Posted by Eugene Volokh:
Worn Circuit Boards as Art -- in Airports:
http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190653231
The [1]AP reports:
An MIT student wearing what turned out to be a fake bomb was
arrested at gunpoint Friday at Logan International Airport and
later claimed it was artwork, officials said.
Star Simpson, 19, had a computer circuit board and wiring in plain
view over a black hooded sweatshirt she was wearing, said State
Police Maj. Scott Pare, the commanding officer at the airport.
"She said that it was a piece of art and she wanted to stand out on
career day," Pare said at a news conference. "She claims that it
was just art, and that she was proud of the art and she wanted to
display it."
Simpson was charged with disturbing the peace and possessing a hoax
device. A not guilty plea was entered for her and she was released
on $750 bail....
I'm not sure quite what it means to say that this was "a fake bomb." I
haven't seen a photo, and I'm not sure whether the student intended
the circuit board to make at least some people think for at least some
time that there's at least some chance that the board was part of a
bomb. Still, it does sound like the sort of thing that airport
security people should investigate, just in case, and the sort of
thing that should be prohibited in airports given the disruption that
it's likely to cause.
Some people have asked whether bomb jokes of various sorts are
constitutionally protected in airports. I think the answer is that
they generally can be punished, even if they aren't intended to be
threats. They would be false statements of fact said with reckless
disregard of the possibility that they would be believed, and would
thus fit within the same false statements of fact exception that
authorizes punishment of libel, fraud, perjury, false statements to
the police, and the like.
True, in most situations jokes are not punishable when it's clear to
most people that the statement is probably a joke, and not a factual
assertion. That's why parody and humor is protected against (among
other things) libel or slander liability even when it's literally
false. But in a context where security people have to react even to
small risks that a statement is a factual assertion and not a joke, it
makes sense to allow the prohibition of even slightly ambiguous jokes.
Here, though, it's not clear whether any such analysis would even be
necessary (which is important for the government, since the student
might have been subjectively unaware of the risk that her circuit
board would be interpreted as part of a bomb; such subjective
unawareness of risk would likely take her statement out of the
criminally punishable false statements of fact category). Here's a
relevant passage from [2]Rumsfeld v. FAIR, the Solomon Amendment case:
Having rejected the view that the Solomon Amendment impermissibly
regulates speech, we must still consider whether the expressive
nature of the conduct regulated by the statute brings that conduct
within the First Amendment's protection. In United States v.
O'Brien, we recognized that some forms of "'symbolic speech'" were
deserving of First Amendment protection. But we rejected the view
that "conduct can be labeled 'speech' whenever the person engaging
in the conduct intends thereby to express an idea." Instead, we
have extended First Amendment protection only to conduct that is
inherently expressive....
Unlike flag burning, the conduct regulated by the Solomon Amendment
is not inherently expressive. Prior to the adoption of the Solomon
Amendment's equal-access requirement, law schools "expressed" their
disagreement with the military by treating military recruiters
differently from other recruiters. But these actions were
expressive only because the law schools accompanied their conduct
with speech explaining it. For example, the point of requiring
military interviews to be conducted on the undergraduate campus is
not "overwhelmingly apparent." An observer who sees military
recruiters interviewing away from the law school has no way of
knowing whether the law school is expressing its disapproval of the
military, all the law school's interview rooms are full, or the
military recruiters decided for reasons of their own that they
would rather interview someplace else.
The expressive component of a law school's actions is not created
by the conduct itself but by the speech that accompanies it. The
fact that such explanatory speech is necessary is strong evidence
that the conduct at issue here is not so inherently expressive that
it warrants protection under O'Brien....
Likewise, it looks like wearing a circuit board would not be treated
as "inherently expressive" for First Amendment purposes.
Thanks to Victor Steinbok for the pointer.
References
1. http://www.mercurynews.com/ci_6959970?source=most_viewed&nclick_check=1
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=04-1152
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
