Wrestling with freedom of speech

Rights, Crime

Freedom of speech – it’s one of Americans’ most sacred liberties, enshrined in the Bill of Rights. But even this most cherished of freedoms is subject to limitations, forcing prosecutors and courts to decide where freedom of expression crosses the line into illegal conduct. Two recent cases demonstrate the difficult task of striking this balance.

GoTopless demonstration: no shirts, no speech

Sonoko Tagami was ticketed for public indecency in Chicago in when she went shirtless and braless in a 2014 sanctioned GoTopless event. She sued the city, claiming their ordinance against a woman baring her breasts in public was unconstitutional. Three years later, in November 2017, a federal appellate court upheld Chicago’s ban on uncovered women’s breasts, saying Tagami could have made her point while keeping her clothes on, staying in line with “moral norms.”

GoTopless advocates for the right of women to appear bare-chested in public as another measure to further gender equality. The GoTopless website identifies the cities that tolerate “top freedom,” and Chicago has gotten the greenlight. Nevertheless, topless demonstrators can still be arrested under the pretense of disorderly conduct or, as in Tagami’s case, of public indecency. The GoTopless folks recommend suing any city for wrongful arrest if being cuffed for going topless is your only crime. There is no guarantee, however, that you will win.

Laughter: Not always the best medicine in Congress

While the federal court in the Midwest grappled with Tagami’s suit, another case involving freedom of speech was playing out on the East Coast. Code Pink activist Desiree Fairooz had been arrested for laughing during Attorney General Jeff Sessions’ confirmation hearing in January 2017. She chortled disdainfully when another senator said that Sessions had an excellent record of treating all Americans equally. The U.S. Attorney’s Office for the District of Columbia charged her with disrupting Congress and unlawfully demonstrating on the Capitol grounds, and Fairooz was convicted at a jury trial in May.

The conviction, jury members claim, was based on Fairooz’s vociferous objections and conduct as she was being led out of the courtroom after her arrest, and not because of her scornful snicker. But in July, a District of Columbia judge dismissed the charges and tossed out the jury’s conviction with the rationale that prosecutors had improperly argued that laughter was grounds enough for a conviction.

Without the argument of laughter to buoy their case, the government would have to admit that the officer who arrested Fairooz for laughing was wrong. Prosecutors won’t need to worry about bolstering their case now, as the U.S. Justice Department has dropped all charges against Fairooz.


Another day, another demonstration, and the fallout for speaking up in defense of your beliefs is anyone’s guess. As these case show, there can be legal consequences for voicing your opinion, and what you believe and what is the law may not always gel. Just make sure you’re prepared and well aware of your rights.