Criminal jury trials, like football games, many times are decided on momentum.  When one side or the other gets enough traction against the other side, the dynamics of the game shifts and the other side is at a distinct disadvantage.  Sometimes that momentum can shift because one side does something unfair and the referee or judge fails to make the right ruling on the play.  Unlike football games which are staged for amusement, a change in momentum based on an unfair ruling in a criminal trial can result in the destruction of person’s life.
So it was in the trial of Steven Avery whose case is popularized right now on Netflix’s "Making a Murderer."  Dean Strang, and co-counsel Jerry Buting, worked tirelessly to fight charges that Avery murdered photographer Teresa Halbach in 2005.  Mr. Strang has explained that momentum shift in favor of the prosecution occurred when an FBI test that helped to discredit the defense's argument that evidence had been planted to frame their client.
The key to the theory of the defense was that Manitowoc County police officers had planted Avery's blood found in Halbach's car. The defense cited a vial of Avery's blood from his previous trial that appeared to be tampered with in an evidence locker.  In response, the prosecution brought in an FBI analyst who had tested the blood smears for EDTA, a chemical used to keep blood samples in liquid form (rather than coagulating) inside test tubes for use in future testing. Any presence of EDTA in the blood smears in Halbach's car would prove that it came from a test tube and not from Avery himself bleeding.  The FBI analyst, Mark Lebow testified that the test did not detect EDTA, and so he believed the blood smears came directly from Avery's body.

So what was unfair about that procedure?  Before that question is answered, we should pause to consider why certain procedures are used during a criminal case.  Justice Brennan’s observation years ago continues to ring true today: “many in our society, laymen and lawyers alike, show impatience with any and all procedures which appear to hamper the task of law enforcement agencies to bring an accused to conviction. More people than not resent the privilege against self incrimination. Confessions extracted by prolonged interrogation of an accused may concern judges and criminologists, but trouble little the consciences of others. Police without a search or arrest warrant have broken down a suspect's door and provoked little public outcry, if perchance they stumbled on evidence which eventually proved his guilt.”  William J. Brennan Jr., The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Wash. U. L. Q. 279, 280 (1963).

Those who show impatience with criminal procedures forget that in the criminal justice system the government has a monopoly in which participation is compelled.”  Maher v. Roe, 432 U.S. 464, 471 n. 6 (1977).  This means that "[w]hen society acts to deprive one of its members of his life, liberty or property, it takes its most awesome steps. No general respect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged." Coppedge v. United States, 369 U.S. 438, 449 (1962).  Clearly, the history of American freedom is, in no small measure, the history of procedure. Malinski v. New York, 324 U.S. 401, 414 (1945) (Justice Frankfurter, concurring).  See also, In re Gault, 387 U.S. 1, 18 (1967) (“unbridled discretion . . . is frequently a poor substitute for principle and procedure.”).

But what of the cry that a departure from a sober criminal law procedure is necessary; that we need to “get tough on crime.”   By enshrining criminal procedures in the Constitution were the Founding Fathers “soft on crime?”  Of course not.  Our Founding Fathers had just fought a war against a long train of governmental abuses and usurpations, resulting in their being ruled by absolute despotism.  They feared it happening again in America.  So they gave us the Constitution to protect us when we were compelled to participate in the criminal justice system. 
Constitutional rights are “checks upon government-to guarantee that government shall remain the servant and not the master of us all . . . what distinguishes our criminal law from that of totalitarian regimes is really only this: that however desirable the ends, long and bloody history taught us that there are some police tactics that are not safely tolerated in a free society; in addition to the question whether our free society can morally tolerate them, such toleration could only end up in making government the oppressor of each and every one of us.”  The Criminal Prosecution: Sporting Event or Quest for Truth?, at 280.

So what was wrong with the FBI analyst who testified about EDTA?  The defense was handed the report during trial and the analyst was then allowed to immediately testify at trial with no notice to the defense.  It was impossible for the defense to do independent testing, or even present an intelligent response.  The law required the prosecution to disclose this evidence in advance to the defense before trial, not at trial.  Pretrial disclosure promotes cost effective resolution of cases by defendant’s knowing the evidence against them and pretrial disclosure enhances the reliability of any jury trial if one is held.  The defense in Avery did have a lab auditor testify about problems with the EDTA testing procedures  but this is no substitute for an analyst to do independent testing.  The problem with the EDTA testing at the Avery trial can be found at “Some Clarity to Some of the Evidence in "Making a Murderer" http://chadsteele.blogspot.com/2016/01/some-clarity-to-some-of-evidence-in.html#comment-form.  This does not even take into account how the FBI lab itself has your years produced unreliable forensic work leading to convictions of innocent people.  See, e.g., Spencer S. Hsu, “Convicted defendants left uninformed of forensic flaws found by Justice Dept.”  https://www.washingtonpost.com/local/crime/convicted-defendants-left-uninformed-of-forensic-flaws-found-by-justice-dept/2012/04/16/gIQAWTcgMT_story.html..

Moreover, the public at large seems unaware that The National Research Council of the National Academies of Science, Engineering and Medicine has released its report on the state of forensic science in the United States. Finding an inconsistent system rife with “serious deficiencies,” lacking practitioner and laboratory independence, standards, oversight, and certification, the NRC called for major reforms, including the establishment of a wholly independent federal agency, the National Institute of Forensic Science (NIFS), to address the manifold problems with the current science and system.  Critically, with the exception of nuclear DNA analysis, “no forensic method has been rigorously shown to be able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”  'BADLY FRAGMENTED' FORENSIC SCIENCE SYSTEM NEEDS OVERHAUL; EVIDENCE TO SUPPORT RELIABILITY OF MANY TECHNIQUES IS LACKING,”http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=12589

"Bail" is defined by Wis. Stat. § 969.001(1) as "monetary conditions of release."  State v. Taylor, 205 Wis. 2d 664, 672, 556 N.W.2d 779(Ct. App. 1996); State v. Lipke, 186 Wis. 2d 358, 366 n.1, 521 N.W. 2d 444 (Ct. App.1994).  Monetary conditions of release cannot be employed to respond to concerns for public safety, prevent future criminal conduct or frighten the defendant or to placate public opinion..  ABA Criminal Justice Standards – Pretrial Release, Standard 10-1.4(d) and 10-5.3(a) and (b). 

The most frequently made bail argument by the prosecution, and one that does have an intuitive appeal, is that “the serious nature of this offense and the need to protect the community requires cash bail in this case.”  But do facts support this intuitive assumption?  Examination of intuitive beliefs is important since intuition at one time indicated the world was flat and the sun revolved around the earth.  No amount of intuitive belief, however, changed the facts that we now know to be the opposite. 

One recent study of state practice, focusing upon a sample of felony cases filed in the 75 most populous counties during a single month, provides an especially revealing answer to this question.  Reaves & Perez, Pretrial Release of Felony Defendants, 1992, Department of Justice, Bureau of Justice Statistics Bulletin 1, 4 (Nov.1994).  The study concerned felony cases filed during the month of May 1992 and Milwaukee, Wisconsin was one of the counties studied. 

According to this study of felony defendants released prior to case disposition, 3 out of 4 made all scheduled court appearances. Logically, whether a felony defendant released on a case is a danger to the community is measured by the percent of those rearrested while released on bail.  Only approximately 14% of released defendants were rearrested for an offense allegedly committed while on pretrial release, 10% for a felony. Thus, not even 25% of the released felony defendants reoffended while released on bail, with only 10% for a felony. As for the 37% of felony defendants who were detained until disposition of their case, 5 out of 6 had bail set but were unable to secure their release, while the remainder (17% of detained defendants and 6% of all defendants) were ordered held without bail. As for those held on bail, the median bail amount was $10,000 (as compared to a median of $3,500 for released defendants).
 
The long-term implication of how high cash bail served as a coercive method to resolve a case was also found in this study.  The median time from the original felony arrest to adjudication was 118 days for released defendants and 46 days for those detained; the felony conviction rate for detained defendants was 70%, compared to 45% for released defendants, and upon conviction 87% of detained defendants (as compared to 51% of the released defendants) were sentenced to incarceration.

Likewise, an earlier study found that individuals charged with the most serious offenses had the lowest tendency to jump bail.  S.H. Schaffer, Bail and Parole Jumping in Manhattan in 1967, 25-28 (1970).  Further, imposing cash bail based solely upon the nature of the offense involves some element of wealth discrimination.  ABA, Standards for Criminal Justice, Commentary to Standard 10 - 2.2 (c) (1988).  Unfortunately, actual experience demonstrates that felony court judges actual bail decisions are almost exclusively determined by the district attorney's recommendations, which are based primarily on the severity of the crime charged.  See, Ebbesen and Konecni, Decision Making and Information Integration in the Courts:  The Setting of Bail, 32 J. Personality and Social Psych. 805 (1975).

The Eighth Amendment states that "excessive bail shall not be required." U.S. CONST. amend. VIII. Bail becomes excessive when a court sets it higher than reasonably necessary to ensure a defendant's appearance at trial.  See Stack v. Boyle, 342 U.S. 1, 5 (1951) ($ 50,000 bail excessive because defendants were charged with violation carrying maximum penalty of 5 years and $ 10,000 fine and government's only justification for bail was that 4 unrelated prisoners charged with same offense had previously forfeited bail); see, e.g., U.S. v. Beaman, 631 F.2d 85, 86-87 (6th Cir. 1980) ($400,000 bond was excessive because not necessary to ensure defendant's appearance at trial); U.S. v. Leisure, 710 F.2d 422, 425-26 (8th Cir. 1983) (bail over $ 1,000,000 excessive in light of facts that defendants had lived in the area for many years, had family in the area, had real property and employment in the area, and had no record of prior failure to appear in court).  The Supreme Court has indicated that the Excessive Bail Clause "has been assumed" to apply to the states.  Baker v. McCollan, 443 U.S. 137, 144 n.3. (1979); see Schilb v. Kuebel, 404 U.S. 357, 365 (1971). Three circuits have expressly held that the Excessive Bail Clause applies to the states. See Sistrunk v. Lyons, 646 F.2d 64, 71 (3d Cir. 1981) (Excessive Bail Clause integral to ordered liberty and binding on states through 14th Amendment); Pilkinton v. Circuit Court, 324 F.2d 45, 46 (8th Cir. 1963) (Excessive Bail Clause applies to states through 14th Amendment); Meechaicum v. Fountain, 696 F.2d 790, 791 (10th Cir. 1983) (per curiam) (same).

Likewise, Article 1, Sec. 8(2) of the Wisconsin Constitution, and Secs. 969.01 and 969.08, Wis. Stats., “monetary conditions of release may be imposed at or after the initial appearance only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court.”  Otherwise, either no bail or a personal recognizance bond is required.  Thus, where there is no risk that an defendant will not appear for further proceedings, the imposition of cash bail as a condition of release is inappropriate.  State v. Taylor, 205 Wis. 2d 664, 673, 556 N.W.2d 779(Ct. App. 1996) (regarding bail pending appeal).  If monetary conditions of release are used for reasons other than to assure appearance in court, “the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” Stack v. Boyle, 342 U.S. at 4; State v. Braun, 100 Wis.2d 77, 86-7, 301 N.W.2d 180(1981); Mulkovich v. State, 73 Wis. 2d 464, 477, 243 N.W.2d 198(1976).  In a separate opinion in Stack, Justice Jackson (joined by Justice Frankfurter) explained that a trial judge’s discretion in setting bail “is not free to make the sky the limit.”  Id. at 8 (Jackson, J., joined by Frankfurter, J.).
 

Up until a few weeks ago, I lived in Oconomowoc, WI.  Highway 67 runs right through the west end of Oconomowoc.  The highway is under major construction making it a maze for motorists to drive.   Even more interesting, Oconomowoc seems to have set the speed limit 10 miles slower than a vehicle needs to go in order to not have to stop at each one the dozen or so traffic lights that have sprung up at every intersection.   The other day, as I was driving along this stretch of Hwy 67, a car flashed its lights at me and sure enough about two blocks further there was a cop clocking for speeders.  Luckly, by flashing his lights, the other car told me to check my speed because a cop was clocking on-coming cars.  Of course, in case you were wondering, I was not speeding anyway.
However, I wondered about the motorist flashing his lights.   I wondered if by flipping her lights on and off like that, the motorist could be cited with some traffic violation or even obstructing.  At first, I ran through a Fourth Amendment analysis in my head trying to determine if a driver flashing lights at another driver gave reasonable suspicion or probable cause for an arrest.  Of course, Wisconsin Statute 347.12 (1) (a) specifically entitles an operator of a vehicle to intermittently flash the vehicle's high-beam headlamps at an oncoming vehicle but only if the other vehicle’s high-beam headlamps are lit.  See, Waukesha County v. Meinhardt, 2001 WI App 146, ¶¶ 9-10, 630 N.W.2d 277 (holding that Meinhardt did not commit a violation by flashing his high-beam headlights two times at an oncoming vehicle, because the plain language of the statute did not prohibit the quick flashing of high-beam headlights).  But what if the other vehicle’s high beams are not lit?  Can high beam headlights be flashed?
However, it could be argued that Wisconsin Statute 347.12 (1) (a) should be read like New York Vehicle and Traffic Law Section 375 (3).  In New York, the practice of flashing high beams is not illegal. Rather, New York Vehicle and Traffic Law Section 375 (3) merely states that headlamps “shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle.” In a 1994 decision, the Appellate Division, Second Department held that flickering high beams do not amount to “dazzling lights.” People v. Lauber, 162 Misc.2d 19, 617 N.Y.S.2d 419 (2d. Dept. 1994). In 2009, the Fourth Department declared more directly that the flashing of lights by itself is not a violation of the New York Vehicle and Traffic Law Code, and that stopping a vehicle based upon the driver flashing his or her high beams is illegal. People v. Rose, 67 A.D.3d 1447, 889 N.Y.S.2d 789 (2009)
The Supreme Court has held that an arrest for the most trivial offense does not violate the Fourth Amendment if state law allows it.  Atwater v. City of Lago Vista, 532 U.S. 318 (2001).   Officers have the discretion to write a ticket or to arrest and may base that decision upon whether they want to search the motorist and possibly even the vehicle.  The law has developed so that the officer need not articulate a legal basis for the search.  United States v. Drayton, 536 U.S. 194 (2002).   When the officer’s testimony of the incident indicates an absence of lawful justification for the search, the reviewing and appellate courts will uphold the search if there are other legal grounds for the search.  Id.   The message those courts are sending to the police is search the car now, and a reviewing court will find a lawful justification for the search later.  
With the blessing of some members of the judicial branch, the traffic code has effectively become the new general warrant to stop people who are driving for any reason.  Whren v. United States, 517 U.S. 806, 818 (1996) (“[T]hat the multitude of applicable traffic and equipment regulations is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop.” (internal quotation marks omitted)); David A. Harris, “Driving While Black” and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. CRIM. L. & CRIMINOLOGY 544, 559 (1997) (“[W]ith the traffic code in hand, any officer can stop any driver any time. The most the officer will have to do is ‘tail a driver for a while,’ and probable cause will materialize like magic.”).  In a series of decisions the United States Supreme Court has shredded any Fourth Amendment protection you have while driving a vehicle.  . See Arizona v. Johnson, 555 U.S. 323 (2009) (allowing police discretion to remove driver or passenger from a car to pat them down for weapons); Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (allowing police discretion to arrest a motorist for minor traffic violations); Ohio v. Robinette, 519 U.S. 33 (1996) (allowing police to pull a motorist out of a vehicle to ask questions unrelated to the traffic stop); Whren v. United States, 517 U.S. 806 (1996) (holding that officer’s motivation is not determinative in establishing the reasonableness of a lawful traffic stop under the Fourth Amendment).  Clearly, multitude of traffic offenses allows a police officer to stop almost any motorist.  Peter Shakow, Let He Who Never Has Turned Without Signaling Cast the First Stone: An Analysis of Whren v. U.S., 24 AM. J. CRIM. L. 627, 628 (1997) (“[The decision in Whren] allows the police unfettered discretion to stop motorists for any traffic violation as a pretext to investigate other unrelated offenses. A police officer need have nothing more than an unsubstantiated hunch, or even an illegitimate bias, that a motorist is engaged in drug or other criminal activity to pull him or her over, if even the most minor traffic infraction has been committed.”).
Suddenly, I realized one driver was communicating with another driver.  After all, some car owner's manuals, which identify the steering column control lever which allows headlight flashing as the "optical horn". Headlight flashing can be used simply to let other drivers know of one's presence and the other car is passing.  See, Chevy Sonic Owner Manual 2015, https://www.chevrolet.com/content/dam/Chevrolet/northamerica/usa/nscwebsite/en/Home/Ownership/Manuals_and_Videos/02_pdf/2015-sonic-owners-manual.pdf. Some drivers flash their headlights as a signal that they are yielding the right of way to another driver, for example at an intersection controlled by stop signs.
The point, is that there is communication going on between drivers by means of vehicle head lamps.  Moreover, this communication has a message.  “When “[a]n intent to convey a particularized message [is] present, and in the surrounding circumstances the likelihood [is] great that the message would be understood by those who viewed it,” it is protected speech. See Spence v. Wash., 418 U.S. 405, 410-11 (1974).  So is it possible that flashing headlamps between drivers is protected speech?  Moreover, the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality).  Therefore, the chilling effect of a municipalities’ policy and custom of having its police officers pull over, detain, and cite individuals who are perceived as having communicated to oncoming traffic by flashing their headlamps and then prosecuting and imposing fines upon those individuals is a violation of your First Amendment rights. 
Some courts have declared just that.  Commonwealth v. Beachey, 728 A.2d 912, 913 (1999); Elli v. City of Ellisville, 4:13CV711 HEA (ED Mo. February 3, 2014), http://www.aclu-mo.org/files/4913/9144/8084/Order_Granting_Preliminary_Injuction.pdf.  See also, Andrew Rice, “High-Beam Conviction Overturned \ Pa. Supreme Court: Man Broke No Law By Flashing Headlights To Warn Cars of Speed Trap".(The Philadelphia Inquirer. April 23, 1999), http://articles.philly.com/1999-04-23/news/25519260_1_speed-trap-beams-police-car; Stutzman, Rene, "Sanford judge rules in favor of motorist who flashed his headlights". Orlando Sentinel (Orlando Sentinel May 22 2012), http://articles.orlandosentinel.com/2012-05-22/news/os-flashing-headlights-ruling-20120522_1_ryan-kintner-free-speech-headlights; "Judge: Drivers Allowed to Warn Fellow Motorists of Speed Traps". (Wall Street Journal. 02-04-2014), http://blogs.wsj.com/law/2014/02/04/judge-drivers-allowed-to-warn-fellow-motorists-of-speed-traps/.  In New Jersey, drivers are allowed to flash their headlights to warn approaching drivers about a speed trap ahead.  Drivers Allowed to Flash Speed-Trap Alerts, http://www.nytimes.com/1999/08/01/nyregion/drivers-allowed-to-flash-speed-trap-alerts.html 
 
The Superior Court of New Jersey Appellate Division held that a statute limiting how far high beams may project is not violated when a motorist flashes his or her high beams to warn oncoming motorists of radar. The Court also concluded that a stop by a police officer based upon high beam flashing is also improper.  State v. Luptak, A-6074-97T1 (Superior Court of New Jersey Appellate Division July 29, 1999), http://www.dpdlaw.com/Luptak.PDF.  In Ohio, courts have held that the act of flashing one's headlights so as to alert oncoming drivers of a radar trap does not constitute the offense of obstructing a police officer in the performance of his duties, where there was no proof that the warned vehicles were speeding prior to the warning.  Warrensville Hts. v. Wason, 361 N.E.2d 546 (1976); Akron v. Matteson, 299 N.E.2d 315 (M.C. 1972).  In another case, where a driver received a citation under an ordinance prohibiting flashing lights on a vehicle, a court held that the ordinance referred to the noun of flashing lights and did not prohibit the verb of flashing the headlights on a vehicle.  Vill. of Kirtland Hills v. Garcia, 644 N.E.2d 691 (1994).  In a different case, a court held that a momentary flick of the high beams is not a violation of Ohio R.C. 4513.15 (which prohibits drivers from aiming glaring rays into the eyes of oncoming drivers).  State v. Woods, 621 N.E.2d 523 (1993)

As a lawyer and parent, I have had to deal with teenagers on the internet.  One of the most difficult things I have found as a parent is to understand how my children relate to the social media on the Internet. Unlike my children, I did not grow up with the internet so find the internet to be foreign soil. An estimated 92% of teenagers go online daily, and nearly a quarter report being online “almost constantly” according to a 2015 report by the Pew Research Center.

With more teenagers owning smartphones each year, these numbers continue to rise, and teenagers–especially girls–are engaging with social media at younger ages. This trend has led to an increase in incidences in which social relationships play out online rather than in person. A 2014 study published in the Journal of Youth Studies entitled, “It's just drama’: teen perspectives on conflict and aggression in a networked era,”  http://www.tandfonline.com/doi/abs/10.1080/13676261.2014.901493 found that this phenomenon has driven teens to redefine what they consider interpersonal “drama.” This term is now often used to refer to relationship conflict that takes place on a social media stage.
Therefore, parents may find a 2015 study, “How to Cope With Digital Stress: The Recommendations Adolescents Offer Their Peers Online,”  http://jar.sagepub.com/content/early/2015/06/18/0743558415587326.abstract to be very helpful.  This study examines comment threads shared among adolescent peers to better understand how young people advise each other when it comes to online bullying. The authors identified six major digital stressors:

• Public shaming and humiliation
• Impersonation (Using digital platforms to pretend to be another person usually “for the purpose of slandering, mocking or embarrassing the impersonated.”)
• Mean and harassing personal attacks
• Breaking and entering (Using another person’s online account or digital devices without permission.)
• Pressure to comply (Experiencing pressure “to grant access to accounts or nude photographs.”)
• Smothering (Excessive contact via online messaging in which “the content of messages is not intended to hurt nor harm, but the quantity is itself problematic.”)

The study’s findings include:

• The authors identified five common types of recommendation patterns: get help from others; communicate directly; cut ties with the person involved; ignore the situation; use digital solutions.
• A total of 17.9 percent of recommendations involve getting help from others in some way.
• Almost half of all recommendations to get help from others specify contacting a lawyer or law enforcement authority such as the police. These recommendations are particularly common in situations dealing with threats to disseminate nude photographs. Parents and other adults are less commonly recommended, with school officials and peers being least recommended.
• Communicating directly, or confronting and speaking to the person or persons involved, comprises 21.3 percent of total recommendations, and is the most commonly offered advice in situations of breaking and entering.
• Cutting ties comprises 20 percent of all recommendations, and is the most common strategy recommended for smothering.
• Almost all (94.7 percent) of all recommendations to cut ties are made for situations involving a romantic relationship. And, the recommendation is typically to end the relationship.
• Ignoring or avoiding the situation is recommended in 23.4 percent of recommendations, and is the most common recommendation in response to stories about feeling pressure to comply.
• Utilizing digital solutions, particularly by using digital relationship management tools such as “blocking,” comprises 7.2 percent of all recommendations. These digital solutions are the most common recommendation for adolescents dealing with impersonation.

The authors note a few limitations of the study. In particular, they caution that, due to the nature of the information available, they could not look for differences in recommendations according to age or gender of the recommender. In addition, they note that examining the recommendations that teens give one another does not necessarily represent how the teens themselves cope when faced with similar situations of cyberbullying or online harassment. Fortunately, however, this study seems to support what, in the words of Emily Weinstein, a doctoral student at Harvard School of Education, has said, “although young people are operating in a digital context, many of the skills they need aren’t new.”

“Ideas are far more powerful than guns. We don't allow our enemies to have guns, why should we allow them to have ideas?” Joseph Stalin, Soviet dictator 1925-1953

The history of the First Amendment demonstrates that “[t]hose who won our independence by revolution were not cowards; . . . .” they realized that “[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.” Whitney v. California, 274 U.S. 354, 377 (1927) (Brandeis, J., concurring). Today, courts and theorists recognize that free speech is protected for more than its role in democracy: the underlying rationale now includes discovering truth, advancing personal identity and autonomy, and promoting tolerance in society. Erwin Chemerinsky, Constitutional Law: Principles and Policies, 925 (3d ed. 2006).

The First Amendment does not accept the words of Stalin barring distribution of words or ideas; even stupid, offensive expression of ideas. Instead, the First Amendment precludes the government, including the courts, from restricting expression "because of its message, its ideas, its subject matter or its content." New York Times v. Sullivan, 376 U.S. 254, 270 (1964). This requires that "...citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment." Boos v. Barry, 485 U.S. 312, 322 (1988).

A citizen has a right to express themselves by using offensive, outrageous words and phrases to convey messages. Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011) (Westboro Baptist Church’s picketing of the soldier’s funeral with signs such as “Thank God for Dead Soldiers” and “You’re Going to Hell” protected expression because “[we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.”); Cohen v. California, 403 U.S. 15 (1971). It is "often true that one man's vulgarity is another's lyric" and that free speech involves not only responsible criticism of public officials but the right to speak foolishly and without moderation. Cohen v. California, 403 U.S. at 25-26; Baumgartner v. United States, 322 US 665, 673-74(1944). Emphasis added. Critically, an expression can be offensive, while not being obscene. Luke Records, Inc. v. Navarro, 960 F.2d 134, 139 (11th Cir. 1992). The Supreme Court has recognized that the First Amendment protects expression even if it is:

‘‘disagreeable’’ speech, Texas v. Johnson, 491 U.S. 397, 414 (1989) (burning of the flag)

‘‘distasteful’’ speech, Cohen v. California, 403 U.S. 15, 21 (1971) (wearing of a jacket bearing the words ‘‘Fuck the Draft’’ in a courthouse)

speech that has ‘‘profound unsettling effects,’’ Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (provocative speech)

‘‘misguided’’ speech, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995) (exclusion of a group from a private parade); Cantwell v. Connecticut, 310 U.S. 296, 310 (1940) (religious speech)

‘‘scurrilous’’ speech, Cohen, 403 U.S. at 22

racial epithets, Brandenburg v. Ohio, 395 U.S. 444, 446–47 (1969) (per curiam) (speech at a meeting of the Ku Klux Klan)

speech that ‘‘stirs people to anger,’’ Terminiello, 337 U.S. at 4.

‘‘unseemly expletive[s],’’ Cohen, 403 U.S. at 23.

‘‘four-letter word[s],’’ Id. at 25.

‘‘execrations (cursing or denouncing),’’ Id. at 23.

‘‘contemptuous’’ speech, Street v. New York, 394 U.S. 576, 593 (1969) (burning of the flag accompanied by derogatory words relating thereto).

‘‘offensive’’ speech, Hill v. Colorado, 530 U.S. 703, 715 (2000) (statute prohibiting certain expressive activity
within 100 feet of the entrance to a medical facility); Texas v. Johnson, 491 U.S. at 414; Cohen, 403 U.S. at 23, 25; Street, 394 U.S. at 592

‘‘embarrass[ing]’’ speech, NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982) (boycott of commercial establishments)

‘‘insulting’’ speech, Boos v. Barry, 485 U.S. 312, 322 (1988) (signs near an embassy that might bring the foreign government into ‘‘public odium’’ or ‘‘public disrepute’’

‘‘outrageous’’ speech, Id.,

even ‘‘hurtful’’ speech. Hurley, 515 U.S. at 574.

In fact, former Secretary of State John Kerry offered a defense of freedom of speech and thought in the United States when he said, "People have sometimes wondered about why our Supreme Court allows one group or another to march in a parade even though it's the most provocative thing in the world and they carry signs that are an insult to one group or another . . . The reason is, that's freedom, freedom of speech. In America you have a right to be stupid - if you want to be." Kerry defends liberties, says Americans have "right to be stupid", Tue, Feb 26, 2013, Reuters, http://news.yahoo.com/kerry-defends-liberties-says-americans-stupid-141450112.html

This comment by John Kerry is not mere political hyperbole. One need only look to the facts of Snyder v. Phelps, supra., to realize that when John Kerry spoke, he spoke the constitutional truth: a father in grief, a son who gave his life for his country, and a religious group that took advantage of the son’s funeral to express a messages like ‘‘God hates and punishes the United States for its tolerance of homosexuality, particularly in [its] military,’’ ‘‘God Hates the USA/Thank God for 9/11,’’ ‘‘America Is Doomed,’’ ‘‘Don’t Pray for the USA,’’ ‘‘Thank God for IEDs,’’ ‘‘Fag Troops,’’ ‘‘Maryland Taliban,’’ ‘‘Fags Doom Nations,’’ ‘‘Not Blessed Just Cursed,’’ ‘‘Thank God for Dead Soldiers,’’ ‘‘Pope in Hell,’’ ‘‘Priests Rape Boys,’’ ‘‘You’re Going to Hell,’’ and ‘‘God Hates You,’’ Snyder, 131 S. Ct. at 1213, that many consider outrageous if not stupid. The cultural pressure on the Court to uphold the verdict against the church was unquestionably intense. Nevertheless, the Court found the expression protected by the First Amendment, even if it involved a private figure like Mr. Snyder. Snyder, 131 S. Ct. at 1217 Any Court which adheres to the First Amendment under such circumstances deserves credit for not constructing an exception to free expression to sustain an otherwise desirable result. By example, the Supreme Court has let all courts know that the First Amendment would not be worth much if it gave way when truly unpopular speech were at issue.
Snyder demonstrates that“[u]nder the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974).

As the late Justice William J. Brennan wrote in holding that flag burning is a form of offensive expression protected by the Constitution, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989) (emphasis added). This freedom to speak exists if speaker and listener are face to face or conveyed anonymously via the telephone. United States v. Popa, 187 F.3d 672, 678 (D.C. Cir. 1999). To persuade others to his own point of view, a speaker may at times resort to exaggeration, to false statement, to vile or abusive language towards people. But we have determined as a nation, in the light of history, that, in spite of the probability of excesses and abuses, free speech is, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. Cantwell v. Conn., 310 U.S. 296, 310 (1940)

Additionally, as Texas v. Johnson, supra, illustrates the Supreme Court has “long recognized that its protection does not end at the spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404 (1989). The First Amendment shields more than political speech and verbal expression; its protections extends to expressive conduct like entertainment, Winters v. New York, 333 U.S. 507, 510 (1948); film, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952); theater, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); music, without regard to words, Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); "marching, walking or parading" in uniforms displaying the swastika, National Socialist Party of America v. Skokie, 432 U.S. 43 (1977); the refusal to salute the flag as part of a regularized school activity, West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632 (1943); and even parades without banners or written messages, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) (protecting hurtful expression). "[T]he Constitution looks beyond written or spoken words as mediums of expression." Hurley, at 569. If the First Amendment reached only "expressions conveying a `particularized message,’" its "protection would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll." Id. (quoting from Spence v. Washington, 418 U.S. 405, 411 (1974)(per curiam)).

Likewise, it is well established that the Constitution protects not only the right to speak a message but the right to receive a message as well. "This freedom [of speech and press] . . . necessarily protects the right to receive . . . ." Martin v. City of Struthers, 319 U.S. 141, 143 (1943); see Griswold v. Connecticut, 381 U.S. 479, 482 (1965); Lamont v. Postmaster General, 381 U.S. 301, 307 -308 (1965) (Brennan, J., concurring). This right to receive information and ideas holds regardless of their social worth, see Winters v. New York, 333 U.S. 507, 510 (1948), is fundamental to our free society. Finally, the Supreme Court has made clear that when a receiver does not want to receive a message, ‘‘the burden normally falls upon the [receiver] to avoid further bombardment of [his] sensibilities.’’ Snyder, 131 S. Ct. at 1220 (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 210–11 (1975)).