"The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosier Dome to display their genitals to one another, even if there were not an offended innocent in the crowd." Barnes v. Glen Theatre, Inc., 501 U.S. 560, 575 (1991) (Scalia., J., concurring).
Being an ongoing treatise and disquisition into the subject of The Law by the learned scholar of same, and the ways in which it improves the better members of society by transferring wealth onto them by the poorer members of same.
Or put another way, I am procrastinating on writing a TTRPG essay, so Ima gonna write another Snarfticle about the law! I know that all three fans of them are overjoyed! Today's mini-topic (mini being relative ... small for me) is how to read a part of the Constitution.
We will focus on the First Amendment, the lodestone of American jurisprudence. The reason that we speak of it as the First, of course, is because whenever something happens that any right-thinking individual does not like, the First thing that comes to their mind is that their rights have been violated, specifically their rights under the First Amendment. Hence, the cry of all wronged individuals everywhere, "Dude, stop violating my First Amendment rights!"
For most of American history, the First Amendment was naught but a dead letter. In fact, it was questionable as to whether it was only about prior restraints (the Gummint says, "Naw, you can't do that" before you do that)- many people believed that The Man was perfectly able to punish you for your speech after you spoke! Now, of course, we have seen a resurgence of First Amendment jurisprudence as Courts realize that the First Amendment can be used to protect the moneyed and the powerful, as it should be. That is a story for another day. First, we must unpack what the First Amendment is, and what it does. To do so, we must first do something that no American has ever done- read the Constitution and actually try and unpack the language of it! This is contrary to the usual experience pithily put by the Honorable Justice Learned Onion, "Area Man Passionate Defender of What He Imagines Constitution To Be."
The First Amendment reads as follows in its entirety:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Let us read this together, shall we?
1. "Congress shall make no law ..."
By Congress, we mean the government. More specifically, we mean "state action." But wait, you say, doesn't it say "Congress?" In answer, I say the following- a) shut up; b) no; c) this right was incorporated by the 14th Amendment; d) that's the kind of question someone who loves King George would ask. In fancy lawyer land, Congress means state (as in government) action, whether federal or state, from legislatures, executives, judiciaries, or their agents, and sometimes private parties ... but almost never.
By "no law", we again mean "state action." It doesn't have to be a law. Also, laws (and other state action) can lawfully abridge the freedom of speech or other First Amendment rights. But wait, you say, doesn't it say, "no law?" To which I respond, "Congress can passes laws that, inter alia, abridge the freedom of speech, so long as a court thinks they have a really, really good reason. Or if a Court determines it's not really speech. And shut up."
2. "respecting an establishment of religion, or prohibiting the free exercise thereof"
Simply put, if your local town has a Christmas display with a nativity, they have to put up a menorah as well. And if there's some wiccans, they probably get to put something up. Eventually, some jerk will put up a Church of Nic Cage display, everyone will get mad, and they will cancel Christmas. Which will hurt the retailers, which is a shame, because commerce is the real spirit of Christmas. And the Baby Jesus weeps anytime people do not accrue massive credit card debt to give each other gifts that the recipient doesn't want. Also? You can believe whatever you want, except for the really crazy stuff.
Of course, some of this changing recently, because of the Supreme Court. So when it comes to this, it's more ... do what you want until someone stops you. I guess. ¯\(ツ)/¯
3. "or abridging the freedom of speech, or of the press"
This is the biggie. Free speech, yo! The second phrase is redundant, as the press does not have any particular protections you do not have. You might say, "Why is it there?" to which I respond, "Why not?" Some argue that it protects actual printing presses. Which is why I recommend, if I must, murdering people with printing presses then claiming immunity because of the First Amendment. Let me know how that works for you.
4. "or the right of the people peaceably to assemble"
You get to assemble and protest, subject to certain regulations. This is colloquially known as the "I hate Illinois Nazis" clause of the First Amendment.
5. "and to petition the government for a redress of grievances"
This not only protects your right to ask the government for stuff, it also protects you when you want to sue people! Now, you might say to yourself, "Self, why should I be protected for suing people? Doesn't it seem weird? I don't see anything in the First Amendment about Courts, or lawsuits. Why is there a special protection just to sue people... isn't it easy enough already?" And to this, I give a quick response- lawyers and judges make the laws.
6. "."
The period at the end protects your right to association. Now, there might be times when you want to associate freely, and, of course, by associate freely, the Supreme Court means exclude gays, in which case the First Amendment right to association protects you. See, inter alia, Hurley (Drunken Boston people may exclude gays from St. Paddy's day parade); Dale (Boy Scouts may exclude gays). Weirdly, the Supreme Court has a lot of cases on that!*
Thus ends the First, First Amendment post.
*In case you didn't catch that, I am noting without approval and with disdain that the two leading cases on this happen to focus on this issue.
Being an ongoing treatise and disquisition into the subject of The Law by the learned scholar of same, and the ways in which it improves the better members of society by transferring wealth onto them by the poorer members of same.
Or put another way, I am procrastinating on writing a TTRPG essay, so Ima gonna write another Snarfticle about the law! I know that all three fans of them are overjoyed! Today's mini-topic (mini being relative ... small for me) is how to read a part of the Constitution.
We will focus on the First Amendment, the lodestone of American jurisprudence. The reason that we speak of it as the First, of course, is because whenever something happens that any right-thinking individual does not like, the First thing that comes to their mind is that their rights have been violated, specifically their rights under the First Amendment. Hence, the cry of all wronged individuals everywhere, "Dude, stop violating my First Amendment rights!"
For most of American history, the First Amendment was naught but a dead letter. In fact, it was questionable as to whether it was only about prior restraints (the Gummint says, "Naw, you can't do that" before you do that)- many people believed that The Man was perfectly able to punish you for your speech after you spoke! Now, of course, we have seen a resurgence of First Amendment jurisprudence as Courts realize that the First Amendment can be used to protect the moneyed and the powerful, as it should be. That is a story for another day. First, we must unpack what the First Amendment is, and what it does. To do so, we must first do something that no American has ever done- read the Constitution and actually try and unpack the language of it! This is contrary to the usual experience pithily put by the Honorable Justice Learned Onion, "Area Man Passionate Defender of What He Imagines Constitution To Be."
The First Amendment reads as follows in its entirety:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Let us read this together, shall we?
1. "Congress shall make no law ..."
By Congress, we mean the government. More specifically, we mean "state action." But wait, you say, doesn't it say "Congress?" In answer, I say the following- a) shut up; b) no; c) this right was incorporated by the 14th Amendment; d) that's the kind of question someone who loves King George would ask. In fancy lawyer land, Congress means state (as in government) action, whether federal or state, from legislatures, executives, judiciaries, or their agents, and sometimes private parties ... but almost never.
By "no law", we again mean "state action." It doesn't have to be a law. Also, laws (and other state action) can lawfully abridge the freedom of speech or other First Amendment rights. But wait, you say, doesn't it say, "no law?" To which I respond, "Congress can passes laws that, inter alia, abridge the freedom of speech, so long as a court thinks they have a really, really good reason. Or if a Court determines it's not really speech. And shut up."
2. "respecting an establishment of religion, or prohibiting the free exercise thereof"
Simply put, if your local town has a Christmas display with a nativity, they have to put up a menorah as well. And if there's some wiccans, they probably get to put something up. Eventually, some jerk will put up a Church of Nic Cage display, everyone will get mad, and they will cancel Christmas. Which will hurt the retailers, which is a shame, because commerce is the real spirit of Christmas. And the Baby Jesus weeps anytime people do not accrue massive credit card debt to give each other gifts that the recipient doesn't want. Also? You can believe whatever you want, except for the really crazy stuff.
Of course, some of this changing recently, because of the Supreme Court. So when it comes to this, it's more ... do what you want until someone stops you. I guess. ¯\(ツ)/¯
3. "or abridging the freedom of speech, or of the press"
This is the biggie. Free speech, yo! The second phrase is redundant, as the press does not have any particular protections you do not have. You might say, "Why is it there?" to which I respond, "Why not?" Some argue that it protects actual printing presses. Which is why I recommend, if I must, murdering people with printing presses then claiming immunity because of the First Amendment. Let me know how that works for you.
4. "or the right of the people peaceably to assemble"
You get to assemble and protest, subject to certain regulations. This is colloquially known as the "I hate Illinois Nazis" clause of the First Amendment.
5. "and to petition the government for a redress of grievances"
This not only protects your right to ask the government for stuff, it also protects you when you want to sue people! Now, you might say to yourself, "Self, why should I be protected for suing people? Doesn't it seem weird? I don't see anything in the First Amendment about Courts, or lawsuits. Why is there a special protection just to sue people... isn't it easy enough already?" And to this, I give a quick response- lawyers and judges make the laws.
6. "."
The period at the end protects your right to association. Now, there might be times when you want to associate freely, and, of course, by associate freely, the Supreme Court means exclude gays, in which case the First Amendment right to association protects you. See, inter alia, Hurley (Drunken Boston people may exclude gays from St. Paddy's day parade); Dale (Boy Scouts may exclude gays). Weirdly, the Supreme Court has a lot of cases on that!*
Thus ends the First, First Amendment post.
*In case you didn't catch that, I am noting without approval and with disdain that the two leading cases on this happen to focus on this issue.
