First Amendment

  • February 4, 2013

    The NRA is fighting for a law in Florida that would bar doctors from asking children whether there are guns in their homes. If doctors “unnecessarily [harass] a patient about firearm ownership during an examination,” they face a fine of up to $10,000 and risk losing their license to practice medicine.

    posted by ESA

  • January 17, 2013
    BookTalk
    Priests of Our Democracy
    The Supreme Court, Academic Freedom, and the Anti-Communist Purge
    By: 
    Marjorie Heins

    by Marjorie Heins, director of the Free Expression Policy Project, adjunct professor at New York University, and author of  Not in Front of the Children: Indecency, Censorship, and the Innocence of Youth. Her latest book is Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge.


    Academic freedom is not as obvious a concept nowadays as it seemed when the Supreme Court first incorporated it into the First Amendment in response to McCarthy era investigations and purges of left-wing teachers and professors. Why, after all, should academics have privileges not given to workers in other jobs? Surely, academic freedom would not protect the instructor who is incompetent -- who denies the Holocaust in a history class, for example, or preaches creationism instead of teaching evolution in Biology 101.

    The idea of academic freedom emerged more than a century ago, when professors who supported union organizing and other social causes were losing their jobs because corporate-dominated boards of trustees did not like their politics. One of the best-publicized firings was of the young professor Scott Nearing from the University of Pennsylvania. In response, prominent scholars got together and founded the American Association of University Professors (the AAUP). The AAUP’s 1915 “Declaration of Principles on Academic Freedom and Academic Tenure” argued that universities are different from businesses and professors are therefore different from other employees. The freedom they need in their teaching, research, and “extramural” speech (such as Scott Nearing’s advocacy for socialism and against child labor) are not matters of personal privilege but of broad public interest.

    Or, as Justice Felix Frankfurter put it in a 1952 case, teachers are “the priests of our democracy” because it is their special task “to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens.” It’s this notion that education is not just about rote learning but about “habits of open-mindedness and critical inquiry” that makes teachers essential to democracy.

    But lofty ideals are vulnerable to political realities and, consumed by the Cold War tensions of the 1950s, most American schools and universities decided that academic freedom should not protect teachers suspected of communist sympathies unless they cooperated with loyalty investigations by renouncing their past political errors and “naming names” of others they had known in the radical movements of the 1930s and ‘40s.

  • January 14, 2013

    by Jeremy Leaming

    Despite the reality that President Obama took no action during his first term to advance gun safety or sensible gun control measures, gun enthusiasts convinced themselves, with the help of right-wing pundits, that the president is not only a socialist but a budding tyrant preparing to confiscate gun owners’ arsenals from coast to coast. And this caricature has been a boon for gun manufacturers and sellers.   

    Over the weekend, The New York Times reported sales of guns, “which began climbing significantly after President Obama’s re-election,” have “soared” since the mass-shooting in Newtown, Conn., and the high-profile discussion of enacting gun safety regulations. An Iowa “independent gun dealer” told the newspaper, “If I had 1,000 AR-15s I could sell them in a week.”

    And now that the president and other lawmakers, such as N.Y. Governor Andrew Cuomo, Md. Governor Martin O’Malley and Colo. Gov. John Hickenlooper, are taking steps to enact gun control measures, gun enthusiasts are becoming louder, some hysterical and others going ballistic.

    The National Rifle Association has been predictable and lame. The group blamed the arts, such as movies, for spurring gun violence and argued that more guns are the solution. In late December, the group’s Vice President Wayne LaPierre, said armed guards should be placed in the nation’s schools. James Yeager of a Tennessee company that apparently trains people to use weapons said in a YouTube video that if the president issued an executive order promoting gun safety that he would “start killing people.” Other chuckleheads have taken to the airwaves to threaten violence if the government were to take any action to curb gun violence.

    What this period of discussion about the nation’s obsession with guns and how to take some measured steps to curb gun violence has exposed, in part, is that the gun lobby is growing tired and extremists are jumping into the fray. Many of these gun lovers believe that the Second Amendment is absolute. First, very few things in life are absolute and certainly there are very few if any rights provided by the Constitution that are absolute. For instance, the First Amendment does not protect all speech and expression. Political speech is provided more protection than commercial speech, speech advocating illegal conduct is not wholly protected under the First Amendment. What about the Fourth Amendment. We know that not all government searches are illegal. Indeed the Fourth Amendment has a lot of exceptions for police officers, acting in good faith and under certain circumstances, to conduct searches and seize property that many would argue are unconstitutional.

    I could go on, but the point is that the Second Amendment does not forbid the regulation of guns. It is likely too much to ask of many of the rabid gun enthusiasts to read D.C. v. Heller, the U.S. Supreme Court decision that held an individual does have the right to “keep and bear arms.”

  • January 8, 2013
    Guest Post

    by Leslie C. Griffin, William S. Boyd Professor of Law, University of Nevada, Las Vegas, William S. Boyd School of Law

    The preventive care provisions of the Affordable Care Act (ACA), which include coverage of women’s reproductive health, took effect on January 1. To date, the thirteen district courts’ and three appeals courts’ decisions involving secular, for-profit companies’ challenges to the ACA’s contraceptive insurance mandate are all over the map. They lack a coherent rationale and reasoning. Instead, the courts should rule consistently that the exemption requested by the plaintiffs violates the Establishment Clause.

    According to the contraceptive coverage mandate, employee group health benefit plans must contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. Numerous secular, for-profit companies and their Catholic, Christian or Mennonite owners challenged the mandate as a violation of their constitutional free exercise rights and the statutory protection of the Religious Freedom Restoration Act, which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.”

    Among the plaintiffs in the secular, for-profit lawsuits are Weingartz Supply Company, which sells outdoor power equipment; Hobby Lobby, an arts and crafts store; Mardel, Inc., a bookstore and educational supply company; Hercules Industries, which manufactures and distributes heating, ventilation and air conditioning (HVAC); O’Brien Industrial Holdings, LLC, which mines, processes and distributes refractory and ceramic materials and products; Tyndale House Publishers, a Christian publishing company; American Pulverizer Co., Springfield Iron and Metal, LLC, Hustler Conveyor Co., and City Welding, businesses engaged in scrap metal recycling and manufacturing of scrap-related machines; Korte & Luitjohan Contractors, a construction business; Domino’s Farms, a property management company owned by Thomas Monaghan, the founder of Domino’s Pizza; Sharpe Holdings, Inc., a non-bank holding company including farming, dairy, creamery, and cheese-making; Conestoga Wood Specialties Corp., a cabinet and wood specialties company; Grote Industries, which manufactures vehicle safety systems; Triune Health Groups, which helps injured workers reenter the workplace; and Autocam Industries, which provides automotive parts.

  • November 7, 2012

    by Jeremy Leaming

    State court judges in Iowa and Florida remain on the bench despite the fevered and well-funded efforts to remove them because of their involvement in rulings that rankled conservatives.

    In Iowa, State Supreme Court Justice David Wiggins, who was part of the majority in the 2009 Varnum v. Brien decision that supported marriage equality, retained his seat with about 55 percent of the vote. In Iowa 50 percent of the vote is needed to hold judicial seats. Some of the same organizations and individuals who successfully removed three other Iowa Supreme Court justices in 2010 – again for their involvement in advancing marriage equality – were targeting Wiggins. Typically judicial retention votes are intended for removing judges from the bench because of ethical breaches, corruption or incompetence. But religious right groups such as the National Organization for Marriage, the American Family Association and the so-called Iowans for Freedom committee abused the retention vote to go after judges for doing their jobs. But their efforts this time faltered.  

    Religious right activist Bob Vander Plaats, also involved with the Iowans freedom group, told the Des Moines Register that Wiggins’ retention vote of nearly 55 percent was “not a great validation for Justice Wiggins.”

    The newspaper noted that the other judges up for retention votes, but not targeted by the religious groups, retained their high court seats with vote “totals of more than 74 percent.” The Register surmises that the lower vote for Wiggins (pictured) might fuel another effort by religious right groups to target the other justices involved in the Varnum majority when they face retention votes in 2016. Plaats refused to speculate on those justices.

    In Florida an effort funded by a Super Pac of the billionaire rightwing Koch brothers also flopped. The brothers’ Super Pac had urged voters to remove three Florida Supreme Court justices, primarily for their involvement in scuttling a 2010 ballot measure declaring that Affordable Care Act would not the law in the Florida. (This summer, the U.S. Supreme Court upheld the constitutionality of the law’s integral provision, the one requiring most Americans starting carrying a minimum amount of health care insurance in 2014.)

    But Justices R. Fred Lewis, Barbara Pariente and Peggy Quince “easily” survived the retention votes, The Miami Heraldreports. As in Iowa, the justices only need a 50 percent vote to retain their seats. Despite “an unprecedented campaign” to dislodge the justices, The Herald reported that all three received “about two-thirds of the vote, with most votes counted.”