🚀 go-pugleaf

In article <53j6ah$fcu@hpax.cup.hp.com>, mintz@cup.hp.com (Ken Mintz) wrote:

> Paul S Galvanek (psg+@pitt.edu) wrote:

> > Like the woman I saw in Schenely Park a few weeks ago, there is a segment
> > of the earth first, radical vegetarian movements, who use feeding their 
> > children as an excuse to try and force their views and behaviors on others.
> 
>   I agree with other responders that if this is the legislative intent, it
>   clearly tramples on the First Amendment.

That doesn't necessarily follow.  It is not a rule that if an conduct
(otherwise legally prohibitable and not considered speech) is used as a
mode of political "expression" and the legislature bans that conduct in
part because it finds that mode of "expression" and the viewpoint it
expresses repugnant, then that law is unconstitutional.  That seems to be
the assertion barred by Wisconsin v. Mitchell (the "Mississippi Burning"
case), 113 S. Ct. 2194 (1993).  There, black defendant, after seeing
Mississippi Burning, got his friends together and targeted a white boy to
assault.  Defendant was convicted and sentenced under a "bias crime"
statute, which enhanced his sentence.  Therefore, defendant's sentence was
enhanced because his aim was to promote a political statement, namely
black racism, backlash or whatever.

Since pure hate speech statutes are almost always held unconstitutional,
many governments have drawn up similiar bias statutes, but whittling down
the "crime" element down to the minimum.  For example, nothing can happen
to me if I call you a racial epithet, nothing can happen to do anything. 
But if I do the slightest thing to provoke physically, like raise my hand,
I can get thrown in the slammer for a very long time.

I mean, let me put it this way.  Suppose I and my girlfriend rut on the
street corner because we're just plain horny.  Legitimately prohibitable I
suppose.  Now suppose my girlfriend and I rut on the street corner because
we're into "free love" or something.  The two seem fairly
indistinguishable to me.  The former just means horny enough to have no
shame about it.  The latter just means thinking no shame comes from the
act, so any amount of horniness will do.  Legislature, says "goddamn those
horny free love hippies" and bans the conduct.  What is the legislative
intent.

I won't get into the question of whether content and viewpoint
discrimination should be measured "objectively" by, by the reach of the
law's prohibition, or "subjectively," by the reason the legislature passed
it.
 
>   As to the question of whether such a "normal" activity could be considered
>   protected speech, I hasten to note that __a__ supreme court (can't recall
>   if it was Calif or US) has ruled that panhandling(!) is protected speech.
> 
>   Not that I agree with the ruling.  But if mere panhandling can be construed
>   as protected speech (I don't think the court ruling qualified the activity
>   based on intent to express), it is no stretch of imagination at all to
>   construe __intentional__ expression as protected speech, even if that
>   expression is an activity considered "normal" behavior.

There's a difference, though.  Panhandling is at the very least, "speech"
in the literal sense.  It's more than "expression."  What I read of the NY
cases (overturned I believe) that make panhandling a First Amendment right
is that it is protected speech because panhandling is implicitly about
making people aware of the homeless problem.  Not that I buy that
explanation.  Any kind of commercial speech can be "implicitly" about a
support for free market capitalism.  Don't make it super-protected though.

-- 
Jake Minas
Columbia Law School
jam81@columbia.edu