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-- The First Amendment to the United States
Constitution
The Eureka Springs Parks and Recreation Commission is in a balancing act regarding artists in Basin Spring Park, Freedom of Speech, and their impact on the city's retail community.
A proposal for art in Basin Spring Park would provide needed revenue for the Parks and Recreation Commission, enhance the experience of visitors and benefit artists wishing to sell their work.
It is not an issue the Parks and Recreation Commission wants to address. Rather, it was handed to them by City Council.
Commission Chairman Bill Featherstone does not see it as a real problem, but rather a challenge to make the idea work best for both the parks and the city. The main issue, he said, lies with city retailers concerned about unfair competition.
But a lesson in one aspect of the Bill of Rights seems called for.
It's the idea that counts
Perhaps most applicable to the Parks and Recreation Commission's stand regarding art in the parks is the 1989 Supreme Court ruling regarding flag desecration, in which the conviction of Gregory Lee Johnson was reversed, with Justice William J. Brennan Jr. stating that "if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.
Certainly, most art reflects an idea of some sort.
As for obscenity or pornography, the Supreme Court generally refuses to give obscenity any protection under the First Amendment, and pornography is subject to little regulation. In 2008, the Court ruled that prohibiting offers to provide and requests to obtain child pornography does not violate the First Amendment, even if the person charged does not possess the pornography.
Speech trumps art
In fact, most of the rulings of the Supreme Court primarily address speech regarding threats to the government, as opposed to art.
Restrictions of speech were accepted by the Supreme Court in 1925 when it ruled that states could punish words that "by their very nature, involve danger to the public peace and to the security of the state," with lawmakers given the freedom to decide which speech would constitute a danger.
The establishment clause of the first amendment was primarily directed at prohibiting the establishment of a national religion, but in the 20th Century the Supreme Court interpreted the Establishment and Free Exercise Clauses to restrict the promotion of religion by state governments. In 2007, the Ninth Circuit of the U.S. Court of Appeals ruled that a parolee could not be forced to attend Alcoholics Anonymous meetings as part of his parole when there is a conflict between the parolee's religious beliefs and those of Alcoholics Anonymous.
While in 1963, the Supreme Court applied the strict scrutiny standard of review of the free exercise of religion clause, showing that a state must show a compelling interest in restricting religious activities, it retreated in 1990, permitting governmental actions that were neutral regarding religion, and in 1997 ruled that Congress' passage of the Religious Freedom Restoration Act was unconstitutional regarding state and local government actions, though permissible regarding federal actions.
The sanctity of symbolic speech
Free Speech protection was expanded by the Warren Court in the 1960s. While mutilation of draft cards remained prohibited, the court found a person could not be punished for wearing a jacket reading "F**k the Draft" in the Los Angeles County courthouse. The court further ruled free speech rights extended to students in school, saying that a school could not restrict "symbolic" speech that did not cause undue interruptions of activities.
-- E. Alan Long