We have all heard about the Bill Of
Rights, The first Ten Amendments to the Constitution
Here I will explore each amendment and
how our Government has desecrated the Amendment and thereby ignored
the basic tenets of the Constitution.
Amendments
1 - 10 (The Bill Of Rights)
Ratified December 15, 1791
The
Preamble to The Bill of Rights
Congress of the United States begun and held at the
City of New-York, on Wednesday the fourth of March, one thousand
seven hundred and eighty nine.
THE Conventions of a number of the States, having at
the time of their adopting the Constitution, expressed a desire, in
order to prevent misconstruction or abuse of its powers, that further
declaratory and restrictive clauses should be added: And as extending
the ground of public confidence in the Government, will best ensure
the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives
of the United States of America, in Congress assembled, two thirds of
both Houses concurring, that the following Articles be proposed to
the Legislatures of the several States, as amendments to the
Constitution of the United States, all, or any of which Articles,
when ratified by three fourths of the said Legislatures, to be valid
to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the
Constitution of the United States of America, proposed by Congress,
and ratified by the Legislatures of the several States, pursuant to
the fifth Article of the original Constitution.
Amendment I
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 First Amendment along
with the other amendments which comprise the Bill of Rights has been
attacked many times. Here are a few such attacks on the First
Amendment.
Foundations of Free
Expression: Historic Cases
Schenck
v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed.2d. (1919):
Justice Oliver Wendell Holmes stated in this case his famous aphorism
about "falsely shouting fire in a theatre" and set forth a
"clear and present danger test" to judge whether speech is
protected by the First Amendment. "The question," he wrote,
"is whether the words are used in such circumstances and are of
such a nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has the right to
prevent. It is a question of proximity and degree." The Supreme
Court affirmed the convictions of the defendants for conspiring to
violate certain federal statutes by attempting to incite
subordination in the armed forces and interfere with recruitment and
enlistment. During wartime, the defendants mailed to new recruits and
enlisted men leaflets that compared military conscription to
involuntary servitude and urged them to assert constitutional rights.
Whitney
v. California, 274 U. S. 357 (1927): Since Anita Whitney did not base
her defense on the First Amendment, the Supreme Court, by a 7 to 2
decision, upheld her conviction of being found guilty under the
California’s 1919 Criminal Syndicalism Act for allegedly helping to
establish the Communist Labor Party, a group the state argued taught
the violent overthrow of government.
“The
Whitney case is most noted for Justice Louis D. Brandeis’s
concurrence, which many scholars have lauded as perhaps the greatest
defense of freedom of speech ever written by a member of the high
court.”--Basic Readings in U.S. Democracy. Below--all quotes from
Justice Brandeis--are a few reasons why.
Those who won our
independence believed that the final end of the State was to make men
free to develop their faculties; and that in its government the
deliberative forces should prevail over the arbitrary. They valued
liberty both as an end and as a means. They believed liberty to be
the secret of happiness and courage to be the secret of liberty. They
believed that freedom to think as you will and to speak as you think
are means indispensable to the discovery and spread of political
truth; that without free speech and assembly discussion would be
futile; that with them, discussion affords ordinarily adequate
protection against the dissemination of noxious doctrine; that the
greatest menace to freedom is an inert people; that public discussion
is a political duty; and that this should be a fundamental principle
of the American government.
Men feared witches
and burnt women. It is the function of speech to free men from the
bondage of irrational fears.
Those who won our
independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. To
courageous, self-reliant men, with confidence in the power of free
and fearless reasoning applied through the processes of popular
government, no danger flowing from speech can be deemed clear and
present, unless the incidence of the evil apprehended is so imminent
that it may befall before there is opportunity for full discussion.
If there be time to expose through discussion the falsehood and
fallacies, to avert the evil by the processes of education, the
remedy to be applied is more speech, not enforced silence.
Near
v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931): In
this case, the Supreme Court interpreted the First and Fourteenth
Amendments to forbid "previous restraints" upon publication
of a newspaper. "Previous restraints"--or in current
terminology, "prior restraints--suppress the freedom of the
press to publish without obstruction, and recognize that lawsuits or
prosecutions for libel are "subsequent punishments." The
Court invalidated as an infringement of constitutional guarantees a
Minnesota statue allowing specified government officials or private
citizens to maintain a lawsuit in the name of the State to suppress a
public nuisance and enjoin the publication of future issues of a
"malicious, scandalous and defamatory newspaper, magazine or
other periodical," unless the publisher can prove "the
truth was published with good motives and for justifiable ends."
Brandenburg
v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d. 430 (1969): The
Supreme Court established the modern version of the "clear and
present danger" doctrine, holding that states only could
restrict speech that "is directed to inciting or producing
imminent lawless action, and is likely to incite or produce such
action."
The Right to Read
Freely
Evans
v. Selma Union High School District of Fresno County, 222 P. 801 (Ca.
1924): The California State Supreme Court held that the King James
version of the Bible was not a "publication of a sectarian,
partisan, or denominational character" that a State statute
required a public high school library to exclude from its
collections. The "fact that the King James version is commonly
used by Protestant Churches and not by Catholics" does not "make
its character sectarian," the court stated. "The mere act
of purchasing a book to be added to the school library does not carry
with it any implication of the adoption of the theory or dogma
contained therein, or any approval of the book itself, except as a
work of literature fit to be included in a reference library."
Rosenberg
v. Board of Education of City of New York, 92 N.Y.S.2d 344 (Sup. Ct.
Kings County 1949): After considering the charge that Oliver
Twist
and the Merchant
of Venice
are "objectionable because they tend to engender hatred of the
Jew as a person and as a race," the Supreme Court, Kings County,
New York, decided that these two works cannot be banned from the New
York City schools, libraries, or classrooms, declaring that the Board
of Education "acted in good faith without malice or prejudice
and in the best interests of the school system entrusted to their
care and control, and, therefore, that no substantial reason exists
which compels the suppression of the two books under consideration."
Todd
v. Rochester Community Schools, 200 N.W.2d 90 (Mich. Ct. App. 1972):
In deciding that Slaughterhouse-Five
could not be banned from the libraries and classrooms of the Michigan
schools, the Court of Appeals of Michigan declared: "Vonnegut's
literary dwellings on war, religion, death, Christ, God, government,
politics, and any other subject should be as welcome in the public
schools of this state as those of Machiavelli, Chaucer, Shakespeare,
Melville, Lenin, Joseph McCarthy, or Walt Disney. The students of
Michigan are free to make of Slaughterhouse-Five
what they will."
Minarcini
v. Strongsville (Ohio) City School District, 541 F.2d 577 (6th Cir.
1976): The Strongsville City Board of Education rejected faculty
recommendations to purchase Joseph Heller's Catch-22 and Kurt
Vonnegut's God
Bless You, Mr. Rosewater
and ordered the removal of Catch-22
and Vonnegut's Cat's
Cradle
from the library. The U.S. Court of Appeals for the Sixth Circuit
ruled against the School Board, upholding the students' First
Amendment right to receive information and the librarian's right to
disseminate it. "The removal of books from a school library is a
much more serious burden upon the freedom of classroom discussion
than the action found unconstitutional in Tinker v. Des Moines School
District."
Right
to Read Defense Committee v. School Committee of the City of Chelsea,
454 F. Supp. 703 (D. Mass. 1978): The Chelsea, Mass. School Committee
decided to bar from the high school library a poetry anthology, Male
and Female under 18,
because of the inclusion of an "offensive" and "damaging"
poem, "The City to a Young Girl," written by a
fifteen-year-old girl. Challenged in U.S. District Court, Joseph L.
Tauro ruled: "The library is 'a mighty resource in the
marketplace of ideas.' There a student can literally explore the
unknown, and discover areas of interest and thought not covered by
the prescribed curriculum. The student who discovers the magic of the
library is on the way to a life-long experience of self-education and
enrichment. That student learns that a library is a place to test or
expand upon ideas presented to him, in or out of the classroom. The
most effective antidote to the poison of mindless orthodoxy is ready
access to a broad sweep of ideas and philosophies. There is no danger
from such exposure. The danger is mind control. The committee's ban
of the anthology Male
and Female
is enjoined."
Salvail
v. Nashua Board of Education, 469 F. Supp. 1269 (D. N.H. 1979): MS
magazine was removed from a New Hampshire high school library by
order of the Nashua School Board. The U.S. District Court decided for
the student, teacher, and adult residents who had brought action
against the school board, the court concluding: "The court finds
and rules that the defendants herein have failed to demonstrate a
substantial and legitimate government interest sufficient to warrant
the removal of MS
magazine from the Nashua High School library. Their action
contravenes the plaintiffs' First Amendment rights, and as such it is
plainly wrong."
Loewen
v. Turnipseed, 488 F. Supp. 1138 (N.D. Miss. 1980): When the
Mississippi Textbook Purchasing Board refused to approve Mississippi:
Conflict and Change
for use in Mississippi public schools, on the grounds that it was too
concerned with racial matters and too controversial, the authors
filed suit. U.S. District Judge Orma R. Smith ruled that the criteria
used were not justifiable grounds for rejecting the book. He held
that the controversial racial matter was a factor leading to its
rejection, and thus the authors had been denied their
constitutionally guaranteed rights of freedom of speech and the
press.
Kreimer v. Bureau of
Police for Morristown, 958 F.2d 1242 (3d Cir. 1992): In detailed
analysis, the court of appeals held that a municipal public library
was a limited public forum, meaning open to the public for the
specified purposes of exercising their First Amendment rights to read
and receive information from library materials. Such exercise could
not interfere with or disrupt the library's reasonable rules of
operation. The court then upheld three library rules which: 1)
required patrons to read, study, or otherwise use library materials
while there; 2) prohibited noisy or boisterous activities which might
disturb other patrons; and 3) permitted the removal of any patron
whose offensive bodily hygiene was a nuisance to other patrons.
Case
v. Unified School District No. 233, 908 F. Supp. 864 (D. Kan. 1995):
When the Olathe, Kansas, School Board voted to remove the book Annie
on My Mind,
a novel depicting a lesbian relationship between two teenagers, from
the district's junior and senior high school libraries, the federal
district court in Kansas found they violated the students' rights
under the First Amendment to the United States Constitution and the
corresponding provisions of the Kansas State Constitution. Despite
the fact that the school board testified that they had removed the
book because of "educational unsuitability," which is
within their rights under the Pico decision, it became obvious from
their testimony that the book was removed because they disapproved of
the book's ideology. In addition, it was found that the school board
had violated their own materials selection and reconsideration
policies, which weighed heavily in the judge's decision.
Campbell
v. St. Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995):
Public school district removed the book Voodoo
and Hoodoo,
a discussion of the origins, history, and practices of the voodoo and
hoodoo religions that included an outline of some specific practices,
from all district library shelves. Parents of several students sued
and the district court granted summary judgment in their favor. The
court of appeals reversed, finding that there was not enough evidence
at that stage to determine that board members had an unconstitutional
motivation, such as denying students access to ideas with which board
members disagreed; the court remanded the case for a full trial at
which all board members could be questioned about their reasons for
removing the book. The court observed that "in light of the
special role of the school library as a place where students may
freely and voluntarily explore diverse topics, the school board's
non-curricular decision to remove a book well after it had been
placed in the public school libraries evokes the question whether
that action might not be an attempt to 'strangle the free mind at its
source.'" The court focused on some evidence that school board
members had removed the book without having read it or having read
only excerpts provided by the Christian Coalition. The parties
settled the case before trial by returning the book to the libraries
on specially designated reserve shelves.
Sund
v. City of Wichita Falls, Texas, 121 F. Supp. 2d 530 (N.D. Texas,
2000): City residents who were members of a church sought removal of
two books, Heather
Has Two Mommies
and Daddy's
Roommate,
because they disapproved of the books' depiction of homosexuality.
The City of Wichita Falls City Council voted to restrict access to
the books if 300 persons signed a petition asking for the
restriction. A separate group of citizens filed suit after the books
were removed from the children's section and placed on a locked shelf
in the adult area of the library. Following a trial on the merits,
the District Court permanently enjoined the city from enforcing the
resolution permitting the removal of the two books. It held that the
City's resolution constituted impermissible content-based and
viewpoint based discrimination; was not narrowly tailored to serve a
compelling state interest; provided no standards or review process;
and improperly delegated governmental authority over the selection
and removal of the library's books to any 300 private citizens who
wish to remove a book from the children's area of the Library.
Counts v. Cedarville
School District, 295 F.Supp.2d 996 (W.D. Ark. 2003): The school board
of the Cedarville, Arkansas school district voted to restrict
students' access to the Harry Potter books, on the grounds that the
books promoted disobediance and disrespect for authority and dealt
with witchcraft and the occult. As a result of the vote, students in
the Cedarville school district were required to obtain a signed
permission slip from their parents or guardians before they would be
allowed to borrow any of the Harry Potter books from school
libraries. The District Court overturned the Board's decision and
ordered the books returned to unrestricted circulation, on the
grounds that the restrictions violated students' First Amendment
right to read and receive information. In so doing, the Court noted
that while the Board necessarily performed highly discretionary
functions related to the operation of the schools, it was still bound
by the Bill of Rights and could not abridge students' First Amendment
right to read a book on the basis of an undifferentiated fear of
disturbance or because the Board disagreed with the ideas contained
in the book.
See also: Board of
Education, Island Trees Union Free School District No. 26 v. Pico,
457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982)
Smith v. Board of
School Commissioners of Mobile (Ala.) County, 827 F.2d 684 (11th Cir.
1987)
Mozert v. Hawkins
County Board of Education, 827 F.2d 1058 (6th Cir. 1987)
Virgil v. School
Board of Columbia County, 862 F.2d 1517 (11th Cir. 1989)
American Library
Association v. U.S. Department of Justice and Reno v. American Civil
Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d. 874
(1997)
Mainstream Loudoun,
et al. v. Board of Trustees of the Loudoun County Library, 24
F.Supp.2d 552 (E.D. of Va. 1998)
Freedom of
Expression in Schools
Tinker
v. Des Moines Independent Community School District, 393 U.S. 503, 89
S.Ct. 733, 21 L.Ed.2d. 731 (1969): In this seminal case considering
the First Amendment rights of students (John
F. Tinker, Christopher Eckhardt, and Mary Beth Tinker)
who were expelled after they wore black armbands to school in
symbolic protest of the Vietnam War, the Supreme Court held that
students "do not shed their constitutional rights at the
schoolhouse gate" and that the First Amendment protects public
school students' rights to express political and social views.
Zykan
v. Warsaw (Indiana) Community School Corporation and Warsaw School
Board of Trustees, 631 F.2d 1300 (7th Cir. 1980): A student brought
suit seeking to reverse school officials' decision to "limit or
prohibit the use of certain textbooks, to remove a certain book from
the school library, and to delete certain courses from the
curriculum." The district court dismissed the suit. On appeal,
the Court of Appeals for the Seventh Circuit ruled that the school
board has the right to establish a curriculum on the basis of its own
discretion, but it is forbidden to impose a "pall of orthodoxy."
The right of students to file complaints was recognized, but the
court held that the students' claims "must cross a relatively
high threshold before entering upon the field of a constitutional
claim suitable for federal court litigation."
Board
of Education, Island Trees Union Free School District No. 26 v. Pico,
457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982): In 1975, three
school board members sought the removal of several books determined
objectionable by a politically conservative organization. The
following February, the board gave an "unofficial direction"
that the books be removed from the school libraries, so that board
members could read them. When the board action attracted press
attention, the board described the books as "anti-American,
anti-Christian, anti-Semitic, and just plain filthy." The nine
books that were the subject of the lawsuit were Slaughterhouse-Five
by Kurt Vonnegut, Jr.; The
Naked Ape
by Desmond Morris; Down
These Mean Streets
by Piri Thomas; Best
Short Stories of Negro Writers
edited by Langston Hughes; Go
Ask Alice;
Laughing
Boy
by Oliver LaFarge; Black
Boy
by Richard Wright; A
Hero Ain't Nothin' But a Sandwich
by Alice Childress; and Soul
on Ice
by Eldrige Cleaver.
The
board appointed a review committee that recommended that five of the
books be returned to the shelves, two be placed on restricted
shelves, and two be removed from the library. The full board voted to
remove all but one book. After years of appeals, the U.S. Supreme
Court upheld (5-4) the students' challenge to the board's action. The
Court held that school boards do not have unrestricted authority to
select library books and that the First Amendment is implicated when
books are removed arbitrarily. Justice Brennan declared in the
plurality opinion: "Local school boards may not remove books
from school library shelves simply because they dislike the ideas
contained in those books and seek by their removal to prescribe what
shall be orthodox in politics, nationalism, religion, or other
matters of opinion."
Smith
v. Board of School Commissioners of Mobile (Ala.) County, 827 F.2d
684 (11th Cir. 1987): Parents and other citizens brought a lawsuit
against the school board, alleging that the school system was
teaching the tenets of an anti-religious religion called "secular
humanism." The complainants asked that forty-four different
elementary through high school level textbooks be removed from the
curriculum. After an initial ruling in a federal district court in
favor of the plaintiffs, the U.S. Court of Appeals for the Eleventh
Circuit ruled that as long as the school was motivated by a secular
purpose, it didn't matter whether the curriculum and texts shared
ideas held by one or more religious groups. The Court found that the
texts in question promoted important secular values (tolerance,
self-respect, logical decision making) and thus the use of the
textbooks neither unconstitutionally advanced a nontheistic religion
nor inhibited theistic religions.
Mozert
v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987):
Parents and students brought this action challenging the mandatory
use of certain textbooks on the ground that the texts promoted values
offensive to their religious beliefs. The U.S. Court of Appeals for
the Sixth Circuit rejected the plaintiffs' claim, finding that the
Constitution does not require school curricula to be revised
substantially in order to accommodate religious beliefs.
Hazelwood
School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d
592 (1988): After a school principal removed two pages containing
articles, among others, on teenage pregnancy and the impact of
divorce on students from a newspaper produced as part of a high
school journalism class, the student staff filed suit claiming
violation of their First Amendment rights. The principal defended his
action on the grounds that he was protecting the privacy of the
pregnant students described, protecting younger students from
inappropriate references to sexual activity and birth control, and
protecting the school from a potential libel action.
The
Supreme Court held that the principal acted reasonably and did not
violate the students' First Amendment rights. A school need not
tolerate student speech, the Court declared, "that is
inconsistent with its 'basic educational mission,' even though the
government could not censor similar speech outside the school."
In addition, the Court found the newspaper was part of the regular
journalism curriculum and subject to extensive control by a faculty
member. The school, thus, did not create a public forum for the
expression of ideas, but instead maintained the newspaper "as
supervised learning experience for journalism students." The
Court concluded that "educators do not offend the First
Amendment by exercising editorial control over the style and content
of student speech in school-sponsored expressive activities so long
as their actions are reasonably related to legitimate pedagogical
concerns." The Court strongly suggested that supervised student
activities that "may fairly be characterized as part of the
school curriculum," including school-sponsored publications and
theatrical productions, were subject to the authority of educators.
The Court cautioned, however, that this authority does not justify an
educator's attempt "to silence a student's personal expression
that happens to occur on the school premises.
Virgil
v. School Board of Columbia County, 862 F.2d 1517 (11th Cir. 1989):
This case presented the question of whether the First Amendment
prevents a school board from removing a previously approved textbook
from an elective high school class because of objections to the
material's vulgarity and sexual explicitness. The U.S. Circuit Court
of Appeals concluded that a school board may, without contravening
constitutional limits, take such action when the removal decision was
"reasonably related" to the "legitimate pedagogical
concern" of denying students access to "potentially
sensitive topics." The written "stipulation concerning
Board Reasons" cites explicit sexuality and excessively vulgar
language in two selections contained in Volume
1, The Humanities: Cultural Roots and Continuities
as the basis for removal of this textbook. The two selections are
Chaucer's The
Miller's Tale
and Aristophanes's Lysistrata.
Romano
v. Harrington, 725 F.Supp. 687 (E.D. N.Y. 1989): The U.S. District
Court found in favor of a faculty adviser to a high-school newspaper
who claimed a violation of the First and Fourteenth Amendments when
fired following the newspaper's publication of a student's article
opposing the federal holiday for Martin Luther King, Jr. The Court
held that educators may exercise greater editorial control over what
students write for class than what they voluntarily submit to
extracurricular publications.
Cohen
v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996):
Tenured professor of English was disciplined for violating the
college's sexual harassment policy against creating a "hostile
learning environment" for his in-class use of profanity, and
discussions of sex, pornography, obscenity, cannibalism, and other
controversial topics in a confrontational, devil's advocate style.
The court held the policy unconstitutionally vague as applied to
Cohen's in-class speech, calling it a "legalistic ambush."
In-class speech did not fall within the policy's core definition of
sexual harassment and Cohen, who had used this apparently sound and
proper teaching style for year, did not know the policy would be
applied to him or his teaching methods.
See
also: Evans v. Selma Union High School District of Fresno County, 222
P. 801 (Ca. 1924)
West
Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
Rosenberg
v. Board of Education of City of New York, 92 N.Y.S.2d 344 (Sup. Ct.
Kings County 1949)
Todd
v. Rochester Community Schools, 200 N.W.2d 90 (Mich. Ct. App. 1972)
Minarcini
v. Strongsville (Ohio) City School District, 541 F.2d 577 (6th Cir.
1976)
Right
to Read Defense Committee v. School Committee of the City of Chelsea,
454 F. Supp. 703 (D. Mass. 1978)
Salvail
v. Nashua Board of Education, 469 F. Supp. 1269 (D. N.H. 1979)
Loewen
v. Turnipseed, 488 F. Supp. 1138 (N.D. Miss. 1980)
Case
v. Unified School District No. 233, 908 F. Supp. 864 (D. Kan. 1995)
Campbell
v. St. Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995)
Counts
v. Cedarville School District, 295 F.Supp.2d 996 (W.D. Ark. 2003)
Minors'
First Amendment Rights
American
Amusement Machine Association, et al., v. Teri Kendrick, et al., 244
F.3d 954 (7th Cir. 2001); cert.denied, 534 U.S. 994; 122 S. Ct. 462;
151 L. Ed. 2d 379 (2001): Enacted in July 2001, an Indianapolis,
Ind., city ordinance required video game arcade owners to limit
access to games that depicted certain activities, including
amputation, decapitation, dismemberment, bloodshed, or sexual
intercourse. Only with the permission of an accompanying parent or
guardian could children seventeen years old and younger play these
types of video games. On March 23, 2001, a three-judge panel of the
Seventh Circuit Court of Appeals reversed and remanded the trial
court's decision stating that "children have First Amendment
rights." On Monday, October 29, 2001, the U.S. Supreme Court
denied certiorari.
Interactive
Digital Software Association, et al. v. St. Louis County, Missouri,
et al., 329 F.3d 954(8th Cir. 2003): St. Louis County passed an
ordinance banned selling or renting violent video games to minors, or
permitting them to play such games, without parental consent, and
video game dealers sued to overturn the law. The Court of Appeals
found the ordinance unconstitutional, holding that depictions of
violence alone cannot fall within the legal definition of obscenity
for either minors or adults, and that a government cannot silence
protected speech for children by wrapping itself in the cloak of
parental authority. The Court ordered the lower court to enter an
injunction barring enforcement of the law, citing the Supreme Court's
recognition in Erznoznik
v. Jacksonville, 422 U.S. 205, 213-14, 45 L. Ed. 2d 125, 95 S. Ct.
2268 (1975)
that "speech that is neither obscene as to youths nor subject to
some other legitimate proscription cannot be suppressed solely to
protect the young from ideas or images that a legislative body thinks
unsuitable for them. In most circumstances, the values protected by
the First Amendment are no less applicable when the government seeks
to control the flow of information to minors."
See
also: West Virginia State Board of Education v. Barnette, 319 U.S.
624 (1943)
Ginsberg
v. New York, 390 U.S. 629 (1968)
Tinker
v. Des Moines Independent Community School District, 393 U.S. 503, 89
S.Ct. 733, 21 L.Ed.2d. 731 (1969)
Board
of Education, Island Trees Union Free School District No. 26 v. Pico,
457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982)
Free
Press
New
York Times Company v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29
L.Ed.2d. 822 (1971): In the "Pentagon Papers" case, the
U.S. government attempted to enjoin the New
York Times
and the Washington
Post
from publishing classified documents concerning the Vietnam War.
Applying the doctrine of prior restraint from Near v. Minnesota, the
Court found that the claims that publication of the documents would
interfere with foreign policy and prolong the war were too
speculative, and could not overcome the strong presumption against
prior restraints.
Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d. 41
(1988): Hustler
Magazine published a parody of a liquor advertisement in which Rev.
Jerry Falwell described his "first time" as a drunken
encounter with his mother in an outhouse. A unanimous Supreme Court
held that a public figure had to show actual malice in order to
recover for intentional infliction of emotional distress as a result
of a parody in a magazine. The Court held that political cartoons and
satire such as this parody "have played a prominent role in
public and political debate. And although the outrageous caricature
in this case "is at best a distant cousin of political
cartoons," the Court could see no standard to distinguish among
types of parodies that would not harm public discourse, which would
be poorer without such satire.
Simon
& Schuster, Inc. v. Members of New York State Crime Victims
Board, 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d. 476 (1991): The
Supreme Court struck down New York's "Son of Sam Law,"
which required book publishers to turn over to the state, any
proceeds from a book written by any person convicted of a crime,
related to or about that crime. The Court said the law impermissibly
singled out income only from the prisoner's expressive activity, and
then only expressive activity relating to his crime, without
necessarily compensating any victims of those crimes. The Court
agreed that many important books--including The
Autobiography of Malcolm X,
Thoreau's Civil
Disobedience,
and works by Martin Luther King--perhaps might not have been
published with such a law in place.
See
also: The New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11
L.Ed.2d. 686 (1964)
Gertz
v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d. 789
(1974)
The
Right to Dissent
West
Virginia State Board of Education v. Barnette, 319 U.S. 624, 87 L.
Ed. 1628, 63 S. Ct. 1178 (1943): In 1940, the West Virginia Board of
Education issued regulations requiring every schoolchild to
participate daily in a salute to the flag of the United States. The
Barnette children, all members of the Jehovah's Witnesses, refused to
participate in the flag salute, consistent with the tenets of their
religious beliefs, and were expelled from school. The Supreme Court
struck down the regulation on the grounds that the First Amendment
barred any rule compelling an individual to salute the flag or
participate in the Pledge of Allegiance. In strong language, the
Court affirmed the right to dissent: "But freedom to differ is
not limited to things that do not matter much. That would be a mere
shadow of freedom. The test of its substance is the right to differ
as to things that touch the heart of the existing order. If there is
any fixed star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion, or
force citizens to confess by word or act their faith therein. If
there are any circumstances which permit an exception, they do not
now occur to us."
Wooley
v. Maynard, 430 U.S. 705 (1977): A Jehovah’s Witness objected to
New Hampshire’s state motto—“Live Free or Die”—on his
license plate. Because the saying went against his conscience, he did
not believe the state had a right to force him to advertise something
the state believes in, but he does not. When the state discovered he
had covered up the motto on his license plate, they prosecuted him.
The Supreme Court agreed with him, saying, “We begin with the
proposition that the right of freedom of thought protected by the
First Amendment against state action includes both the right to speak
freely and the right to refrain from speaking at all.” In addition,
the Court said, “The fact that most individuals agree with the
thrust of New Hampshire’s motto is not the test; most Americans
also find the flag salute acceptable. The First Amendment protects
the right of individuals to hold a point of view different from the
majority and to refuse to foster, in the way New Hampshire commands,
an idea they find morally objectionable.”
Texas
v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989): In
this case the Supreme Court held that burning the United States flag
was a protected form of symbolic political speech, concluding that
there is no legitimate government interest in protecting the U.S.flag
where the sole act in question is destroying the flag in its symbolic
capacity. "A bedrock principle underlying the First Amendment is
that Government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable."
U.S.
v. Eichman and U.S. v. Haggerty, 496 U.S. 310, 110 S.Ct. 2404, 110
L.Ed.2d 287 (1990): The Supreme Court struck down a federal statute
designed to allow the government to punish persons who burn United
States flags. The Court held that the plain intent of the statute was
to punish persons for political expression and that burning the flag
inextricably carries with it a political message.
City
of Ladue v. Gilleo, 512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed. 2d. 36
(1994): A federal court struck down a local ordinance banning the
placement of signs on private property, in a challenge brought by a
woman who had posted a sign on her lawn protesting the Persian Gulf
War. The Court said lawn signs were a "venerable means of
communication that is both unique and important," for which "no
adequate substitutes exist."
R.A.V.
v. St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d. 305 (1992):
St. Paul, Minnesota passed an ordinance that banned "hate
speech," any expression, such as a burning cross or swastika,
that might arouse anger, alarm, or resentment in others on the basis
of race, color, religion, or gender. The Supreme Court struck the
ordinance down as unconstitutionally discriminating based on the
content of expression: the law banned only fighting words that insult
based on race, religion, or gender, while abusive invective aimed at
someone on the basis of political affiliation or sexual orientation
would be permissible. The law thus reflected only the city's special
hostility towards certain biases and not others, which is what the
First Amendment forbids.
See
also: Tinker v. Des Moines Independent Community School District, 393
U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d. 731 (1969)
The
Right to Free Association and the Freedom of Religion
Concerned
Women for America, Inc. v. Lafayette County, 883 F.2d 32 (5th Cir.
1989): The County library that had permitted various groups to use
its auditorium had created a designated public forum and thus could
not deny access to groups whose meetings had political or religious
content. Such a denial would be based on the content of speech and
would be permissible only as the least restrictive means to serve a
compelling interest. Preventing disruption or interference with
general use of the library could be such an interest; library
officials' first step to controlling such disruptions would be to
impose reasonable regulations on the time, place, or manner of the
auditorium's use, provided the regulations apply regardless of the
subject matter of the speech.
Lamb's
Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 113
S.Ct. 2141, 124 L.Ed.2d. 352 (1993): The Court held that a school
district that opened its classrooms after hours to a range of groups
for social, civic, and recreational purposes, including films and
lectures about a range of issues such as family values and
child-rearing, could not deny access to a religious organization to
discuss the same, permissible issues from a religious point of view.
Whether or not the classrooms were public fora, the school district
could not deny use based on the speaker's point of view on an
otherwise permissible topic.
Right
to Privacy and Anonymity
Stanley
v. Georgia, 394 U.S. 55, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969): A
man found to possess obscene materials in his home for his private
use was convicted of possessing obscene materials in violation of the
state laws of Georgia. The Supreme Court overturned the conviction,
holding that Constitution protects the right to receive information
and ideas, regardless of their social worth, and to be generally free
from governmental intrusions into one's privacy on the grounds that
the government "cannot constitutionally premise legislation on
the desirability of controlling a person's private thoughts."
McIntyre
v. Ohio Election Commission, 514 U.S. 334, 115 S.Ct. 1511, 131
L.Ed.2d. 426 (1995): The Supreme Court struck down a state law
banning distribution of anonymous campaign literature, emphasizing
the long tradition of anonymous and pseudonymous political and
literary speech and recognizing the right to exercise First Amendment
rights anonymously as an "honorable tradition of advocacy and
dissent."
Tattered
Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. Sup. Ct., 2002):
The Colorado Supreme Court reversed a court decision that required
Denver's Tattered Cover Book Store to turn over information about
books purchased by one of its customers. As part of an investigation,
officers of the City of Thornton (Colo.) discovered two books on the
manufacture of amphetamines in a suspect's residence and found a
Tattered Cover mailer in the garbage. The officers, seeking to tie
the books to the suspect directly, served a Drug Enforcement Agency
subpoena on the Tattered Cover. The subpoena demanded the title of
the books corresponding to the order and invoice numbers of the
mailer, as well as information about all other books ever ordered by
the suspect. The Tattered Cover then brought suit to litigate the
validity of the search warrant. The court began its opinion by
stating that both the First Amendment to the U.S. Constitution and
Article II, Section 10 of the Colorado Constitution protect an
individual's fundamental right to purchase books anonymously, free
from governmental interference.
When
Is Speech Unprotected?
Obscenity
and Indecency
Butler
v. Michigan, 352 U.S. 380, 1 L. Ed. 2d 412, 77 S. Ct. 524 (1957): A
man convicted of selling "a book containing obscene, immoral,
lewd, lascivious language, or descriptions, tending to incite minors
to violent or depraved or immoral acts, manifestly tending to the
corruption of the morals of youth" to a police officer appealed
his conviction to the Supreme Court. The Court overturned the
conviction and struck down the law, holding that the state's attempt
to quarantine the general reading public against books not too rugged
for grown men and women to read in order to shield juvenile innocence
"is to burn the house to roast the pig." Famously, the
Court ruled that the state of Michigan could not "reduce[s] the
adult population of Michigan to reading only what is fit for
children."
Ginsberg
v. New York, 390 U.S. 62, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (1968):
The Supreme Court upheld a New York State statute barring retailers
from selling sexually explicit publications to minors under the age
of 17. Noting that the statute did not interfere with the right of
adults to purchase and read such materials, it found that it was not
constitutionally impermissible for New York to restrict minors rights
to such publications in light of the state's interest in safeguarding
children's welfare and supporting parents' claim to authority in the
rearing of their children.
Miller
v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d. 419 (1973): In
this case, the U.S. Supreme Court mapped out its famous three-part
definition of obscenity. First, the average person, applying
contemporary community standards, must find that the work, taken as a
whole, appeals to prurient interests; second, that it depicts or
describes, in a patently offensive way, sexual conduct as defined by
state law; and third, that the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value. The Court ruled
that community standards and state statutes that describe sexual
depictions to be suppressed could be used to prosecute Miller, who
operated one of the largest West Coast mail order businesses dealing
in sexually explicit materials.
New
York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982):
In July 1982, the U.S. Supreme Court added child pornography as
another category of speech excluded from First Amendment protection.
The other categories excluded are obscenity, defamation, incitement,
and "fighting words." The ruling came in the case when the
U.S. Supreme Court affirmed a conviction against Ferber for showing a
movie depicting two young boys masturbating. The film itself was not
seen as obscene for adults, but the Court made the distinction
between what was obscene if children were the participants compared
with if adults were the leading actors.
American
Booksellers Assoc., Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985)
(Easterbrook, J.), aff'd., 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d
291 (1986): The city of Indianapolis passed a statute outlawing
pornography, defined as the graphic, sexually explicit subordination
of women, presenting women as sex objects, or as enjoying pain,
humiliation, or servility. The court of appeals struck the law down,
saying it impermissibly established an "approved" view of
women and how they react in sexual encounters. The law therefore
allowed sexually explicit words and images that adhered to that
approved view, but banned sexually explicit words and images that did
not adhere to the approved view. The court called this "thought
control," saying the "Constitution forbids the state to
declare one perspective right and silence opponents."
National
Endowment for the Arts, et al. v. Finley, et al., 524 U.S. 569, 118
S.Ct. 2168, 141 L. Ed. 2d 500 (1998): In 1990, homoerotic photographs
by Robert Mapplethorpe and blasphemous ones by Andres Serrano created
a furor on Capitol Hill, because both artists had received grants
from the National Endowment for the Arts (NEA). As a consequence, the
NEA governing statute was amended to require the NEA to consider
"decency" and "respect" for American "values"
when selecting future grant recipients. Shortly thereafter,
performance artists Karen Finley, John Fleck, Holly Hughes, and Tim
Miller were denied fellowships, because of the "decency and
respect" clause, they alleged. They made this allegation in a
federal court lawsuit seeking to have the clause declared
unconstitutional; and they were successful at the district court and
court of appeals level. The U.S. Supreme Court ruled, however, that
the statute is constitutional "on its face." Writing for
the court, Justice Sandra Day O'Connor did not "perceive a
realistic danger that it will be utilized to preclude or punish the
expression of particular views," nor did she think that the
statute would "significantly compromise First Amendment values."
John
D. Ashcroft, Attorney General, et al. v. Free Speech Coalition, et
al., 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403, (2002): The U.S.
Supreme Court affirmed the Ninth Circuit's judgment invalidating the
Child Pornography Prevention Act of 1996 on the grounds that the
act's ban on any depiction of pornographic images of children,
including computer-generated images, was overly broad and
unconstitutional under the First Amendment. Supreme Court Justice
Anthony M. Kennedy wrote: "First Amendment freedoms are most in
danger when the government seeks to control thought or to justify its
laws for that impermissible end. The right to think is the beginning
of freedom, and speech must be protected from the government because
speech is the beginning of thought."
See
also: Stanley v. Georgia, 394 U.S. 55, 22 L. Ed. 2d 542, 89 S. Ct.
1243 (1969)
Libel
The
New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d.
686 (1964): To protect "uninhibited, robust, and wide-open"
debate on public issues, the Supreme Court held that no public
official may recover "damages for a defamatory falsehood
relating to his official conduct unless he proves that the statement
was made with 'actual malice'--that is, with knowledge that it was
false or with reckless disregard of whether it was false or not."
The Court stated that the First and Fourteenth Amendments require
that critics of official conduct have the "fair equivalent"
to the immunity protection given to a public official when he is sued
for defamatory speech uttered in the course of his duties.
Gertz
v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d. 789
(1974): The Court applied the rule in the New
York Times
case to public figures, finding that persons who have special
prominence in society by virtue of their fame or notoriety, even if
they are not public officials, must prove "actual malice"
when alleging libel. Gertz was a prominent lawyer who alleged that a
leaflet defamed him.
See
also: Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876,
99 L.Ed.2d. 41 (1988)
The
First Amendment and New Technologies
Broadcast
and Cable Communications
FCC
V. Pacifica Foundation, 438 U.S. 726, 57 L. Ed. 2d 1073, 98 S. Ct.
3026 (1978): In a case that considered the First Amendment
protections extended to a radio station's daytime broadcast of
comedian George Carlin's "Seven Filthy Words" monologue,
the Supreme Court held that Section 326 of the Telecommunications
Act, which prohibits the FCC from censoring broadcasts over radio or
television, does not limit the FCC's authority to sanction radio or
television stations broadcasting material that is obscene, indecent,
or profane. Though the censorship ban under Section 326 precludes
editing proposed broadcasts in advance, the ban does not deny the FCC
the power to review the content of completed broadcasts. In its
decision, the Court concluded that broadcast materials have limited
First Amendment protection because of the uniquely pervasive presence
that radio and television occupy in the lives of people, and the
unique ability of children to access radio and television broadcasts.
Denver
Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S.
727, 116 S.Ct. 2374, 135 L.Ed.2d. 288 (1996): In a decision that
produced six opinions, the Supreme Court upheld a federal law
permitting cable system operators to ban "indecent" or
"patently offensive" speech on leased access channels. The
Court also struck down a similar law for non-leased, public access
channels, and struck down a law requiring indecent material to be
shown on separate, segregated cable channels. The case is significant
in that the Court affirmed that protecting children from some speech
is a compelling state interest.
United
States, et al. v. Playboy Entertainment Group, Inc., 529 U.S. 803,
120 S.Ct. 1878, 146 L.Ed.2d 865 (2000): On May 22, in a 5-4 decision,
the U.S. Supreme Court upheld a U.S. District Court decision that
Section 505 of the Telecommunications Act of 1996 violated the First
Amendment when it sought to restrict certain cable channels with
sexually explicit content to late night hours unless they fully
scrambled their signal bleed. In an opinion written by Justice
Anthony Kennedy, the court ruled that the government may have a
legitimate interest in protecting children from exposure to "indecent
material." Section 505, however, is a content-based speech
restriction and, therefore, must be the least restrictive means for
meeting the governmental interest. The court found that Section 505
is not the least restrictive means.
Telecommunications
Sable
Communications of California, Inc v. FCC, 492 U.S. 115, 106 L. Ed. 2d
93, 109 S. Ct. 2829 (1989): The Supreme Court overturned a
Telecommunications Act ban on indecent telephone messages, concluding
the law violates the First Amendment because the statute's denial of
adult access to such messages far exceeds that which is necessary to
serve the compelling interest of preventing minors from being exposed
to the messages. Unlike broadcast radio and television, which can
intrude on the privacy of the home without prior warning of content
and which is uniquely accessible to children, telephone
communications require the listener to take affirmative steps to
receive the communications. The failure of the Government to show any
findings that would justify a conclusion that there are no
constitutionally acceptable less restrictive means to achieve the
Government's interest in protecting minors, such as scrambling or the
use of access codes, demonstrates that a total ban on such
communications goes too far in restricting constitutionally protected
speech. To allow the ban to stand would have the effect of "limiting
the content of adult telephone communications to that which is
suitable for children to hear."
The
Internet
American
Library Association v. U.S. Department of Justice and Reno v.
American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138
L.Ed.2d. 874 (1997): In a 9-0 decision, the U.S. Supreme Court on
June 26, 1997, declared unconstitutional a federal law making it a
crime to send or display indecent material on line in a way available
to minors. The decision in the consolidated cases completed a
successful challenge to the so-called Communications Decency Act by
the Citizens Internet Empowerment Coalition, in which the American
Library Association and the Freedom to Read Foundation played leading
roles. The Court held that speech on the Internet is entitled to the
highest level of First Amendment protection, similar to the
protection the Court gives to books and newspapers.
Mainstream
Loudoun, et al. v. Board of Trustees of the Loudoun County Library,
24 F.Supp.2d 552 (E.D. of Va. 1998): Adopted in 1997, the Loudoun
County, Va., Library Board's "Policy on Internet Sexual
Harassment" was designed to prevent adult and minor Internet
users from accessing illegal pornography and to avoid the creation of
a sexually hostile environment. To accomplish these goals, the board
contracted with Log-On Data Corporation, a filtering software
manufacturer that offers a product called "X-Stop." Though
Log-On Data Corp. refused to divulge the method by which X-Stop
filters sites, it soon became apparent that the software blocks some
sites that are not prohibited by the policy. Shortly after the
adoption of the policy, People for the American Way Foundation
commenced litigation on behalf of several Loudoun County residents
and members of a nonprofit organization, claiming the policy violates
the right to free speech under the First Amendment. The suit was
predicated on the theory that the policy is unnecessarily
restrictive, because it treats adults and children similarly, and
precludes access to legitimate as well as pornographic material. On
November 23, 1998, Judge Leonie Brinkema declared that the highly
restrictive Loudoun County Internet policy was invalid under the free
speech provisions of the First Amendment.
United
States, et al. v. American Library Association, Inc. et al., 539 U.S.
194, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003): The Supreme Court upheld
the Children's Internet Protection Act, which requires libraries
receiving federal funds for Internet access to install filters so
that both adult and child patrons cannot access materials considered
obscene, child pornography, or "harmful to minors." Chief
Justice Rehnquist announced the judgment of the court that the law,
on its face, is Constitutional. Speaking for a plurality of four
justices, Rehnquist held that CIPA was a valid exercise of Congress'
spending power and did not impose an unconstitutional condition on
public libraries that received federal assistance for Internet access
because Congress could reasonably impose limitations on its Internet
assistance, and because any concerns over filtering software's
alleged tendency to erroneously "overblock" access to
constitutionally protected speech were dispelled by the ease with
which library patrons could have the filtering software disabled.
Justices Kennedy and Breyer concurred with the judgment, holding that
CIPA, while raising First Amendment concerns, did not violate the
First Amendment as long as adult library users could request that the
Internet filter be disabled without delay.
High-profile
controversies and an often-divided populace place school prayer front
and center in the culture war battles over religious liberty and
public education. Despite these disputes, a consensus has been
reached by a broad spectrum of religious liberty and education
organizations. These consensus guidelines have even been adopted by
the Department of Education for both of the last two administrations.
The
legal history of school prayer began with the 1962 Supreme Court case
of Engel
v. Vitale.
Arising from a New York policy requiring each school day to begin
with a prayer drafted by the state Board of Regents, this case became
the foundation for all other school-prayer cases. In it, Justice Hugo
Black wrote:
“… the
constitutional prohibition against laws respecting an establishment
of religion must at least mean that in this country it is no part of
the business of government to compose official prayers for any group
of the American people to recite as a part of a religious program
carried on by government.”
This
idea that government is forbidden from instructing, guiding or even
encouraging people towards any particular form of religious worship
is at the core of modern establishment-clause jurisprudence. It is
important to note that the violation of the establishment clause is
not based on someone’s being offended or being able to avoid the
prayers, but instead on the government’s involvement in and active
promotion of a religious activity.
The
next year brought Abington
Township School District v. Schempp,
the second so-called “school prayer” decision. But it was the
more far-reaching — prohibiting school officials from organizing or
leading prayers and devotional Bible reading in public schools. The
Abington
v. Schempp
decision invalidated a devotional Bible-reading requirement in
Pennsylvania; a case consolidated with it, Murray
v. Curtlett,
struck down a similar law in Maryland. Abington
v. Schempp
requires that teachers and administrators neither promote nor
denigrate religion — a commitment to state neutrality that protects
the religious freedom of students of all faiths and no faith.
The
high court next examined school prayer in the 1985 case of Wallace
v. Jaffree.
This controversy arose over a change to Alabama’s moment-of-silence
law to include a requirement that the moment of silence be for the
purpose of “meditation or voluntary prayer.” The Court found such
a change was the result of a desire to return to government promotion
of prayer in the schools, and struck the statute down. As the
justices explained, a genuinely neutral moment of silence is
appropriate, but any such legislation must have a secular purpose.
Currently, many states and municipalities have laws requiring or
allowing a moment of silence at the beginning of each school day.
In
1992, the Court again examined the question of school prayer in Lee
v. Weisman.
At issue was Providence, R.I.’s practice of routinely inviting
local clergy to open and close middle school graduation ceremonies
with prayers. A family objected to the practice and filed suit, and
the case eventually worked its way to the Supreme Court. Justice
Anthony Kennedy’s majority opinion held that a graduation ceremony
is a school-sponsored and -controlled event, and for school
representatives to invite someone to conduct a religious exercise,
such as prayer, violates the establishment clause.
The
school claimed that prayer at graduation was “of profound meaning
to many students and parents throughout the country.” While Kennedy
acknowledged such profound meaning did exist for many people, he did
not find such rationale persuasive enough to overcome the
establishment-clause prohibition against the government’s using
religion for government purposes. He found the argument that
graduation ceremonies were voluntary equally unpersuasive. Citing
peer pressure on students to engage in school-sponsored religious
exercises, Kennedy argued that:
“The
principle that government may accommodate the free exercise of
religion does not supersede the fundamental limitation imposed by the
Establishment Clause. It is beyond dispute that, at a minimum, the
Constitution guarantees that government may not coerce anyone to
support or participate in religion or its exercise.”
Finally,
the most recent school-prayer case arose out of Texas. In the 2000
decision Santa
Fe v. Doe,
the Supreme Court held a school may not ask students to lead prayers
over the public address system before football games. The Court found
the situation in Santa Fe similar to the situation in Lee
v. Weisman.
Santa Fe’s practice was not a matter of private student speech, but
of students speaking on behalf of and at the request of school
officials. This factor changed the situation from being one of true
private student speech to school-sponsored and -endorsed speech. This
case demonstrated that schools cannot use a proxy, such as outside
clergy or even students, to engage in activities they are themselves
forbidden from practicing.
Principles
From
these cases, certain general principles may be drawn. For one, school
officials are prohibited by the establishment clause from promoting
religion. Leading students in prayer is an example of promoting
religion, even if school officials attempt to make the prayers
“nonsectarian” or otherwise non-offensive. In most cases, this
only makes the situation worse, in that it sends the message that
“nonsectarian” approaches to prayer are approved by the state,
while sectarian prayers are not.
Moment-of-silence
initiatives
Despite
the occasional flurry of inaccurate e-mails and the occasional
political speech riling emotions, as shown above, most issues
surrounding school-sponsored prayer are clearly established by the
courts. One controversy still finding its way into court involves
moment-of-silence legislation.
After
the Engel
v. Vitale
decision, many states began passing moment-of-silence laws. Some were
expressly designed to allow a moment of silence during school hours
in an effort to promote prayer in school. One such case was Wallace
v. Jaffree
in 1985, in which a moment-of-silence law was struck down owing to
its impermissible purpose of advancing religion.
Other states and
localities passed moment-of-silence laws with permissible secular
purposes such as providing a calming moment at the beginning of the
school day or as a means of accommodating students needs to pray or
otherwise engage in silent activity.
In
2002, Virginia gained national attention when it enacted a
moment-of-silence law. A group of parents sued, claiming the law was
enacted as an attempt at getting prayer back in schools. Lower courts
disagreed, finding that the language of the law indicated no
preference for any particular activity and cited prayer as one of
many possible suggestions. When it was appealed to the Supreme Court
in 2003, the justices refused to take the case. Virginia and many
other states and localities currently have moment-of-silence laws on
the books.
Students’
expression rights
But what of the right of students to pray at
school? Many people are under the mistaken impression that the
prohibition against government-imposed prayers applies to students as
well. Just like other forms of student expression, student religious
speech is protected. As the Court explains in Tinker
v. Des Moines,
“students do not shed their constitutional rights when they enter
the school house gate.” These “constitutional rights” include a
student’s right to pray alone or in groups, as long as they are not
disruptive to the school environment. To prevent students from
engaging in such non-disruptive activities would violate both their
free exercise of religion and free-speech rights.
Although
Supreme Court rulings clarify many school-prayer issues, some areas
of contention still exist. The establishment clause prohibits school
officials from promoting or leading students in prayer. The
free-exercise and free-speech clauses protect a student’s right to
engage in religious speech, including prayer. So what should happen
when a student engages in religious speech during a school-sponsored
activity? In the case of Santa
Fe v. Doe,
the Supreme Court explained that when a school retains control over
the location, schedule, and content
of the student’s message, that message carries the imprimatur of
the school.
Lower
courts follow this principle by examining the level of control the
school exercises over the actual speech in question. In the 2001 case
of Adler
v. Duval,
the 11th U.S. Circuit Court of Appeals found that if schools use
neutral criteria in selecting a student speaker and that speaker is
given a truly open forum to say whatever he or she wishes, then the
school is merely accommodating the student’s free-speech right. But
if a school retains the right to review and modify a student’s
comments, the courts often find the student’s speech attributable
to the school. This was the result in the 9th Circuit case of Cole
v. Oroville Union High School District
in 2000.
Other
religious expression
The First Amendment not only applies to
prayer or other verbal religious expression, but also to other forms
of religious messages during the school day. Educators may not
require students to respond to assignments or classwork in religious
ways. But students may include religious perspectives or ideas in
their coursework, as long as such material meets the requirements of
the assignment. The U.S. Department of Education released guidelines
in 2000 with the following advice:
“Students
may express their beliefs about religion in the form of homework,
artwork, and other written and oral assignments free of
discrimination based on the religious content of their submissions.
Such home and classroom work should be judged by ordinary academic
standards of substance and relevance, and against other legitimate
pedagogical concerns identified by the school.”
Other
forms of student religious expression should be treated as any other
type of student speech on campus. If a student’s private expression
does not create a substantial disruption to the educational
environment or infringe on the rights of others, the school should
protect the student’s right to express himself or herself.
These
guidelines were given additional support on Feb. 7, 2003, when the
Department of Education issued a somewhat revised version — and
warned that school districts failing to abide by them faced losing
federal money.
“Even
after repeated dissemination of guidelines, far too many school
administrators still ignore their obligation to protect the
religious-liberty rights of students,” said Charles Haynes, the
First Amendment Center’s senior scholar. “Linking the guidelines
to funding is a wake-up call that may finally push all schools to
take the First Amendment seriously.”
As
you can plainly see the First Amendment has been under attack for a
very long time.
It
is my opinion as a Constitutional-list that while these attacks have
altered what the founding Fathers had envisioned when they wrote:
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.
Yet we now can not pray in school or express ourselves in redress of
grievances to the president. It is apparent that our Government and
our courts have failed to uphold the Constitution time after time.
Take screaming fire in a theater when there is no fire.. is not
protected speech it is up until it is said causing harm to the other
patrons. There are enough laws that prevent people from screaming
“FIRE.”
You
can be charged with inciting a riot. Disorderly conduct and a host of
other charges. All these court ruling are in themselves violations of
the First Amendment and The Constitution.
Next
will be the multitude of UN-Constitutional laws rules and regulation
which violate the Second Amendment.
