First Amendment

  • October 16, 2012
    Guest Post

    By David Kairys. Kairys, a law professor at Temple University, is a leading civil rights lawyer and author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer. This is drawn in part from his article forthcoming in the Illinois Law Review with full cites to the cases discussed here, The Contradictory Messages of Rehnquist-Roberts Era Speech Law: Liberty and Justice for Some.

    The Supreme Court is most known these days for two innovative free speech principles and an unprecedented court order: money is speech and corporations are people, and George W. Bush is the 43rd president of the United States.   

    These decisions have drawn the harsh criticism they deserve. The campaign finance cases transformed our electoral and constitutional systems by ruling that a handful of the wealthiest Americans must be allowed to dominate the electoral process.

    But all three of these cases expanded speech rights and have contributed to a widespread impression that over the last few decades, the Supreme Court, while more or less dominated by self-described conservative justices, has been generally, if also sometimes excessively, pro-free speech.  This impression has been fed by occasional decisions protecting some outlier protests, like picketing near soldiers’ funerals.

    Others see the court as anti-free speech, pointing to decisions that restrict the speech rights of, for example, students and government employees, and to the lack of judicial protection of demonstrators as public officials increasingly these days keep them away from public and media visibility and the objects of their protests, out of sight and out of mind.

    Looking at the range of speech decisions over the past few decades, inconsistent, selective, and contradictory seem better descriptors than pro- or anti- free speech.  But there are discernible and significant themes and patterns in the tangle of speech decisions, principles, and doctrines, and they have been ignored far too long. 

  • September 20, 2012
    Wrong and Dangerous: Ten Right Wing Myths About Our Constitution
    Garrett Epps

    By Garrett Epps, Professor of Law, University of Baltimore School of Law. Epps is also a contributing editor at The American Prospect.

    When future generations write the history of our time, I think they'll be struck by the way that vocal minorities in early 21st American culture succeeded in convincing their fellow citizens that there is doubt about obvious truths. The unquestionable reality of climate change is now discussed (only in America) as if it were a doubtful surmise; so, too, in much of the country is the demonstrable fact of evolution through natural selection. Human reproductive biology is now being targeted for dumbing down (see recent claims made by Sen. Todd Akin), as is public health.  I daily expect to read that we must all act as if there’s some question that pi equals three, because I Kings 7:23 implies that it does.

    That same sort of dumbing-down has been directed, over the past four years and more, at the United States Constitution. Any citizen's ears are daily assaulted by insistent claims that the "purpose" of the Constitution was to cripple Congress; that the First Amendment does not separate church and state; that the Second Amendment was passed so that citizens may defy federal law; that states are "sovereign" and may expel federal officials at their pleasure; and that federal environmental, social welfare, and worker-safety programs are illegitimate uses of the Commerce Power. If you don't believe me, just turn on Fox News, listen to AM talk radio, or read the letters columns of your hometown newspaper.

    And it's not just the public dialogue that is coming unhinged; extremists on the lower federal bench have begun using libertarian rhetoric as part of a crusade to cripple government. As one example, just consider the recent decision by the D.C. Circuit that new health warnings on cigarette packs are unconstitutional because efforts to discourage smoking are an "ideological," not a public health, matter.

    Two years ago, I became concerned about the toxic effects of this ideological sludge. The result is my new book, published this week, Wrong and Dangerous: Ten Right Wing Myths About Our Constitution

    The book was born out of a session of Tea Party-style "Constitution school" in a church basement, in which our instructor solemnly informed us that the Constitution is the law of Moses, brought to England by the Lost Tribes of Israel, and "intended" to restore the tallow-candle world of fifth-century Saxon England.

    I am not making this up. These seminars are going on every weekend across the country.

  • September 14, 2012
    Guest Post

    By Kent Greenfield, Professor and Law Fund Research Scholar, Boston College Law School. Follow Professor Greenfield @kentgreenfield1. This post is part of an ACSblog Constitution Day Symposium.

    Every September, the American Constitution Society celebrates Constitution Day, as well it should. ACS isn’t alone, of course. Schools around the country, from kindergartens to universities, also commemorate the day in various ways.

    And every year at this time I play the constitutional curmudgeon, warning that Constitution Day may be unconstitutional. You can read previous iterations of my arguments in this blog here and in The New York Times here.

    The basic argument is that Constitution Day is unconstitutional because, as a federal mandate on any public or private educational institution receiving federal funds, it amounts to coerced speech under the First Amendment.  If a kindergarten or university were to refuse to alter their curriculum to cover the topic, they would stand to lose all federal funds.  That sounds to me like a violation of the unconstitutional conditions doctrine.  As Justice Jackson famously said for the Court in West Virginia v Barnette: “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.”

    Because I’m a law professor, I can alter the hypothetical to make my point. If Congress passed a law saying “no school receiving federal funds is permitted to offer a course about Islam,” wouldn’t it be clearly unconstitutional?

    Of course the argument is not simple, mostly because the unconstitutional conditions doctrine is a hash. Sometimes the Court allows conditions — see Rumsfeld v FAIR or Rust v Sullivan — and sometimes it doesn’t — see Speiser v Randall or Legal Services Corp. v Velazquez.

    I will say, however, that my argument is stronger this year. Why? Because of Chief Justice Roberts’s opinion in National Federation of Independent Business v Sebelius, the ACA case.

  • September 7, 2012

    by Jeremy Leaming

    We’ve heard it for decades from the Christian Right that the nation’s public schools are hostile to religion, prohibiting students from praying or engaging in other religious activities. It is rhetoric that has helped fuel the so-called culture wars. The rhetoric is also blatantly misleading.

    There were a couple of U.S. Supreme court cases in the 1960s that prohibited organized religious activities in the public schools. But neither case, regardless of the shrill cries of Christian Right leaders, prohibited truly voluntary student prayer. The concept was fairly straight forward. Public school officials are government employees and the First Amendment’s establishment clause bars the government from demanding that people, including students, pray or engages in religious activity. The free exercise clause of the First Amendment provides that government must be neutral toward religion and cannot take undue action to interfere with religious practices.

    So those two high court cases – Engel v. Vitale and Abington v. Schempp – did not ban religion from the schools. Students can pray in school on their own time, such as moments before a test, or with other students, as long as such activity is not disruptive of the school’s mission to teach reading, writing, math, history, and science.  

    Nonetheless, those high court cases have been twisted by Christian Right lobbying groups, such as Focus on the Family, the Family Research Council, American Family Association, and TV preachers such as Pat Robertson, to help their campaign to portray America’s public places, even limited ones like public schools, as hostile to Christianity. Government officials they often argue are bent on banishing religion and Christianity in particular, from the public square.

    The misinformation has caused great confusion in the public schools about religion’s proper place. But the First Amendment Center’s Charles Haynes, director of the Religious Freedom Education Project at the Newseum, has spent decades trying to straighten things up.

    In a piece for the First Amendment Center’s website, Haynes says progress is being made.

  • July 26, 2012

    by Joseph Jerome

    America’s confidence in the news media has hit an all-time low, a recent Gallup poll reveals.

    Today, a mere quarter of Americans holds much faith in the press. It is difficult to pinpoint exactly what is responsible for this precipitous decline. But a good place to start may be the media’s transformation from watchdog into, as Glenn Greenwald puts it, “inept stenographers.”

    The New York Times, for instance, recently admitted it grants politicians, campaigns, and senior policymakers final editing power of on-the-record quotations:

    From Capitol Hill to the Treasury Department, interviews granted only with quote approval have become the default position. . . . It was difficult to find a news outlet that had not agreed to quote approval, albeit reluctantly. Organizations like Bloomberg, The Washington Post, Vanity Fair, Reuters and The New York Times have all consented to interviews under such terms.

    The revelation comes after The Times sought reader input on whether it “should challenge 'facts' that are asserted by newsmakers.” Readers had evidently become “fed up with the distortions and evasions that are common in public life,” The Times wrote in January.

    Six months later, The Times has demonstrated just how far distortions and evasions seep into its own reporting. Modern political reporting has embraced what press critic Jay Rosen calls “The View from Nowhere.” 

    “Something happened in our press over the last 40 years or so that never got acknowledged,” he writes. “[T]ruthtelling was surpassed by other priorities the mainstream press felt a stronger duty to. These include such things as ‘maintaining objectivity,’ ‘not imposing a judgment,’ [and] ‘refusing to take sides.’”