Oneofthree’s Musings

The ramblings of a 20 something lawyer

Archive for the ‘life’ Category

The First Amendment is NOT absolute

Posted by oneofthree on September 20, 2007

Contrary to what a lot of people believe, the first amendment is not absolute.   I have pulled some federal caselaw from the Supreme Court to validate what I have posted on other sites, and within my own 

 US v. Albertini., 472 U.S. 675 (U.S. 1985)

” The First Amendment does not bar application of a neutral regulation that incidentally burdens speech merely because a party contends that allowing an exception in the particular case will not threaten important government interests. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 296-297, 104 S.Ct. 3065, 3070-3071, 82 L.Ed.2d 221 (1984) (“the validity of this regulation need not be judged solely by reference to the demonstration at hand”). Regulations that burden speech incidentally or control the *689 time, place, and manner of expression, see id., at 298-299, and n. 8, 104 S.Ct., at 3071-3072, and n. 8, must be evaluated in terms of their general effect. Nor are such regulations invalid simply because there is some imaginable alternative that might be less burdensome on speech. Id., at 299, 104 S.Ct., at 3072.

Or specifically in Florida, dealing with student’s First Amendment rights (this may or may not be directly on point, I’m not sure if the rally was held on school property or not…) M.C. v. State., 695 So.2d 477

We therefore first consider whether the statute is violative of M.C.’s First Amendment rights or is overbroad in the sense that it inhibits protected First Amendment rights of others. M.C. asserts that under this court’s decision in L.A.T. v. State,650 So.2d 214 (Fla. 3d DCA 1995), her loud verbal protests in the school’s office was constitutionally protected free speech under both the federal and Florida constitutions. We disagree and find M.C.’s reliance upon L.A.T. to be wholly misplaced.

In L.A.T.,this court reversed a juvenile’s adjudication of delinquency for disorderly conduct which had been predicated upon the juvenile’s screaming obscenities to police officers who were arresting the juvenile’s friend in a shopping center parking lot. This court found L.A.T.’s conduct to be specifically protected by the First Amendment where L.A.T.’s verbal protests neither “inflict[ed] injury or tend[ed] to incite an immediate breach of the peace.” 650 So.2d at 217 (quoting Lewis v. City of New Orleans, 415 U.S. 130, 133, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974)). While L.A.T.’s loud verbal protests of police actions may be constitutionally protected in the setting of an open public shopping center parking lot, those same protests may not enjoy such constitutional protection in other settings.

The nature of a place, ‘the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.’ Although a silent vigil may not unduly interfere with a public library, Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.

Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972)(footnotes omitted).

The obvious intent of section 877.13 is to ensure that the educational institutions and their administrators are free to perform their lawful functions without undue or unwarranted interference or disruption from others. We note early on that this statute does not seek to proscribe or regulate the content of any particular speech; rather it seeks to regulate expressive activity or conduct which significantly interferes with lawful educational functions. We do not believe that M.C.’s obstreperous protests in the school office were compatible with its normal functions.

*481 [5] Link to KeyCite Notes[6] Link to KeyCite Notes “While it is true that rights protected by the First Amendment are not magically lost when one steps upon school property, ‘neither teachers, students, nor anyone else has an absolute constitutional right to use all parts of a school building for unlimited expressive purposes.’ ” McCall v. State, 354 So.2d 869, 871 (Fla.1978) (quoting Connecticut State Federation of Teachers v. Board of Ed. Members, 538 F.2d 471, 480 (2d Cir.1976)). Contrary to M.C.’s assertion on appeal, she did not have an unlimited right to verbally protest her brother’s arrest while on school property. “Time, place, and manner regulations may be necessary to further significant governmental interests and are permitted.” McCall, 354 So.2d at 871. In assessing the reasonableness of the statute before us, we must determine whether it is narrowly tailored to further the state’s legitimate interest in having the educational institutions of this state function or operate smoothly without material disruption. Id. We find that is does. Our touchstone in making this determination is Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969) wherein the U.S. Supreme Court was called upon to harmonize or reconcile the First Amendment rights with the special characteristics of the school environment. In Tinker, the Court held unconstitutional a school regulation which prohibited students from wearing black armbands on school property in symbolic protest of the Vietnam War. While expressly acknowledging that expressive activity could be restricted in the school setting, the Court announced the test as being whether the forbidden conduct or expression “materially disrupts classwork or involves substantial disorder or invasion of the rights of others….” Id. at 513, 89 S.Ct. at 740. The Tinker Court found the wearing of armbands to be constitutionally protected because “[t]hey neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder.” Id. at 514, 89 S.Ct. at 740.

The clear factual distinction between the statute challenged in Tinker and section 877.13 is that the prohibited conduct in Tinker addressed pure controversial expression which was entirely divorced from actual or potential disruptive conduct by those participating in it. Id. at 505, 89 S.Ct. at 735-36. For that reason, the Tinker Court concluded that the students were entitled to comprehensive protection under the First Amendment. Id. at 505-06, 89 S.Ct. at 735-36

We conclude that section 877.13does pass constitutional muster and is not violative of the First Amendment under the Tinker test because its intended purpose is to prevent only that expression or conduct which materially disrupts or interferes with normal school functions or activities. Unlike the passive, expressive conduct of the students in Tinker, M.C.’s boisterous tirade brought the school office’s normal activities temporarily to a halt. Moreover, but for M.C.’s outburst, the students who joined her in the office would have presumably been involved with their other normal school activities at the time. M.C. thus interfered or disrupted with their normal school regimen as well. Under these circumstances, we cannot conclude that M.C.’s activities were entitled to comprehensive protection under the First Amendment.

And, if you are still reading, Resisting an Officer with Violence is a felony in most states, including Florida.  The statute 843.01 reads –

whomever unlawfully, knowingly and willfully resist, obstruct or oppose a law enforcement officer in the lawful execution of a legal duty, by offering violence or by doing violence is guilty of a 3rd degree felony.

You can commit Resisting with Violence without actual hitting or laying hands on an officer.  That’s why the statute says “by offering violence OR by doing violence.

Posted in first amendment is not absolute, life | 2 Comments »

update to tasing kid

Posted by oneofthree on September 19, 2007

Michelle Malkin updates us on the story – Andrew Meyer, professional taunter

I must say, I ran across her website today for the first time, and I am impressed.

or check out:

tazed and confused

————————————————

“You, as an American, have a constitutional right to speak. However, you do not have a right to be heard.”

Posted in fears, first amendment, life, police | Leave a Comment »

FU Tasering Student = media whore

Posted by oneofthree on September 19, 2007

I am sick and tired of hearing about police brutality, etc over this whiny, media whore of a kid.    Here’s an article that doesn’t immediately jump to calling for protests at UF (which there were)  fairly interesting. http://www.starbanner.com/article/20070918/NEWS/70918007/1053/BREAKING_NEWS

Here are a few things I would like to add to the mix –

 1.  All these free speech screamers need to realize, the government CAN limit your speech at a public forum.  It’s called time place and manner restrictions.  It is my understanding that this kid, Andrew Meyer, jumped ahead in line to ask his questions.  If that is true, that is a violation of the procedures set up for that question and answer period.  While I’m not saying that leads automatically to being tased, I am saying that if a person violates a procedure that is in place, they can be removed and their speech limited. 

2.  if this kid violated the procedures then LEO had the authority to remove him from the hall.  They have the right to place hands on him, if he does not leave on his own.  Immediately this whiny little chump starting yelling and crying.  Seems to me that he’s being a little media whore trying to get attention.  LEO did nothing wrong at that point by simply placing hands on him.

3.  He beings to resist.  It’s called resisting an officer with violence.  classic case.  that’s a felony people.  at that point leo has the authority to place him under arrest for a felony.  if you listen, while he’s on the floor, leo tells him to stop resisting and warn him that he will be tased if he continues to resist.  What I think is interesting is you see him continuing to struggle, but you don’t see exactly what happens.  he could be kicking the officers, he could be trying to reach for something else – we don’t know – but we do see him continuing to resist arrest and at that point, after warning him, leo has the authority to tase him.

is it fun to see someone tased?  no – ive seen it in court.  it’s scary.  but he wasn’t hurt – he screams like a little girl which just sounds so fake – the topic of police brutality is something that people find sexy, same thing as free speech violations – what you should do before going off the deep end and automatically determine these officers were blatantly wrong is look at the law, look at the video and use your common sense. 

Interesting – this website claims to have the actual police reports.  True that police reports, once a case is filed, is public record, but I wonder how she got them so fast?

http://michellemalkin.com/2007/09/19/document-drop-the-andrew-meyer-taser-stunt-police-report/

 Also – this fellow wordpresser has an interesting quote from someone who claims to have been at the rally when the kid was tased –

http://animamrecro.wordpress.com/

if the quote is correct, that would confirm that the kid originally violated the procedures laid out by rushing ahead of everyone, and it makes sense that people started taping him at that point – and also explains why law enforcement was behind him and were so quick to remove him.

Posted in fears, first amendment, life, police | 2 Comments »

hometown

Posted by oneofthree on September 18, 2007

randomly browseing through myspace – looking at the people who are listed as graduating from my high school the same year i did – odd – about 95% of the people remained in the same state, and 70% of those are still within 40 miles of my old highschool.  my class had a pretty high college percentage, so why would most people, with a college education, remain within 40 miles of where they went to high school, where they grew up?  just seems odd to me.

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blug

Posted by oneofthree on September 17, 2007

combination of blah and ugh.  that’s how i feel today at 430 pm – waiting the final 30 minutes of work – not wanting to start another project or call anyone.  this weekend was good.  watched football all day yesterday, around sorority events that i had to oversee. 

you know what i realized yesterday?  i am obsessed with calendars.  i don’t know why – but whenever i see a calendar i have an urge to buy it.  i don’t need another one.  i have one at home, one at work, and a palm pilot in my purse.  i have no need for another calender.  and what did i do yesteryday?  picked up another calender.  at least this one was free.  it was at the sorority house – one of those free day planners the school gives out.  now – what in the world am i going to do with another calendar?  my life is not that exciting.  but i couldn’t resist taking one.  sigh.  i’m strange.

normally i love my job.  i love the feeling of doing good in the world and helping people.  but the last two weeks i have dreaded going into work, dreaded calling people back, etc.  i don’t know why.  there is a lot of tension within the office with the budget cuts coming up.  we’re supposed to cut btw 4-10 percent of our budget.  which is difficult as 90% of our budget is salary.  the other 10% is travel, CLE, etc.  right now we are in a hiring freeze.  doesn’t really affect me out in the outlying counties, but in leon when someone leaves, the others in the division divide the caseload.  while i feel bad for them, that i carry the caseload of 2 1/2 regular attorneys – so it’s hard to feel too bad.

446 – ugh the clock is so slow.  ben and i are planning to go back to disney for our 1st anniverary – we’ve already made the reservation.  our honeymoon was wonderful, as i had never been to disney before.  we stayed, and are going to stay again, in the polynesian resort.

448 – i just received my offical inviation to the 25th annual judicial reception for the tallahassee women lawyers.  sometimes i wonder if it’s really necessary to have divisions within the community for women lawyers, black lawyers, etc.  it seems that we have so many committees and subcommittees that all we are doing is fractioning ourselves out when the purpose of those very committees is to bring everyone together.  sigh.  oh well.  perhaps i will go, perhaps not.  those type of events typically bore me.  nope – not going – it costs money to go.  that was easy.

452 – ok, im going to sneak out early – wish me luck

Posted in life, work | Leave a Comment »

Posted by oneofthree on September 13, 2007

i left the office early today to run some errand – dr appointment, pick up new glasses (they are PINK!) etc, etc.   everytime i left one place and went to another i was behind this nissan wanna be suv.  it started to grow on me.  i need a new car in about a year – mine is a 2000 vw, still runs well, but it’s old…..ben wants to have kids in like 2-3 years, so the next car (although i want a mini……….badly) needs to be a family friendly car.  ben has to drive a pick up for work, so mine has to be the family car – so i’m on the look out for new cars

tonight i’m going to observe the bf mel teach her class at fsu.  next week she’s in bulgaria so i’ll be teaching her class.  should be fun.  every semester i speak at her class and have a blast – not sure about teaching one though.  she told me she’ll leave me the list of cases the students are supposed to read – geese, going back to reading random cases – i real criminal cases all the time for work, but random ones – i wonder what she has them reading.  of course, i may just not discuss them at all – perhaps i can have a “this is what you really need to know” chat.  who knows. 

ive thought about teaching for a couple years now.  not as a full time thing, but perhaps doing what mel does and pick up a class a semester.  she says it pays pretty well – it would be a nice outlet.  i always loved school, even thought about going back for my masters or an llm, but never got around to it – i owe enough in student loans as it is!

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Hello world!

Posted by oneofthree on September 13, 2007

Wellp, it was suggested to me to try this blog site instead of the previous one i was using….so, here goes.  a few preliminary matters to anyone that cares to read this thing, i do not like capital letters.  mind you, i must use them in my job in the normal, expected manner; however, i do not enjoy them when typing free verse.  so be forewarned.  also, i cannot spell – but it’s my understanding that some of the geniuses of the world could not either – so i’ve come to terms with that downfall – besides, i grew up in the computer age where spell check did everything for you.

 i used to blog all the time in law school.  afterwards it trailed off, as i was overcome with the realities of the “real world” and life in general.  life has since calmed down after the wedding and i find myself full of thoughts at night, not being able to fall asleep.  not deep, world changing thoughts, but just everyday, run of the mill thoughts that keep me awake.  whereas before, i was able to get them out via blogging.  so we shall see if this works out.  it’s a tenuous relationship at first – figuring out how all the new sidebars and photo management works on a new site, and i feel a bit like im cheating away from blurty, but i’ll give it a spin and see what happens.

tootles

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