people. Likewise, there was intent behind Craig’s sexual gestures. He stood inside a bathroom stall to try luring people into having sex. The fact that there was intent and the notion that Craig inevitably accepted that his gestures would offend some people in a public restroom align the constellations here. Craig is intentionally using sexually themed expression to lure those who want what he has to offer and to offend those who would rather walk around wearing blind folds than see a political figure wiggling his finger at an innocent passerby in an airport restroom.
Craig’s case emphasizes the power behind intent and inevitably offending someone. There’s no way that he didn’t consider the fact that his gestures would offend some amid his goal to draw others. According to the Bethel School District v. Fraser case, the student giving a speech at a school-sponsored assembly recited his words in a manner that alluded to sexually themed expression. In his speech, he used “an elaborate, graphic, and explicit sexual metaphor" (Bethel, 5) to convey lewd and indecent speech. Although Craig used gestures and not words, he basically delivered a similar degree of offensive speech to people who understood what his sexual gestures indicated. When there’s no questionable or ambivalent ideas about the meaning of a gesture, then one can say that he or she was offended by the speaker. However, let me make clear that free speech does not give preferential treatment to those in political power. That is, they cannot use the argument that they are an important political figure to avoid the consequences of indecent speech. Also, people must be prepared to be offended if they interfere with the freedom of speech realm. For instance, in the Cohen v. California case, Cohen’s message on his jacket that read “F*** the Draft” could be read as an offensive, derogatory comment directed toward the government (Cohen). However, the government cannot bring a lawsuit against him because he had just as much freedom of speech to express as the government does. The fact that the f-word refers to sexually themed expression was not enough to condone Cohen from wearing the jacket in public. We could say Cohen was protected from the government's infringment on his First Amendment. Going back to the Craig case, the senator is unable to redeem himself for engaging in sexually themed expression because in his case, he is representing the government. When Craig tried to flash his identification card at the undercover police officer, he bascially demonstrated that he wanted preferential treatment. However, what he really wanted was protection under the First Amendment. In a way, Craig sought to retain the dual roles of a political figure and citizen status. The government is not supposed to act as an agent that takes advantage of the freedom of speech at the expense of its citizens or substitute oneself to the status of a citizen. Rather government should protect the free speech that the people throw at government in an effort to recognize the exercise of grassroots politics. So from what I see, the government cannot use the people’s shield, the First Amendment, as their own weapon of defense.
The reason why Craig’s political image affects whether or not his freedom of speech should be protected is because prominent leaders run the risk of losing face for the entire government. Some bitter people may use vulnerable politicians or leaders in government as the epitome of government’s worthlessness or the root of all evil based on their personal mistakes or misconduct. A line should be drawn between playing the dual role of a political figure and citizen for the sake of preventing the entire governmental realm from losing its face as an ethical institution that looks out for the interest of its citizens. Thus, protection under the First Amendment should be acquiesced wholly to the people's discretion and not used by government for a last minute quick fix up when they make mistakes in public.
Sources:
http://politicalticker.blogs.cnn.com/2008/09/10/foot-tapping-protected-by-first-amendment-craigs-lawyer-argues/ (Foot tapping protected by First Amendment, Craig’s lawyer says)
http://www.3rdcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=12238 (Texas Court of Appeals, Third District, At Austin)
http://en.wikipedia.org/wiki/Texas_v._Johnson (Texas v. Johnson)
Cohen v. California (Jour 199 book)
Bethel School District v. Fraser (Jour 199 book)
A basic concept brought to light by the First Amendment is that everyone carries a shield of rights that provides a barrier between the speaker and government. As long as one’s free speech doesn’t come into conflict with another’s free speech, he/she will always stay protected in a bubble that’s unsusceptible to governmental interjections. Craig’s lawyer certainly thought he carried the shield with him when he used the “no one saw it” argument to justify that Craig’s sexual gestures did not offend anyone. I would have to agree that out of context, someone can make hand motions to direct people’s attention or call them over and tap one’s foot impatiently to show that there is a long wait. These two gestures, unlike the unmistakably unquestionable symbol of “shooting the bird” or “flicking one off” bear no offensive innuendo. There’s no historically offensive or universally repugnant meaning attached to these actions. Also, these gestures do not breach the peace (Texas v. Johnson). This means Craig’s acts did not stir any violent and angry feelings because the expression itself is not meant to cause a fight but still a surreptitiously crass way to catch someone’s attention enough to convey the message that he is seeking individuals who want to have sex.
However, there’s suppressed evidence in the aforementioned argument that since no one saw the sexual gestures, the sexual gestures bore no offense. If the argument was true, one could arguably say that since no one saw someone walking around nude in a public area then it was perfectly protected free speech and that action wasn’t offensive because people, the ones that take offense, were not present at the time and location. That doesn’t rid the idea of walking around in the nude in public as acceptable or protected because there was intent to offend someone. One does not decide to walk around nude in public in hopes of not offending anyone, but they actually accept that they are offending people. Likewise, there was intent behind Craig’s sexual gestures. He stood inside a bathroom stall to try luring people into having sex. The fact that there was intent and the notion that Craig inevitably accepted that his gestures would offend some people in a public restroom align the constellations here. Craig is intentionally using sexually themed expression to lure those who want what he has to offer and to offend those who would rather walk around wearing blind folds than see a political figure wiggling his finger at an innocent passerby in an airport restroom.
Craig’s case emphasizes the power behind intent and inevitably offending someone. There’s no way that he didn’t consider the fact that his gestures would offend some amid his goal to draw others. According to the Bethel School District v. Fraser case, the student giving a speech at a school-sponsored assembly recited his words in a manner that alluded to sexually themed expression. In his speech, he used “an elaborate, graphic, and explicit sexual metaphor" (Bethel, 5) to convey lewd and indecent speech. Although Craig used gestures and not words, he basically delivered a similar degree of offensive speech to people who understood what his sexual gestures indicated. When there’s no questionable or ambivalent ideas about the meaning of a gesture, then one can say that he or she was offended by the speaker. However, let me make clear that free speech does not give preferential treatment to those in political power. That is, they cannot use the argument that they are an important political figure to avoid the consequences of indecent speech. Also, people must be prepared to be offended if they interfere with the freedom of speech realm. For instance, in the Cohen v. California case, Cohen’s message on his jacket that read “F*** the Draft” could be read as an offensive, derogatory comment directed toward the government (Cohen). However, the government cannot bring a lawsuit against him because he had just as much freedom of speech to express as the government does. The fact that the f-word refers to sexually themed expression was not enough to condone Cohen from wearing the jacket in public. We could say Cohen was protected from the government's infringment on his First Amendment. Going back to the Craig case, the senator is unable to redeem himself for engaging in sexually themed expression because in his case, he is representing the government. When Craig tried to flash his identification card at the undercover police officer, he bascially demonstrated that he wanted preferential treatment. However, what he really wanted was protection under the First Amendment. In a way, Craig sought to retain the dual roles of a political figure and citizen status. The government is not supposed to act as an agent that takes advantage of the freedom of speech at the expense of its citizens or substitute oneself to the status of a citizen. Rather government should protect the free speech that the people throw at government in an effort to recognize the exercise of grassroots politics. So from what I see, the government cannot use the people’s shield, the First Amendment, as their own weapon of defense.
The reason why Craig’s political image affects whether or not his freedom of speech should be protected is because prominent leaders run the risk of losing face for the entire government. Some bitter people may use vulnerable politicians or leaders in government as the epitome of government’s worthlessness or the root of all evil based on their personal mistakes or misconduct. A line should be drawn between playing the dual role of a political figure and citizen for the sake of preventing the entire governmental realm from losing its face as an ethical institution that looks out for the interest of its citizens. Thus, protection under the First Amendment should be acquiesced wholly to the people's discretion and not used by government for a last minute quick fix up when they make mistakes in public.
Sources:
http://politicalticker.blogs.cnn.com/2008/09/10/foot-tapping-protected-by-first-amendment-craigs-lawyer-argues/ (Foot tapping protected by First Amendment, Craig’s lawyer says)
http://www.3rdcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=12238 (Texas Court of Appeals, Third District, At Austin)
http://en.wikipedia.org/wiki/Texas_v._Johnson (Texas v. Johnson)
Cohen v. California (Jour 199 book)
Bethel School District v. Fraser (Jour 199 book)
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