First Amendment Law Prof Blog

Further Details on Investigation of Texas Teacher for Use of Cormac McCarthy Novel

The Abilene Reporter News has detailed coverage of the investigation of teacher Kaleb Tierce. Parents of a student in his freshman pre-Advanced Placement English class at Jim Ned High School contacted police, alleging that Tierce's inclusion of the McCarthy novel, Child of God, on a class reading list violated Texas Penal Code 43.24, which prohibits the sale, distribution or display of harmful material to a minor. The offense is a misdemeanor. A spokesman for the local sheriff's department stated that he was unaware of the law having ever been applied to educational materials before. Tierce's attorney questioned whether the statute could be properly applied under a legally appropriate definition of harmful materials.

The Pulitzer Prize winning author's novel had been on an approved reading list for the pre-Advanced Placement program until parents' complaints prompted its recent removal. Students were asked to select a book of their choice from the list as the subject of a book report. The book was not currently available in the school library, in the local bookstores or the small city of Tuscola's public library, but the newspaper included an excerpt from the book in its print report.  Tierce was initially described by many students quoted in the article as an inspirational and sympathetic teacher and coach, and many students had worn black armbands and shirts to school to protest Tierce being placed on administrative leave. However, yesterday's Reporter News includes a story that Tierce now faces allegations of improper sexual conduct with a student.   

The Supreme Court's splintered conclusions in Board of Education, Island Trees Union Free School District No. 26 v. PICO, 457 U.S. 853 (1982), make a clear understanding of what limits the First Amendment places on school officials in such a situation difficult to discern, but the teacher's criminal prosecution, in the absence of the separate sexual misconduct allegations, would appear highly problematic.

Commission Raises Questions About Curriculum at Saudi School in Virginia

A new report by the U.S. Commission on International Religious Freedom has recommended that the State Department take action to determine if textbooks and other curriculum materials used at the Islamic Academy of Saudi Arabia in Fairfax, Virginia, contain material that propagates hatred of and violence against non-adherents of Wahhabism, a Saudi variant of Sunni Islam.  In 2006, the Center for Religious Freedom and Institute for Gulf Affairs found that Saudi textbooks, published under the supervision of the Saudi government, included passages that appeared to exhort students to believe violence against non-believers would be justifiable in religious terms. The Saudi government then pledged to review all textbooks and remove all intolerant references from material sent abroad. 

Commission members have stated that they requested copies of the material used at the Islamic Academy, which operates on property owned by the Saudi Embassy, but that nothing was provided in response.  The Commission therefore called for the State Department to consider the possible closing of the school if the Saudi government did not furnish the requested texts and demonstrate that objectionable content had been removed.  Because the school is on Saudi Embassy property, the Foreign Mission Act authorizes the Secretary of State to take action against such a facility if the Secretary deems it necessary for the "protection of the interests of the United States".             

In the Washington Post, a school official denied that the same materials were used in Saudi Arabia and in the US facility, and, in a report on the FoxNews website, the Saudi ambassador to the US denied that the embassy was involved in the operation of the school although he did serve on its board. When contacted by the Post, a representative of the Rutherford Institute, which identifies itself as a provider of "legal services in the defense of religious and civil liberties", expressed concern about government monitoring of religious teaching for evidence of intolerance.      

 

Claims of Religious Exemption from State Immunization Requirements Rising

According to a Washington Post report, increasing numbers of parents are claiming religious exemptions from state immunization laws in order to avoid having their children vaccinated prior to kindergarten enrollment. Among these parents are those whose real objection appears to be an apprehension about hazards they believe are associated with vaccines rather than a conflict with established tenets of their faith. Because a majority of states only authorize an immunization exemption for medical or religious reasons, parents seeking to avoid vaccinations in those states must assert a religious exemption claim, sometimes substantiating the claim with a certificate of church membership in an online group specially formed to issue such documents. Public health experts have expressed concern about the possible consequences of this pattern, fearing that unimmunized children could become seriously ill themselves and infect others with diseases such as measles and whooping cough.         

Internet Service Providers as Free Speech Gatekeepers?

    In today's LA Times, David Lazarus examines the recent controversy regarding Verizon Wireless and its decision (later rescinded) to block abortion rights groups from sending messages the provider deemed too controversial. Companies like Verizon Wireless and AT&Tinclude an often unread acceptable use policy within 10,000 word user contracts. Such policies give the provider the right to suspend service when, for example, the user engages in speech that is "defamatory, fraudulent, obscene or deceptive"  or "tends to damage" the reputation or the provider or others.  Provider representatives deny that they intend to enforce such clauses to censor user speech, and AT&T has decided to revise its contract terms after the Verizon incident drew attention to these practices. Although the First Amendment does not apply to private entities like these providers, their role in limiting users' communication may come under legislative scrutiny.  The ACLU has called for congressional hearings on the issue.         

Speaking from the Pulpit During Political Campaigns

    Last week advocacy groups sparred over how IRS regulations relating to tax exempt organizations circumscribe the activities of pastors and their churches during the political campaign season.  On its website, the Alliance Defense Fund, which describes itself as “a legal alliance defending the right to hear and speak the Truth through strategy, training, funding and litigation”, issued a letter that set out guidelines about how, under the ADF interpretation of constitutional principles and the relevant 501(c)(3) IRS regulations, pastors could address their congregations during the 2008 campaign and how churches could conduct petition drives and other related activities, such as the distribution of voters’ guides. The letter was co-authored by Focus on the Family, the Family Research Council, Concerned Women for America, and the James Madison Center for Free Speech.
    The Americans United for the Separation of Church and State quickly shot back a response on their website, characterizing the ADF letter’s advice as “misleading” and recounting recent episodes in which churches and religious organizations have run afoul of the operative IRS rules. Focusing particularly on the potential legal hazards attendant to the issuance of voters’ guides, Americans United advised pastors to consult the IRS website for appropriate instructions.
    Recent IRS enforcement activity in this area has received much attention and criticism.  A recent story on NPR’s Morning Edition recounted the experience of All Saints Episcopal Church in Pasadena, California. Investigated by the IRS after a 2004 guest sermon presented a hypothetical debate among Jesus, George Bush, and John Kerry, All Saints was recently notified that it would not lose its tax exempt status although the guest sermon had violated electioneering prohibitions.  On its website, All Saints complains that the IRS failed to specify how the sermon violated the operative regulations, leaving religious groups around the country uncertain of the content of their compliance obligations and chilling their future speech from the pulpit. The IRS report on its Political Activity Compliance Initiative is available on the agency website.                  
    In an April 2007 Georgetown Law Journal article entitled “Political Campaigning by Churches and Charities: Hazardous for 501(c)(3)s; Dangerous for Democracy,” Donald Tobin, a professor at Ohio State’s Moritz College of Law, explores the constitutional and policy arguments implicated by the IRS regulations. The abstract of the article is available on SSRN.

Josie Brown

   

Supreme Court Justices' Attendance at Annual “Red Mass”

       Religion Clause scholar Professor Marci Hamilton, writing on Findlaw, recently questioned whether the attendance of six Justices at the October 1 “Red Mass”, held each year by the D.C. Archdiocese as the Supreme Court term begins, could create an appearance of an inappropriate link between Church and state.  Chief Justice Roberts and Justices Scalia, Thomas, Kennedy, and Alito, all of whom are Catholic, and Justice Breyer, who is Jewish, attended the event. In a post on the Concurring Opinions blog, University of Alabama law professor Paul Horowitz offers a different possible interpretation of the event and suggests that the conclusion that judges must see their religious obligations and the performance of their official duties as in tension or conflict fails to consider that judges “may well best understand their religious obligations as demanding that they faithfully and humbly hew closely to their professional obligations as lawyers and judges”. As Professor Hamilton noted in her column, although First Amendment scholar Geoffrey Stone recently faced much criticism for his assertion on the University of Chicago law faculty blog that the result in Gonzalez v. Carhart was the work of what he identified as “our faith based Justices”, she believes Stone’s comments raised important concerns.  For an earlier related discussion, see Professor Michael Dorf’s Findlaw column on Justice Alito’s confirmation and what significance could be attached to the existence of a Catholic majority on the Supreme Court.