I came across the Twitter stream of TMZ honcho Harvey Levin.  He was commenting on the now infamous  Bill O’Reilly visit to The View.

O’Reilly got into a heated debate with several of The View hosts culminating in his statement that “Muslims killed us on 9-11″.   View hosts Whoopi Goldberg and Joy Behar took offense to the statement and walked off the set, only returning after Mr. O’Reilly apologized. There are those that have stated that what Mr. Reilly had to say amounted to hate speech. There are those who agree with him.  There are those who think the whole thing was staged.

What caught my eye was a particular tweet of Mr. Levin. He was engaging in some 1st amendment commentary with regards to the exchange.  He was making the point that Joy Behar and Whoopi Goldberg were “free speech hypocrites”

I understand the point Levin was trying to make.  If you champion freedom of expression you should not shy away from it either. I hear that argument all the time on my Facebook page when I censor people for profanity or things that simply piss me off.  They call me a hypocrite. They tell me that I am infringing on their 1st Amendment rights.   I point out that there are no 1st Amendment rights on my Facebook page just as Mr. O’Reilly had no 1st Amendment rights on The View.  I do not view it as hypocritical to have personal standards that are not in line with speech protected by the 1st Amendment.  What’s more, O’Reilly was not censored in any way.  He stated exactly what was on his mind. No one “bleeped him”.   If we are going to talk free speech, it sounds to me like he was allowed to exercise his.  If we are going to make 1st Amendment analogies,  there is nothing I am aware of in the Constitution that mandates that we not get offended at distasteful speech whether it is protected or not.

The 1st Amendment protects 99 percent of hate speech that the majority of us would rather not hear.  The fact that we would rather not hear it and remove ourselves from earshot is not hypocrisy.  That is civilized society.  I will champion someone’s right to stand on a public sidewalk and call me a kike. If he does it in my living room I am going to ask him to leave. If he does it at my favorite Starbucks I am going to ask management to ask him to leave.

When I confronted the Westboro Baptist Church during one of their visits to Dallas, I argued with the police for their right to be on a public sidewalk in front of a hotel when the hotel was trying to move them to the other side of the street.  That does not mean I approve of their message.  For Mr. Levin to imply that there is hypocrisy there again, is simply ignorant of 1st Amendment principals.  For Whoopi Goldberg and  Joy Behar to walk out in a huff may have been childish, and even planned entertainment in the vein of what their show is about  but it was not hypocritical.

So what really bothered me about Levin’s tweet?  It bothered me that it was a generalization that gave the impression there were 1st Amendment principals at stake in allowing Bill O’Reilly to state his point of view unfettered(which he in fact did).  That is simply not true on any level. It bothers me that these misrepresentations of “free speech” are all to common in our society and Levin is not the 1st media figure to “flub the 1st”.  Remember when Dr. Laura stated that she had left her popular talk who to “reclaim her 1st Amendment rights?  The bad news for Dr. Laura is that she had no 1st Amendment rights on her talk show.

Since Mr. Levin was unable to get it right I will clear it up for him. The 1st Amendment only applies to government attempts to restrict speech. It does not apply to talk shows unless it’s his position that The View is secretly funded by the FCC.  There is also no obligation that our own personal thermometers of acceptable rhetoric comply with the 1st Amendment. Mine does not. I would be shocked if  Mr. Levin’s did.

So a lawyer walks into a bar…  Strike that.  A lawyer walks into a courtroom and refuses to recite the Pledge Of Allegiance.  A lawyer in Tupelo, Miss., was thrown in jail Wednesday for refusing to say the Pledge of Allegiance in court.

I was frankly unaware that there were jurisdictions that required court attendees to cite the pledge.  Silly me.  High School classrooms, sporting events and KKK rallies but a courtroom?  Needless to say, finding an attorney in contempt for refusing to regress to high school and recite was a judicially boneheaded and “un-American” move by the presiding judge.  He must have been doing some early work on his future campaign for elected office when Constitutional Law was being taught at his law school.

Lawyers often give up a lot of things when they walk through those hallowed doors to appear before the bench. Dignity, truth, ethics and emotional control are often surrendered. One thing we do not surrender is our First Amendment Rights which includes the right to choose not to say the Pledge Of Allegiance.  I wonder if he issues bench warrants at ball games for people who do not participate in the National Anthem or God Bless America.  I will avoid sitting next to him when I have hot-dog in mouth.

The 5th U.S. Circuit Court of Appeals in New Orleans has held that Plano school principals violated students’ constitutional rights when they confiscated Christian-themed materials, including candy cane pens, that students planned to hand out at school.  The pencils one girl tried to distribute read, “Jesus is the Reason for the Season,” and the candy cane pens a student tried to pass out in December 2003 had cards attached to them that explained the Christian origin of the candies.

As reported in the Dallas Morning News, the case focused on several winter break parties from 2001 to 2004 at Thomas Elementary and Rasor Elementary. Lynn Swanson, the principal at Thomas, stopped a third-grade boy from distributing the candy cane pens with the Christian message that read, in part, “The blood Christ shed for the sins of the world.”

A month later, Jackie Bomchill at Rasor prevented a girl from handing out tickets for a Christian drama and from distributing religious-themed pencils. The boy’s parents and others whose children were prevented from handing out the materials sued the school district.

The courts have held that the constitutional rights of students are not surrendered at the school door.  The courts have also held however ,that schools can however regulate activities that disrupt the educational purpose.  This was most recently addressed by the Supreme Court  in the  Bong Hits For Jesus case in which a student, during a school sanctioned off premises event, put up a banner on a public sidewalk that read, “Bong Hits 4 Jesus”.  The banner was confiscated and the student disciplined. The court found in part, that as the banner promoted illegal drug use, it did disrupt the educational mission and the speech was therefore not protected under the 1st Amendment.

In this case, we are dealing with censoring of a private exchange of a  a benign religious message.  It is not occurring in the classroom, at the behest of the school or in any type of school sanctioned manner.  The mere fact that it occurs on school premises does not in itself inure it with this quality   There is no disruption to the educational mission and no illegal activity is encouraged.  The school is not sanctioning it, encouraging it or endorsing it simply by the mere fact that it is occurring.

The fact that it is an elementary school student versus a high school student in my mind is irrelevant.  The message is the message regardless of age.  To claim that the 1st amendment applies differently to the message in the 4th grade versus high school in my mind is the very essence of a viewpoint discrimination and the school unacceptably invading the province of the parents how they raise their children.

In the end, the 1st Amendment applies to the government’s attempt to regulate our speech including religious expression. That means that the school can not engage in conduct that endorses  religious viewpoints.  It does not mean that the school can muzzle a student from expressing their viewpoints in a non-school endorsed private manner.  If I do not agree with the message that is my job as a parent to deal with it at home and not to try to censor the message simply because I disagree.

You can read case here.

Court’s generally do not like to get into arguments over what constitutes artistic expression/art  unless it’s obscene.  Obscenity is easy. Courts know it when they see it.  How about an a tramp stamp? An “obscene”  tramp stamp?  Where does the  ink “hit the skin” 1st  Amendment wise?

John Anderson, a tattoo artist, thinks it hits it wherever he plies his trade.  The City Of Hermosa Beach, California disagreed. They denied his request to open a Tattoo Parlor.   It was denied on the basis of local zoning laws which do not  allow tattooing anywhere in the city. Officials claim the ban is justified as Anderson is only providing a service and not creating art.  They also argue that the parlors are  a risk to the public’s health, safety and welfare. The city also contends that tattooing poses health risks, creates “aesthetic concerns,” and would impose a financial burden on the city to provide adequate inspection and regulation.  Anderson claims  that this is a denial of  his 1st Amendment right of expression in tattooing.   The lower court agreed with Hermosa Beach. Tramp Stamp denied.

What will the 9th circuit do?  At 1st blush, it seems that the city of Hermosa Beach is correct int that they are simply regulating a service and not art. I’m not so sure.   The mechanical means of  placing  the tattoo  may be a service but the end result is art.  The service is already regulated to one degree or another all over the country. If you are going to regulate art, there had better be a compelling reason that can not be achieved in some lessor manner than an all out ban.  This is where the ink hits the skin.  The service aspect is already regulated in less intrusive manners.  The art tags right along with it.   Add the fact that this is the liberal California 9th circuit.  Wouldn’t shock me if some of the brethren on the bench were stamped.  The end result is that the service is already regulated and the total ban on the art will be stricken down as unconstitutionally broad.  Score a 1st Amendment victory for the Tramp Stamp.  I can’t define what one is but I know it when I see it. Potter Stewart would be proud.