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Southern California Interdisciplinary Law Journal



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Southern California Interdisciplinary Law Journal

Spring, 2013

Article

FRINGES OF FREE EXPRESSION: TESTING THE MEANING OF “SPEECH” AMID SHIFTING CULTURAL MORES & CHANGING TECHNOLOGIES

Clay Calverta1

Copyright (c) 2013 Gould School of Law University of Southern California; Clay Calvert

I. INTRODUCTION

The United States Supreme Court has been busy in the second decade of the twenty-first century addressing whether new categories of speech should be excluded from First Amendment1 protection due to their content.2 The Court has overwhelmingly denied any such exclusions. For *546 instance, in June 2012, the Supreme Court, in United States v. Alvarez, rejected the federal government’s call for a novel categorical rule “that false statements receive no First Amendment protection.”3 The previous year, the Court, in Brown v. Entertainment Merchants Association, denied California’s “wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children”--namely, violent content in video games.4 And in 2010, in United States v. Stevens the Court refused to embrace a new free-speech exception for depictions of animal cruelty.5

 

While the nation’s highest court has repeatedly rebuffed calls for fresh categories of unprotected speech, several lower courts are now grappling with an even more fundamental question in First Amendment jurisprudence: What constitutes “speech” in the first place? This Article analyzes three 2012 court battles over the meaning of speech in three specific contexts: (1) tattoos and tattooing; (2) “Likes” and “Liking” on Facebook; and (3) begging.



 

These three subjects were selected not only for their current cultural relevance, but also because they forced judges to confront either shifting cultural stereotypes or technological advances. In particular, judges had to reject or embrace arguments that some things were not speech because they were perceived to be--put as bluntly and as provocatively as possible--trashy and low-brow (tattoos),6 cheap and easy (“Liking” on Facebook), or bothersome and annoying (begging). Thus, this Article draws on scholarly literature from beyond the legal realm to contextualize these skirmishes within broader cultural, social, and technological frameworks. In doing so, the Article endeavors to expose and illustrate latent assumptions about the values, dangers, or difficulties of expression that influence determinations of whether something should constitute speech under the First Amendment.

 

*547 Part II of this Article provides a brief overview of judicial decision making regarding the meaning of speech, including recent observations by the Supreme Court in both Sorrell v. IMS Health Inc.7 and in Brown.8 Part III then examines both the legal and cultural issues surrounding tattoos as speech, using the Arizona Supreme Court’s recent decision in Coleman v. City of Mesa9 as an analytical springboard. Next, Part IV analyzes the issue of whether Liking a Facebook page amounts to speech under the First Amendment, despite the district court’s decision in Bland v. Roberts that Liking someone or something is not speech.10 Part V addresses begging as a form of speech, an issue noted in Speet v. Schuette, when a federal judge struck down a Michigan statute that made it a crime to beg in a public place.11 Finally, Part VI synthesizes these disputes and their cultural contexts, drawing conclusions and principles at both the macro and micro levels about the meaning of speech in the First Amendment.



 




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