What Yoga Pants Can Teach Us About Civil Liberties PART 1: Freedom of Speech
Posted: October 30, 2016|Category: Free Speech Category: Right to Petition & Protest Category: Women's Rights
by Steven Brown, Executive Director
It is difficult to believe that a story about yoga pants flared up into an international controversy and has stretched out so far and for so long. Perhaps the only thing more unexpected is the number of civil liberties issues, specifically relating to freedom of speech and freedom from sex discrimination, that happen to be embedded in this controversy.
The genesis of this contretemps, as most everybody knows, was the publication in the Barrington Times of a letter to the editor written by resident Alan Sorrentino, bemoaning the wearing of yoga pants by women over 20 and the “unforgiving perspective they provide.” Calling the practice “bizarre,” a “disaster,” “tacky,” “disturbing,” and a host of other adjectives, his letter called on women to “grow up and stop wearing them in public.” The reaction was quick and thick. Some people chided Mr. Sorrentino for his body shaming, while others chastised the Times for printing the letter in the first place. A peaceful “yoga pants parade” in Sorrentino’s neighborhood to protest the letter led others to criticize the protesters for attempting to bully the writer.
This post examines the many significant free speech lessons that flow from this exercise in democracy. In a post to be published tomorrow, I will explore the just-as-important issues of sex discrimination that are highlighted by this unexpected public controversy.
Let’s start with some basic principles. First, Mr. Sorrentino clearly had a right to speak his mind and pen and submit his letter – whether intended satirically or otherwise – on this fashion issue, and the Barrington Times had a correspondingly clear First Amendment right to publish it. Regardless of Sorrentino’s motivation and regardless of whether some people found the letter offensive, the role of free speech in a democratic society is to do more than allow for the recitation of only pablum.
At the same time, of course, those who were offended by Sorrentino’s letter had their own First Amendment rights to express their views about it. While there were many ways to do so – including by responding with their own letters to the editor – some felt that a protest march featuring women wearing yoga pants was a more powerful way to make their case against the body shaming that they felt motivated the letter. But that has led to round three: recriminations against the protesters by some who see the march as having a chilling effect on letter-writers seeking to express unpopular views.
Ironies abound in examining the free speech issues raised by this hullabaloo. Sorrentino and his supporters appropriately rallied behind the call of “free speech” to defend his First Amendment right to write the controversial letter, but then condemned the marchers for exercising their own First Amendment rights to express their counterviews with a peaceful protest. On the other hand, comments from some of the participants in the protest were somewhat less than broad-minded. Even as they took advantage of their First Amendment rights to peacefully protest against Sorrentino’s views, some of them suggested that his letter should never have been published.
As the ACLU has long argued, the response to “bad” speech should be more speech, not censorship. That principle should be taken to heart by both Sorrentino’s allies who condemned the march and opponents of the letter who might prefer to stifle, rather than challenge, the sentiments expressed in it. It is better to know those views are out there than to pretend they don’t exist.
Somewhat surprisingly, editorials in both the Times and the Providence Journal condemned the march by the protesters, referring in at least one instance to a “mob” atmosphere. Not having attended the event, I can rely only on media accounts and videotapes, but if there is one word that would best seem to describe the atmosphere, “circus” rather than “mob” comes more immediately to mind.
Organizing a march to protest a single letter to the editor in a small town newspaper may have been an overreaction, but that does not, by itself, turn it into an act of intimidation. By all accounts I have seen, the marchers were peaceful and respectful. A July 4th parade with hundreds of marchers is many things, but its size does not make it a mob. While phoned-in death threats allegedly made by some teenagers to Sorrentino are deplorable – and, needless to say, not protected by the First Amendment – the illegal actions of some should not and cannot be used to justify the stifling of peaceful protests by others.
What appeared to particularly bother the Times, the Journal, and other critics of the march was that it involved a protest in a residential neighborhood. Bringing the protest to Sorrentino’s house, critics felt, took this march over the line of acceptability. But such a view weakens the role of the First Amendment. “Location, location, location” can affect the meaningful exercise of free speech as much as it affects real estate. A few years ago, representatives of the media understandably objected to legislation that, if it had passed, would have made it illegal to place unsolicited newspapers on a person’s private property. The newspaper’s availability elsewhere hardly justified such a limitation, and similar principles apply here.
In any event, while Barrington does have an ordinance generally banning so-called targeted residential picketing – i.e., protesting directly in front of a person’s residence – that does not appear to be what happened here. The marchers instead walked through Sorrentino’s neighborhood to make their point, and while they clearly intended to march by his house, that is not the same as holding a rally directly in front of his lawn.
In considering whether this residential protest was appropriate, at least be certain your views are consistent. Contemplate this thought experiment: A Native American writes a letter to the editor condemning the celebration of Columbus Day. Organizers of the Columbus Day parade decide to reroute their parade to pass by the letter writer’s house. If you supported the yoga pants parade, do you agree these parade organizers are exercising their First Amendment rights in the same way? If you opposed the yoga pants march as an intimidating tactic, do you feel the same about this route change? When it comes to parades, the First Amendment cannot be a one-way street.
Finally, it is worth noting that even targeted residential picketing has a long and storied history in the exercise of free speech rights. Without denigrating the importance of the notion of one’s home as one’s castle, residential picketing has been used by the poor and the powerless as one of the few means at their disposal to publicly make their grievances heard. Court cases show that workers challenging oppressive employers, poverty groups battling slum landlords, and civil rights groups protesting the work of government officials have used such picketing. Of course, this is not to say people should have a right to protest in neighborhoods any way they please. Undue noise, obstruction of roadways or sidewalks, and trespassing on private property can all be appropriately regulated.
In considering the free speech issues involved in this controversy, it is worth reciting one of the U.S. Supreme Court’s most eloquent defenses of the First Amendment. In a 1949 case, involving the arrest of a person who gave a racist and inflammatory speech that prompted unruly behavior by a large crowd of protesters, the Court powerfully wrote:
“[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.”
As this quote emphasizes, the exercise of First Amendment rights in a variety of contexts may often be annoying, inconvenient or intrusive. Any person publicly expressing a minority view must be prepared for a backlash, whether it is through nasty calls to talk-in shows, critical letters to the editor, or – most common today – offensive barbs on Twitter or Facebook. A peaceful protest through a neighborhood may actually be one of the least intimidating exercises of free speech in this age of readily available, timeless and often anonymous social media platforms.
So please continue to write letters to the editor. Continue to respond to those letters in peaceful ways. Recognize that both those being provocative and those being provoked are protected by a constitutional right that values the fundamental importance of the back and forth of free speech for all, as uncomfortable as it sometimes may be.
This is far from the end of the matter. In my next post, I will look at the issues of sex discrimination that generated the backlash to this letter to the editor, for there are also some important and conflicting messages raised when one analyzes the controversy from that angle.