First Amendment

  • 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.’”

  • July 18, 2012
    Guest Post

    By Jeffrey M. Shaman, a professor at DePaul University College of Law and author of the just-released ACS Issue Brief, “Nevada Commission on Ethics v. Carrigan: Recusing Freedom of Speech.”


    Arrogant, defiant, and dogmatic, Supreme Court Justice Antonin Scalia is a true believer in the theory of originalism — the idea that the Constitution should be interpreted according to its original meaning when first adopted in 1787. Originalism is based on the notion that the Constitution has a fixed meaning that does not change with the passage of time. Given the bully pulpit of his high office, Justice Scalia is the nation’s most prominent advocate of this extreme and deeply conservative ideology.

    The problem is that originalism is a fraud that misrepresents the nature of history by presuming that it has an objective meaning that can be discovered through study of the past. However, the belief in a hard core of historical facts existing objectively is an illusion. The meaning of the Constitution does not reside in the past, and any attempt to ascertain the original meaning of the Constitution necessarily entails reconstructing the past in one’s mind. Originalism, then, perpetrates a pretense of objectivity that functions as a facade for policy-making.

    The illusory propensity of originalism is strikingly apparent in District of Columbia v. Heller, the 2008 decision in which the Supreme Court ruled by a slim 5-4 majority that the Second Amendment of the Constitution protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.

  • July 16, 2012

    by Jeremy Leaming

    Since the Supreme Court issued its opinion in Citizens United v. FEC in early 2010 it has become painfully clear that the majority opinion was poorly crafted and based on wobbly assumptions about the effects of corporate bankrolling of elections.

    In late May, retired Justice John Paul Stevens, who lodged a concurring and dissenting opinion in the case, offered a number of reasons why the high court should revisit the majority opinion's holding.

    Before hitting upon those reasons, Stevens, in a speech at the University of Arkansas Clinton School of Public Service, noted that the majority decision reversed “a century of law [upholding campaign finance regulations]” and it authorized “unlimited election-related expenditures by America’s most powerful interests.”

    The opinion, Stevens continued, placed an enormous “emphasis on ‘the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity’” and claimed that when it comes to political speech the government is barred from restricting speakers.

    Plenty of constitutional scholars have argued that the majority opinion fleetingly trampled precedent in support of campaign finance regulation to unveil a new right for corporations to spend wildly on politicking.

    But Harvard Law School professor Benjamin I. Sachs in a recent op-ed for The New York Times notes that it also tramples the cherished First Amendment principle that the government cannot force individuals to support politicians or political causes.

    Specifically Sachs notes that the “vast majority of people who work in the public sector – state, local and federal employees – are required to make contributions to a pension plan.” And nearly every state makes it mandatory for workers to participate in those plans. Not surprisingly, Sachs notes workers have little say in how the pension plans are operated and that “pension plans invest heavily in corporate securities: in 2008, public pensions held about $1.15 trillion in corporate stock.”

  • July 5, 2012
    Guest Post

    By Sarah Lipton-Lubet, ACLU Washington Legislative Office. This piece is cross-posted at the ACLU’s Washington Markup.


    Last week, as the nation paid rapt attention, the Supreme Court upheld the Affordable Care Act (ACA) in National Federation of Independent Business v. Sebelius.  The decision is especially critical for women, who are more likely to suffer gaps and discrimination in their health care coverage.  Importantly, it means that the contraceptive coverage rule – which ensures access to affordable birth control for millions of women across the country – is still in place.

    That same day, the Supreme Court made a second decision about the ACA to a much quieter reception.  The Court declined to hear Seven-Sky v. Holder, a case alleging that the ACA’s individual mandate provision violates the Religious Freedom Restoration Act (RFRA), a statute that precludes federal laws from placing a “substantial burden” on religious exercise unless the government has a compelling interest in enacting the law.  Here, the plaintiffs argued that they “believe in trusting in God to protect [them] from illness or injury,” and therefore did not “want to be forced to buy health insurance coverage.”