First Amendment Right to Be “Weird”

It occurs to me today that Americans do have a Constitutional right to be “weird” by virtue of the First Amendment’s freedom of expression.

Actually, the First Amendment contains no literal “freedom of expression” any more than it contains a “freedom of association.” These are re-castings of the First Amendment’s guarantees, as interpreted by the federal courts. The First Amendment itself reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The U.S. Supreme Court has interpreted “speech” very broadly to include silent gestures as noted in Cruise-Gulyas v. Minard, 918 F.3d 494 (6th Cir. 2019) (“a citizen who raises her middle finger engages in speech protected by the First Amendment”). I would argue that as silence is to speech, toileting is to assembly. If a person chooses to use ‘toilet A’ or to use ‘toilet B,’ the person implicitly elects to associate (or assemble) in a location and with other people. (The contrapositives would also be true in that choosing B rejects A and associating with B refuses association with A.)  The same holds for religion, many flavors of which would seem “weird” to the eyes of many. But the bottom line is that Americans have a First Amendment right to express themselves, though I would propose here that the First Amendment also imposes an equal duty upon Americans. Any American who dislikes the religious expression of another is free to avoid such places. Any American who dislikes the speech of another is free to walk away. There is no difference with sexual orientation or gender identification. When it comes to using a public toilet, for instance, all Americans can choose to “hold it” until they return home. The American choosing a particular toilet facility has as much right to choose that facility as every other American has to reject a toilet facility.  It’s really just this simple: anyone who want to live in a rigidly structured environment can purchase land for a castle or a commune, but being part of a society means being around others who comprise that society.

The first amendment gives us the freedom of expression that embodies the rights to speak, to ignore, to show, to repudiate, to worship, to abstain, to believe, to disbelieve, to assemble, to disperse, to protest, to accept, to advocate, to condemn, to attend, to avoid, etc, etc. All of these actions exist alone or in combination with the various guarantees of the First Amendment. Basically the First Amendment is a right to be an individual, to conform or not to conform, and as much as we have constitutional rights, we also have constitutional duties. That is to say we have a constitutional duty to respect other people’s constitutional rights. To illustrate, the government cannot adopt a religion, the government cannot prohibit a religion, and we the people must respect anyone’s right to practice religion or to abstain from religion. The same is true of expression. One person’s right to conform is balanced by another person’s right to defy.

“Weirdness” is just a judgmental synonym of “otherness.” Being “weird” is nothing more than being different. A person who openly embraces “weirdness” implicitly expresses her or his beliefs or opinions, and the right to do so is the foundation of the First Amendment.

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