STOP BEING SO STUPID!

[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.