Top Mama's Case Essay Example | Topics and Well Written Essays - 1250 words

Top Mama's Case - Essay Example Upon leaving the studio, she was arrested and charged with indecent exposure. Top Mama was found guilty and sentenced to jail term of 30 days. Her conviction in the lower courts was upheld. Reaching this Supreme Court, we should clearly discuss the First and Fourteenth Amendments invoked in this case. According to Mark Stevens (2003), all together, there are six (6) rights guaranteed by the First Amendment -- religion, speech, press, assembly, association, and petition --  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.  Collectively, they protect what is known as the freedom of expression  (Stevens, 2003). Mark Stevens (2003) stated that association is a derivative right from speech, assembly, and petition. The right to free speech is more commonly referre d to as  freedom of speech.  Ã‚  Justice Hugo Black (1937-1971) was the last to believe the absolutist interpretation of the First Amendment which states that â€Å"Congress shall make no law† means that Congress shall make no law. Such an absolutist interpretation of the First Amendment leaves no restrictions on obscenity, libel, or slander (Stevens, 2003). More predominant interpretations look at speech as distinct from  speech plus  conduct, or the  effects of speech. Congress has every right in the world to control these things (Stevens, 2003). It's also possible to draw upon the social contract theories of the founding fathers to understand that the First Amendment was intended to serve several important social functions. These functions include educational function, safety valve function, truth-seeking function, and lastly, the social obligation function. These social functions indicates that the First Amendment is about protecting the public good rather than individual freedom and that freedom of speech in America has never been absolute (Stevens, 2003). In the case at bar, Top Mama was invoking the First Amendment on freedom of speech, or in her case, the symbolic speech. Symbolic speech is the nonverbal communication similar to speech or conduct that may receive protection under the 1st Amendment. During 1960s and 1970s, the main issue was symbolic speech which Antiwar protesters were not so much saying things as doing things, like burning flag, draft cards, holding sit-ins, love-ins and the like (Stevens, 2003). According to Stevens (2003), one of the first cases which considered whether symbolic speech such as this deserved constitutional protection was the 1968 case of U.S. v. O'Brien. In the  O'Brien Test, governments must have a substantial government interest that is not related to suppressing the message before contemplating action restricting expressive conduct or symbolic speech such as it is unconstitutional to have a flag desecration law if the only reason for having it is that people should respect the flag (Stevens, 2003). This is the most widely-used test. The Court was providing absolute protection to the message, but not the conduct (Stevens, 2003).  O'Brien  involves some deep psychological issues as the  critical test for separating message from conduct (Stevens, 2003).Thought and belief are not subject to government control, but speech is often the link between thought and action (Stevens, 2003). The current situation is that symbolic speech, like  flag-burning, is constitutionally protected. In a narrow 5-4 majority with  Texas v. Johnson (1989), the Court upheld the right to burn the flag, regardless of its symbolism, as long as a disturbance of the peace does not occur (Stevens, 2003).