Chez Chesler

The classic picture of a young football fan crazed with excitement for the team is shirtless, sometimes painted in the team's colors. The Supreme Judicial Court tells us that Article I of the Declaration of Rights in the Constitution of the Commonwealth of Massachusetts requires that equality under the law shall not be denied or abridged because of sex. Justice Greaney, in his concurring opinion in Goodridge, tells us that this provision guarantees "to all people of the Commonwealth -- equally -- the enjoyment of rights that are deemed important or fundamental. The withholding of relief from the plaintiffs, who wish to marry, and are otherwise eligible to marry, on the ground that the couples are of the same gender, constitutes a categorical restriction of a fundamental right." What right is more fundamental that the right of expression (freedom of speech and of the press)? That right is generally protected more strongly even than the right to choose whom one wishes to marry. And yet Tara Brogdan was arrested at the Patriots rolling rally on Tuesday for expressing her exhuberance at their third Superbowl victory by means of removing her shirt.

Rowdy fans tossed for a loss By Jules Crittenden and Michele McPhee Wednesday, February 9, 2005

... Even before the Pats showed up, a blonde-haired, green-eyed Westford lass allegedly hoisted her top at Tremont and Park streets.

"This caused the crowd at the Patriots celebration to become loud and excited," police reported. Tara Bogdan, 18, was charged with indecent exposure.

(Note that Ms. Bogdan was not charged with inciting the fans to riot, and one would think that loud and excited is the appropriate way to greet the team.) For the converse of this reasoning, see http://volokh.com/archives/archive_2005_02_07.shtml#1108149480