Upskirt Photos and the First Amendment

by Dr. Gerard Emershaw

In June 2013, Christopher Cleveland of Springfield, Virginia was arrested by U.S. Park Police when he was found to be photographing women in dresses seated above him on the Lincoln Memorial steps. After his arrest, several photos of women’s crotches and buttocks were found on Cleveland’s camera. D.C. Superior Court Judge Juliet McKenna recently threw out charges of voyeurism that were made against Cleveland for taking these photos at the monument. Judge McKenna said of Cleveland: “The fact that the Defendant was intentionally photographing publicly exposed areas of women’s clothed and unclothed bodies … is repellent and disturbing.” However, more importantly, she stated: “Mr. Cleveland is not alleged to have engaged in any covert or surreptitious behavior but rather was taking photos in broad daylight.”

In an age where privacy is rapidly declining both online—government and corporate data collection—and in public—surveillance cameras, drones, etc.—this appears to be yet another blow against the right to privacy. However, the truth is that this decision is an important defense of the First Amendment.

In regards to reasonable expectation of privacy against government intrusion, the Supreme Court has held that there exists an expectation of privacy. The Court held in Katz v. United States (1967) that what a person “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Justice Harlan’s concurring opinion created a test—which was later adopted by the Court in Smith v. Maryland (1979)—for determining whether a government search is reasonable under the Fourth Amendment. This test contains two parts. First, “a person [must] have exhibited an actual (subjective) expectation of privacy,” and second, that “expectation [must] be one that society is prepared to recognize as ‘reasonable.’”

The Katz test should also be employed in cases like Christopher Cleveland’s. The women photographed were in public in broad daylight. They were not in a restroom or a fitting room. Cleveland had not set up hidden recording equipment. He openly took the photographs. Nothing that Cleveland captured with his camera was something that could not be seen with the naked eye.

But is this just another version of the misogynistic claim that women who dress provocatively in public are asking to be raped? No. There is every difference in the world between sexual assault and photography. If one does not wish something to be seen and possibly photographed, one needs to keep it hidden and not reveal it in public. Protecting individuals from being looked at in public and being the object of sexual thoughts is ridiculously paternalistic and a seed from which to grow totalitarianism. Thought crime is eerily Orwellian, and any and all such laws against thought violate the natural right to liberty.

Photographs are a form of artistic expression protected by the First Amendment. The photographs taken by Cleveland may be objectionable, but they do not fit into any category of speech that is not protected by the First Amendment—e.g. obscenity. Prohibiting the kind of public photography that Cleveland engaged in would put us on a slippery slope. How soon would it be before the photographing of police or other government officers in public would be prohibited?

(For a much more detailed discussion of natural rights such as freedom of expression, read my new book The Real Culture War: Individualism vs. Collectivism & How Bill O’Reilly Got It All Wrong. Available now on Amazon in both print and Kindle.)

Are National Parks Free Speech Free Zones?

by Dr. Gerard Emershaw

(Photo by Stephanie Schmidt)

 

The Grand Canyon is perhaps the most breathtaking natural feature in the United States. Its colorful formations and endless vistas have become veritable symbols of freedom. Among the beautiful and ancient formations in Grand Canyon National Park, a visitor will also find signs which read:

This area has been set aside for individuals or groups exercising their Constitutional First Amendment Rights. The National Park Service neither encourages or discourages or otherwise endorses these activities.

The areas near these eyesore signs are “free speech zones.” In essence, this means that the rest of the glorious Grand Canyon is an area where First Amendment rights are not recognized despite the fact that the First Amendment states: “Congress shall make no law … abridging the freedom of speech.” According to the National Park Service Grand Canyon website:

Freedom of speech, press, religion, and assembly are constitutional rights. However, the courts have recognized that activities associated with the exercise of these rights may be reasonably regulated to protect park resources. The necessity of a permit to conduct First Amendment activities is determined by the group size.

A small group is defined as “25 people or less.” A “small group” is not required to obtain a First Amendment Permit if they are located within a park designated First Amendment site and have no more than leaflets, booklets and/or hand held signs. A permit is required for any small group that:

a. wants to hold a demonstration or distribute and/or sell printed matter somewhere outside a designated First Amendment area.

b. wants to use equipment (i.e. tables, banners, platforms, etc.) even if it is within a designated area.

c. is merely an extension of another group already availing itself of the 25 person maximum.

d. wants to guarantee they will have priority for the use of a location, including the designated First Amendment areas.

A large group is defined as “more than 25 people” and is required to obtain a First Amendment Permit even if they are utilizing a park designated First Amendment site.

“Special events” which fall under these rules include distribution and/or sale of printed matter, religious services, public demonstrations or assemblies, etc.

“Free speech zones” have been justified by appealing to what is known as “time, place, and manner” restrictions on freedom of speech. In Grayned v. City of Rockford (1972), the Supreme Court expressed the key issue: “The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” For example, if protesters were to stage a mass demonstration at the Grand Canyon, it would arguably not be compatible with the normal tourist activities of this National Park. These “time, place, and manner” restrictions must satisfy four criteria:

1. Be content neutral
2. Be narrowly tailored
3. Serve a significant governmental interest
4. Leave open ample alternative channels for communication

When federal courts examine “time, place, and manner” restrictions, they will employ intermediate scrutiny. In order to satisfy intermediate scrutiny, “the challenged law must further an important government interest by means that are substantially related to that interest.” Intermediate scrutiny lies between strict scrutiny, which the government usually has difficulty satisfying, and rational basis review, which the government can nearly always satisfy.

In the case of the Grand Canyon in particular and other similar National Parks in general, is the government able to satisfy intermediate scrutiny here? Content is not implicated. Regardless of the political view that one espouses, he or she may only exercise freedom of speech by demonstrating, presenting a religious service, or handing out leaflets in “free speech zones” (and only with a permit if done by a larger group) within the park and may not do so elsewhere. These restrictions serve a “significant governmental interest” of allowing Americans and other visitors to enjoy the park. These “free speech zones” are themselves the alternative channels for communication. However, these restrictions are not “narrowly tailored.” While restricting the freedom to organize and carry out large scale demonstrations through use of these “free speech zones” may be necessary to serve the interest of enabling others to use the park for enjoyment, doing so for single individuals or smaller groups is not necessary. The question of where to draw the line in terms of size may be difficult to determine, but it is clear that a single individual who wishes to hand out leaflets, give a speech, or carry a picket sign will not adversely affect the overall enjoyment of visitors to the Grand Canyon.

My new book The Real Culture War: Individualism vs. Collectivism & How Bill O’Reilly Got It All Wrong presents Emershaw’s Individualist State, a minarchist formulation of government in which the vast majority of real estate—including National Parks and the like—are privately owned. In such a society, what would that mean for organized protest? Ownership of real estate includes the right to exclude others. Therefore, if John or Jane Doe were the owners of the Grand Canyon, they would be able to prevent any and all protests and limit speech in very significant ways. The First Amendment only protects the infringement of free speech by the government. If all streets which are now public were also privately owned, the owners of this infrastructure would also have the right to limit protests and other similar events. Would this endanger free speech?

The answer is no. A private ownership society such as that in Emershaw’s Individualist State would be very different than the semi-socialist society of the contemporary United States. The expression of free speech would also be quite different. It is likely that entrepreneurs would seize upon the opportunity and provide space that protesters could rent in order to demonstrate. While some owners of these spaces might refuse to rent the space to individuals espousing certain political or social views, many would only be interested in earning a profit regardless of the message. Furthermore, there would likely emerge private “protest spaces” owned by individuals all over the political spectrum.

But does this mean that free speech would no longer be free? If one would have to have the funds to rent “protest space,” does that mean that free speech would only be available to those affluent enough to be able to afford the price of the rent? While some owners of “protest space” might make it available for free, this is not necessarily true. Furthermore, there may simply not be choice locations of “protest space” available for free or even for rent.

A truly free society in which the government is a night-watchman that acts as a referee for a truly free market and refrains from doing anything other than protecting the life, liberty, and property of human beings would be a society which is more free, more peaceful, and more affluent than the United States is at present. Nevertheless, there would still be many occasions on which individuals might desire to protest or the like.

The nature of the world and of free speech has been transforming before our eyes due to technology. The Internet affords the opportunity for individuals to freely spread their messages throughout the world via the use of social media, websites, e-mail messages, etc. A minarchist government would have little power to do much that was objectionable, but the Internet would provide an effective tool to protest against the night-watchman government as well as to protest against private entities.

And, of course, civil disobedience will still remain an effective tool of protest in Emershaw’s Individualist State. In jaded modern society, even large sanctioned protests hardly garner much attention. But civil disobedience has historically raised consciousness. The fact that protests during the Civil Rights Movement were often met with heavy-handed government reaction helped the cause. Overall, a freer private ownership society would provide countless benefits compared with a semi-socialist society. There would be more speech and not less speech, and those committed individuals who wished to deliver even controversial messages would have many opportunities to do so.

(For a much more detailed discussion of natural rights including freedom of speech as well as a detailed presentation of Emershaw’s Individualist State, read my new book The Real Culture War: Individualism vs. Collectivism & How Bill O’Reilly Got It All Wrong. Available now on Amazon in both print and Kindle.)

Dinesh D'Souza and the First Amendment

by Dr. Gerard Emershaw 

Neoconservative author and filmmaker Dinesh D’Souza was sentenced to eight months in a “community confinement center” and a $30,000 fine for making illegal campaign contributions. In 2012, campaign finance laws limited individuals to contributions of $2,500 to a single candidate in a primary and $2,500 in a general election. D’Souza’s crime was that he reimbursed two other individuals for making contributions to the campaign of New York U.S. Senate candidate Wendy Long.

The current limits for federal elections are $2,600 for both primary and general election. The real question in all this is how Congress can violate the freedom of speech of D’Souza or anyone else with such a law. Giving campaign contributions to political candidates is a form of speech. The First Amendment clearly states that Congress “shall make no law … abridging the freedom of speech.” Limiting campaign contributions, then, is like limiting the number of words that a person can say on a given topic. Should the federal government be able to imprison someone who has said too much on a given issue?

In 1974, following the Watergate scandal, Congress amended the Federal Election Campaign Act passed in 1971 to limit the amount that any given person could contribute to candidates or political parties in a calendar year. In McCutcheon v. Federal Election Commission (2014), the Supreme Court ruled that aggregate limits, which placed a cap on the total amount that a person could contribute as a whole to multiple candidates, was an unconstitutional violation of the First Amendment, but it held that the individual limits were constitutional. The individual limits were upheld by the Court in Buckley v. Valeo (1976), which held that limits on large campaign contributions were justified for “the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office.” The Court defined ‘corruption’ as “large contributions … given to secure a political quid pro quo from current and potential office holders.”

The reason that the Court needed to jump through such hoops to justify a clear and egregious violation of the First Amendment is that the power of the federal government has grown far beyond the confines of the Constitution. Over the past century, the federal government has grown into a nearly almighty entity despite the fact that the enumerated federal powers in the Constitution are extremely limited. If Congress and the President performed their duties within the clear dictates of the Constitution, then they simply would not be worth attempting to buy. A minarchist night-watchman state—such as Emershaw’s Individualist State as developed in detail in my new book The Real Culture War—would not possess the power to do what crony capitalist special interests seek. However, an Imperial President which rules as a Caesar through unconstitutional executive agencies and executive orders and a Congress which rules like an oligarchy through misuse of the Commerce Clause, Necessary and Proper Clause, and General Welfare Clause are both well worth buying. Two wrongs do not make a right, and violating one of the sacrosanct Amendments present in the Bill of Rights in order to counterbalance the unconstitutional overgrowth of federal power is unacceptable. Fear of corruption is no justification to violate freedom of speech. However, perhaps this fear could be an inducement for the federal government to return to its constitutional limits.

(For a much more detailed discussion of natural rights including freedom of speech, read my new book The Real Culture War: Individualism vs. Collectivism & How Bill O’Reilly Got It All Wrong. Available now on Amazon in both print and Kindle.)