First Amendment Law Prof Blog

DC Court Vindicates Rights of Anti-War Protesters

A federal judge ruled this week in ANSWER v. Kempthorne that the National Park Service improperly violated its own "special events" permit regulations when it denied a group of anti-war protesters access to major portions of President Bush's inaugural parade route in 2005.  The ANSWER Coalition (Act Now to Stop War and End Racism), had sought access to bleacher seats and sidewalk areas lining Pennsylvania Avenue, but was denied after the Park Service reserved those areas for observers approved by the Presidential Inaugural Committee.  Instead, protesters were directed to obstructed viewing area described in court documents as "tiny pockets away from the front of the parade route and frequently behind massive bleachers of Bush supporters."  AP has more. 

The decision marks the latest in a series of controversies arising from inauguration day protests.  In 2006, the Metropolitan Police Department agreed to pay $685,000 plus fees and costs after plainclothes officers assaulted demonstrators and unlawfully restricted access to Bush's 2001 inauguration.  The Department also agreed that officers would be required to report any use of force that occurs during a public protest.  A prior policy had suspended the use of force reporting requirement during public protest events, though reporting is required during the course of regular police business. 

-Kathleen A. Bergin

photo credit: MSNBC

 

      

Colorado Appeals Court Upholds Smoking Ban

The New York Times reports that a three judge panel of the Colorado Court of Appeals has upheld the state's anti-smoking ban, even as applied to actors in theatrical stage productions.  A group of theaters came together to file suit against the two year old law, arguing that it violated their right to freedom of expression.  The panel unanimously rejected that claim, prompting a likely appeal to the state's highest court.

Colorado's Clean Indoor Air Act, which prohibits smoking in any "indoor area," is broader than most smoking bans in other states.  It is drafted to cover not just cigarettes, but any substance that contains tobacco, cloves or any other "plant matter or product that is packaged for smoking."  Moreover, Colorado lawmakers rejected a proposal to exempt theaters during the legislative debate.  Unlike similar measures including those in California, Arizona, Maine and D.C., theaters are expressly included in the Colorado Act. 

In its ruling the court concluded that smoking by an actor as part of a theatrical production is expressive conduct protected by the First Amendment, but that the statute imposed only a minimal burden on speech in the interest of furthering an important public health concern.  The court likened the ban on smoking to other forms of conduct that theater performers are not permitted to engage in, regardless of its communicative character:  "Murders are not committed, actors do not fire live bullets at each other or at the audience, the theater is not set afire to illustrate the burning of Rome in 'Julius Caesar," the court explained, adding that imitation smoking products provided a reasonable alternative to the actual conduct prohibited by the smoking ban.      

Experts believe this to be the first lawsuit in the country to challenge anti-smoking bans on First Amendment grounds.

-Kathleen A. Bergin

US Supreme Court Upholds Washington's "Top-Two" Primary System

The Supreme Court yesterday upheld Washington's primary election system, concluding that it does not on its face violate the First Amendment rights of political parties.  At issue in Washington State Grange v. Washington State Republican Party was Initiative 872, under which the top two primary candidates advance to the general election.  Candidates placed on the ballot would be permitted to indicate their party preference even if they are not that party's actual nominee.  The system was adopted in 2004 but has never been implemented due to legal challenges.   

The Ninth Circuit held in 2006 that the system violated the First Amendment rights of political parties by forcing them to associate with candidates they do not endorse.  In a 7-2 opinion by Justice Thomas, the Supreme Court reversed.  The Court declined to hold that Initiative 872, on its face, severely burdened First Amendment interests.  It does not "provide for the nomination of candidates or compel political parties to associate with or endorse candidates," Thomas wrote.  Moreover, there was no basis for arguing that voters would be confused by a ballot that identifies a candidate's preferred party association without designating the party's actual nominee, at least until the system was in fact implemented.  The opinion thus leaves room for a future "as applied challenge," but did suggest ways that Washington might avoid such a claim by mitigating the risk of voter confusion.

Justice Scalia found the majority's position unavailing, concluding along with Justice Kennedy in dissent that the system could compel an association between a political party and a candidate it does not endorse.  "The electorate's perception of a political party's beliefs is colored by its perception of those who support the party; and a party's defining act is the selection of a candidate and advocacy of that candidate's election by conferring upon him the party's endorsement," he wrote.  "When a state printed ballot for the general election causes a party to be associated with candidates who  may not fully (if at all) represent its views, it undermines both these vital aspects of political association."    

ACS Blog, Jurist, First Amendment Center and AP have more.

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Meanwhile, in global election news, South Korea is taking steps to validate the legitimacy of election outcomes by speeding up the process of adjudicating charges of political wrongdoing, an editorial in the English Language Chosun Ilbo.com reports.  Under Korean law, judgments in election law cases must be rendered in a matter of months, presumably so that elected officials who came to office under circumstances involving corruption or fraud can be removed from office.  In recent years, however, indicted officials have succeeded in extending their terms of office, sometimes for more than three years, by moving for extensions or engaging in other delay tactics.  After meeting with election officials on Monday, the Supreme Court announced that it will deliver outstanding rulings within the next 2 months and render default judgments in the case of absent parties.

-Kathleen A. Bergin

Cert Granted: FCC v. Fox

The Supreme Court agreed yesterday to take up a challenge to an FCC policy that bans the use of "fleeting expletives" on radio and television broadcasts.  Last year the Second Circuit Court of Appeals ruled against the FCC, holding that its broadcast decency policy violated the Administrative Procedures Act and likely would be found unconstitutional in a First Amendment challenge. 

Judge Rosemary Pooler observed that the FCC had consistently taken the view that broadcast decency standards applied to verbal assaults and the repetitive use of profanity, but did not extend to isolated, fleeting expletives.  The FCC was free to change that policy, she stated, but only after providing an explanation for the policy change as required by the Act.  She nonetheless expressed doubt that, however adequately explained, the ban could survive a First Amendment challenge given its indeterminate and flexible application.  Regulations take into account the "context" of each broadcast to determine whether decency standards are violated, leaving broadcasters to guess as to whether any particular broadcast crosses the line.

The US Supreme Court upheld broadcast indecency regulations in 1978, after the Pacifica Foundation aired comedian George Carlin's "filthy words" monologue.  Since then, the FCC had taken a hands off approach to random, unanticipated profanity until 2003, when pop mega-star Bono said "fucking brilliant" during a 2003 Golden Globe awards.  The FCC also took notice when Cher and Nicole Richie used profanity during broadcasts of the Billboard Music Awards.  None of the three episodes resulted in a fine, but the FCC did issue notices of apparent liability to Fox. 

-Kathleen A. Bergin

"Academic Freedom" Bill Makes Room For Intelligent Design

In 2005, a federal district judge ruled in Kitzmiller v. Dover that school officials violated the Establishment Clause when they amended the science curriculum in a way that required teachers to challenge the theory of evolution in class with evidence of intelligent design.  Representatives from the Seattle based Discovery Institute, the driving force behind intelligent design, maintained throughout trial that religion had no part in their explanation of the origins of life.  But the Institute's own documents revealed the long-term objective of the intelligent design movement: to "replace materialistic explanations with the theistic understanding that nature and human beings are created by God."      

Judge John Jones issued a stinging indictment of intelligent design, concluding that its teaching was an argument for religious creationism, and was in no way based on legitimate scientific theory.  He added the latter part of his ruling "in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us."

Fastforward three years later, and the Miami Herald reports that lawmakers in Florida are considering an "academic freedom" bill that would allow the teaching of intelligent design in public school.  Similar to the amended policies untimately struck down in Kitzmiller, the proposed bill will reportedly have teachers question and criticize the theory of evolution with "scientific information" which, according to proponents, includes Intelligent Design.  The bill came in response to a move last month by the Board of Education which voted for the first time in its history (can this really be true?) to craft state science standards to include teachings on evolution and natural selection, and to ban teachings that explain the origins of life in religious terms.

Looks like Kitzmiller won't be the last word on intelligent design after all.

-Kathleen A. Bergin

      

Discipline of Student Wearing T-shirt With Gun Image Prompts Suit

Last week the AP and FoxNews.com reported that a Pennsylvania family has filed suit against the Minersville school district after their fourteen year old son was sent to two days of detention for refusing a high school official's direction to turn his shirt inside out. The shirt, which the family says was a gift from the student's uncle now serving in Iraq, has a picture of a military sidearm accompanied by the words "Volunteer Homeland Security" on the front and has the words "Special Issue — Resident — Lifetime License — United States Terrorist Hunting Permit — Permit No. 91101 Gun Owner — No Bag Limit" imprinted over an image of a handgun on the back of the shirt. The boy and his family assert through their lawyer that the school is seeking to enforce "a vague Orwellian policy" that violates the student's First Amendment rights. Although the test of the policy upon which the discipline was based is not cited in the news reports, the student handbook for the district's high school includes the following dress code provision:

The Board authorizes the Superintendent to enforce school regulations prohibiting student dress or grooming practices which present a hazard to health or safety of the student or to others in the school; materially interferes with school work; creates disorder or disrupts the education program ...

A federal district court hearing in the case is scheduled for March 31.

The disciplining of students wearing t-shirts with gun images has been the subject of prior court rulings.  In Newsom v. Albemarle County School Board, 354 F.3d 249 (4th Cir. 2003), a middle school student faced discipine for wearing a NRA Shooting Sports Camp t-shirt which presented three silhouetttes of men aiming firearms. The assistant principal believed the shirt was inappropriate for a middle school setting given a possible association of the image with the Columbine incident and the school's cited effort to communicate a message that "Guns and Schools Don't Mix". The student had complied with the adminstrator's initial request to turn the shirt inside out. During the summer after this exchange, the school handbook was amended to include a prohibition of the wearing of "messages ... that relate to drugs, alcohol, tobacco, weapons, violence, sex, vulgarity, or that reflect adversely upon persons because of their racial or ethnic group."  The student then filed suit, asserting that the new provisions were unconstitutionally overbroad and vague. Citing the potential applicability of the code provisions to such non-controversial symbols as the UVa cavalier mascot's two crossed sabers, the Fourth Circuit held that the student presented a strong likelihood of succeeding on the merits of that claim and found that the district court in the case had abused its discretion in refusing to issue a preliminary injunction to block the enforcement of the dress code provision.

Similarly, in Griggs v. Fort Wayne School Board, 359 F. Supp.2d 731 (N.D. Ind. 2005), the court found that a school dress code's prohibition of apparel depicting symbols of violence could  not be constitutionally applied to a t-shirt worn by a high school student to express his support of the Marines. The shirt presented a picture of an M16 rifle accompanied by two stanzas of the Marine creed, "My Rifle", and the Marine Corps seal.  The relevant creed text states:

My Rifle
The Creed of a United States Marine
This is my rifle. There are many like it, but this one is
mine. My rifle is my best friend. It is my life.
I must master it as I must master my life.
My rifle, without me, is useless. Without my rifle, I am
useless. I must fire my rifle true. I must shoot
straighter than my enemy who is trying to kill me. I
must shoot him before he shoots me.   

Invoking the Hazelwood standard, which governs school authority over school sponsored expression, a standard more favorable to school officials than the Tinker standard for the regulation of students' personal expression, the district court nonetheless found that the application of the "symbols of violence" provision to the Marines t-shirt could not be justified as reasonably related to the school's legitimate pedagogical interest in preventing school violence.       

Given the expressed concerns in the Morse v. Frederick concurrence of Justices Alito and Kennedy about any extension of the Supreme Court's approval of school official's authority to punish student speech in circumstances other than those specifically before the Court, school officials' disciplinary authority in such scenarios will continue to be contested in the lower courts, especially when, for example, a student like Newsom might assert that the wearing of a NRA shirt represents the expression of a political viewpoint on the Second Amendment question now pending before the Court.

JFB         

Objective of Probe of Televangelists Clarified;Senate Finance Committee Chairman Baucus Expresses Support for Effort

Senate Finance Committee Chairman and Montana Democrat Max Baucus endorsed the investigation of several "prosperity gospel" televangelists that was recently begun by Republican Senator Charles Grassley. Baucus called for the cooperation of the three ministries that have thus far refused to respond to Grassley's information requests.  The ministries refusing to cooperate in the investigation are those of  Rev. Creflo Dollar, Bishop Eddie Long, and Kenneth Copeland.  Joyce Meyer Ministries has already complied substantially with the requests for information and documents, and representatives of Benny Hinn and Randy and Paula White have indicated that they plan to comply.

According to an AP report available through the First Amendment Center website, Senators Baucus and Grassley have recently advised the Dollar, Long, and Copeland ministries that the Committee will protect any confidential information submitted.  The Senators' letters also explain that the purpose of the inquiry is to assess the effectiveness of current policy regarding tax-exempt status. Such an objective would distinguish the Senate effort from a legal compliance inquiry undertaken by the IRS. Both Kenneth Copeland and Creflo Dollar have alleged the Senate inquiry is an unconstitutional attack on their particular theology, which they characterize as reflecting God's desire to see believers succeed financially while progressing spiritually. 

The AP account notes that the probe has produced a division of opinion among evangelical Christians with some fearing more government intervention in religious entities' operations and others welcoming oversight of what they perceive as the use of religion to exploit the vulnerable and unsophisticated.  Among those accepting the legitimacy and necessity of some degree of regulation for ministries is the Evangelical Council for Financial Accountability, which provides financial operating standards for organizations that voluntarily seek their services. The ECFA describes itself as "an accreditation agency dedicated to helping Christian ministries earn the public’s trust through adherence to seven Standards of Responsible Stewardship" and states that it serves "over 2,000 evangelical Christian organizations, which qualify for tax-exempt, nonprofit status and receive tax-deductible contributions to support their work" by offering such organizations operating standards for board governance, financial transparency, integrity in fund-raising, and proper use of charity resources.

JFB    

Germany To Offer Instruction on Islam in Schools

As reported by EuroNews.Net, the German government has decided to introduce classes on Islam into the curriculum of state schools as part of an effort to facilitate the social integration the more than three million Muslims now living in the country. Muslim groups in Germany had been calling for such classes for decades.

Interior Minister Wolfgang Schaeuble explained the plan as seeking, in part, to deter Muslim parents from sending their children for religious instruction by teachers not screened by the government and who might be "hate preachers". Implementation of the initiative will be slowed by the lack of state teachers trained to teach about Islam.

JFB