Freedom of Expression. What Does Your Body Say About You? Not Enough, the Ninth Circuit Says

• Author: Chuck Tobin, Kristel Tupja
• Pages: 10-11

LITIGATION 10

HEADNOTES

FREEDOM OF EXPRESSION

What Does Your

Body Say About

You? Not Enough,

the Ninth Circuit

Says

CHUCK TOBIN AND KRISTEL TUPJA

Chuck Tobin is with the Washington, D.C., office

and Kristel Tupja is with the Philadelphia office

of Ballard Spahr LLP. Tobin is a senior editor of

Litigation.

Self-expression has never been more vi-

brant. Many of us each day fill the blogo-

sphere with self-revelatory musings on ev-

ery aspect of our lives. We display on our

cars and our clothes images of rainbows,

animals, tools, office equipment, really

bad hair plugs, infants, guns, religious

icons—all to show our association with

movements, attitudes, or social issues.

For an increasing number, or so it seems,

even our bodies have become billboards,

adorned with tattoos and piercings that

furnish insight into how we think and feel.

Of course, throughout civilization’s

history, our fashion choices also have

communicated much about who we are.

Purple robes for Roman royalty. Red-coat

or blue-coat uniforms for the Loyalists or

the Revolutionaries. Rolex watches for the

financially successful. Jaunty chapeaux for

the French and the Francophiles.

American social doctrine teaches us

that se lf-expression is a natural right. The

law, for the most part, recognizes this. That’s

why the Supreme Court upheld Mary Beth

Tinker’s right to wear a black armband to

elementary school to express her family’s

disagreement with the Vietnam War. Tinker

v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.

503 (1969). Paul Cohen upped the silent-

expression game, and the justices enabled

scores of other caustic protestors who came

Headnotes illustrations by Sean Kane