First Amendment

  • April 17, 2012

    by Joseph Jerome

    When an undercover investigation by the Humane Society last week revealed “extreme animal abuse” and deplorable conditions at a massive Pennsylvania egg factory, Iowa lawmakers assuredly breathed a giant sigh of relief. Recently Iowa became the first in the nation to enact an “ag-gag” law designed to prevent and criminalize similar undercover investigations at industrial farms.

    The original version of the law introduced last year was draconian in scope, making it a crime to take or even to possess pictures from industrial farms taken without the owner’s consent. In the face of obvious First Amendment concerns that banning pictures of abused farm animals would be unconstitutional, the final law only criminalizes false statements used to obtain employment at these farms or, more ominously, attacks anyone “with an intent to commit an act not authorized by the owner.” 

    Despite the recent use of undercover reporting to reveal real problems at Iowa farms, the law’s proponents provided a litany of justifications for the law. Governor Terry Branstad (pictured) insisted that undercover films had become a serious problem and claimed H.F. 589 was necessary to protect farmers.

    Annette Sweeney, a member of the Iowa House of Representatives and a key sponsor of the legislation, argued that the law protects family farms from political motivated crime. Though the law’s only provisions detail penalties for “agricultural production facility fraud,” Sweeney actually believes the law encourages individuals to immediately report abusive farming practices.  “No person would be stopped from reporting alleged abuse,” she wrote in The Des Moines Register. “Rather, only those who have no respect for Iowa laws would be prevented from endangering animals and people in the creation of propaganda designed to support an extremist agenda.”

  • March 20, 2012
    Guest Post

    By Leslie Griffin, Larry & Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center


    Before the Second Vatican Council (1962-1965), the Catholic Church condemned the separation of church and state and taught that only Catholics had the right to public worship and religious liberty. In a series of nuanced essays written from 1940-1965, the New York Jesuit Catholic priest John Courtney Murray developed a historical argument that the prohibition on separation was not a timeless, universal norm, but was best understood as a response to the anticlerical liberalism of modern Europe. Hence, Murray concluded, American Catholics could favor the separation of church and state even though Rome (mistakenly) opposed it. Senator John F. Kennedy consulted Murray as he prepared his famous 1960 campaign address to Houston Baptist ministers pledging his commitment to the separation of church and state. The speech set the stage for Kennedy’s election as the first Catholic president of the United States.

    The bishops of the Roman Catholic Church approved the Declaration on Religious Freedom, Dignitatis Humanae (DH), at the last session of the Council in December 1965. DH changed prior Catholic teaching by affirming that religious liberty is the right of every human person, not a right of Catholics only. Murray was the lead drafter of the declaration.

    Murray told reporter Robert Blair Kaiser in 1965 that the “resolution of the religious liberty issue had ‘transferential implications’ for those trying to work out the birth control question.” The “birth control question” asked if the church should revise its prohibition on artificial contraception. After extensive debate and reports from a papal commission, the church did not do so. Pope Paul VI instead reaffirmed the immorality of contraception in his 1968 papal encyclical Humanae Vitae (HV).

    HV is the intellectual source of the Catholic Church’s current battle with the Obama administration over the provision of contraceptive insurance to its Catholic and non-Catholic employees. The church teaches that contraception is morally wrong as a matter of natural law for all men and women, Catholic and non-Catholic, married and non-married, without regard to whether they choose to believe or accept the teachings of the Catholic Church.

    No one doubts that the bishops are sincere in their commitment to the anti-contraception moral principle. They are mistaken, however, to believe that the religious freedom protected by the U.S. Constitution entitles them to enforce their moral beliefs on others through force of law. Murray and Kennedy had a better sense of what the Constitution protects.

  • March 7, 2012

    by Jeremy Leaming

    The Occupy Wall Street protests helped amplify discussion of the nation’s growing economic inequality. They highlighted the fact that conservative economic policy has made a tiny few in the country extremely wealthy, while shoving many more people into poverty.

    Not surprisingly, however, those demonstrations have also prompted Congress to react with legislation that as The Daily Agenda reports would undoubtedly work to harm free speech. In its first post on the legislation, H.R. 347, The Daily Agenda dubbed the measure the “anti-Occupy law,” because it is aimed at keeping many federal buildings and grounds free of protestors. The measure is not law yet, but it easily passed both chambers of Congress and has been sent to the president.

    The measure, euphemistically dubbed the “Federal Restricted Buildings and Grounds Improvement Act,” would alter federal criminal law barring persons from “knowingly” wandering onto “any restricted building or grounds without lawful authority.” Those places include the White House, the vice president’s residence, “a building or grounds where the President or other persons protected by the Secret Service is or will be temporarily visiting,” or federal buildings or grounds that are hosting a “special event of national significance.”

    The anti-free speech measure’s chief sponsor is Florida Republican Rep. Tom Rooney, who has railed against President Obama’s landmark health care reform law, the Affordable Care Act. Rooney is also supporting a federal lawsuit lodged by a religious university against a part of the health care reform law that will require insurance companies to pay for contraceptives for workers at religiously affiliated institutions.

  • February 22, 2012
    Guest Post

    By Ruthann Robson, Professor of Law & University Distinguished Professor, City University of New York (CUNY) School of Law. Professor Robson is also the ACS faculty advisor for the CUNY School of Law Student Chapter.


    All of us are not in jail because very few lies are crimes. Falsehoods under oath, or to a government agent or agency, or in a fraudulent scheme, are all criminalized. But lies based on their subject matter are much more rarely the subject of criminal sanctions.

    In the 2005 Stolen Valor Act, Congress has criminalized false statements that one has received a military medal such as the Purple Heart. The lie is a crime even if it is a mere boast in a bar or on E-Harmony.  Importantly, a lie about the same subject matter -- for example, the Purple Heart -- is not criminalized if the false statement is that one has not received the award when one has.

    The Ninth Circuit, in a divided opinion, held this provision of the Stolen Valor Act unconstitutional as content discrimination under the First Amendment. Just last month and after the United States Supreme Court had taken certiorari, the Tenth Circuit also in a divided opinion, held the provision constitutional.

    The Supreme Court will have a choice between two different approaches. On the one hand, falsehoods might be entirely beyond the protection of the First Amendment. Under this so-called categorical approach, while there are no such things as “false ideas,” there are certainly false statements of fact that are not essential to the truth-seeking function of the First Amendment. The government should be able to regulate these false statements, as it regularly does with regard to allowing damages actions for defamation and regulating commercial representations about products.

    On the other hand, government regulations making content or viewpoint distinctions -- regulating the speech because of what the speech is “about” or because of the opinion it advocates -- are highly suspect. Courts demand that the government interest be compelling, with a burden on the government to show there are not less restrictive means.

  • February 14, 2012

    by Jeremy Leaming

    The state that gave the country one of the harshest anti-immigrant laws, spurring an even nastier measure, the one Alabama produced, is now contemplating a sweeping bill aimed at curtailing free speech at the state’s public schools and universities.

    As The Daily Agenda’s Anthony Badami reports the Arizona state senate is considering SB 1467 “that would require schools and universities to refrain from engaging in ‘speech or conduct that would violate the standards adopted by the federal communications commission concerning obscenity, indecency and profanity if that speech or conduct were broadcast on television or radio.’”

    Badami notes that such a measure if adopted could jeopardize teaching literature or history “that include offensive, derogatory, and/or lewd language, creating a special difficulty for the examination of free speech/obscenity cases, esp. in constitutional law courses.” The bill, if enacted, could, as Badami correctly notes, make it incredibly thorny for educators to teach certain works of fiction, say D.H. Lawrence’s Lady Chatterley’s Lover.

    The Republic, a Phoenix daily, reports that the bill is supported by Republican state lawmakers who want to “require teachers to limit their speech to words that comply with the Federal Communications Commission regulations on what can be said on TV or radio.”