Professor Bainbridge...on law, politics, religion, culture & food

I think a closer comparison would be to this ruling from Florida that a woman has the right to protest topless against an ordinance banning toplessness.  The ramifications could be pretty weird, though.  If people gather to smoke marijuana in order to protest the ban on marijuana, would that be protected?

Now all you need is an activist judge to make it all happen. You might even possibly be able to find one that swings right.

"I thought political speech was supposed to be at the core of the First Amendment.”

Yes, and since the BCRA decision, the First Amendment is a donut, with this big empty space at it’s core. You didn’t notice?

I think he’d have a better 1st amendment case if he’d been more pointed with the name of the dish, sort of like the food supliments company that protested FDA regulation of health claims with a product they sold as “First Amendment Asprin”. As it is, how are you supposed to tell this “protest” from an utterly unideological “violation”?

So the First Amendment protects flag burning and stripping but not swing dancing or selling foie gras? Am I the only one who finds that a little odd?

So, by the same lights, do you support selling pot to protest the drug war? How about meth?

To be clear, I don’t think dancing or random foods should be illegal. I’m wondering how you might differentiate certain drugs.

PB REPLIES: I wouldn’t try to make that distinction. As a matter of public policy, I think the sale and use of recreational drugs should be decriminalized.

Here’s a thought.  Maybe the Constitution doesn’t really protect flag burning, stripping, swing dancing or selling foie gras and while the Court has been willing to invent rights to the former two acts, the latter two are just too silly for even judges.

I thought the distinction was pretty straightforward. The legislature can adopt reasonable restrictions on expressive activities; but cannot make invidious distinctions between similar activities based on their expressive content.

So ordinances against selling books in a public park, dancing in a restaurant, etc. are acceptable. But not ordinances that are directed only against selling erotic books, against nude dancing, etc.

What am I missing?

Are you saying that if I want to express my view that speed limits are too low, by speeding, the Constitution will protect me from traffic court?

"I wouldn’t try to make that distinction. As a matter of public policy, I think the sale and use of recreational drugs should be decriminalized.”

We agree on policy. I still wonder why you would distinguish a weed from a goose, if you’re making a constitutional argument about expression via marketing (which you’re doing: not arguing one but arguing the other is a distinction).

PB REPLIES: I don’t think the Constitution requires decriminalization. Indeed, the Supreme Court has made that clear reatedly, most recently in the medical marijuana case. What strikes me as odd is that stripping gets first amendment protection and smoking a joint doesn’t.

I share puzzlement that stripping gets 1st Amendment protection.  As much as I disagree with the intended expression, flag burning seems clearly expressive to me.  The expressive aspects of stripping, on the other hand ("Am I a babe, or what?” or “Wouldn’t you like to . . .?"), seem a trivial aspect of the activity.

When I drive to the grocery store, I may in some trivial sense be expressing something ("Hey, guys, I go to HEB, because its closer to my house and has a wider selection than Sun Harvest."), but the expression itself surely is not legally significant.  Whether I could be barred from going to the grocery store is another matter, but I don’t see it as a free speech issue.

The point of stripping is ogling.  The point of going to the grocery store is to buy groceries.  Neither one, unlike flag burning, is particularly expressive.  That the Supremes disagree as to stripping is, to my mind, regrettable, but not a reason to compound the error.

Being clear takes talent, oddly. And thank you for being clear. No, criminalization doesn’t implicate several issues that might interest SCOTUS. But if your defense of goose goo should survive a 1st claim, so should dope. Or alternately, wine should be outlawed, too, because some abuse it.

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I still take a strong view (?) that I can eat what I want. I just don’t see the conlaw claim.