Protecting First Amendment Rights - Essay Example

Self- Expression: Protecting First Amendment Rights The Constitution of the United s is a compilation of what we, as Americans, perceive as the fundamental rights and responsibilities of each of us - both to ourselves and to others. The founding principles guaranteed certain rights to each of us. Although we may not at times agree with the words spoken, the art painted, the photo captured, or the dance performed, this does not negate the right of the artist to produce or perform their artwork. The First Amendment of the Constitution has guaranteed such. What the Constitution does allow for is our disagreement, by peaceful means, with what is expressed by others without fear of retribution. This free exchange of word and expression was recognized by our fore fathers as one of our fundamental rights. They recognized, all those years ago, the importance of protecting Freedom of Speech and Expression. The importance of Free Speech has not diminished, and it is not for any individual entity to limit any citizen’s right to express himself peacefully save by amending the Constitution itself. That being said let us turn to the case at hand. Upon reading the circumstances surrounding the scenario provided I decided that I would evaluate the merits of the case based on the perspective of that of a defense attorney. In reviewing the case provided, the fundamental question that needs to be addressed is: Did the defendant in this case break any law? The prosecution’s entire case is based on the defendant being arrested for being a public nuisance and causing injury, although indirectly, to Gloria Trek. The state’s entire case rests on the constitutionality of the public nuisance statue and whether or not it infringes on the defendant’s right to free speech, which I will prove it does. Title 46 of the Florida Criminal Statues 823.01 which defines Nuisances states “All nuisances which tend to annoy the community or injure the health of the citizens in general, or to corrupt the public morals, are misdemeanors of the second degree, punishable as provided in s. 775.083, except that a violation of s. 823.10 is a felony of the third degree.” (Public Nuisance, 2000, n.p.) This statute is very vague in nature and is by this very ambiguity subject to wide interpretation as to what constitutes being ‘annoying’. The phrasing of the statute in that manner allows for far too much discretionary power by individual law enforcement officers in deciding when and whom to arrest which brings into question the equal enforcement of the law and the discriminatory manner with which it may be enforced. However, in reviewing this case, if I were the actual defense attorney, I would be more inclined to base the defense on the defendant’s innocence based on the First Amendment Rights. There is legal precedence found to support the defendant’s claim that he was not committing any crime when he exercised his right of free expression by dancing on a public sidewalk. His arrest was, in effect, the censorship of this right guaranteed by the Constitution. “The First Amendment applies to artistic expression, verbal as well as non-verbal, just as it applies to political and other speech. It is a shield that protects against government restriction or punishment of expression, particularly when the government discriminates on the basis of content.” (Greenberg, 2005, n.p.) By arbitrarily arresting the defendant the police in this case were infringing on his right of self expression. The defendant was clothed at the time of his dancing on a public sidewalk. Although Ms. Trek may not have wanted to see the defendant perform and chose to step out onto the street to continue on down the street, she had a responsibility to ensure that she was not stepping into the bath of a bicycle. That fault clearly did not lie with the defendant. The police, in this case, arrested the defendant arbitrarily. They had no legal grounds to do so. In charging him with the public nuisance statue they were trying to place the responsibility for Ms. Trek’s injury on the defendant when clearly there was none. In Case No. 3D04-1075 in the District court of Appeal of the State of Florida, Third District, Appellant v. Ronald Andrew O’Daniels, the American Civil Liberties Union (ACLU) argued that the city had not “demonstrated a compelling case that its interests of insuring pedestrian safety, traffic, over crowding, crowd control, orderly movement of the crowds, safety of the performers, the conduct of businesses in an orderly manner, and lack of interference with those businesses” (ALCU, 2005, pg. 13) In this specific case, the ACLU’s appeal resulted in the charges being dismissed as they were found unconstitutional. “The decision read “In a 29-page decision issued on Nov. 6, 2003, Judge Francis struck down the ordinance as an unconstitutional violation of free speech. She also ruled that the ordinance lacked “adequate procedural safeguards to avoid unconstitutional censorship” and is a content-based restriction that gives police officers “unbridled discretion” to determine when and how to enforce it.” (Appeals, 2005, n.p.) In prosecuting the defendant for expressing Freedom of Expression on a public sidewalk clearly and charging him with criminal wrong doing, being a public nuisance, the police had violated his Constitutional Right of Self Expression. Further they have to compelling evidence to show that there was a bona fide reason for limiting his rights. No traffic studies, no type of research showing that public dance should be limited. There is long standing precedent for showing that use of a public sidewalk cannot be limited by a group of people to preserve public safety, this of course refers to the police in this case. However, precedence also stands that there must not be a narrow definition of what those limits should be, which was clearly demonstrated in this case. The police in arresting the defendant violated his right of free speech in a discriminatory fashion merely because Ms. Trek did not ‘like’ how he expressed himself. The only area here that is unclear which could limit the defendant’s ability to successfully have the arrest thrown out would be if the state can prove that it did offer adequate, alternate means for him to express himself. There have been cases involving this that the court has upheld. However, as I could find no such example of due diligence on the part of the police or as matter of public record to show that adequate space had been provided nor could I find any record of studies or research being conducted to determine if street dancing should be limited in this specific case. The defendant in this case by his arrest did have his rights infringed upon by the police. I have shown a recently similar case that clearly demonstrates the defendant’s right to dance on public streets. In order to preserve the freedom of speech of the defendant and yet ensure public safety public policy needs to be developed prior to the arbitrary arrest of a citizen based on the prejudices and personal opinion of one person or group of people. In this case clearly the police, for lack of a better statute, and most probably at the instance of Ms. Trek unknowingly violated the defendant’s First Amendment Rights. If the state wishes to address the public safety issues of street performers and limit the scope and location of their performances, by court precedence it has been shown that this can only legally be done by providing research showing the need for such limits to be placed, ensuring the information is thoroughly disseminated, and offering alternate, adequate pubic space for this self expression to occur. That did not happen in this case. Ms. Trek had, as I stated earlier, a responsibility herself to ensure that when she chose to step out onto the street she was doing so in a safe manner. Her irresponsibility in no way becomes the responsibility of the defendant. The attempt to hold him responsible for her foolish behavior was a grievous violation of his Constitutional First Amendment Right of Free Speech. It was apparent that charging the defendant with being a public nuisance was an attempt to find some way to blame him for her irresponsibility in protecting her own safety. The problem however seems to be more far reaching. It would appear to me that this arbitrary criminal charge brought against the defendant speaks of a lack of understanding by the police in this case of their duty to protect each persons Constitutional Rights or, more frightening, their discriminatory decisions to attempt to protect the rights of those who they chose to. Every citizen is protected by the Constitution – not a select few. In summarizing the steps the city should take to ensure each citizen’s rights they need to further investigate the availability of open public space available for self expression and offer alternate locations if there is truly a concern for public safety on public sidewalks. I would also recommend then that specific statutes need to be enacted to address the issue. Using vague, broad generalizations such as those contained in the Public Nuisance Statue only leads to a greater risk of infringement of Constitutional Rights guaranteed us all. In closing I would like to remind each of us, the police, the court, and each citizen: “Freedom of speech in general and artistic freedom in particular, is integral components of a free democratic society. It is a fundamental constitutional principle that our society benefits from the free exchange of ideas and that each individual has the right and ability to decide for him or herself what to hear, see, speak, sing, paint, sculpt, dance, and perform. Standing up against one challenge may discourage future challenges and discourage other artists from self-censoring. Resisting a challenge can validate the work or works at issue by stimulating informed discussion.” (Consider, 2005, n.p.) Works Cited Appeals Court Strikes Down Miami Beach Ordinance Banning Street Performers. (2005). American Civil Liberties Union Florida. Retrieved December 1, 2005 from http://www.aclufl.org/news_events/index.cfm?action=viewRelease&emailAlertID=1351 Case No. 3D04-1075 in the District court of Appeal of the State of Florida, Third District, Appellant v. Ronald Andrew O’Daniels, the American Civil Liberties Union (ACLU) (2005) Retrieved December 1, 2005 from http://www.aclufl.org/news_events/index.cfm?action=viewRelease&emailAlertID=1351 Consider Legal Opinions, (2005). The First Amendment Organization. Retrieved December 1, 2005 from http://thefirstamendment.org/ncfechap3.htm Greenberg, S. (2005). Freedom of Artistic Expression. Updated December 2, 2005. Retrieved December 1, 2005 from http://www.pinellasarts.org/freedom.htm Public Nuisances (823.01). (2000) The Florida Statutes. Retrieved December 1, 2005 from http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_Strin g=&URL=Ch0823/SEC01.HTM&Title=->2000->Ch0823->Section%2001#0823.01 Read More