But seriously folks, First Amendment fights shouldn’t be frivolous

Wednesday, May 19, 1999

Sometimes it's difficult to take the First Amendment seriously.

Recently, for example, amid important stories about V-chips and X-rated videos, two reports came out of Indiana about people who had won the First Amendment right to look silly.

One report was from Indianapolis, where a federal judge upheld a male student's First Amendment right to wear a dress to his high school prom. The other originated in Goshen, where a different federal judge preserved the constitutional right to wear masks.

Both rulings undoubtedly are solid First Amendment decisions, based on fundamental free-expression principles. I'd probably be one of those screaming the loudest if either had been decided the other way. I can't help but think, though, that the First Amendment deserves cases better than these two.

Dale Stewart might be a fine young man. But if my son announced that he planned to wear a black formal dress to his prom, my primary concern would not be whether someone might attempt to interfere with his First Amendment right to do so. Rather, I probably would be relieved to learn that the school administrators had adopted a dress code that prohibited such juvenile behavior. And I can't imagine any circumstances in which I — no matter how devoted I was to my son or to his First Amendment rights — would allow him to file a federal lawsuit to challenge the school administrators' decision.

What disturbs me most about this case is that, to me, First Amendment cases should be based on issues of principle. When a speaker asserts free-speech rights, he should do so because he believes the speech is important. When a speaker instead uses the First Amendment to prove only that his right to speak is superior to someone else's right to stop him, the right of free expression is trivialized. There might be something about Stewart that I don't know, but it appears that he cared about the First Amendment only to the extent that it allowed him to openly defy school officials.

People like Stewart unfortunately do not have a monopoly on trivializing the First Amendment. Governments mock free-speech rights as well, especially when they restrict free expression while pretending to accomplish some other legitimate goal. Such was the case in Goshen, when the City Council passed an ordinance banning masks.

Goshen City Council members didn't adopt this ordinance to stem an epidemic of bank robberies, rowdy Mardi Gras parties or out-of-control superheroes. Instead, they were attempting to find a way to prevent Ku Klux Klan rallies. They passed their ordinance after masked KKK members started attending council meetings and later asked to participate in the city's 4-H fair parade. The council members, however, denied that they were directly targeting First Amendment rights. Their action, they claimed, was necessary to reduce the expenses associated with policing Klan demonstrations.

Three other Indiana cities — South Bend, Elkhart and Logansport — passed similar ordinances around the same time. These ordinances make it illegal for anyone 18 or older to wear a mask, hood or other device in public to conceal his or her identity, unless the identity is concealed for religious, safety or medical reasons. Violators face a $2,500 fine if convicted. As obvious as these cities' intent was, they might as well have voted to ban Klan speech.

The federal judge had no difficulty seeing the Goshen ordinance for what it was. His ruling almost certainly will be used to strike down the ordinances in the other three cities. Such clearly unconstitutional ordinances never should have been adopted, however, and the cities' willingness to so disingenuously disregard important First Amendment rights sends a regrettable message to their citizens.

It's difficult to know which is worse: Dale Stewart's use of the First Amendment to prove a petty point or the Goshen City Council members' conclusion that the First Amendment doesn't apply to them, at least when the KKK is involved. In both cases, the parties were more than willing to drain the First Amendment of its meaning for personal and political gain. The Indiana federal court rulings last week were necessary, but the lack of principle involved renders both victories relatively hollow.

Hollow victories, of course, are better than none at all. They exact a price, however, when they bring the First Amendment down to the level of a boy who insists on wearing a dress to his prom.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.


  • Federal judge strikes down Indiana town's ban on masks 5.11.99
  • Male student wins right to wear gown to prom 5.10.99