The Top Mama Issue - Report Example

Top Mama challenged the constitution about being denied equal protection clause under the law. While she was on the Late Night Show, Top Mama removedher blouse to protest and express her feelings against men being allowed to walk in public without their shirt on and women not being allowed to do the same. Upon leaving the studio, she was arrested and charged with indecent exposure. Top Mama was found guilty and sentenced to jail term of 30 days. Her conviction in the lower courts was upheld. Reaching this Supreme Court, we should clearly discuss the First and Fourteenth Amendments invoked in this case. According to Mark Stevens (2003), all together, there are six (6) rights guaranteed by the First Amendment -- religion, speech, press, assembly, association, and petition -- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Collectively, they protect what is known as the freedom of expression (Stevens, 2003). Mark Stevens (2003) stated that association is a derivative right from speech, assembly, and petition. The right to free speech is more commonly referred to as freedom of speech.  Justice Hugo Black (1937-1971) was the last to believe the absolutist interpretation of the First Amendment which states that “Congress shall make no law” means that Congress shall make no law. Such an absolutist interpretation of the First Amendment leaves no restrictions on obscenity, libel, or slander (Stevens, 2003). More predominant interpretations look at speech as distinct from speech plus conduct, or the effects of speech. Congress has every right in the world to control these things (Stevens, 2003). Its also possible to draw upon the social contract theories of the founding fathers to understand that the First Amendment was intended to serve several important social functions. These functions include educational function, safety valve function, truth-seeking function, and lastly, the social obligation function. These social functions indicates that the First Amendment is about protecting the public good rather than individual freedom and that freedom of speech in America has never been absolute (Stevens, 2003). In the case at bar, Top Mama was invoking the First Amendment on freedom of speech, or in her case, the symbolic speech. Symbolic speech is the nonverbal communication similar to speech or conduct that may receive protection under the 1st Amendment. During 1960s and 1970s, the main issue was symbolic speech which Antiwar protesters were not so much saying things as doing things, like burning flag, draft cards, holding sit-ins, love-ins and the like (Stevens, 2003). According to Stevens (2003), one of the first cases which considered whether symbolic speech such as this deserved constitutional protection was the 1968 case of U.S. v. OBrien. In the OBrien Test, governments must have a substantial government interest that is not related to suppressing the message before contemplating action restricting expressive conduct or symbolic speech such as it is unconstitutional to have a flag desecration law if the only reason for having it is that people should respect the flag (Stevens, 2003). This is the most widely-used test. The Court was providing absolute protection to the message, but not the conduct (Stevens, 2003). OBrien involves some deep psychological issues as the critical test for separating message from conduct (Stevens, 2003).Thought and belief are not subject to government control, but speech is often the link between thought and action (Stevens, 2003). The current situation is that symbolic speech, like flag-burning, is constitutionally protected. In a narrow 5-4 majority with Texas v. Johnson (1989), the Court upheld the right to burn the flag, regardless of its symbolism, as long as a disturbance of the peace does not occur (Stevens, 2003). In the cases above, the court distinguished and separated the speech and conduct or action. The court stated that it is important to look into the speech or the main reason of the act and not how it was conveyed or the conduct used. It is believed that the framers wanted to protect the same. The stare decisis has been unanimously voted by the justices, thus we can say that this is the intention of the framers of the Constitution. They had foreseen these types of events and they wanted to protect individuals and make sure their rights are protected from the intervention of the state’s police power. In the case of Top Mama, she was charged and convicted of indecent exposure. Nevada indecent exposure law is defined in NRS 201.220 as any "open and indecent or obscene exposure" of oneself or of another person (“Nevada Indecent Exposure Defense Lawyers”, 2010). People are typically arrested for indecent exposure in Las Vegas or Clark County Nevada in situations where they expose their genitalia, or a woman exposes her breasts, with the purpose of annoying surrounding people except a mother breast feeding a child (“Nevada Indecent Exposure Defense Lawyers”, 2010). However, talking about the First Amendment, there are areas where they have never been protected by the Constitution. One of the unprotected areas is obscenity. Despite having grappled with the definition of this term, the Court has consistently ruled that obscenity is not protected (Stevens, 2003). According to Stevens (2003) the English common law definition is "anything which depraves or corrupts minds open to immoral influence." For many years, this definition was taken to mean that the crime of obscenity consisted of distributing material to youth which might have an immoral impact (Stevens, 2003). To this day, anything directed to, or involving youth brings down a quick, suppressive response from government (Stevens, 2003). The Miller test from Miller v. California (1973) defined obscenity as appealing to prurient interests, involving hard core acts which demean women, and lacking serious literary, artistic, political, or scientific value (Stevens, 2003). Miller Test remains the key test for determining obscenity (Stevens, 2003). Top Mama is also invoking the equal protection clause of the Constitution. This is her defense for doing such act or symbolic speech in the Late Night Show. Under this clause she should be protected by the State like the protection as that of the men. A woman is a citizen like a man. The constitution protects her as a citizen and is entitled to all the rights, privileges and immunities enjoyed by other citizens and guaranteed by the Fourteenth Amendment. The rights of Top Mama are protected by the Constitution but there are also duties of a citizen protected and regulated by the Legislature or State. The Fourteenth Amendment defines who is a citizen of the United States and of the state and it limits the state’s authority to deprive a person within their jurisdictions of rights. These two clauses speak of the due process and the equal protection clause. A similar case of condemnation of the First and Fourteenth Amendments is the case of Brandenburg V. Ohio (1969). This case involved a leader of the Ku Klux Klan. He was found guilty by the Ohio courts after a television news report was aired broadcasting speeches made by petitioner. He was filed a case with violating Ohios criminal syndicalism statute. His case was brought to the U.S. Supreme Court and by unanimous vote, the justices defended the Klan’s right to say such things at the rallies provided there was no incitement to action. The court reversed the petitioner’s conviction because the statute upon which his conviction was based was declared unconstitutional. The Brandenburg Test was developed which states that merely teaching or advocating unpopular ideas must be distinguished from teaching or advocating the duty, necessity, or propriety of acting on those beliefs (Stevens, 2003). The right to speak and organize cannot be abridged no matter if the groups message and purpose are repugnant to American values (Stevens, 2003). In order for government to intervene, the speaker must subjectively intend incitement (imminent evil), use words which are likely to produce imminent action and openly encourage or urge (Stevens, 2003). Taking into consideration the case cited above, by rule of stare decisis, the case should be dismissed by reason of unconstitutionality. By using the O’Brien Test, the government should protect the speech and not the conduct. In the case of Texas v. Johnson (1989), symbolic speech is constitutionally protected as long as the disturbance of peace does not occur. In the case of Miller v. California (1973), obscenity was defined as appealing to prurient interests, involving hard core acts which demean women, and lacking serious literary, artistic, political, or scientific value (Stevens, 2003). I believe that the removal of Top Mama’s blouse does not constitute a hardcore act. She did this because of a political value of protesting against men being allowed in public without their shirt on and women being not allowed to do the same. Her symbolic expression was also protected by Brandenburg doctrine that advocating unpopular ideas without the intention to incite others to imminent action or urge is protected by the Constitution. Though the State has the police power of regulating individuals or citizens to promote public convenience or general prosperity, they should take cognizance of the individual rights of the citizens. Whereby, premises considered, I hereby grant the petition of Top Mama. Let her conviction of indecent exposure be reversed. So ordered. References: Brandenburg v. Ohio, 395 U.S. 444 (1969) Miller v. California, 413 U.S. 15 (1973) Texas v. Johnson, 491 U.S. 397 (1989) U.S. v. O’Brien, 391 U.S. 367 (1968) Nevada Indecent Exposure Defense Lawyers. (2011). Retrieved April 21, 2011 from http://www.shouselaw.com/nevada/indecent-exposure.html Stevens, M., (2003). Freedom of Speech. Retrieved April 21, 2011 from http://faculty.ncwc.edu/ mstevens/410/410lect08.htm Read More