I am knowledgeable enough about Constitutional Law to know that the strict lines that separate constitutional actions from non-constitutional actions are gray (or grey, if you prefer.) During my 1L year, I crawled my way through the required Constructional Law class. From Marbury v. Madison 5 U.S. 137 (1803) to Bush v. Gore 531 U.S. 98 (2000), case after case, I read the brilliant decisions of our great Justices. Decisions that paved the freedoms that we enjoy today. Decisions that over-turned and barred pillars that this country was founded; prejudice and equalizing pillars. Decisions that schooled our state judicial systems on the meanings of “All men created equal” and “Liberty for all.” I approve and support Federalism, but thanks Jesus for the fortitude and overall intelligence of SCOTUS.
My 3L year, I took First Amendment Law for fun and to be able to speak boldly at networking events. The finest way to back an argument is with case law, my friends. This class involved reading historic and non-famous cases concerning the first amendment and writing 10+ page analytical essays, weekly. It was work; it was fun work.
There it is; there is all of my constitutional law knowledge, which is almost nothing yet exponentially more that the above-average American citizen. The popular phrase of the past couple of years is “this/that is his/hers/their constitutional right(s).” This statement should be reserved for our Justices of SCOTUS; our experts on the Constitution. This post is a long time coming, but was ultimately sparked by this ABC News article, “Duo gets prison time for racial slurs, death threats at black child’s birthday party,” written by Enjoli Frances and Steve Osunsami. Please, read the article and watch the video now. It is a short read.
What about the above situation, and others like it, is constitutional and unconstitutional?
GIVEN #1: It is constitutional to have a birthday party outside. Congress shall make no law prohibiting the peaceful assembly of people. We, as Americans, are afforded the freedom to assemble/gather/fellowship for almost any reason, including birthday parties, church services, rallies, races and … confederate flag meetings.
Given #2: It is constitutional to ride around in trucks laced with confed. flags.
Given #3: It is unlawful to verbally threaten the life of another person and to point a weapon at another person. “A person is guilty of a misdemeanor when he intentionally and without legal justification points or aims a gun or pistol at another, whether the gun or pistol is loaded or unloaded.” Official Code of Georgia Annotated) O.C.G.A. § 16-11-102 (2010)
The gray, strict line is somewhere between Given #2 and Given #3 as well as somewhere between Amendment 1 & Amendment 2 (my thoughts of which I’ll write about on a later date) of the U.S. Constitution. Amendment 2 states, in pertinent part, “the right of the people to keep and bear Arms, shall not be infringed.” Isn’t that nice. Let us get this one nuance straight. The 1st Amendment affords U.S. citizens who are expressing their rights protection from the government and prohibits the government from restricting these rights. The 1st Amendment does not protect you from opposing opinions from your family, real friends, or Facebook friends, it does not protect you from your private sector boss and it does not protect you from the media; only a governmental entity. (Discrimination and retaliation are for other posts.)
Here is what I want to scream at people, but I lack the energy: U.S. citizens have the right to assemble, peacefully, for any reason in almost any public place. Peacefully means to not threaten or harm other persons and property. It is unconstitutional to incite riots or to “ruffle people up” to cause harm. It is unconstitutional to assemble in a such a way that makes others feel threatened or unsafe. For all you “feeling unsafe is relative” people, just stop. Us lawyers are masters of the “reasonable person” analysis and can dump a definition of “feeling unsafe” down your throat so fast you would not have time to choke. I’m back … therefore, those confed. flag supporters who simply drove past the party were not charged or convicted of any crime. Those incredibly smart individuals who threatened the party goers and showed their weapon are in jail.
Again, I stress, persons who work for the government have limited 1st Amendment rights while they are representing the government. For example, the U.S. Postal wo/man must keep his/her political views to their selves until their route is finished. Also, children have limited constitutional rights, most importantly privacy rights, simply because they are children. The police can enter any school, break any lock, enter any locker, and search any bag because safety is of the utmost priority.
Okay, I digress. In conclusion, yes, we have rights afforded to us by the U.S. Constitution. We don’t have every right available under the sun because, even though it hasn’t seemed like it during the past couple months, we live in a civilized society. These rights are printed, published and available for our everyday study. I will not get into the Original Intent vs. Living Document debate in this post; you can read that discussion/argument elsewhere. I strongly urge all literate persons to study the Constitution before paraphrasing it. All illiterate persons should find the audio versions; check your local library.