Body Piercings and the First Amendment

[TruBlu]

Due to a recent thread, the question of whether or not body piercings are protected under the First Amendment of our Constitution arose. I say yes. While the First Amendment is best known for our protection to the freedom of speech, it also protects our freedom of expression (as well as religion, the right to assembly, and the right to petition the government). Acceptable forms of expression have never really been agreed upon, how can you refute someone's form of personal expression? So, expression has developed not only through speech, but also actions and art. Art can include anything from paintings to poetry to "body art" (tattoos, brands, piercings). So I say that piercings are protected under our First Amendment.

[flyBoy2010]

I found this article at http://www.firstamendmentcenter.org

11th Circuit backs Fla. school district's rules on body piercings

By David L. Hudson Jr.
First Amendment scholar
09.01.08

A Brevard County, Fla., dress code prohibiting jewelry that pierces anything but ears does not violate the First Amendment rights of students, a federal appeals court ruled recently.

Danielle Bar-Navon, a 10th-grade student at Viera High School in Melbourne in 2006, had challenged the policy, which provided:

“Pierced jewelry shall be limited to the ear. Dog collars, tongue rings, wallet chains, large hair picks, chains that connect one part of the body to another, or other jewelry/accessories that pose a safety concern for the student or others shall be prohibited.”

Bar-Navon wore piercings in her tongue, nose, lip, navel and chest. In August 2006, school officials pulled her aside and told her she would have to remove the pierced jewelry or leave school. She refused. Later, school officials punished her with five days of detention during lunch.

She sued in federal court in September 2006, contending that the policy violated her right to express her individuality and message of non-conformity.

In November 2007, a federal judge granted summary judgment to the school board, finding that the policy on pierced jewelry was a content-neutral policy that had only an incidental impact on student free-expression rights.

Bar-Navon then appealed to the 11th U.S. Circuit Court of Appeals. Last month, a three-judge panel of the 11th Circuit rejected her appeal in Bar-Navon v. School Board of Brevard County and upheld the lower court’s decision. The appeals court panel had to determine whether a student’s act of wearing pierced jewelry qualifies as expressive conduct that triggers First Amendment protections.

The U.S. Supreme Court has developed a two-part test for determining when expressive conduct is sufficiently expressive to warrant protection. First, a plaintiff must show intent to convey a particularized message and, second, must show there was a likelihood that the message would be understood by viewers.

“We question that the prohibition of jewelry in non-otic piercings on students at school who seek to make some general statement of individuality implicates First Amendment speech protections,” the appeals court wrote in its per curiam opinion (decision by the court panel as a whole).

However, the court reasoned in its Aug. 15 ruling that even if the wearing of pierced jewelry was sufficiently expressive, the school board could still impose reasonable regulations that had only an incidental effect on free expression.

The appeals court noted that the “non-otic pierced jewelry regulation … is viewpoint and content-neutral on its face and as applied.” This means that the policy does not discriminate against students for any type of viewpoint or the content of any message they may wish to convey through the wearing of such jewelry.

“The School Board sought to avoid extreme dress or appearance which might create a school disturbance, or which could be hazardous to the student or to others,” the panel wrote. “To that end, the jewelry limitation was narrowly tailored; and ample communicative alternatives remain unrestricted.”

The part that stood out to me was this section:
The U.S. Supreme Court has developed a two-part test for determining when expressive conduct is sufficiently expressive to warrant protection. First, a plaintiff must show intent to convey a particularized message and, second, must show there was a likelihood that the message would be understood by viewers.

It shows that Courts have seen this issue and have worked out a way to handle it. Excessive piercing for no reason would not qualify under the First Amendment, but if that person were trying to convey a message then it would be protected.

All of this gets thrown out the door when you enter the military. When you enlist, you give up all of those freedoms and while you are in the military you do only what you are told to do.

[pingjocky]

freedom of speech, it also protects our freedom of expression (as well as religion, the right to assembly, and the right to petition the government)

You missed one...how much "research" did you perform before hitting submit on this post?

Now, as defined by the First Amendment (and subsequent precedents that have arisen since), does "expression" represent "speech"? What if my speech is that you performed a crime last night? Am I free to say that? It could be my expression...

Please don't post half-hearted ramblings...please research what the First Amendment actually says, and then form a hypothesis from that.

R/
Pingjocky

p.s. I know you didn't do any research because the one you missed was Freedom of the Press...

[pingjocky]

When you enlist, you give up all of those freedoms

Do you?

Do I give up my right to bear arms?

Do I give up my right to peacably assemble?

Which rights, if any do I "lose" when I enlist?

R/
Pingjocky

p.s. your article showed good attempt at research, but methinks more is needed...

[TruBlu]

I found this article at http://www.firstamendmentcenter.org


The part that stood out to me was this section:


It shows that Courts have seen this issue and have worked out a way to handle it. Excessive piercing for no reason would not qualify under the First Amendment, but if that person were trying to convey a message then it would be protected.

All of this gets thrown out the door when you enter the military. When you enlist, you give up all of those freedoms and while you are in the military you do only what you are told to do.

Does this supreme court decision apply only to student's who wish to "express" or "convey a message" or is this two part test applicable for everyone at anytime?

This would be a good time to post this: http://www.au.af.mil/au/awc/awcgate/law/rights_of_military_mbrs.pdf. Those are the rights of military members, most importantly and prudent to our discussion here is section 4.

[flyBoy2010]

Do you?

Do I give up my right to bear arms?

Do I give up my right to peacably assemble?

Which rights, if any do I "lose" when I enlist?

My, apologies. I didn't mean to say that you "give up" your freedoms, just that when you enlist you agree to live by certain guidelines that can partially limit expression, speech, etc.

[flyBoy2010]

Does this supreme court decision apply only to student's who wish to "express" or "convey a message" or is this two part test applicable for everyone at anytime?

When does expression not convey a message of some sort?

[pingjocky]

when you enlist you agree to live by certain guidelines that can partially limit expression, speech, etc.

Ok, now you're starting to think....

So may I attend a political rally in uniform, or must I be in civvies? Can the military tell me who to vote for? Does the military have any control over what my spouse does or does not do?

Exactly how does being in the military limit me?

Not mad at you guys...just trying to get you to do some research, think, and then come up with the answers....

R/
Pingjocky

[Billyd]

All of this gets thrown out the door when you enter the military. When you enlist, you give up all of those freedoms and while you are in the military you do only what you are told to do.

Says who? I don't recall giving up any of my Constitutional rights when I enlisted.

I don't recall any officer of the government telling me I couldn't participate in gatherings or assemblies, practicing my religion, telling me what newspaper I had to read or what news channels I had to watch. I don't recall having to turn in my weapons because I no longer had a right to keep and bear them.

I don't recall being told that I couldn't face my accusers nor did I give up the right to a speedy trial.

To this day I recall the oath I took and nowhere in it does it say I give up any rights. In fact, the oath of enlistment goes like this:

I, Billyd, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to he same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulation and the Uniform Code of Military Justice. So help me God.

[TruBlu]

I'm sorry that I failed to include a piece in my first post, I would like to amend that with the direct quotation of the First Amendment: 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.

Under that, maybe expression isn't protected under the First Amendment, but over the many years, the freedom of speech has been misconstrued and portrayed as a freedom of expression. Maybe a more viable amendment for the right of expression would be the Ninth Amendment and/or Tenth Amendment.

Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Is expression a birthright of our citizens and should be retained? In this yes. The Ninth Amendment has been used in many Supreme Court rulings, including the ever controversial Roe v. Wade and its sister case Doe v. Bolton, and has protected non-enumerated rights.

Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. If the right to expression is not directly delegated to the US by the constitution, or the state, then it falls upon the people to retain that empowerment.

I'm no expert, but I do research and like to learn things, that's the whole point of posting these things, to learn. I'm sorry that I made a mistake and you are right, it looked like I didn't do any research. I hope you find this more in the way of an attempt at research and expression of an idea than that of the previous post.

[pingjocky]

I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulation and the Uniform Code of Military Justice

Thanks for the spin-off, BillyD, Didn't even think about this,,,,

To the junior guys...is that quote how the military limits me in what I can and can't do? What happens when there is a regulation ("order of the officers appointed over me") that countermands the Constitution?

R/
Pingjocky

[Billyd]

Glad to help. I can't wait to see how this is answered. PM inbound.

[TruBlu]

Thanks for the spin-off, BillyD, Didn't even think about this,,,,

To the junior guys...is that quote how the military limits me in what I can and can't do? What happens when there is a regulation ("order of the officers appointed over me") that countermands the Constitution?

R/
Pingjocky

Wouldn't there never be an order that countermands the Constitution because of the Uniform Code of Military Justice, and if there is it would be void right? Or is my idea of the UCMJ skewed?

[flyBoy2010]

So may I attend a political rally in uniform, or must I be in civvies? Can the military tell me who to vote for? Does the military have any control over what my spouse does or does not do?

Exactly how does being in the military limit me?

When you join the military, can you disrespect a superior?
NO.

Can you speak about classified information?
NO.

The proper balancing of a service member’s right to express himself and the need for operational readiness will depend largely upon the calm and prudent judgment of the responsible commander.

These are all limitations that you accept when you join the military. They do not forcibly take you rights away, you voluntarily limit them.

[pingjocky]

I'm sorry that I failed to include a piece in my first post, I would like to amend that with the direct quotation of the First Amendment: 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.

Under that, maybe expression isn't protected under the First Amendment, but over the many years, the freedom of speech has been misconstrued and portrayed as a freedom of expression. Maybe a more viable amendment for the right of expression would be the Ninth Amendment and/or Tenth Amendment.

Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Is expression a birthright of our citizens and should be retained? In this yes. The Ninth Amendment has been used in many Supreme Court rulings, including the ever controversial Roe v. Wade and its sister case Doe v. Bolton, and has protected non-enumerated rights.

Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. If the right to expression is not directly delegated to the US by the constitution, or the state, then it falls upon the people to retain that empowerment.

I'm no expert, but I do research and like to learn things, that's the whole point of posting these things, to learn. I'm sorry that I made a mistake and you are right, it looked like I didn't do any research. I hope you find this more in the way of an attempt at research and expression of an idea than that of the previous post.

Now you're thinking. I like where you've taken this, but I have some question...go figure!

So are you saying that the "Freedom of Expression" is guaranteed by the individual states (10th)? How can a non-right ("Freedom of expression") be guaranteed by the 9th if it's not really a "right"?

the freedom of speech has been misconstrued

There's the key right there. So many people have "interpreted" something to say something else that's not really there. What say you?

R/
Pingjocky

[Billyd]

When you join the military, can you disrespect a superior?
NO.

Can you speak about classified information?
NO.



These are all limitations that you accept when you join the military. They do not forcibly take you rights away, you voluntarily limit them.

But you didn't answer the questions that pingjockey put to you. And the answers that you gave for your own questions are wrong. While I was on active duty I most definitely told a superior where he could get off the bus and in no uncertain terms. I also discussed classified information on a regular basis. Now, take a stab at the questions that pingjockey posted.

[pingjocky]

So may I attend a political rally in uniform, or must I be in civvies? Can the military tell me who to vote for? Does the military have any control over what my spouse does or does not do?

Y'all missed some questions....slow down, read the post, think about them, and then answer.

R/
Pingjocky

[TruBlu]

Now you're thinking. I like where you've taken this, but I have some question...go figure!

So are you saying that the "Freedom of Expression" is guaranteed by the individual states (10th)? How can a non-right ("Freedom of expression") be guaranteed by the 9th if it's not really a "right"?



There's the key right there. So many people have "interpreted" something to say something else that's not really there. What say you?

R/
Pingjocky

Is the right to abortion an actual right? Not according to our Constitution, but it has been upheld in the Supreme Court that it is one of our base rights (not abortion per say, but the choice for abortion) that neither law nor creed can give or take away.

As far as interpretation, that's what got me into this debate here. I had interpenetrated a right to be forborne to us because of what has been taught to me, not only by parents and school, but by society in general.

[pingjocky]

Is the right to abortion an actual right? Not according to our Constitution, but it has been upheld in the Supreme Court that it is one of our base rights (not abortion per say, but the choice for abortion) that neither law nor creed can give or take away.

The "right" to choose an abortion is not a "right"...it's a law. Is it a "right" to buy a house? Surely not, but there are laws governing it....just as there are laws governing abortion. How is it possible that the government can withhold the rights of convicted felons to bear arms or vote? But we are going WAAAAAAY off-topic...this started about the First Amendment / body piercing in the military.....

R/
Pinjocky

[flyBoy2010]

But you didn't answer the questions that pingjockey put to you. And the answers that you gave for your own questions are wrong. While I was on active duty I most definitely told a superior where he could get off the bus and in no uncertain terms. I also discussed classified information on a regular basis. Now, take a stab at the questions that pingjockey posted.

I was just giving examples of how your freedoms of expression, speech, etc are limited in the military.

If the answers to my questions were wrong, then why is it clearly stated in the "Rights of Military Members."
B. Freedom of Speech
Service members, like other citizens, have a right to express themselves. However, the right to engage in free speech does not provide an absolute immunity from subsequent punishment if the speech violates a criminal law. In the military, such criminal laws include:
1. Disrespectful speech toward superiors;
2. Use of words or gestures that might provoke a fight;
3. Disclosure of classified information;
4. Discussing official matters outside of the military without proper authorization.

To answer the questions left by pingjockey, no you may not attend a political rally in uniform.servicemembers should not be in uniform while attending demonstrations or public group meetings because it will appear to civilians that the military is giving its official support to a particular group
No, they cannot tell you who to vote for.G. Political Activities
1. Servicemembers may vote for the political candidate of their choice;
2. However, the servicemember is prohibited from becoming a candidate for an elected office or participating directly in an election campaign for a particular candidate.

[pingjocky]

BTW, fellas, volumes of books are written on Constitutional Law, and it's not my intent to delve too far into this subject tonight. I am merely trying to challenge you to research things, think about what you have learned, and then engage in an intelligent debate about them.

R/
Pingjocky

[pingjocky]

Very good, flyboy, what about my spouse?

R/
Pingjocky

[flyBoy2010]

Very good, flyboy, what about my spouse?

R/
Pingjocky

Still looking...

[TruBlu]

Civvies or military uniform at rallies?

I'll draw upon what directly affects me as a cadet to answer that one. AFJROTC Leadership Education I, Unit 1, Chapter 1, Lesson 2, Section: Uniform Wear and Restrictions, says that "Certain restrictions apply to wearing the military uniform. For example, cadets may not ear the uniform while hitchhiking, in student demonstrations, for crowd control, political events, or for any other inappropriate activity. So civvies for sure, not a military uniform.

[pingjocky]

So you are "limited" in what you can do, but do you ever really "give up" or "lose" rights when you enlist?

I say that body piercing is NOT covered under the First Amendment. If a person wants to voluntarily work for an organization who has prior written regulations prohibiting an action, type of clothing, etc...then they can not claim infringement of rights. The standards are set...follow them, or get lost.

Now if the standards change after the person has already signed on, that's a different story. Just like the guys with tats who were grandfathered in after the military's crackdown on visible tats.

R/
Pingjocky

[flyBoy2010]

pingjocky, I searched for the answer to your question but the closest thing that I could find was the rights of divorced spouses. Would you please enlighten me as to the answer?

[soccermark23]

1. Disrespectful speech toward superiors;
2. Use of words or gestures that might provoke a fight;
3. Disclosure of classified information;
4. Discussing official matters outside of the military without proper authorization.

I agree with Billyd, I have definitely used disrespectful speech towards my superiors. I guess it all really boils down to context and the person you are saying it to. And we talk about classified information all the time, it's just a matter of not disclosing it to those who do not posses a security clearance.

Civvies or military uniform at rallies?

I'll draw upon what directly affects me as a cadet to answer that one. AFJROTC Leadership Education I, Unit 1, Chapter 1, Lesson 2, Section: Uniform Wear and Restrictions, says that "Certain restrictions apply to wearing the military uniform. For example, cadets may not ear the uniform while hitchhiking, in student demonstrations, for crowd control, political events, or for any other inappropriate activity. So civvies for sure, not a military uniform.

You got that one right on the money. Wearing your uniform at rallies and such is a definite no no.

[flyBoy2010]

I agree with Billyd, I have definitely used disrespectful speech towards my superiors. I guess it all really boils down to context and the person you are saying it to.

I was just going by what the official policies are. I guess if you know the person and know they won't mind then it wouldn't be a problem. But according to the "rights of military members" it is considered violating a criminal law.

[TruBlu]

So you are "limited" in what you can do, but do you ever really "give up" or "lose" rights when you enlist?

I say that body piercing is NOT covered under the First Amendment. If a person wants to voluntarily work for an organization who has prior written regulations prohibiting an action, type of clothing, etc...then they can not claim infringement of rights. The standards are set...follow them, or get lost.

Now if the standards change after the person has already signed on, that's a different story. Just like the guys with tats who were grandfathered in after the military's crackdown on visible tats.

R/
Pingjocky

I have to say that I must agree on all aspects. And that's what flyboy was saying the entire time, there are limitations not loss.

I will have to repeal my first statement that expression is protected under the First Amendment because I had a misconstrued idea of what the First Amendment ACTUALLY protects. Maybe its protected under the Ninth, maybe its not, that's the glory and the downfall of that particular amendment: that it can be INTERPENETRATED in different ways, and that's the reason for it. It's like the founding fathers wanted to make sure there was a loop hole.

[soccermark23]

I was just going by what the official policies are. I guess if you know the person and know they won't mind then it wouldn't be a problem. But according to the "rights of military members" it is considered violating a criminal law.

See you're starting to get it. A lot depends on the person with which you are interacting. Would I ever go up to an officer and use profane and disrespectful language? Definitely not. Would I go up to a fellow NCO that I know personally and call them out on some bs? Yeah, I probably would, even if they are my superior.

[flyBoy2010]

See you're starting to get it. A lot depends on the person with which you are interacting. Would I ever go up to an officer and use profane and disrespectful language? Definitely not. Would I go up to a fellow NCO that I know personally and call them out on some bs? Yeah, I probably would, even if they are my superior.

That's exactly what I was trying to point out.

[TruBlu]

See you're starting to get it. A lot depends on the person with which you are interacting. Would I ever go up to an officer and use profane and disrespectful language? Definitely not. Would I go up to a fellow NCO that I know personally and call them out on some bs? Yeah, I probably would, even if they are my superior.

As long as its understood that it is not a direct attack or slander, then it's "OK" right? All about situational awareness then, I see.

[pingjocky]

pingjocky, I searched for the answer to your question but the closest thing that I could find was the rights of divorced spouses. Would you please enlighten me as to the answer?

The military has absolutely ZERO control over my spouse. I signed the contract and swore the oath...she didn't. She can do pretty much anything she wants (short of committing a crime), and there's diddly squat the military can do about it.

R/
Pingjocky

[flyBoy2010]

Thanks.
That's what I thought, but since I couldn't find any proof of it, I didn't want to post and find out that I was wrong due to insufficient research.

[TruBlu]

The military has absolutely ZERO control over my spouse. I signed the contract and swore the oath...she didn't. She can do pretty much anything she wants (short of committing a crime), and there's diddly squat the military can do about it.

R/
Pingjocky

If you were living on a base, and she with you on the base, would there be any form of limitation because of the location that she would live? I'm just asking because you said zero control, and was wondering if that still applies while she is on an installation.

[pingjocky]

While she's on base, she has to follow base rules, ie speed limits, etc (that would be committing a crime, no?)...but what I was referring to was that they have no control over where she goes, what she says, what she does, etc...like they have control over me. Understand the difference?

R/
Pingjocky

[TruBlu]

While she's on base, she has to follow base rules, ie speed limits, etc (that would be committing a crime, no?)...but what I was referring to was that they have no control over where she goes, what she says, what she does, etc...like they have control over me. Understand the difference?

R/
Pingjocky

Yep yep, I was just clarifying. Thank you pingjocky.

[Billyd]

Flyboy, I see SoccerMark has already responded, but here is mine:

The question you posted was: When you join the military, can you disrespect a superior? I still say yes. In my case, the superior was wrong and was just trying to push his weight around and HIS superior told him to shut up and go color when he threatened me with UCMJ action.

Your second question: Can you speak about classified information? Says nothing about disclosing classified. Of course we aren’t supposed to disclose classified, but remember a certain family named Walker? I am sure pingjockey does.

As a friend of mine used to say: "Do what you think your career can handle."

Keep in mind, while we are just playing "Barracks Lawyer" here, words have a meaning and while we likely "know" what you mean, that is not what you said. Pick your verbiage carefully.

[flyBoy2010]

Sorry, I should have worded the questions better.

[ang1sgt]

Military Members Come under the jurisdiction of the Uniform Code of Military Justice and as such, do give up certain freedoms, but these are well defined and we are the ones that swore an Oath. Before anyone takes an oath they should understand what they are signing up to do.

One thing that does effect a military member about their spouse or children is when it comes time for Security Background Checks. To hold certain levels of these clearances, they will dig into your background as well as your wife's. Your teenager been busted for dope...It's going to flag YOU on that. Your wife has some big gambling debts...Red Flag.

So while your freedoms might not be impinged on, there are limits and bounds that you must not push.