Thursday, April 10, 2008

Two Things A Lot Of People Love

Nudity and Harvard Square. Together in this interesting case, Commonwealth v. Ora, SJC No. 10019.

The SJC affirms the constitutionality of the statute barring public nudity "done in such a way as to produce alarm or shock." Somehow, the SJC concludes that "[n]either the language of the statute nor its legislative history suggests that the statute targets any expressive message contained in any display of nudity."

Why is that important?

Because if the statute aims at an expressive message, it's going to be a lot tougher for it to pass muster. But this statute does target an expressive message, the message I WANT TO SHOCK AND ALARM YOU SO I'M GOING TO TAKE OFF MY CLOTHES! This is a messy reality of First Amendment jurisprudence. Courts are very likely to find that a statute or rule doesn't target a certain kind of expression if the expression that it's targeting (either implicitly or explicitly) offends their puritanic or patriotic sensibilities. We tolerate such obvious illogic because the logical approach would probably result in the invalidation of vast swaths of the American statutory landscape.

Universal Hub, as in Adam, is all over this.

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