STOP BEING SO STUPID!

[MysticCat]

Originally Posted by DeltaBetaBaby

There are no criminal penalties being applied. The sanctions are targeting an organization, not an individual. Courts have agreed many times that there are limits on free speech.

All of which is to say that this argument is so bad, I think you must be trolling.

Of course courts have said there are limits on free speech. But if this qualifies as speech—unlike Kevin, I'm not as convinced it does—I don't think those limits would apply here. Kevin's argument isn't nearly as bad as you seem to think. Except, that is, as to the claim of offended students being "overly sensitive."

Originally Posted by redryder27

i'm sorry but people are being way to sensitive about this ENTIRE THING!! since these are college aged women just playing around, i really don't think they were thinking about serious sanctions like this when they were dressing up, maybe like they did to high school.

Then it's time for these college-aged women to grow up and learn that their stupidity and cluelessness can have consequences.

[Kevin]

Originally Posted by MysticCat

Of course courts have said there are limits on free speech. But if this qualifies as speech—unlike Kevin, I'm not as convinced it does—I don't think those limits would apply here. Kevin's argument isn't nearly as bad as you seem to think. Except, that is, as to the claim of offended students being "overly sensitive."

It's a speech vs. conduct issue, where conduct is not as protected as, for example, dialogue or political speech. Of course the conduct cases point to two other types of conduct which aren't protected. There was a case during the Vietnam War where an individual was prosecuted for burning his draft card in protest. He was prosecuted and it was upheld because of the government's need to draft individuals into the military, etc. (that's not a very good statement of the holding, but I'm going from memory here).

I think there was a similar holding in a case which allowed a municipality to zone in such a way as to suppress adult theaters and book stores which claimed they had a First Amendment right to be where they were.

Another conduct case I can think of is the flag burning case in which 5-4, the act of burning a flag is protected.

There's also a line of speech/conduct cases which state that any speech which is likely to incite violence is not necessarily protected (no yelling fire in a crowded theater).

And of course we know what Westboro does is A-Okay... It's fine to denigrate homosexuals, some might say, but race should be more strictly protected?

What I find very interesting about all of those standards is that in all of the above-referenced cases, we had speech which was intentionally used to inflame one group or another. What I find kind of funny about what would be the natural result of a "It is conduct, therefore not protected" argument is that such a standard would actually mean you can be punished for unintentional speech, but if you go out and burn a cross and hang a black faced scarecrow from a noose and burn it in effigy? The school can't touch you. I'm not sure I like the intellectual consistency of that position.

Then it's time for these college-aged women to grow up and learn that their stupidity and cluelessness can have consequences.

I've never argued there should be no consequences. Just no consequences from the University, since it is a public institution. I would imagine, ADPi's headquarters and local alumnae, left to their own discretion would probably handle things internally and happily issue the necessary apologies. The Latino community might protest in front of the ADPi house, there could be reputational consequences, but when we start letting groups of people punish other groups of people for speech or conduct which was just offensive, I don't believe that's a constitutional or even equitable use of government resources.

[MysticCat]

Originally Posted by Kevin

What I find very interesting about all of those standards is that in all of the above-referenced cases, we had speech which was intentionally used to inflame one group or another.

But the other thing they all have in common is that whether pure speech (as in words) or conduct (draft card or flag burning) or a mix (Westboro Baptist), they are true political speech, intended to convey a political or idealogical message, which is at the heart of the First Amendment. I'm not sure donning a sombrero, serape or gang clothes for a Taco Tuesday party carry any intent to speak within the meaning of the First Amendment.

I've never argued there should be no consequences.

I know. I was responding to redryder27's comment that these were just college-aged women playing around who weren't thinking about serious sanctions when they were dressing up.

[Kevin]

Originally Posted by MysticCat

But the other thing they all have in common is that whether pure speech (as in words) or conduct (draft card or flag burning) or a mix (Westboro Baptist), they are true political speech, intended to convey a political or idealogical message, which is at the heart of the First Amendment. I'm not sure donning a sombrero, serape or gang clothes for a Taco Tuesday party carry any intent to speak within the meaning of the First Amendment.

So if on MLK Day, the Kappa Tappa Kegga at a public school stages an event where they have a lynching of a straw man off campus where they wave the Confederate Flag while burning the lynched straw man in effigy, chanting racist slogans, clamoring for a return of Jim Crow, that would be more protected by the First Amendment than some kids showing up to Taco Tuesday in a sombrero or dressed like cholos?

I don't think I would totally buy that, it doesn't seem consistent. The reading of the First Amendment, especially these days with the Roberts court, tends to be very broad.

If I had a client with this sort of issue, I'd kind of like my chances in a 1983 case.

[MysticCat]

Originally Posted by Kevin

So if on MLK Day, the Kappa Tappa Kegga at a public school stages an event where they have a lynching of a straw man off campus where they wave the Confederate Flag while burning the lynched straw man in effigy, chanting racist slogans, clamoring for a return of Jim Crow, that would be more protected by the First Amendment than some kids showing up to Taco Tuesday in a sombrero or dressed like cholos?

Quite possibly. I'd suggest that the former is precisely the sort of speech the First Amendment exists to protect. As to the latter—what were they trying to say exactly? Anything?

I don't think I would totally buy that, it doesn't seem consistent. The reading of the First Amendment, especially these days with the Roberts court, tends to be very broad.

If I had a client with this sort of issue, I'd kind of like my chances in a 1983 case.

It's all going to depend on your judge(s), who likely won't be the Supremes. It might be covered speech, but I just don't consider it a slam dunk at all.

[DrPhil]

Originally Posted by MysticCat

the Supremes

[MysticCat]

Originally Posted by DrPhil

Yeah, they definitely won't be the judges.

[Kevin]

Originally Posted by MysticCat

Quite possibly. I'd suggest that the former is precisely the sort of speech the First Amendment exists to protect. As to the latter—what were they trying to say exactly? Anything?

I'd argue that they were trying to communicate that they were in character for Taco Tuesday. Tacos are Mexican food, so we'll dress like Mexicans and show everyone how into this we are. Clothing choice, especially extreme clothing choices are certainly a form of communication.

It's all going to depend on your judge(s), who likely won't be the Supremes. It might be covered speech, but I just don't consider it a slam dunk at all.

No, but the Roberts court's very broad interpretation of the 1st Amendment as of late is important and don't think the District Judges aren't paying attention to it.

[MysticCat]

Originally Posted by Kevin

I'd argue that they were trying to communicate that they were in character for Taco Tuesday. Tacos are Mexican food, so we'll dress like Mexicans and show everyone how into this we are. Clothing choice, especially extreme clothing choices are certainly a form of communication.

And perhaps that argument would win. I'm just saying I don't think it's an open-and-shut case.

No, but the Roberts court's very broad interpretation of the 1st Amendment as of late is important and don't think the District Judges aren't paying attention to it.

Paying attention, sure. But likewise, don't think there aren't quite a few district court (and circuit court) judges very willing to find ways to distinguish those Roberts Court cases from the cases before them. Again, not an open-and-shut case.