Our First Amendment Right gives all of us a right to express ourselves and to express ourselves without the government sticking their nose in our business. This is what the First Amendment is all about. In fact, the rap group N.W.A. sang about it in their 1988 video. If "the man" interferes with this First Amendment Right, then "he" better justify it.
By now you are either thinking that this is too boring or you want me to get to the MILEY factor. But just like Miley started as Hannah Montana, this story must start with some law.
San Antonio Law Protects First Amendment
On August 30, 2013, the Fourth Court of Appeals in San Antonio said that Subsection 21.15(b)(1) of the Texas Penal Code violates the First Amendment because it can prevent us from expressing ourselves. Pretty much, a San Antonio man challenged the law because his First Amendment rights were violated.
This criminal law pretty much makes taking photos criminal but doesn't provide enough guidance for our boys in blue to enforce it. Don't get me wrong, most officers are straight shooters. However, like with everything else, you have those rotten apples.
In this case, the guy allegedly had 73 photographs of children in swimsuits. I know what you are thinking- Disgusting! Gross! But we must remember the First Amendment Right allows us to express ourselves artistically.
This law is not clear on what it stops you from doing. If the law is not clear, then HOUSTON, we have a major problem. Like the wise court said, "The statute would potentially penalize some protected speech." Just imagine one summer afternoon, you're hanging out at the park, and your son, in his adorable outfit, is climbing up the jungle gym. You stop. Turn. Take a photo. Actually, any parent reading this knows they have taken 10 or 20 photos of their children in the same pose.
Officer Hightower just happens to see this and what do you know, the unclear law is being used to arrest you.
The First Amendment is free speech, and it is great to live in a country with such protection. In the photography case, the First Amendment sirens are blasting because "the man" is trying to control our expressive conduct without actually telling us what we can and cannot do.
Bottom line, we have to look at what the law is trying to control. In this case, the law is controlling “non-obscene” photography of a sexual nature. In Miley's case, parents would hope and pray that a law would regulate her wardrobe and her crazy tongue.However, the law is clear that a statute may not regulate protected free speech if it is not obscene. I know many would argue that Miley is the epitome of obscene, but the reality is that our constitution protects artists and the layperson alike.
We are definitely oversimplifying the entire process and analysis that the Court considered, but the lesson from the ruling is that our First Amendment Right is alive and well. Although many of us wish we could erase the images we see on a daily basis. The truth is just like Miley sings, “it's my mouth [and] I can say what I want to.”
So question of the day, would you be willing to sacrifice your First Amendment Rights to keep someone from taking pictures of your children? Have you been accused of a crime in San Antonio and wondering if your First Amendment rights were violated in the process? With availability when you need it, you can rely on The Law Office of Guillermo Lara Jr. to be there for you. Call our office today!