He doesn't get the picture

Legislator's weak grasp on freedom of speech becomes Internet joke

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A lot of folks are now altering photographs of Augusta state Rep. Earnest Smith to make him look silly.

But nothing can compare to how he’s making himself look.

In supporting a fellow Democrat’s bill banning the “obscene” Photoshopping of a picture of someone else, which might be done to mock or tease someone or just have fun, Rep. Smith had this to say:

“No one has a right to make fun of anyone. You have a right to speak, but no one has a right to disparage another person. It’s not a First Amendment right.”

This is a lawmaker, folks.

It’s hard to believe, even in a state that gave rise to U.S. Rep. Hank Johnson – who once worried the island of Guam might tip over – that an American citizen would be so ignorant of our rights. It’s mind-boggling to think that people who help write our laws are that out to lunch.

Must we? Really? Must we refute the representative’s asinine assertion?

First, it should go without saying that Americans have a fundamental right to mock others. It’s an integral part of free speech; ridicule and satire simply cannot be boiled out and separated from free speech. It’s impossible.

And while parody and sarcasm are something of an art that probably shouldn’t be tried by amateurs, they are no less protected under the Constitution.

All you have to do to understand this simple fact is watch television for a day. The late-night shows alone are savage when it comes to teasing and even tormenting public officials and celebrities for their tomfoolery.

In truth, exposing incompetence, absurdity and nonsense with biting humor is an honored talent as old as civilization itself. It’s certainly a great American tradition, perhaps best exemplified by the beloved art of editorial cartooning.

But even if all this is lost on someone, there’s plenty of case law to be found. In one landmark case, the U.S. Supreme Court ruled unanimously that even the disgusting Hustler magazine was protected by the First Amendment in its lampooning of the Rev. Jerry Falwell.

You don’t have to be a lawyer to know of the case, either. It was quite widely covered in the news and debated in society. Where was Mr. Smith?

The representative’s position, and how ridiculously he supports it, will no doubt be fodder for much mocking about the land. Indeed, national news outlets began hearing about it this week, with one using a bit of understatement to conclude that Smith possesses “an unconventional grasp of the First Amendment.”

But his ignorance of the law and his arrogance toward his fellow Americans is not funny.
It is symptomatic of a tin-pot tyranny that would have the government decide what is and what isn’t allowable in our discourse. It’s the same kind of oppression that attempts to say you can’t publish cartoons of Mohammed.

The bill in question isn’t any more acceptable by banning photo manipulation that “causes an unknowing person wrongfully to be identified as the person in an obscene depiction.” Do you really want to leave it up to Earnest Smith to say what “obscene” is?

A people cannot be said to be truly free without the freedom to think and speak as he or she sees fit.

Some Americans understood that in the 1770s. Most understand it today.

Frighteningly, there are some roaming the halls of power even now who do not.

Comments (40) Add comment
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Riverman1
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Riverman1 02/15/13 - 04:41 pm
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"The fake nude photos of

"The fake nude photos of Smith would never have existed if Smith had not pre-emptively attacked the First Amendment."

I'm not sure I get that.

Darby
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Darby 02/15/13 - 04:50 pm
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Given that the courts always set a much higher standard for...

lawsuits by public figures such as elected officials, there will not be an award, civil or otherwise....

If so, Bush would have gone to court against the "Truthers" who accused him (and still do) of perpetrating the attacks on 9-11.

And Obama would bring legal action against me for calling him a brain dead moron.

Not that he would have a case...

Little Lamb
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Little Lamb 02/15/13 - 04:51 pm
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Again

I'll explain it again, RM. Rep. Earnest Smith did not co-sponsor his colleague's bill in response to someone's posting fake nude photos of him on the internet. No, someone posted fake nude photos of Smith on the internet after Smith co-sponsored the bill.

In other words, Smith was opposed to the first amendment before the photos were published. That's sort of the point of ACES’ editorial today. Smith is a lawmaker. He should not be urinating on the U.S. Constitution by sponsoring laws that trample Constitutional rights.

Riverman1
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Riverman1 02/15/13 - 04:56 pm
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Darby, lawsuits by public figures

"lawsuits by public figures such as elected officials, there will not be an award, civil or otherwise...."

We are not talking about a lawsuit, just to be accurate. If a law is passed as Rep. Smith proposes, it is not retroactive...so on that respect you are right.

Riverman1
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Riverman1 02/15/13 - 04:57 pm
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LL, so this opposition is

LL, so this opposition is because Smith brought up the bill after the false photo? So putting aside when the false nude photo was posted, do you not see a reason to make it illegal to post a false photo of someone nude or in sexual poses?

Little Lamb
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Little Lamb 02/15/13 - 05:01 pm
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First Amendment

I'll stand foursquare with Mike Ryan that the First Amendment to the U.S. Constitution rightly prohibits lawmakers from making illegal the publishing of false images of someone nude or in sexual poses.

Little Lamb
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Little Lamb 02/15/13 - 05:04 pm
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By Definition

Remember, when you alter an image in Photoshop or any other photo editing software, the resulting image(s) is/are by definition false. Everything that comes out of Photoshop is false, so no one has any expectation of truth or accuracy when viewing an altered image.

Is that crazy or what?

Riverman1
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Riverman1 02/15/13 - 05:05 pm
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Okie, dokie

Okie, dokie

Little Lamb
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Little Lamb 02/15/13 - 05:13 pm
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Page Two

And, since we're on page two of the comments, I'll repeat my call from page one that Rep. Earnest Smith should call a press conference and apologize to all citizens of Georgia for misunderstanding the First Amendment to the Constitution of the United States; and then to withdraw his sponsorship of the Photoshop bill.

Riverman1
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Riverman1 02/15/13 - 05:17 pm
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If Rep. Smith decides to

If Rep. Smith decides to apologize, save me a place beside him so I can repent, too. :)

Darby
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Darby 02/15/13 - 05:33 pm
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Riverman1.. Just a thought, based on your 3:56. "If a law is...

passed as Rep. Smith proposes, it is not retroactive...so on that respect you are right."

I was just thinking about Bill Clinton passing that tax bill that WAS made retroactive to the first of the year. People who had died before the bill was passed were STILL liable for the tax. A death tax, some called it. Remember, we are talking liberals here.

sojumaster
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sojumaster 02/20/13 - 03:17 pm
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Apples and Oranges

seenitB4, those cases you site are completely different from photoshopping and mockery of people, in particular public figures.

There is a big difference between freedom of speech and the right to publish someone's picture for profit and violation of privacy. It is not against the law to photograph someone on private property that is publically accessible (implied permission) and there are no clearly marked "no photography" signs on the premise, as per the Bosley vs Hustler case. It is a completely different matter in publishing those photos without permission. This is actually a 4th Amendment case (right to privacy) and this is not a 1st amendment case.

You 2nd case (Farwell vs Hustler) is directly based on the 1st amendment, which does support mockery and parody of public figures, and is protected. There is one caveat to that case, Hustler won because it was an OBVIOUS mockery and was not trying to pass it off as truth. If Hustler attempted to pass the parody as truth, as to slander Farwell, Hustler would have lost in a very painful way.

sojumaster
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sojumaster 02/20/13 - 03:36 pm
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Apples and Oranges 2

seenitB4,

Also, beside the first case being a violation of privacy, it was also a case of violation of her copyrighted material. Catherine Bosley had bought the rights to photos from the photographer back in 2003. So Hustler basically broke copyright laws, even when in this case where the pictures went viral online, Hustler (or any publication company) cannot simply published the picture without permission, as they did not own the copyright or ownership of those pictures.

If she did not bought the rights of the pictures, the picture is the property of the photographer and it is up to that individual to do with it as they please. At that point, it becomes a bit murky on whether her privacy is violated or not if the photographer sold the rights of the pictures to Hustler. It would be reasonable that a publishing compnay would also request the photographer to turn over any waiver paperwork signed by the subject(s) of the picture(s) to clear themselves of any potential lawsuits.

I added these additional pieces of information after some further research on the case.

So this was a really very poor choice of a court case to comment with in regards to this article.

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