Archive for the ‘Free Speech’ category

Free Speech? Fine By Me.

April 20, 2007

Wednesday, I said that I agreed with Roy Moore that a public school in California acted unconstitutionally when it banned a student from wearing a shirt that said “Homosexuality is shameful.”

Today, via Bessemer Opinions, I read this story about Elizabeth Esser-Stuart, a student at the Alabama School of Fine Arts here in B’ham, and to whom the ACLU just awarded a $4,000 college scholarship in recognition of her work to protect civil liberties:

Elizabeth and 14 other students wore T-shirts to school that said, “Gay? Fine by me.” The shirts had come from a diversity program started by students at Duke University.

Deciding that the shirts might be offensive, the principal began pulling the students aside and telling them they could no longer wear the shirts. Elizabeth, only a sophomore at the time, did copious legal research on the students’ constitutional right to free expression. She met with the principal several times, urging him to lift the ban. She spent her days, nights, and early mornings working in support of the issue, despite confronting apathy from friends and peers.

In December 2004, Elizabeth contacted the ACLU of Alabama which, with the ACLU Lesbian and Gay Rights Project, notified the principal that the censorship was unconstitutional. The principal lifted the ban.

Three points.

One, good for her. This country needs more people like that.

Two, consider how her actions undercut any argument that schools somehow need to protect the young minds of students from pernicious and offensive ideas. As Ms. Esser-Stuart demonstrated, students are perfectly capable of rationally judging ideas. In fact, she showed a whole lot more wisdom than did the ostensible protector: The school principal. 

Three, there is absolutely no fair way to distinguish an anti-gay shirt from a pro-gay shirt. Every argument in favor of banning one also supports banning the other. I think the much better practice – constitutional requirements notwithstanding – is complete freedom of speech. Let ideas succeed or fail on their own merits, not based on what some state official thinks is offensive.


How Do You Spell Hypocrite?

April 19, 2007

The Thomas More Law Center.

In you are unfamiliar with these folks, they’ve got a lot in common with Roy Moore, being fervent defenders of the state’s power to display the ten commandments:

The Thomas More Law Center announced Monday, December 13th [2004] that it has filed a friend of the court brief with the United States Supreme Court in support of Ten Commandments displays on public property.

So if state or local governments want to endorse Christianity, that’s all well and good. But what if some other religion wants to put its symbol on public property? All that stuff about acknowledging god and religious freedom goes out the window:

A federal appeals court ruled Tuesday that followers of the Summum faith can display their Seven Aphorisms in Duchesne and Pleasant Grove city parks that already hold monuments of the Ten Commandments. 

The 10th U.S. Circuit Court of Appeals noted that the parks are public forums, and restrictions on speech based solely on its content are forbidden except in narrow circumstances. 

The two decisions overturned rulings by U.S. District Judge Dee Benson that blocked Summum’s proposed monuments. In the Pleasant Grove case, the court said requiring the city to permit display of Summum’s tenets will further free speech. 

Salt Lake City attorney Brian Barnard, who represented Summum in both cases, applauded the rulings. “It’s a good day for the First Amendment,” he said. 

Pleasant Grove City Attorney Tina Peterson and Duchesne Mayor Clint Park declined comment Tuesday. They referred questions to Edward White III, an attorney with the Thomas More Law Center in Michigan, which is helping defend the municipalities against the Summum lawsuits.

The blatant double standard gets worse. Guess who succesfully argued in a previous case that these same two cities – Pleasant Grove and Duchesne – had the power to put up the Ten Comandmanets momument? I’ll give you three guesses, but the first two don’t count, because this ought to be obvious:

In a ruling released yesterday, Federal District Judge Dee Benson held that Duchesne City, Utah, acted constitutionally when it sold land on which a Ten Commandments monument sits to keep from having to remove it. This is the second case within the past five months in which two public interest law firms, the Thomas More Law Center and the American Center for Law and Justice, have collaborated as co-counsel to prevent the removal of Ten Commandment Monuments in Utah.

The Duchesne decision comes within five months after another federal judge ruled in favor of Pleasant Grove City, Utah, allowing a separate Ten Commandments monument to remain on public property. The two public interest law firms acted as co-counsel in that case as well.

That blows my mind. It would be one thing to argue that there could be no religious displays in public property; or that the city must allow all religions equal access. Either of those options would be, I think, constitutional and a good idea. But to argue that a city gets to pick and choose which religions are allowed and which are not? How do these guys sleep at night?

Then again, despite the title to this post, they probably are not hypocrites. The TMLC is pretty open about their belief that the government can only endorse Christian beliefs:

The Thomas More Law Center affirms the right of Christians to publicly practice their religion and freely express their religious beliefs.

And that is exactly what they did in these two Utah towns: Fight for the right of Christians to publicly practice their religion, everyone else be damned.

BTW, here’s a link to the 10th Circuit’s decisions.

Even When Roy Moore Is Right, He’s Wrong

April 18, 2007

Here’s his latest column.

First, he is dead right that the recent Ninth Circuit case Harper v. Poway Unified School District is a really, really, really bad decision.

Basically, the court held that a local school was allowed to prohibit a student from wearing a t-shirt because the message on the shirt might have caused other students “to question their self-worth and their rightful place in society.”

What was the message, you ask? It should not matter, like I said here, schools ought have no power whatsoever to regulate the content of student speech absent some concrete disruption. But if you must know, it was this:

Appellant in this action is a sophomore at Poway High School who was ordered not to wear a T-shirt to school that read, “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED” handwritten on the front, and “HOMOSEXUALITY IS SHAMEFUL” handwritten on the back.

Anyone who reads this blog knows that my views on homosexuality are about as far from Roy Moore’s as can be. But I agree with him that in this case the school acted unconstitutionally. The possibility of psychological harm does not justify eliminating free speech.

So how is he wrong? Two ways.

First, according to his disciples, he’s wrong to suggest that the school acted unconstitutionally. Here’s Roy’s take (emphasis added):

Obviously, the liberal judges on the court cared little for traditional rights of free speech

And here’s a statement by his underlings on the Roy Moore Blog. Speaking about the “Bong Hits 4 Jesus” case (in which a principal disciplined a student for waiving a banner with those words on it) the mini-Moores say (emphasis added):

If one follows the original interpretation of the Free Speech Clause, there is no need to side with Frederick in this case.  The clause states, in pertinent part: “Congress shall make no law . . . abridging the freedom of speech.”  Take the analysis a step at a time.  In the first place, the government actor involved here is not “Congress,” but rather a local school administrator.  Thus, from a traditional standpoint, the First Amendment has no application in this case. 

So which is it guys? Does the first amendment apply to schools, or not? Or does it apply when kids want to condemn gay students, but not when kids want to question drug policies?

Second, he is wrong about the Ninth Circuit. Moore uses the Harper case for a broader argument:

The United States Supreme Court properly vacated their opinion, which is nothing new for the high court, as it has reversed all eight of the other 9th Circuit cases that have come before it this term, an appalling reversal record for any circuit court of appeals. Since 1978, no other circuit court of appeals has had more decisions overturned. In the 1995-96 term of the Supreme Court, 27 of 28 cases from the 9th Circuit were reversed, and in the 2003-04 term, 19 of 25 cases were reversed, most by unanimous decision of all nine justices of the Supreme Court. . . .

The solution to the problem is simple. Rather than burden our high court with wrong decisions by the 9th Circuit Court of Appeals, Congress has the authority to abolish that court altogether and create a new court in its place or divide the circuit into two smaller circuits, thus reducing the reach of its radical decisions. In the alternative, Congress can impeach a few judges for their irresponsibility, holding them accountable for their wayward rulings. Our respect for law and reverence for the Constitution demand that we no longer tolerate the behavior of the judges of the 9th Circuit!

For starters, I can’t be the only person scratching my head trying to figure why Roy Moore – Scotus basher extrodinaire – now thinks an appellate court’s worth depends on how often that court pleases Scotus.

More to the point, if the problem is burdening the high court with wrong decisions, then congress is going to have to get rid of much more than just the Ninth Circuit. 

It is probably accurate that the Ninth is reversed more than any other court. But that is because it covers a much bigger area than any other court. Hence, more cases to appeal. So the real question is how the reversal percentage of Ninth cases taken by Scotus compares to other jurisdictions.  

Roy is correct that in 03-04, Scotus reversed 19 of twenty five Ninth cases, or 76%. What he does not tell his readers is that the average for all the circuit courts in that same year was . . . 77%.

Roy is also correct that the Ninth had a few bad years in the mid-nineties. But consider the long view.

Over the last fifty years, Scotus reversed 57% of Ninth Circuit cases. For comparison’s sake, the Eight’s rate is 55%; the Fifth, Sixth, and Tenth are at 56%; D.C is 62% and none are below 46%. That’s just federal cases. 25 states have a higher reversal rate, among them Alabama, Mississippi, Georgia, Louisiana, and Texas. In fact, the state average is the same as the Ninth Circuit’s: 57%.

Things don’t change much when the period of comparison is the last 12 years. The Ninth, at 61%, comes in behind the Second, at 62%, while 16 states have higher reversal rates.

In short, with the exception of a few crazy years in the mid-nineties, the Ninth gets reversed at a perfectly normal rate. There may be reasons to split the Ninth, but the reversal rate is not one of them.

More Flag Insanity

March 22, 2007

At least these were out-of-state.


Bob Hurst walked into a Tallahassee art museum this week and saw the symbol of his Southern heritage hanging by a noose.

The art work, which has led to a standoff between descendants of Confederate soldiers and the museum, is a life-size gallows with the Confederate flag dangling from a frayed rope. Created by a black artist from Detroit and titled The Proper Way to Hang a Confederate Flag, the piece has brought an old debate to Florida anew.

Hurst and his compatriots at the Sons of Confederate Veterans want the exhibit taken down, and they’ve invoked a 1961 Florida law to support them.

”I didn’t find it clever. I didn’t find it amusing. I found it offensive. I found it tasteless,” said Hurst, whose great-great-grandfather led a company for the Confederacy and committed suicide after the South’s surrender. . . .

A 1961 Florida law actually says it is illegal to defile or ”cast contempt upon” the Confederate flag.

Right. If desecrating the American Flag is constitutionally protected, than how much more protected do you think desecrating the flag of a non-existent country would be? Good luck with that.

And just to show that the “Oooh, ooh, I’m offended, therefore the government must silence you” attitude is not limited to dumba** rednecks:

In a crucial victory for free expression, San Francisco State University (SFSU) announced yesterday that its College Republicans will face no punishment for hosting an anti-terrorism rally at which participants stepped on makeshift Hezbollah and Hamas flags. SFSU’s decision comes after months of pressure from the Foundation for Individual Rights in Education (FIRE), national and local media, and the public—all of which called on the school to uphold the students’ constitutionally guaranteed right to free expression.

“We are relieved that SFSU has come to its senses and recognized that it cannot punish students for constitutionally protected expression,” FIRE President Greg Lukianoff said. “But the fact remains that the university should never have investigated or tried them in the first place. This was a protected act of political protest and it is impossible to believe the university did not know that from the start.”

I’ll quote one of my favorite bloggers on this one:

There is absolutely no reason for them to have ever had charges even considered. The conduct in question was clearly constitutionally protected, and the very existence of school by-laws that could potentially punish such conduct is chilling toward free expression. If it had been an American flag trampled on during an anti-war protest, this would be just as true. I care as little about the offense of Muslim students when others express their views as I do the opinions of the uber-patriots when someone tramples an American flag. You don’t like someone else’s views? Counter them with your own speech.

It’s Not An Election Year

March 22, 2007

So can someone explain to me the reason for this bill:

[Yesterday, the] Senate Education Committee approved a bill to require public school students to say the Pledge of Allegiance.

Here’s the text of the bill:

(a) The teacher and students in each classroom in each public elementary and secondary school shall begin each school day by reciting aloud the Pledge of Allegiance to the Flag of the United States of America.

“(b) A student shall be exempt from reciting the Pledge of Allegiance if a parent or guardian of the student objects in writing to the recitation of the pledge on any grounds and files the objection with the principal of the school. A teacher shall be exempt from reciting the Pledge of Allegiance if the teacher objects in writing to the recitation and files the objection with the principal of the school. If a teacher is exempted, the principal shall designate another person to initiate the Pledge of Allegiance.

(c) Subsection (a) shall not be construed to require students and teachers who are not United States citizens and are attending or teaching school in the state to recite the Pledge of Allegiance

Requiring an unwilling student to say the pledge is a good way to lose a lot of money in a lawsuit, as it is an unconstitutional infringement on the student’s right to free speech. As recently as 2004, a Walker County, Alabama, school was nailed for penalizing a student who stood silently with his fist raised during the pledge.

Sure, this Bill has an exception for unwilling students, but only “if a parent or guardian of the student objects in writing to the recitation of the pledge on any grounds and files the objection with the principal of the school.” I do not think that exception will save the bill, though. 

Under the bill, the student’s “right” to free speech is entirely dependant on his teachers and his parents. The problem is that an unwilling student cannot just remain silent. The student must first get his parents to 1) agree to let him remain silent; 2) fill out the paperwork; 3) file it with the school. If any of those three things do not happen, than an unwilling student will be saying the pledge. And even if they do happen, until they do, the unwilling student will be saying the pledge. So if it takes mom and dad a few days to write the excuse and bring it to the school, for those few days, the free-minded student will have to bleat like the rest of the sheep.

It really is irresponsible to submit bills like this. Not just because it’s wasting time on something that is almost certainly unenforceable, but because if it passes, some patriotic teacher or administrator in some county without ready access to legal advice is going to think that it is now perfectly O.K. to require students to say the pledge. The law requires it, so they have to do it, right? But the truth is that any school that obeys this law would certainly get sued and probably lose a ton of money. Meanwhile the legislators who led those folks to believe their actions were permissible are completely immune.

(As an aside, and in light of this, I really think that that if the legislature is going to pass blatantly unconstitutional laws, they ought to include a warning that anyone who tries to enforce them will probably end up on the losing side of a federal lawsuit. Or else promise to indemnify anyone who tries to enforce the law.)

So I think the bill is unconstitutional. I think it will cost some unsuspecting school a ton of money. I also think it is just plain stupid. I’ll use the often-quoted but never tired Scotus lines from West Virginia State Board of Education v. Barnette to explain why:

Lastly, and this is the very heart of the Gobitis opinion [a prior case that had upheld mandatory flag salutes], it reasons that “National unity is the basis of national security,” that the authorities have “the right to select appropriate means for its attainment,” and hence reaches the conclusion that such compulsory measures toward “national unity” are constitutional. Id. at 595. Upon the verity of this assumption depends our answer in this case.

National unity, as an end which officials may foster by persuasion and example, is not in question. The problem is whether, under our Constitution, compulsion as here employed is a permissible means for its achievement.

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

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. If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

Speech Impediments

December 11, 2006

The Foundation for Individual Rights in Education has released a report about college campus speech codes. From the intro:

This year, the Foundation for Individual Rights in Education (FIRE) conducted an expansive study of just how pervasive and how onerous restrictions on speech are at America’s colleges and universities. What we found was not good news for free speech. Between September 2005 and September 2006, FIRE surveyed over 330 schools and found that an overwhelming majority of them explicitly prohibit speech that, outside the borders of campus, is protected by the First Amendment to the U.S. Constitution. To our knowledge, this is the most comprehensive effort yet to quantify both the number of schools that significantly restrict students’ and faculty members’ speech and the severity of those restrictions.

Highlights from FIRE’s research include:

• Davidson College in North Carolina prohibits “comments or inquiries about dating,” “patronizing remarks,” “innuendoes,” and “dismissive comments.”

• At Jacksonville State University in Alabama, students can be punished if they “offend” anyone “on university owned or operated property.”

• At the University of Mississippi, “offensive language is not to be used” over the telephone.

How anyone could think these restrictions are a good idea is beyond me. Restricting speech is dumb, and even dumberer at a college. Someone may be saying something truly stupid, but by banning it, you add the fuel of martyrdom to the fires of stupidy. And if the purpose is to protect the listener, these things are even dumber on a University Campus than they would be elsewhere. University people are supposed to be 1) open to new ideas, and 2) a bit more rational than the public at large. One means they should not be so easily “offended” and two means they are perfectly capable of rejecting truly bad ideas; i.e. they do not need protection.

But if you are going to be a fascist, at least use meaningful and objective terms in the restrictions. Those three examples, for instance, mean “don’t say stuff that whoever happens to have enforcement authority dislikes.” The “rules” are so vague that no-one can know prior to enforcement whether a particular comment breaks the rules. Every speaker speaks at his peril. (Indeed, I may have just “offended” someone by using the masculine singular pronoun.) Hence, no speech is free. And this is on a University Campus! Give me a break.  

JSU is not alone in Alabama. Auburn, Alabama, and Troy are among the 229 schools – out of the 334 surveyed – who get the lowest possible score. UAB and UAH beat them, but still get lousy scores. Only eight of the 334 had no serious speech restrictions.

The report does not include any statistics on enforcement of these restrictions. Most of them are so patently stupid that I can’t imagine anyone trying to enforce them. But if I’m wrong, I’d love to hear about it.

Microsoft Works

December 6, 2006

That’s probably my favorite oxymoron. There are two other very interesting examples in this Eleventh Circuit decision. The plaintiffs lost on procedural grounds and the court never discussed the merits, but here’s the facts:

Plaintiffs Adam Elend, Jeff Marks, and Joe Redner allege that their First Amendment rights were violated on November 2, 2002, when they attempted to protest at a political rally attended by President Bush at the University of South Florida (USF) Sun Dome.

Marks and Redner held up placards, while Elend videotaped the event and distributed copies of certain Supreme Court decisions pertaining to the FirstAmendment. Plaintiffs began to conduct this activity on a median adjacent to a parking lot on the USF campus, approximately 150 feet from the nearest Sun Dome entrance and 30 feet from event attendees who were waiting in line.

Soon after the commencement of this activity, USF police officers told the Plaintiffs that they would have to stand in the “First Amendment zone,” an area estimated to be one quarter of a mile away from the Sun Dome. The “protest zone” consisted of a metal fence patrolled by law enforcement personnel, some of whom were on horseback.

Plaintiffs contend that others carrying placards and signs indicating support of President George Bush or Governor Jeb Bush were not asked to move to the protest zone.

Plaintiffs explained to USF officers their belief that the creation of such a zone unconstitutionally restricted their freedom of speech. At that point, they were approached by a purported agent of the Sun Dome, Kelly Hickman, who also requested they move to the protest zone. When Plaintiffs refused to relocate, Hillsborough County Sheriff’s deputies arrested them for “trespass after warning.”

Which is worse? Calling a structure designed to keep out the elements the “Sun Dome?” Or calling a metal cage surrounded by armed guards a “First Amendment Zone?”

Actually, now that I think about it, only the former is an oxymoron; that is “A rhetorical figure in which incongruous or contradictory terms are combined, as in a deafening silence and a mournful optimist.” Sun Dome is by itself contradictory. The purpose of the dome is to keep out the sun. First Amendment Zone, on the other hand, is fine by itself. It only makes you scratch your head when someone applies it to a location designed to stifle speech. In that case, doublespeak is probably the better term: “language deliberately constructed to disguise its actual meaning.”

UPDATE: In case you’re a visual learner, here’s the Sun Dome:

And a free speech zone (though this is actually from the 2004 Democratic National Convention, I’m pretty sure they’re all about the same):