Mary O'Connell on sat 28 dec 02
Dear Jeff and the rest of Clayart people,
Hi. I am not a ceramic artist; my wife Mary is. However, I am a very =
GOOD lawyer, and I felt I needed to jump in.
This is a constitutional issue and the U.S. Constitution is central to =
who we are as a nation. It is not something sitting off to the side. =
It is not an inconvenience; and it is not merely an issue of who has the =
good lawyer. I have been a litigator for over 20 years. Surprisingly, =
the one who wins a lawsuit is usually the one who deserves to win under =
the law and the facts in the case. I would love to say that good =
lawyering was the decisive factor in most cases. It just isn't. =20
Sorry, for that rant. Back to the main topic. The First Amendment is =
one of the most fundamental protections we all have to our political =
viability, the proper function of our democratic government and for the =
integrity of our very souls. Unless we can speak the truth as we =
perceive it, we are truly slaves where it most counts, in our towns and =
in our hearts. =20
In order to discuss this issue, we have to make some important =
distinctions. There is a fundamental difference between actions (i.e. =
driving drunk) and speech (e.g. making a speech). Sometimes the =
distinction takes some careful reflection and requires us to back off =
from how the speech affects us emotionally. Take burning a flag. This =
appears to be action, but from a constitutional perspective it is speech =
because it is thought or feeling it conveys that is important rather =
than the physical action. Thus, burning an American flag is protected =
under the constitution and burning a building is not. One thing to look =
at is what is called content neutrality. If a law or rule operates =
without reference to the thought or feelings being expressed then the =
rule does not violate the First Amendment. In this way, reasonable =
time, place and manner restrictions are valid. In the case of our mad =
boxer, he could be punished for placing his boxes on someone else's =
property or in violation of the building's rules relating to displays in =
the station. =20
If, on the other hand, a rule seeks to prohibit speech on the basis of =
the thought being expressed, it is very difficult for the rule to avoid =
violating the First Amendment. The courts have said that such a rule =
must pass the test of strict scrutiny. The speech in question must pose =
a clear and present danger to the welfare of others. For example, if =
someone were to advocate returning all the Irish to Ireland to clean up =
this country, this speech is protected. Even if it is immoral, abusive =
and racist. Further, even speech that advocates violence is protected =
unless the speech poses a clear and present danger that it will incite =
violence within a short period of time. Thus, if someone advocated not =
the expulsion, but the idea that some day we should exterminate the =
offensive ethnic minority, it is still protected. Once it is determined =
that the speech involved is that dangerous the courts still require that =
the proposed law be narrowly tailored to protect the public safety =
while, at the same time, not restricting speech that does not pose a =
public danger.
Getting down to the case of the Fear Boxes. The question is can the =
artist be punished for placing these boxes in a public place. At this =
point, we are leaving aside any potential punishment for trespass. The =
question is can he be punished for the thoughts or feelings conveyed by =
his installation. I do not think so. The fact that an expression may =
upset some of the hearers or deeply offend or enrage them must be =
insufficient to establish a clear and present danger. Otherwise, all =
our speech would be limited by the fact that it might offend someone in =
the society or even the great majority of society. One way to look at =
this is that the Constitution is there to protect not powerful and =
unpopular minorities. The majority has the social, economic and =
physical power to protect itself. Two classic examples of this are =
Martin Luther King's march through Cicero and Michael Collin's neo-Nazi =
march through Skokie. Both were protected by the First Amendment. It =
was argued at the time that Dr. King should not be allowed to march =
through Cicero because the march would incite a riot among the whites in =
Cicero and that Dr. King intended to confront and offend these people. =
In other words, it was argued, that he was deliberately attempting to =
incite these whites. Likewise, the same arguments were made against Mr. =
Collin's proposed march through Skokie. =20
The fact that the Boxer's installation may evoke fears in the minds of =
his viewers does not mean it is prohibited. It would be different if he =
directly threatened the people, for example if the box said C4 or "Bomb" =
instead of fear. One thing confusing the issue is how fearful many of =
us are now because of terrorism coming to the U.S. Any box sitting on =
the floor of a train station or an airport could instill fear in many of =
us. I think the artist was trying to get us to look at this pervasive =
fear. It appears to have been successful. This does not make it a =
crime; this makes it an effective expression. We do not have to like it =
or agree with it. That is the whole point of free speech.
We all benefit greatly from free speech.
I hope I have added something to the discussion. Keep up the free =
speech.
Dan O'Connell (interloper)
Jeffrey Francis Longtin on sat 28 dec 02
Dan,
I appreciate the response.
I will kindly disagree.
My point was not to suggest that the Black Box bomber(?) should be punished
because he hurt my feelings. Rather, my point was to suggest that his actions
could have unexpected consequences and that the Constitution does not protect
him completely from the result of those consequences.
I was simply responding to the fact that Mary was seemingly suggesting that
the Constitution, and the First Amenedment, protects EVERY form of expression
we artists can create. It does not, in my opinion.
While I appreciate your declaration that you are a very good lawyer I'm sure
you will agree that I could probably find another very GOOD attorney who
takes an opposing view. THAT is the beauty of OUR legal system.
Best wishes for a safe (and happy) new year!
Jeff Longtin
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