The law is more complicated than any of us can bear. As kids, we thought we knew the law, and we applied it daily. "Finder's keepers, losers weepers." Or my favorite, "A deal's a deal." Then you go to law school and the finders keepers theory of property law is lampooned. And forget about the "deal's a deal" argument in contracts class. There are a zillion ways to back out of a contract, and if you don't know those exceptions, then forget about passing the bar exam.

Even lawyers think they know the law, but they don't. It's not their fault. The courts issue rulings every day which apply settled legal principles to new factual situations, thereby creating a new slant on the law. There are now millions of slants on the law so that two legal experts can have different opinions about what the law really means. The absolute language in the First Amendment has given rise to more exceptions than anyone can really count, except for the law professors who gain tenure by writing about it for law journals that no one reads.

The First Amendment is a good way to show that the law is too complicated. Here is what the First Amendment says: "[the government] 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."

Sounds good, doesn't it? It says that the government cannot regulate speech or any attempt to petition the government for grievances. But that is not what it means. Here's a real-life example.

Let's say that a married couple shows up for a Town Board meeting. They own property in the Town and want to voice their opinion on a proposed law being considered by the Town's legislative body. The legislative body tells them to get lost; we are not going to hear you out. You can sit down and listen to us deliberate, but please keep quiet. They go to court to challenge this decision as a violation of their First Amendment right to free speech and to petition the government. Do they have a case?

It sounds like a no-brainer, right? The married couple pay taxes in this Town and they want to address the Town's legislative body on a matter of public importance. On its face, the First Amendment would seem to make their case a slam-dunk. But they lose the case because they have no right to speak at this public meeting. This is a real case, Curnin v. Town of Egremont, decided by the First Circuit Court of Appeals on November 29, 2007.

The reason the Curnins lose the case is because their Town is not just any Town in America where taxpayers do have the right to address the Town Board. They live in New England, the cradle of American democracy, where citizens go to Town meetings and the residents actually vote on legislative proposals. What the Court pointed out in this case is that Town meetings in New England are not like other Town meetings, where four or five elected officials sit at a table and discuss Town policy and vote on water, sewer, taxes and why the saloons need to close at 1:00 a.m. rather than 4:00 a.m. In New England the registered voters ARE the Town Board. This is unique to New England. If you are registered to vote in one of these towns, then you are officially a member of the Town Board, along with the 2,000 other registered voters in the Town.

So the First Amendment has to be interpreted in light of the unique form of Town government in New England, and if you pay taxes in your Town but are not registered to vote, you have no right to do what citizens can do in every other region in America: speak out at public meetings. The way the Court saw it in this case, allowing the Curnins to speak at these meetings would be like allowing Joe Blow to interrupt the Town Board while it discusses policy.

Of course, this outcome makes no sense at all. Cutting through the romantic visions of a boisterous New England Town meeting where everyone in Town has their say until 2:00 in the morning, the Curnins pay taxes in this Town but they cannot be heard at the Town meetings. You may wonder why the Curnins just don't register to vote in this Town. They can't: they are registered to vote in New York and only own property in New England. You are not allowed to be registered to vote in two separate Towns, so the Curnins have to sit down and shut up.

That's how the First Amendment works. The Courts don't take it literally. It's really an aspirational statement of how citizens should be allowed to express themselves in public, but it constantly gives way to quirks in the system and loopholes which make sense to judges who have to balance competing considerations in deciding who wins the case. As I read the decision in the Curnin case, the Court carefully untangles this issue in trying to make the outcome sound logical. And if you read the decision carefully, you can see that that is some precedent for what the Court did. But that only means that some Court screwed up this issue a long time ago and the current Court has to follow precedent and apply it reasonably. That means we lose sight of the big picture: some taxpayers in New England towns cannot speak out at meetings where policies affecting their lives are discussed. They don't have the right to free speech in this Town. They have the right to go screw themselves.