by Justice William W. Bedsworth

I hope you had a wonderful Fourth of July. Mine was the usual: family, flags, fireworks, baseball, burgers, bratwurst.¹ Independence Day has been my favorite part of summer since I was old enough to hold a sparkler.

I’m a born flag-waver. The first-born of a World War II Marine, I was raised to love the Mother Country. I’ve seen Sergeant York twelve times. I sing the national anthem at ballgames. I was at Berkeley from ’68 to ’71 and never so much as heated up my draft card. Next to me, George M. Cohan’s a Trotskyite.

But there are times when even I am overwhelmed by the inspired craziness this country’s capable of. No wonder the Europeans regard us as their crazy little brother.

Sometimes I wonder if we don’t have the wrong folks on Mt. Rushmore. Sometimes I think we ought to have Harpo, Chico, Groucho, and Zeppo up there. Our capacity for zaniness is really amazing.

And our courts are sometimes a reflection of that. Where else but the United States of Astounding could you have a case called Arizona v. Arizona Justice Court decided by the Arizona Supreme Court and have Arizona lose? Honest: 136 Ariz. 1. (A DUI defendant contended the roadblock where he was apprehended was unconstitutional. The Arizona Supreme Court agreed. So both Arizona parties lost and the inebriated driver walked out with the theme from Rocky playing in the background.)

Think about it, folks. There’s greatness there. When you can stack a deck like that and still have the individual win against the state, you’re either the greatest nation on earth or the Visigoths are gonna take you out in five rounds. One or the other.

I thought about this recently when I was forced to do a little free speech research. In every other country in the world, they know what speech is. Australians understand speech. Andorrans understand speech. Andean shepherds understand speech.

You take a twelve-year-old raised by wolves in the Ural Mountains, he knows what speech is: it’s what the wolves did so badly. It’s when you open your mouth and make communicative noises.

But in America—probably because the first fix we made when we decided our Constitution required emendation was to enshrine the right to free speech—we have pretzelized our logic and herniated our analogies trying to fit some size-ten concepts into a size-eight right to freedom of speech.

Exhibit A. In 1982, a group called the Community for Creative Non-Violence received a permit from the National Parks Service to erect and maintain a tent city on the Capitol Mall for a week to call attention to the problem of homelessness.² They were granted the permit, but told they could not sleep in the tent city, because that would violate the Parks Service’s anti-camping ordinance.

Since the lack of a place to sleep was a large part of the point they wanted to make about homelessness, the tent people sued the Secretary of the Interior, saying sleeping in the tents was a form of speech, conveying a message to those who had homes. A federal district judge granted the government’s motion for summary judgment, holding that sleeping and speaking were two different—generally incompatible—things.

The case went to the federal circuit court where an en banc panel was convened.³ Here is the result of that panel’s consideration, quoted from the opinion:

Reversed.
Mikva, Circuit Judge, filed opinion in support of reversal in which Wald, Circuit Judge, concurred.
Spottswood W. Robinson, III, Chief Judge, and J. Skelly Wright, Circuit Judge, filed concurring statement.
Harry T. Edwards, Circuit Judge, concurred and filed opinion.
Ginsburg, Circuit Judge, concurred in the judgment and filed opinion.
Wilkey, Circuit Judge, dissented and filed opinion in which Tamm, MacKinnon, Bork, and Scalia, Circuit Judges, joined.
Scalia, Circuit Judge, dissented and filed opinion in which MacKinnon and Bork, Circuit Judges, concurred.

These opinions run to forty-one pages and do not include assembly instructions. The panel’s use of footnotes⁴ makes me look like a piker. Three forests and a small copse were wiped out in messages sent back and forth, drafts prepared, and opinions printed. Erudition flowed like the stream that used to run through the copse, but now borders two apartment complexes and a Costco.

And these were some of the biggest names in American law of the time. Mikva, Wright, Edwards, Bork, Scalia, Ginsburg . . . not to mention the estimable Spottswood W. Robinson, III, whose name was not only big but pretty near unforgettable. And they not only couldn’t agree on this point, they couldn’t even agree on how to disagree. They produced six different recipes for speech.

Their final decision was that sleeping in the tents was speech insofar as it was part of the demonstrators’ expressive conduct. (703 F.2d 586 (D.C. Cir. 1983)). Note that I said “their final decision.” It was the last time they got to hold forth on this point.

But the next year the same question—in the same action—reached the Supreme Court.⁵ That court, with the assistance of the great minds listed above, split 6-1-2 in reversing the en banc panel of the circuit court.⁶

I am not here to argue which of these opinions is correct.⁷ I merely want to point out that the question of “What is speech?”—a question my sister-in-law the speech therapist would have needed thirty seconds to answer—took two years, twenty-one high-powered judges, ten footnote-intensive opinions, three forests, and a copse for the American legal system to answer . . . temporarily!

The rest of the world doesn’t understand speech. They think if you want to know whether a person is talking or not, you just watch his lips. They clearly don’t know a legal swamp when they see one.

Nor did Larry Lowman. Larry Lowman was an Arkansas state park ranger. Mr. Lowman had an afro haircut. A pink afro haircut.

You tell me: Was Larry Lowman having trouble keeping both oars in the water or was Larry Lowman talking with his hair?

Helluva tough call. Under the Code of Hammurabi, Larry gets his liver ripped out and is reassigned to a barge crew for forty years. But in the sweet land of liberty, the Eighth Circuit Court of Appeals strained both hamstrings and a trapezius muscle grappling with the First Amendment arcana implicated by a pink afro’d park ranger.

They ended up, in Lowman v. Davies, 704 F.2d 1044 (8th Cir. 1983), upholding Arkansas’ rule against park rangers with talking hair⁸ on the rather dubious ground that uniformity ensures that park rangers will be “more easily recognizable and more likely to gain respect from wrongdoers in the park.”

I don’t understand that. I don’t see how you could get a whole lot more recognizable than pink hair. And as far wrong-doers being respectful, would you want to mess with a dude who had the huevos to wear a pink afro in Arkansas? I’d be respectful as hell to him.

No sir, I think I have to side with the dissent in this one. As Chief Judge Donald P. Lay put it, “a park naturalist who is bald will not appear the same as a park naturalist with long hair.” Go ahead. Try to argue with that. This guy weren’t no chief judge for nothin’!

These examples were from the eighties⁹ and we’re still bewildered by the issue. We’ve spent almost four decades wandering around in the arcana of a constitutional wilderness that has left us bewildered enough to conclude that tattoo parlors do not speak (Hold Fast Tattoo, LLC v. City of N. Chicago, 580 F. Supp. 2d 656, 659-60 (N.D. Ill. 2008)) but bakeries do (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U.S. ___, 201 L. Ed. 2d 35 (2018)).

Talking bakeries, talking hair, talking tents. I’m glad the feds are taking care of most of this stuff. We staties don’t have a big enough paper budget.

Masterpiece Cake produced five opinions, so we are not significantly closer to figuring out when people are talking. But we’re getting better at figuring out when they’ve talked enough. I think I’ve reached that point.

BEDS NOTES

1. I know brats don’t sound classically American, but when you consider the bratwurst was in lieu of the equally German frankfurters, I think you just have to tip your hat to the melting pot. As Brad Paisley would say, “French kiss, Italian ice, Margaritas in the moonlight; just another American Saturday night.”
2. 1982, folks. Great we may be; fast we are not.
3.  
4. Never a good sign.
5.  
6. Including thirty-six by Judge Abner Mikva, who is famous for saying, “If God had meant for us to use footnotes, he would have put our eyes in vertically instead of horizontally.” This case apparently pre-dated his journey on the road to Footnote Damascus.
7.  
8. Trust me, it’s the same case. All that changed was the name of the Secretary of the Interior. Sic transit Gloria.
9.  
10. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).
11.  
12. That would be irrelevant; by definition, the Supreme Court’s opinion is correct.
13.  
14. In another split decision.
15.  
16. I was so distracted by its discussion of the Community for Creative Non-Violence cases that I never finished the article I set out to read about the District of Columbia Circuit in that era
17.  

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.