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]

Originally Posted by flyBoy2010

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/...itary_mbrs.pdf. Those are the rights of military members, most importantly and prudent to our discussion here is section 4.

[flyBoy2010]

Originally Posted by pingjocky

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]

Originally Posted by TruBlu

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]

Originally Posted by flyBoy2010

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.