First Amendment Law Prof Blog

!&#@: Profanity and the First Amendment

A federal district judge ruled this month in United States v. Flowers that the First Amendment did not protect an individual who used profanity against police officers during the course of his arrest for public intoxication.  A North Carolina law makes it a Class 3 misdemeanor to use "indecent or profane language" in a "loud and boisterous" manner.  Daniel Flowers was arrested under that law when he yelled profanity at police officers who approached him and a group of friends at an outdoor party in the Smokey Mountains National Park.  The First Amendment Center reports on the case, noting that judge Lacy H. Thornburg rejected Flowers’ facial challenge upon reasoning that the statute applied only to fighting words.  He also rejected an as-applied challenge, reasoning that the defendant's "targeted profanity and aggressive demeanor" meant to incite partygoers against the officers.

Flowers is the latest in a series of incidents involving profanity and the First Amendment.  In October, a woman in Scranton, Pennsylvania was cited for disorderly conduct when an off-duty officer who lived next door reported her for shouting profanity at an overflowing toilet.  In February, the 6th Circuit in Leonard v. Robinson overturned a district court decision that found police officers had probable cause to arrest a person who used the word "goddamn" while addressing a town assembly at a public meeting.

-Kathleen A. Bergin

Postscript: An update on the case from Scranton, PA, along with additional information on the issue of profanity under the First Amendment is posted here. 

 

FEC Eases Advertising Rules

Recently Reported in the AP:

Unions and businesses may pay for TV and radio "issue ads" that name candidates in the days before elections, federal regulators said yesterday, easing previous restrictions and opening the way for interest groups to influence next year's elections with big-money advertising campaigns.

Following the lead of the Supreme Court, the Federal Election Commission voted unanimously to soften its advertising rules in a decision that could lead to fresh ads as soon as next month in Iowa.

Under the change, an organization that supports a presidential candidate, for example, may use corporate or union money to run independent ads that cast the candidate in a good light or that criticize his or her rivals, provided the overall message is a call to action on a public policy issue.

The FEC had little choice. The Supreme Court ruled last June that restrictions on such ads were unconstitutional, but offered no clear guidelines for what types of ads would be affected. Those consolidated cases were FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life. . . .

-Kathleen A. Bergin

US SCT: Cert Denied in Teen Ranch Case

The Supreme Court this week denied cert in Teen Ranch, Inc. v. Udow. As reported earlier by Josie Brown, the case involves a challenge by a religious-based residential treatment center for troubled teens.  In November 2003, Michigan officials barred Teen Ranch from participating in a state program that placed troubled youths in residential facilities because of the center's religious-basted treatment and services.  When Teen Ranch sued, the district court rejected the argument that Michigan could not withhold state services from religious organizations that it provided to secular organizations.  The 6th Circuit affirmed, and the Supreme Court's decision to deny cert allows that decision to stand.

-Kathleen A. Bergin

Wake Forest to Explore Government Secrets, Free Speech, National Security

From Wake Forest University News Service:

In January, Wake Forest University will present “Secrets vs. Security,” an opportunity for people to examine the issues of government secrets, free speech and national security.

Sponsored by the university’s Secrest Artists Series and Voices of Our Time speaker series, “Secrets vs. Security” will include two events: 

• “Top-Secret: The Battle for the Pentagon Papers,” a docudrama starring Stacey Keach at 7:30 p.m. Jan. 17 and Jan. 18 in Wait Chapel.  The play is a factual reenactment of the legal battle between the U.S. government and The Washington Post over publishing the Pentagon Papers.
• Daniel Ellsberg, a lecture by the former military analyst who leaked the top-secret Pentagon Papers, at 7 p.m. Jan. 24 in Brendle Recital Hall. 

According to organizers, the two events are being held in conjunction with each other to provide a more comprehensive view of the historical event. 

"The inherent conflict in a democracy between the government’s right to keep secrets and the interests of a free press is an ongoing tension,” said Lillian Shelton, director of the Secrest Artists Series.  “For those of us old enough to remember the Nixon administration, we remember the controversy over the Pentagon Papers and the surrounding issue of government secrets.  In light of the current controversial war on terrorism, this issue should also be of interest to a younger generation.  The drama and the lecture might serve as teaching tools for both sides of the debate and help us address stark questions like ‘patriot or traitor?’”

-Kathleen A. Bergin

Vietnam: Lawyers Raise Free Speech Challenge in Dissident's Appeal

Posted at EarthTimes:

Hanoi - A Vietnamese court reduced the sentences of two jailed dissidents by one year on Tuesday in an appeal trial where defence attorneys directly challenged the law used to convict them as violating free-speech guarantees. Attorneys Nguyen Van Dai and Le Thi Cong Nhan were convicted in May of "spreading propaganda against the Socialist Republic" under Article 88 of Vietnam's criminal code for holding "democracy seminars" in their Hanoi offices.

"I am a political prisoner, not a criminal," Dai, 38, said Tuesday during the trial at which his sentence was reduced from five to four years.

Nhan, 27, vowed to continue speaking out when her prison term - reduced to three years from four - was complete.

The appeal case, which came amid a crackdown on opposition groups, is one of the most open legal challenges to communist Vietnam's sedition laws and has been closely watched by diplomats and human-rights groups. . . .

-Kathleen A. Bergin

Cert Denied in Texas Bible Monument Case

The U.S. Supreme Court yesterday denied cert in Staley v. Harris County, a 2004 decision from the Southern District of Texas finding that a Bible monument outside a Harris County courthouse violated the Establishment Clause, and ordering the County to pay the plaintiff's legal fees.  A three judge panel of the Fifth Circuit affirmed that decision in 2006.  Days before the case was to be argued before an en banc panel, however, the Bible monument was removed and placed in a warehouse while the building underwent renovations. 

In a 2007 decision, the full Fifth Circuit held that the case had become moot when the monument was placed in storage.  Moreover, whether any future Bible display would raise an Establishment Clause problem was not ripe, the appeals court said, because the County had not decided where, when and how the monument would be displayed once renovations were complete in 2009.  The case thus failed to present an Article III case or controversy, but the Fifth Circuit, citing equitable principles, declined to vacate the district court's decision.   

Today's Houston Chronicle quotes Judge Ed Emmett and Commissioner Steve Radack as saying the County should reinstall the Bible monument.  "I definitely would favor putting it up," Emmett said. "Some (separation of church and state) rulings are silly. We carry money around that says, 'In God We Trust.' "  The case may thus wind its way back into court, creating a new Establishment Clause controversy and increasing taxpayer responsibility for additional attorney's fees.

The first graphic above shows the monument before it was removed from the courthouse grounds.  The second was taken by one of my students just before dawn prior to the appeal.

-Kathleen A. Bergin 

Mass. Dept. of Education Admits Violating Testing Critic's First Amendment Rights

As reported by the Boston Globe, the Massachusetts Department of Education has acknowledged that "a former DOE official violated the First Amendment rights of Alfie Kohn to be heard and communicate information at a conference in western Massachusetts in 2001." Kohn, an outspoken critic of state standardized testing regimes, had been invited to deliver the keynote address at an education conference in 2001, but his invitation was withdrawn after the state Department of Education contacted conference organizers and threatened to withdraw the agency sponsorship of the event if Kohn spoke. In the email that insisted Kohn be barred from speaking if the agency was to remain a conference sponsor, a DOE official reportedly described Kohn as "diametrically opposed" to the state policies and asserted that it would be "stupid" for the state to support an event at which Kohn spoke. Kohn then successfully sued the Department for the violation of his free speech rights. The state court judge's ruling found that "the record makes clear that the government (through the DOE) was attempting to dictate what Mr. Kohn could say and what his prospective listeners could hear ....A person in Mr. Kohn's position has a right to be heard without government interference, and people in the position of the other plaintiffs have a right to hear him."  The letter recently released by DOE was issued by the Department as part of the settlement of Kohn's claims for attorney's fees and costs.

JFB         

Understanding Jehovah's Witnesses' Place in First Amendment History

Today's "This I Believe" segment on NPR features an essay by Joel Engardio on how being a child in a Jehovah's Witnesses family taught him lessons about tolerance. Engardio's documentary about the complex history of the Jehovah's Witnesses in America and throughout the world, "Knocking", was aired early this year on the PBS series, Independent Lens. 

The Jehovah's Witnesses have played a prominent role in many significant First Amendment controversies. Some valuable resources on the group's history of involvement in constitutional litigation include Shawn Francis Peters' book, Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the RIghts Revolution , Allen Rostron's review of the Peters book, Demythologizing the Legal History of the Jehovah's Witnesses and the First Amendment, 22 Quinnipiac Law Review 493 (2004)(available on SSRN) and the recent St. John's University School of Law collection of participant recollections of West Virginia State Board of Education v. Barnette. 

JFB