France outlaws burqas, veils

[Green Lantern]

Are you engaging me in vocabulary smack?

LOL. Sorry, couldn't help myself.

[Green Lantern]

So are you. I shouldn't be surprised that an authoritarian solution seems so natrually right to so many of you.

Well I hope you don't paint us all with the same brush. I merely echo UD's comment that it's a less than black and white issue. Kind of a fun one to discuss.

*fun = very interesting.

[SeattleUte]

No one has answered my question, if burqas, why not freaky tatoos and piercings (THANK YOU GENEXERS FOR THAT MAGNIFICENT CONTRIBUTION TO AMERICAN HIGH CULTURE)? They're every bit as revolting and associated with anti-social behavior as burqas.

[Green Lantern]

No one has answered my question, if burqas, why not freaky tatoos and piercings (THANK YOU GENEXERS FOR THAT MAGNIFICENT CONTRIBUTION TO AMERICAN HIGH CULTURE)? They're every bit as revolting and associated with anti-social behavior as burqas.

Why would anybody respond to this silly comparison? Is there anything to it besides your authoritative assertion that one is is as bad as the other?

[SeattleUte]

Why would anybody respond to this silly comparison? Is there anything to it besides your authoritative assertion that one is is as bad as the other?

Maybe I should have said why not ban porn? Probably most would say, yes, both burqas and porn should be banned. Ah, LDS contradiction!

[Green Lantern]

Maybe I should have said why not ban porn? Probably most would say, yes, both burqas and porn should be banned. Ah, LDS contradiction!

"Truly you have a dizzying intellect."

"Just wait til I get going!"

[beefytee]

Good grief, look I know your favored evidence of the behaviors of church members tends to be anecdotal at best but, to your credit, once you've made your pronouncements, you certainly know how to run with them. "Metaphysical Burqa" sounds like either an overwrought senior thesis or the best Lilith Fair headliner EVER!

If only the Metaphysical Burqa kept other guys damn hands off my wife!

[SeattleUte]

There are laws on the books in my state that make it illegal to burn a cross or to wear a mask in public. Sometimes it is necessary to attack the symbols of evil. The people who burned crosses and donned hoods tried to cloak their acts in religion too.

EDIT: I rose readily to the bait, didn't I?

Apparently these laws to which you refer in your great (erstwhile slave) state of Virginia have been struck down as unconstitutional per the First Amendment. They may be on the books, but they are a dead letter.

http://www.abanet.org/publiced/previ...ssburning.html

[UtahDan]

SU, what do you think about this?

§ 18.2-422. Prohibition of wearing of masks in certain places; exceptions


It shall be unlawful for any person over sixteen years of age while wearing any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing. However, the provisions of this section shall not apply to persons (i) wearing traditional holiday costumes; (ii) engaged in professions, trades, employment or other activities and wearing protective masks which are deemed necessary for the physical safety of the wearer or other persons; (iii) engaged in any bona fide theatrical production or masquerade ball; or (iv) wearing a mask, hood or other device for bona fide medical reasons upon (a) the advice of a licensed physician or osteopath and carrying on his person an affidavit from the physician or osteopath specifying the medical necessity for wearing the device and the date on which the wearing of the device will no longer be necessary and providing a brief description of the device, or (b) the declaration of a disaster or state of emergency by the Governor in response to a public health emergency where the emergency declaration expressly waives this section, defines the mask appropriate for the emergency, and provides for the duration of the waiver. The violation of any provisions of this section shall constitute a Class 6 felony.

Hernandez v. Superintendent, Fredericksburg-Rappahannock Joi..., 800 F. Supp. 1344

In August 1989, petitioner was arrested on a felony charge of wearing a mask in public, in violation of Virginia Code § 18.2-422. 1 On the day of his arrest, petitioner was in Fredericksburg, Virginia, with two other persons for the purpose of distributing Klan literature. He was dressed in full Klan regalia, including a robe outfitted with a hood and a mask covering his face. The second member of the group, a woman, also wore the Klan robes, but wore no hood or mask. The third member of the group was attired in casual street clothes and wore no mask or Klan costume. A police officer dispatched to the scene found petitioner and his companions handing [**3] out Klan material on a sidewalk in the downtown business section of Fredericksburg. The officer approached the group and informed petitioner that he was under arrest for wearing a mask in public. Petitioner then removed his mask and handed it to the woman in the group. Arrested solely on the mask-wearing charge, petitioner was peaceful and cooperative throughout his arrest. The officer did not arrest petitioner's companions, but admonished them not to block traffic by standing in the roadway.

...

[**16] HN4The test for determining whether conduct qualifies as protected "speech" is whether "an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it." Johnson, 491 U.S. at 404, 109 S.Ct. at 2539 (quoting Spence, 418 U.S. at 410-11, 94 S.Ct. at 2730). Thus, proof of three elements is required to establish that conduct is communicative or expressive within the meaning of First Amendment analysis: (i) requisite intent; (ii) a particularized message; and (iii) likely understanding by viewers. The nature and context of the conduct are essential considerations in the application of this test. See Spence, 418 U.S. at 409-10, 94 S.Ct. at 2730 (flag hung upside down with peace symbol attached displayed at a time roughly simultaneous with the Kent State tragedy and United States' incursion into Cambodia was protected [*1350] expression); Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503,, 21 L. Ed. 2d 731, 89 S.Ct. 733 (1969) (black armbands worn in a school environment conveyed [**17] unmistakable message of concern about Vietnam hostilities). If the conduct in question is not communicative or expressive under this test, no First Anendment protection attaches. Accordingly, a First Amendment challenge to a statute proscribing that conduct fails. If, on the other hand, conduct is found to be communicative or expressive, a court must then proceed to consider whether a statute proscribing that conduct impermissibly restricts symbolic speech.

...

But even assuming the propriety of de novo review, the Court affirms the state courts' conclusion that no First Amendment protection attaches to petitioner's mask-wearing conduct. 13 The testimony adduced at [**22] trial and petitioner's pleadings do not establish that the wearing of the mask conveyed a particularized message. It is clear that petitioner's white robes and hood symbolized the Klan's beliefs and were likely to be so understood by those who viewed them. By contrast, as the Klan "Grand Dragon" testified, the mask is an optional accessory to the costume. It follows that the mask contributes nothing to the message already conveyed by the remainder of the costume, nor does it convey any independent message. 14 Thus, on the facts presented, petitioner's mask-wearing did not constitute expressive conduct entitled to First Amendment protection because it did not convey a particularized message. See Spence, 418 U.S. at 410-11, 94 S.Ct. at 2730. Given this, the First Amendment analysis properly ends. This Court, accordingly, upholds the decisions of the state courts and dismisses this claim.

[SeattleUte]

SU, what do you think about this?

As I just noted, Virginia has had problems with passing laws such as these that survive constitutional scrutiny. Certainly there are reasonable time and place limitations on masks and such that may pass constitutional muster, as with all First Amendment rights. But the French nationwide 24/7 ban is like the prior restraint in the Skokie case that the Supreme Court struck down absent much reasoning. In this country, those are prima facie unconstitutional, and if you argue for them you are at risk of CR 11 sanctions.

[SeattleUte]

Also, your legal opinion involved a 1989 incident that pre-dated the Court's 2003 opinion invalidating probably this very statute under the First Amendment.

[DapperDan]

Swiss pass moratorium on building minarets.

Now that's just going too far. Minarets are cool.

[UtahDan]

Also, your legal opinion involved a 1989 incident that pre-dated the Court's 2003 opinion invalidating probably this very statute under the First Amendment.

Shepards doesn't seem to think so. The cross burning case is very different because the statute imputed an intent to intimidate from the act itself. That provision got struck and the statute is still on the books otherwise unchanged. It is still a crime to burn a cross with the intent to intimidate.

In 2004 the 2nd Circuit Court of Appeals upheld a NY anti-mask statute on virtually identical reasoning to the Hernandez case I posted and it cites both the Hernandez case and the 2003 Scotus case(CHURCH OF AMERICAN KNIGHTS OF THE KU KLUX KLAN v. KERIK is the name, I don't have the cite) . Both the Hernandez case and the NY case we decided on the basis that the wearing of Klan mask does not have any expressive value that the 1st Amendment protects because the law does not forbid the wearing of Klan regalia, but simply the wearing of a mask which has no independent message that the other regalia does not already convey.

I'm not going to pretend that a court looking at a burqua might not go the other way, but I don't think it has expressive value either. If anything, it is an expression on the part of the woman's master/owner that she is his property. I don't think she expresses anything by wearing it to anyone but him, and what she expresses there is submission. If those were the facts it wouldn't be protected on these two court's analysis of Klan masks. If it does convey something, certainly the covering of the rest of the body already conveys that message.

If you want to champion this sort of thing that is up to you, but there is no case that I have found striking down an anti-mask statute and there is certainly an argument that it is not protected speech. I don't think you have to sell your first amendment soul to get the right result big picture here.

[SeattleUte]

Shepards doesn't seem to think so. The cross burning case is very different because the statute imputed an intent to intimidate from the act itself. That provision got struck and the statute is still on the books otherwise unchanged. It is still a crime to burn a cross with the intent to intimidate.

In 2004 the 2nd Circuit Court of Appeals upheld a NY anti-mask statute on virtually identical reasoning to the Hernandez case I posted and it cites both the Hernandez case and the 2003 Scotus case(CHURCH OF AMERICAN KNIGHTS OF THE KU KLUX KLAN v. KERIK is the name, I don't have the cite) . Both the Hernandez case and the NY case we decided on the basis that the wearing of Klan mask does not have any expressive value that the 1st Amendment protects because the law does not forbid the wearing of Klan regalia, but simply the wearing of a mask which has no independent message that the other regalia does not already convey.

I'm not going to pretend that a court looking at a burqua might not go the other way, but I don't think it has expressive value either. If anything, it is an expression on the part of the woman's master/owner that she is his property. I don't think she expresses anything by wearing it to anyone but him, and what she expresses there is submission. If those were the facts it wouldn't be protected on these two court's analysis of Klan masks. If it does convey something, certainly the covering of the rest of the body already conveys that message.

If you want to champion this sort of thing that is up to you, but there is no case that I have found striking down an anti-mask statute and there is certainly an argument that it is not protected speech. I don't think you have to sell your first amendment soul to get the right result big picture here.

Look, once again you're mumbling on way too long over an issue that isn't complicated. Any idiot knows that government can place reasonable time and place limitations on expressions of speech, including worship, in the interest of good order, public safety, etc. I have no problem with bans on people wearing burqas in banks, for example, or on cross burnigns intending to threaten people with violence.

Do you really honestly believe that France's ban would be upheld by our Supreme Court on our Constitution? If that is what you are tryng to say then I'm really done with you.

[UtahDan]

Look, once again you're mumbling on way too long over an issue that isn't complicated. Any idiot knows that government can place reasonable time and place limitations on expressions of speech, including worship, in the interest of good order, public safety, etc. I have no problem with bans on people wearing burqas in banks, for example, or on cross burnigns intending to threaten people with violence.

Do you really honestly believe that France's ban would be upheld by our Supreme Court on our Constitution? If that is what you are tryng to say then I'm really done with you.

This isn't an issue of time or place. It is about whether it is speech at all. Don't retreat defensively to platitudes this time out. Do more than skim those cases I mentioned and we can continue. They provide a framework for discussing whether this is speech at all. Or you can go back to browbeating the nonlawyers if that is what being done with me means.