The Absurdity of U.S. Constitutional Protection

[Borntobenude]

I was talking with a friend of mine a couple days ago, and we were talking about freedom of speech in the US, and hate speech came up. The next day, it struck me.

Why is it, that in the US, hate speech is constitutionally protected, perfectly within one's right...

... but one DOESN'T have the right to be in one's natural state if he or she wishes?

You mean that someone is free to say whatever vile, hateful, racist thing one wishes to, one can go out in public with the deliberate intent to be inflammatory and inciteful and be protected, but one can't be minding one's own business in one's natural state without risking an indecent exposure charge if one should happen to be seen?

It doesn't matter if hate speech offends, yet it DOES matter if the sight of a human being in his or her natural state should happen to offend someone? How does this happen in a democracy? A racist looking to hurt people with vicious, hateful statements is protected, yet someone who simply wishes to enjoy being nude and doesn't wish to harm anyone isn't.

How screwed up are our priorities?

[phanjd]

I am in complete agreement there. I want to be nude and not fear getting arested. It is our constitutional right. Let's use it.

[Kyle]

I agree 100 percent

[Brandon]

A racist looking to hurt people with vicious, hateful statements is protected, yet someone who simply wishes to enjoy being nude and doesn't wish to harm anyone isn't.

It's interesting how we find ourselves in this situation. When people draft a constitution (and in this case, its amendments,) they tend to make strong, unambiguous, statements, with little room for nuance.

When the First Amendment was written, the intent was to make it clear that the Federal government wasn't allowed to infringe on free speech. Since states would be free to pass their own laws, there was no need for the First Amendment to list exceptions. However, in the early 20th century, with the drafters of the First Amendment  unavailable for comment, the U.S. Supreme Court decided that the First Amendment also applied to state and local laws:

Originally, the First Amendment only applied to the Congress. However, in the 20th century, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment applies the First Amendment to each state, including any local government.

http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution

Overall, I think it is a good thing that the federal Bill of Rights (Amendments 1 through 10) was extended to cover state and local laws, but I really don't think that was the intent in 1789. 

I also don't think the people who drafted the First Amendment addressed themselves to the question of hate speech. They were thinking more about being able to criticize the government and being free to express their religious beliefs. (See: Wikipedia: Freedom of speech in the United States - Colonies)

Hateful inflammatory speech became protected speech in 1969 with Brandenburg v. Ohio.

To answer the other half of your question, Why isn't nudity protected?, I believe that the right to be nude is implicit in the Declaration of Independence:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

[Borntobenude]

How screwed up are our priorities?

Our priorities aren't "screwed up." I think your view comes from a lack of understanding of the constitution.

My view comes from noticing—and questioning—that a hatemonger who seeks to incite and deliberately hurt people can do so with impunity, yet someone peacefully minding his or her business in his or her natural state can be jailed. That one can go out in public and spew hateful venom and be okay, but one can potentially, say, be in his or her own backyard gardening in the nude, or sunbathing or whatever—minding their own business and not looking to harm anyone, and should someone see them—even though they're on their own property—legal sanction can be taken against them. You don't find it odd that the protection of racist speech holds priority over someone simply enjoying their natural state of being? You don't find it odd that something that can hurt a lot of people is okay, but something that hurts no one isn't? What's your take? I notice you completely avoided any mention of hate speech. There was a New York Times article on 2008 on how the US's position on hate speech is unique in the Western world, and after thinking about it, I just find it interesting what things this country has decided to protect vs. things that aren't.

[Brandon]

You raise an interesting point, and, as I suggested in my post above, from a legal point of view, the U.S. Supreme Court may have erred in applying the First Amendment to state and local governments.

If you don't like the current state of affairs, as I'm sure you know, there is a mechanism to amend the U.S. Constitution. I think that it is possible that an amendment prohibiting hateful speech could receive the necessary votes. I'm not sure most people see it as a major problem today though.

Article V of the Constitution spells out the processes by which amendments can be proposed and ratified.

To Propose Amendments

    * Two-thirds of both houses of Congress vote to propose an amendment, or

    * Two-thirds of the state legislatures ask Congress to call a national convention to propose amendments. (This method has never been used.)

To Ratify Amendments

    * Three-fourths of the state legislatures approve it, or

    * Ratifying conventions in three-fourths of the states approve it. This method has been used only once -- to ratify the 21st Amendment -- repealing Prohibition.

source: about.com

[Borntobenude]

To answer the other half of your question, Why isn't nudity protected?, I believe that the right to be nude is implicit in the Declaration of Independence:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

  I'm glad that Brandon and I are on the same page. We are granted certain unalienable rights, but, I believe, the only way we can convince others of public nudity is through intelligent argument. Intelligent arguments are the only peaceful process that we currently have in order to convince others of our rights.

You still haven't stated what you thought. I brought it up because I'd actually never thought about it before. Why is one of the "certain unalienable rights" we're granted is to be able to say anything we want about a group of people no matter how false, provocative or hateful. Why was this specifically secured over completely non-harmful things that weren't? Why is the right to say vicious, inciteful things such a precious right a democracy should have, while that part about "life, liberty and pursuit of happiness" isn't? Other democracies don't agree with us. Why do I need to have the right to say hateful, inflammatory things? I can't think of one instance in which I would need that right or ever desire to. Can you? I just wanted to generate THOUGHT about this. People just take it for granted because that's the way it is, and so never think about it.

Incidentally, you have places like France which prohibits hate speech, yet has Cap d'Agde, something you'd never see in America. Interesting. There are other countries which prohibit hate speech unlike the US, yet are more tolerant concerning nudity than we are here. Again, interesting. It goes back to the question of exactly what are you prioritizing.

And unfortunately, intelligent discussion, no matter how cogent or well thought out, won't have any effect on a closed mind who's already decided on a matter. People who oppose nudity as glad it's illegal, and nothing will convince them that anything should change.

[ComputationJason]

This is all very interesting.  Has anyone tried to argue that requiring clothing is an infringement on free expression?

I think that is at least as valid an argument as arguing that corporations can't have any restrictions placed on the money they give to candidates for office.  Just a thought.

[Brandon]

Nude dancing (at a strip club) is protected free speech under the First Amendment.

http://www.firstamendmentcenter.org/speech/adultent/topic.aspx?topic=nude_dancing

EDIT: I probably should have said, "Nude dancing (at a strip club) is protected free speech under the First Amendment, to some extent, depending on the mood of the justices."

Supreme Court rulings have been inconsistent on these cases.

[Borntobenude]

Nude dancing (at a strip club) is protected free speech under the First Amendment.

http://www.firstamendmentcenter.org/speech/adultent/topic.aspx?topic=nude_dancing

So, it's protected in a sexual context, but not okay in a non-sexual context. Because of course, they want to reinforce that nudity = sex. Just gets more and more interesting.

[Baseballfan]

This is all very interesting.  Has anyone tried to argue that requiring clothing is an infringement on free expression?

I think that is at least as valid an argument as arguing that corporations can't have any restrictions placed on the money they give to candidates for office.  Just a thought.

yeah that US supreme  court rulling was 100% BS.  Seems like the last days of Rome.

but I'm not sure that nudity =free speech.

Only if thenudity was part of a war or animalright protests wouldit be part of free speech,I would imagine.

[Brandon]

Yes, the ruling that corporations are persons and have free speech rights was based on the justices' political leanings more than on legal precedent. It was a bad legal decision.

For some good news, here's a link to your post Vermont teen beats humidity by walking naked in Montpelier

Please note that I've edited my post above to say, "Nude dancing (at a strip club) is protected free speech under the First Amendment, to some extent, depending on the mood of the justices."