Sagging Pants and the Constitution

Off Topic Politics & World Issues
61

[quote]Beowolf wrote:
I give. So the first amendment only protects political speech? So if they wanted to make the word “banana” illegal it would be constitutional?

If not (and speech in general is covered), and in that case, that freedom is being limited, where is the line drawn, who draws it, and why do they get to?[/quote]

Essentially, yes. You can have time, place and manner restrictions. The classic example is a prohibition against soundtrucks in residential neighborhoods. Banning graffiti is another example. The First Amendment prohibits governmental punishment or banning of a message.

As to whether anything in particular constitutes protected speech, that’s generally a question for the courts - there’s not a list somewhere laying out all examples into the genre of political speech or other speech (or non-speech). Certain cases don’t pass the laugh test though - and if this one does, it does so only most barely.

62

[quote]Zap Branigan wrote:
I am my avatar.[/quote]

So am I.

63

Suppose residents of Flint decide to wear saggy pants to protest the Chief’s policy of saggy pants = probable cause? Isn’t that “pure speech”.

By the way calling saggy pants “disorderly conduct” is a stretch. In Michigan, “disorderly person” (MCL 750.167) is a catch-all for several offenses in Michigan:

(a) A person of sufficient ability who refuses or neglects to support his or her family.
(b) A common prostitute.
(c) A window peeper.
(d) A person who engages in an illegal occupation or business.
(e) A person who is intoxicated in a public place and who is either endangering directly the safety of another person or of property or is acting in a manner that causes a public disturbance.
b A person who is engaged in indecent or obscene conduct in a public place.[/b]
(g) A vagrant.
(h) A person found begging in a public place.
(i) A person found loitering in a house of ill fame or prostitution or place where prostitution or lewdness is practiced, encouraged, or allowed.
(j) A person who knowingly loiters in or about a place where an illegal occupation or business is being conducted.
(k) A person who loiters in or about a police station, police headquarters building, county jail, hospital, court building, or other public building or place for the purpose of soliciting employment of legal services or the services of sureties upon criminal recognizances.
(l) A person who is found jostling or roughly crowding people unnecessarily in a public place.

http://law.onecle.com/michigan/750-michigan-penal-code/mcl-750-167.html

64

[quote]BostonBarrister wrote:
Certain cases don’t pass the laugh test though - and if this one does, it does so only most barely.

Loose Tool wrote:
Suppose residents of Flint decide to wear saggy pants to protest the Chief’s policy of saggy pants = probable cause? Isn’t that “pure speech”.[/quote]

No, not unless you think that going on a killing spree to protest anti-murder laws would be pure speech. That is civil disobedience - and, classically, Thoreau and Gandhi would tell you that if you engage in civil disobedience you need to take your punishment to call attention to an unjust law.

[quote]Loose Tool wrote:
By the way calling saggy pants “disorderly conduct” is a stretch. In Michigan, “disorderly person” (MCL 750.167) is a catch-all for several offenses in Michigan:

(a) A person of sufficient ability who refuses or neglects to support his or her family.
(b) A common prostitute.
(c) A window peeper.
(d) A person who engages in an illegal occupation or business.
(e) A person who is intoxicated in a public place and who is either endangering directly the safety of another person or of property or is acting in a manner that causes a public disturbance.
b A person who is engaged in indecent or obscene conduct in a public place.[/b]
(g) A vagrant.
(h) A person found begging in a public place.
(i) A person found loitering in a house of ill fame or prostitution or place where prostitution or lewdness is practiced, encouraged, or allowed.
(j) A person who knowingly loiters in or about a place where an illegal occupation or business is being conducted.
(k) A person who loiters in or about a police station, police headquarters building, county jail, hospital, court building, or other public building or place for the purpose of soliciting employment of legal services or the services of sureties upon criminal recognizances.
(l) A person who is found jostling or roughly crowding people unnecessarily in a public place.

http://law.onecle.com/michigan/750-michigan-penal-code/mcl-750-167.html

[/quote]

If that is in fact the basis of the prosecution, you may have a Constitutional problem after all - an Unconstititionally vague prohibition of conduct. It’s important for criminal laws to be clear on what is prohibited conduct, so they need to have some coherent definition of “obscene” or “indecent” that fits the facts here. Obscenity laws often have “void for vagueness” problems - though community standards can be the answer, I believe.

65

[quote]Beowolf wrote:
You can’t shout “fire!” in a crowded theatre.[/quote]

Unless there is a fire.

66

[quote]Gael wrote:
Beowolf wrote:
You can’t shout “fire!” in a crowded theatre.

Unless there is a fire.[/quote]

Or if you’re looking for a laugh.

67

[quote]Makavali wrote:
Gael wrote:
Beowolf wrote:
You can’t shout “fire!” in a crowded theatre.

Unless there is a fire.

Or if you’re looking for a laugh.[/quote]

That’s why people go to theaters anyway.

68

[quote]BostonBarrister wrote:
No, not unless you think that going on a killing spree to protest anti-murder laws would be pure speech. That is civil disobedience - and, classically, Thoreau and Gandhi would tell you that if you engage in civil disobedience you need to take your punishment to call attention to an unjust law.[/quote]

Pure speech (symbolic speech) is not protected only if it presents a “clear and present danger” to society or if it constitutes libel, “obscenity”, or slander.

It seems to me the free speech issue (or alternatively the vagueness standard) turns on whether saggy pants are “obscene” or “indecent”. In Michigan indecency is exposure of genitals, pubic area, or buttocks. Saggy pants showing only underwear is not indecent. How much butt crack makes a buttocks? If something is not indecent, how can it be obscene?

69

If you go protest and block traffic, even if you think blocking traffic is key to your speech, you can be arrested, tried and convicted for blocking traffic. If you trespass in order to protest, you can be tried and convicted of trespass - or sued by the property owner for trespass, and he would be awarded damages. You can’t get in trouble for your message - you can get in trouble for your method of expression.

That said, the vagueness issue is likely problematic here.

70

[quote]BostonBarrister wrote:
If you go protest and block traffic, even if you think blocking traffic is key to your speech, you can be arrested, tried and convicted for blocking traffic.

If you trespass in order to protest, you can be tried and convicted of trespass - or sued by the property owner for trespass, and he would be awarded damages. You can’t get in trouble for your message - you can get in trouble for your method of expression.
[/quote]

None of your hypos involve “pure speech”. Each one involves speech plus something else. Wearing saggy pants to protest the Flint “stop and frisk” in my hypo is entirely divorced from actually or potentially disruptive conduct.

It is closely akin to “pure speech” which is entitled to comprehensive protection under the Free Speech Clause of the First Amendment. It pains me to say it, but wearing them simply as a fashion statement may be too.

71

It would be the same thing if the conduct in question - wearing saggy pants - were the violation. Just like if you were protesting the existence of freeways and wanted to stand in the middle of one as your sole method of communication.

I think there is some conduct that becomes pure political speech - flag burning is the classic example - but I also think you’d be hard-pressed to get most conduct that wasn’t obviously speech in there.

For instance, in this same vein, I know there are those who think laws defining baring breasts in public as obscene are sexist. But if a bunch of hot T-Vixens wanted to walk around downtown Seattle with their boobs out, they’d still run afoul of the obscenity laws. And those would almost surely hold.*

I think most conduct would have a hard time getting 1st Amendment protection from typical law-and-order ordinances - and, like it or not, most towns have obscenity laws, and enforce them.

But of course I still think this one is vague and they’re pushing its applicability…

BTW, I think most of the theorists have jettisoned the “action/speech” dichotomy as an analytic framework, but I can’t recall why at the moment and this still works for our purposes.

*Note, all T-Vixens are encouraged to test this theory to prove me wrong and put me in my place - please let me know when and where in Seattle and I can document your civic-mindedness…

72

[quote]BostonBarrister wrote:

BostonBarrister wrote:
If you go protest and block traffic, even if you think blocking traffic is key to your speech, you can be arrested, tried and convicted for blocking traffic.

If you trespass in order to protest, you can be tried and convicted of trespass - or sued by the property owner for trespass, and he would be awarded damages. You can’t get in trouble for your message - you can get in trouble for your method of expression.

Loose Tool wrote:
None of your hypos involve “pure speech”. Each one involves speech plus something else. Wearing saggy pants to protest the Flint “stop and frisk” in my hypo is entirely divorced from actually or potentially disruptive conduct.

It is closely akin to “pure speech” which is entitled to comprehensive protection under the Free Speech Clause of the First Amendment. It pains me to say it, but wearing them simply as a fashion statement may be too.

It would be the same thing if the conduct in question - wearing saggy pants - were the violation. Just like if you were protesting the existence of freeways and wanted to stand in the middle of one as your sole method of communication.

I think there is some conduct that becomes pure political speech - flag burning is the classic example - but I also think you’d be hard-pressed to get most conduct that wasn’t obviously speech in there.

For instance, in this same vein, I know there are those who think laws defining baring breasts in public as obscene are sexist. But if a bunch of hot T-Vixens wanted to walk around downtown Seattle with their boobs out, they’d still run afoul of the obscenity laws. And those would almost surely hold.*
…

*Note, all T-Vixens are encouraged to test this theory to prove me wrong and put me in my place - please let me know when and where in Seattle and I can document your civic-mindedness…[/quote]

This happened in Rochester, NY back in the day and now women are allowed to walk around topless in NY State. Unfortunately they were not hot.