Joke of the First Amendment, Part II
We wrote in January about a Seventh Circuit oral argument wherein the panel took apart the unfortunate practitioner that tried to make a Constitutional silk purse out of a sartorial sow’s ear. The returns, now, are in (via David Lat), as reported on How Appealing. Thus spake Judge Posner (link to Blau added):
Of course there can be speech printed on clothing, political symbols such as a swastika or a campaign button affixed to clothing, and masks and costumes that convey a political or other message. Merely wearing clothes inappropriate to a particular occasion could be a political statement. For that matter, parading in public wearing no clothing at all can, depending on the circumstances, convey a political message. But the picture and the few words imprinted on the Brandt T-shirt are no more expressive of an idea or opinion that the First Amendment might be thought to protect than a young child’s talentless infantile drawing which Brandt’s design successfully mimics. Otherwise every T-shirt that was not all white with no design or words, with not even the manufacturer’s logo or the owner’s name tag, would be protected by the First Amendment, and schools could not impose dress codes or require uniforms without violating the free speech of the students, a proposition sensibly rejected in the Blau case.
The Constitution is not a suicide pact. Judge Posner wisely suggests it is also not a stupidity pact, nor an arrangement of mutually assured boorishness. But speaking of Lat’s blog, well, take a look at this item about a far less distinguished jurist, and remember: With lifetime tenure for Article III judges, and their salaries rapidly shrinking in comparison to what very successful lawyers (who should be your candidate pool for judges) make, one never does know: Stupidity may yet get the upper hand.