First Amendment

  • March 6, 2014
    Guest Post
    by Katie Townsend, Associate, Gibson Dunn & Crutcher LLP
     
    Editor's Note: The 50th anniversary of New York Times Co. v. Sullivan is this Sunday, March 9.
     
    For me, and for other media attorneys of my generation, it is almost impossible to conceive of a world without New York Times Co. v. Sullivan. Certainly, the “actual malice” standard announced in Justice Brennan’s celebrated opinion, and the interplay between that standard’s twin elements of fault and falsity have, throughout my lifetime, been the defining features of the law of defamation. But the impact of that landmark decision extends far beyond the realm of reputational torts.
     
    Sullivan has shaped our very understanding of the First Amendment—as a reflection of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open”—and it serves as a touchstone in virtually every case that calls for an interpretation of the constitutional guarantees of free speech and a free press.
     
    For evidence of Sullivan’s enduring and continued role in shaping First Amendment thought and jurisprudence beyond the scope of defamatory speech, one need look no further than the Supreme Court’s 2012 decision in United States v. Alvarez. Alvarez addressed the constitutionality of the Stolen Valor Act of 2005, a federal statute that made it a crime for an individual to falsely claim that she or he had been “awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.”
     
    A six-justice majority concluded, albeit for different reasons, that the statute was unconstitutional under the First Amendment. While Justice Kennedy in his plurality opinion, and Justice Breyer in his concurrence, disagreed as to the proper analysis, they agreed in at least one critical respect, finding that false speech is not outside the scope of the First Amendment—an idea rooted in the reasoning and holding of Sullivan.
     
  • February 25, 2014
    Guest Post
    by James C. Nelson, Justice, Montana Supreme Court (Retired)
     
    There is gathering national support acknowledging that lesbian, gay, bisexual and transgender (LGBT) citizens are simply that—citizens—with the same rights, privileges and obligations as other citizens. In response, some States, along with various fundamentalist religious and conservative organizations are fighting for a legally protected right to discriminate. This right to discriminate is grounded in the First Amendment’s “Free Exercise” clause. As the theory goes, being able to discriminate against LGBT citizens is necessary to preserve the First Amendment right to the free exercise of religion for these States’ fundamentalist religious heterosexuals and conservative organizations.
     
    This stratagem is not only patently specious; it is legally insupportable.
     
    Contrary to the homophobic fear-mongering by religious fundamentalists and conservatives, there is no legal support for the notion that a State which has recognized the equal rights of LGBT citizens can force a religious organization to adopt those same views. If Religion X condemns gay people, the State cannot, require Religion X to perform a gay or lesbian marriage or change its doctrinal beliefs against homosexuality under threat of governmental penalty. Indeed, if the State attempted to do that, it would violate the free exercise clause of the First Amendment. And, of course, for that reason, no State has made any such demands on any sectarian organization.
     
    Yet, in Arizona, Idaho, Kansas, Nevada, Oregon, South Dakota, Tennessee, Oklahoma, Mississippi, Ohio and Utah religious and conservative organizations and, in some cases, their supporters in the state legislatures are actively promoting the adoption of laws that would permit any individual or group to discriminate in a variety of contexts based on religious beliefs. Such laws would allow business owners, for example, to discriminate against LGBT customers in much the same fashion that businesses run by racists once discriminated with impunity against people of color. A government official could deny same-sex couples basic services and benefits based solely on that official’s religious beliefs. Indeed, Arizona has even proposed to allow the denial of equal pay to women and the abrogation of contractual rights in the name of religion. In other words, one’s personal religious beliefs trump legal obligations imposed generally upon and for the benefit of all.
     
  • February 24, 2014
    Guest Post

    by Mary Beth Tinker, Petitioner, Tinker v. Des Moines

    * Editor’s Note: Ms. Tinker is currently traveling the United States to promote youth voices, free speech and a free press as part of the Tinker Tour. For updates, follow the Tour on Twitter and read its February 2014 newsletter. You can support the Tour at startsomegood. The Tour ends on March 7.

    The smiling face of a seventh-grader named Jake is on my laptop screen. Jake is explaining why he wrote “We will never forget you, Newtown... 12/14/12” on the front of his shirt last year after the Newtown Elementary School shooting.  On the back of the shirt, he wrote the name of every person who had been killed there. He explains that he did it because “I felt very emotional. That school was close to mine.” 

    When Jake wore the shirt to school the day after the shooting, the principal asked him to remove it, a possibility that Jake’s parents had prepared him for. He refused, and was sent home. Later, the parents heard that school administrators were worried that students would be upset by the shirt, and that a parent had complained.

    Jake went back to school, but the experience inspired a new interest: students’ rights. Now, he’s doing a documentary for National History Day on “rights and responsibilities” that will feature the Supreme Court case, Tinker v Des Moines, in which I was a plaintiff.

    Jake is asking why I wore an armband to school when I was in eighth grade back in 1965, knowing—like him—that I would get in trouble. He’d also like to know how the case led to the Supreme Court and a landmark victory for students’ rights on February 24, 1969.

  • February 20, 2014
    Guest Post
    by Geoffrey R. Stone, Edward H. Levi Distinguished Professor of Law and an ACS Faculty Advisor at the University of Chicago Law School; former Chair, ACS Board of Directors
     
    * This post originally appeared on The Huffington Post.
     
    A few days ago on the campus of the University of Mississippi, someone (reportedly two males) draped a Confederate flag on a statue honoring James Meredith and hung a noose around its neck. Meredith was the African-American student who courageously desegregated the University of Mississippi in 1962, weathering a storm of ugly protest, riots and threats of violence. This act was, by any measure, deeply disrespectful and hateful.
     
    University of Mississippi Chancellor Dan Jones responded by stating of those who did this: "Their ideas have no place here, and our response will be an even greater commitment to promoting the values that are engraved on the statue—Courage, Knowledge, Opportunity, and Perseverance."
     
    This poses an interesting question. How should the University of Mississippi respond? What does it mean to say that these "ideas have no place here"? Assuming the individuals who did this were students, should the university expel or otherwise discipline them? Are there "ideas" that "have no place" on a university campus?
     
  • February 7, 2014
     
    The New York Times editorial board cited an amicus brief in Sebelius v. Hobby Lobby Stores authored by Frederick Mark Gedicks, Faculty Advisor for the Brigham Young University J. Reuben Clark Law School ACS Student Chapter. The paper calls for the Court to recognize the Establishment Clause’s precedent in the lawsuit against the Obama administration. Gedicks also authored an ACS Issue Brief examining the challenges to the Affordable Care Act’s contraception policy and laid out an argument against granting religious exemptions to for-profit corporations on ACSblog.
     
    Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, released a statement praising the Senate Judiciary Committee for its favorable report of Debo Adegbile to be the Assistant Attorney General in the Department of Justice's Civil Rights Division. In the statement, Ifill says Adegbile “has precisely the type of broad civil rights experience that is required at this pivotal moment in our country.”
     
    Last summer, the U.S. Supreme Court struck down a key provision of the Voting Rights Act that required federal review of voting laws in states with a history of voter discrimination. Adam Ragusea of NPR reports from Macon, Georgia on the repercussions felt by the city’s minority voters.
     
    Human Rights Watch explores the legal and ethical implications of a growing trend among probation companies to “act more like abusive debt collectors than probation officers.”
     
    The Honorable Robert L. Carter is in the NAACP Legal Defense and Educational Fund’s “Black History Month Spotlight.”