Tag Archives: First Amendment

Ssh! We’re “reflecting.”

According to the Houston Chronicle, the U.S. Court of Appeals for the Fifth Circuit this week heard oral argument on whether Texas’s school “moment of silence” law violates the Establishment Clause:

U.S. District Judge Barbara Lynn upheld the constitutionality of the law last year [….] The Crofts, of Carrollton, Texas, appealed Lynn’s ruling. On Tuesday, a three-judge panel from the 5th U.S. Circuit Court of Appeals in New Orleans heard arguments from lawyers on both sides of the case. […]

In 2003, state lawmakers amended an existing law that already allowed schools to hold a moment of silence to specify that students can use the time to “reflect, pray, meditate, or engage in any other silent activity that is not likely to interfere with or distract another student.”

[…]

Texas Solicitor General James Ho, who handles appeals for Attorney General Greg Abbott, said lawmakers included the word “prayer” to avoid confusion.

Judge Fortunato Benavides said advocates on both sides of the issue tend to distort the implications of laws governing school prayer.

“I can see why the Legislature might think that it might be important to let people know what they can do and put it in the form of a statute,” he said.

[…]

Ho and Cook both cited prior rulings by the U.S. Supreme Court to support their positions. Cook said the justices struck down an Alabama law that mirrors Texas’ minute-of-silence statute.

“By amending (the law) to include the word ‘pray,’ the Legislature, whether intentionally or otherwise, has advanced religion,” he wrote in court papers.

Ho said Alabama lawmakers had enacted their law “for the express purpose of defying the U.S. Supreme Court,” whereas sponsors of the Texas law wrote theirs in a way that would pass constitutional muster.

These statutes have always amazed me.  For nearly 50 years, the Supreme Court has held that teacher or administrator-led (or teacher or administrator-endorsed) school prayer (or school prayer disguised as a moment of silence) is unconstitutional.  To me, a school leading a prayer (even a nondenominational-ish prayer) is one of the worst kinds of establishment. It’s a government official endorsing religion (and often one religion over another), compelling kids (who likely do not yet have well-developed ideas about God) to engage in a particular religious practice, usurp parental authority on one of the most critical choices in child rearing, and create unnecessary tensions between student and teacher, peer and peer, and even religion and religion.  Likewise, though, the Supreme Court has been very clear that kids don’t lose the rights to their own, particular faith at the schoolhouse door.  Kids are more than welcome to pray (pretty much whenever they want), out loud or silently, in groups or individually.

Nonetheless, legislatures continue to believe, apparently, that kids do not have enough opportunity to pray at school on their own, and so they enact statute after statute mandating “moments of silence.” Most of the ordinances challenged fail, often because the legislature (like the Texas legislature here) enumerates that kids can pray during the moment of silence.  The cases often turn on whether the legislature had the “purpose” of promoting religion (or one religion over another) when enacting the statute.

From a legal perspective, why is “purpose” paramount?  If the legislation is truly neutral (that is, kids can do whatever they want, so long as they do it quietly) who cares if the legislators “hope” that more students pray? Is it that the implication is you’re “supposed” to pray? Or that you should feel bad if you don’t pray? That seems to be more of a question of implementation (that is, whether the school says something like “now take this moment of silence for reflection, OR TO PRAY, or to sit quietly in preparation for the day…”) rather than enaction of the statute.

But from a practical perspective, why do legislators continue to pass statutes like this?  Kids who will want to pray will.  They’ll do it when they get to their seats, right before the big test (when even non-religious kids may say a word or two), before lunch, at a Fellowship of Christian Athletes meeting, at a student-run bible study… whenever they feel compelled to.  Students who don’t want to pray won’t, unless the government compells them (a clear violation of the Establishment Clause…. well, at least at the time of this writing.) I’ve never heard a high school student, much less an elementary student ever saying “man, if I just had more time to pray,” or “man, if I just had 45 seconds at the beginning of the day to ‘reflect,’ I’m sure my studies would be better.” And have these legislators ever been to a school and sat in a room where kids are supposed to be quiet?  Like a study hall, or a classroom where people are taking a test? Half the kids are just trying to break the silence one way or another.  Rather than starting the day well, my guess is that the “prayer kids” will just be harassed by the “non-prayer kids,” the “silence” will routinely be broken (by jokesters, by kids’ cell phones, or by other kids texting away), and everyone will just be more stressed.

Regardless of the constitutionality of this particular statute (which appears to be suspect to me, based upon the drafted language), I wish state legislatures had better things to do than to mandate when and where kids have to be quiet (or mandate who has to pray and when).

I look forward to all reasonable comments.

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Virginia state preachers free to preach… er, so long as they’re not Muslim

According to this report, the Virginia House of Delegates has approved a bill that removes a restriction previously requiring that chaplains for Virginia state police offer “ecumenical, non-denominational prayers” at official events.

Backers of the bill said it restored the chaplains’ right to religious freedom. But opponents said the bill violates the First Amendment by having the state advocate one specific religion.

[…]

Del. Charles W. Carrico, a retired State Police trooper, drafted the bill after State Police Superintendent W. Steven Flaherty issued a directive to chaplains to offer generic prayers at department-sponsored public events such as graduations from the trooper training academy.

“I do not want to interfere with anyone else’s religion. I am a Christian and I will profess that,” said Carrico, R-Grayson. “The Christian faith happened to be the one under attack when this came about.”

Flaherty issued the guidance in response to a 2008 federal appeals court ruling upholding a Fredericksburg City Council policy against opening council meetings with prayers that mention Jesus.

The directive does not apply to chaplains in private venues such as funerals or in counseling grieving troopers or their loved ones.

[House Majority Leader H. Morgan] Griffith called opponents’ use of the same constitutional free-worship guarantees to argue that the bill is an impermissible state intrusion into religion “Orwellian doublespeak.”

Del. Adam Ebbin, D-Alexandria, said the bill blurs the distinction “between state-endorsed religion vs. the exercise of free religion by individuals.”

Ebbin, who is Jewish, said that when he attends a Christian church, he expects to hear prayers in Christ’s name and accepts them.

“When I go to a public event in a public-sanctioned forum, I do not expect to be excluded,” Ebbin said.

The bill is not that surprising, and will probably never be enacted, as Virginia Gov. Tim Kaine will likely veto it, and even if he didn’t, it would likely be ruled unconstitutional anyway during the lawsuit that the ACLU has threatened.

First Amendment law professor Kathleen Bergin caught this article, and not so much for the law as the response by one dissenting, Democratic delegate:

Del. Lionel Spruill, who opposed the bill, made his disdain for Islam clear in a floor speech. In making a point about observing diverse religious traditions, he said Muslim relatives who visit his Christian church are asked to remove their traditional head coverings.
[…]

He said he has no problem with most clergy who offer the daily invocation at the start of each House session.

“From time to time we have certain people who come here, certain people who pray here, and depending on who it is, I’ll walk out that door, especially those in the Muslim faith I don’t care too much about,” he said.

Professor Bergin’s response:

Spurill’s vote against the bill wasn’t rooted in a concern about the crumbling wall that’s supposed to separate church from state, or protecting the state from the inevitable ACLU suit that would follow passage of the bill, but the mere prospect of including an Imam at an official police event.

[…]

I don’t understand why this part of the story hasn’t gotten more coverage (ok, so I do), but could we ever imagine an elected state official making such remarks about any other religion, and having it go virtually unnoticed in the national press?

Indeed, Delegate Spurill’s comments are awful, but they are a true example of exactly why the Establishment Clause exists to keep religion out of government.  (Interestingly, one could also use his comments as evidence for the other side–that if a chaplain comes to deliver a prayer that any particular state official or police officer disagrees with, he or she could just step out into the hallway.  Of course, it doesn’t often work that way.)

But this statute is also a poignant example of the “unseen” half of the Establishment Clause.  The Establishment Clause works not only to keep religion out of government, but also to keep government out of religion.  Because the Virginia state patrol has chaplains, it must pass regulations deciding to whom those chaplains may (or may not) pray at official functions, to avoid endorsing a religion and violating the First Amendment.  Yet, in doing so, the state “waters down” the practice of many of those chaplains’ faiths, at least in their official capacity.  This is why the original Lemon v. Kurtzman court was concerned about “excessive entanglement” with religion (although modern courts have shrugged off that concern). How can you have chaplains providing faith services to civil servants when the government commands what the scope of those services can be? Do the chaplains truly have a Free Exercise right to say “in the name of Jesus, Amen”? Is watered down prayers to the “Almighty Creator” better than no prayers at all? Are non-Christian police officers part of the “outgroup” when an “Endorsed” chaplain proselytizes? Or is it the chaplain’s “freedom of conscience” that is violated? And what about minority religious figures?  It seems that every time the government gets this involved in providing some sort of “religious tone”-especially before “official events,” this stuff happens.  There are no easy answers to these questions.  And it appears that Pres. Obama hasn’t learned this lesson, either.

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Rats! New Jersey Supreme Court rules that inflatable rodent is First Amendment Speech

A giant inflatable rat is protected by the First Amendment... only in New Jersey! Image from the <a href=

A giant inflatable rat is protected by the First Amendment... only in New Jersey! Image from the AP.

According to these news reports, yesterday the New Jersey Supreme Court ruled that a New Jersey city could not fine a local labor union or its use of a large, inflatable rat to protest non-union work pursuant to city ordinance banning inflatable displays except for store grand openings. As reported by the AP:

The super-sized rat, sitting on its hind legs and bearing fangs, is a national symbol used by organized labor to signal a labor dispute. It had been blown up and displayed at a 2005 labor event in Lawrence Township until police enforced a law that bans banners, streamers and inflatable signs, except those announcing grand openings.

A labor official was fined $100 plus $33 court costs.

The event was staged by the union to protest low wages being paid to electricians by an out-of-area contractor.

An appeals court panel ruled in 2007 that the town could ban the big black rat and affirmed the labor official’s fines. The panel found the ordinance was content-neutral and was aimed at enhancing aesthetics and protecting public health and safety.

The union appealed. Its lawyers argued the law violates their right to free expression and suppresses protest.

The township claimed the union’s use of the rat was a form of commercial speech, less deserving of First Amendment protections.

The state Supreme Court found that the law wasn’t neutral, and therefore was unconstitutional. It said an ordinance “that prohibits a union from displaying a rat balloon, while at the same time authorizing a similar display as part of a grand opening, is content-based.”

Township attorney John Dember said, “(The court) did find that we need to do some tweaking because of the freedom of expression limitation, which we’ll undertake immediately to correct.”

The Court, in its opinion, found that the ordinance to be a content-based restriction (because the balloons permitted by the ordinance were for store openings vs. ballons for other purposes).  The rule didn’t meet strict scrutiny, and so the fines were reversed, and the city has to “tweak” the ordinance.

It appears from the opinion that the inflatable rat fails not only because it’s inflatable (a specific prohibition in the ordinance) but also because it is a “sign” for which the union did not get a permit and that was not “excepted” from permit requirements because it wasn’t a yard sign, grand opening sign, political sign, window sign, etc. But because Gold’s gym (the venue that was being protested for using non-union work) could have put up a “grand opening balloon” at the same site and not be subject to fine or licensing, it does seem to be a content-based restriction that probably shouldn’t survive strict scrutiny.

I’m curious, though–if the ordinance was focused solely on the inflatable nature of the display, is there really a constitutional right to inflatable ballons? Is that a medium that is somehow different from, say, a 10-foot sign, or a statue made out of crepe paper?  I suppose balloons are preferrable because they’re light, easy to set up, temporary, and easier to move than any of the aforementioned options. But if the union could put up a sign or statue instead of a balloon (under the idea that balloons may be more dangerous to motor vehicles, or just plain uglier on their streets perhaps), would the result be the same? Even if Gold’s Gym was permitted to put up the balloon for a grand opening for less than a month? Would the result have been different if the petitioners weren’t a union, and/or the case was not in New Jersey?

This case was probably rightly decided, but it will be interesting to see how the city will “tweak” the ordinance to avoid content-based restrictions.  If it simply bans all balloons (or requires unreasonable permits for them), then it may run afoul of the overbreadth concerns the Court had.   One to gnaw on.

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A bunch of “IP meanines” are appointed by Obama to the DOJ–what does it mean?

Copyright Avengers? Or just a bunch of guys in suits?

Copyright Avengers? Or just a bunch of guys in suits? Courtesy of Gismodo.

The blogosphere is all aflutter over the appointment of a number of attorneys by the Obama administration to upper-level DOJ positions, simply because a number of these attorneys represented the RIAA or MPAA in a number of copyright cases, or even was successful in redefining contributory copyright infringement in the Grokster case.

Ben at Copyrights & Campaigns tries to put some perspective on the appointments, complete with an “insider” source that notes that these guys are not going to have a lot of day-to-day involvement in copyright cases.

First, there is no indication whatsoever that Tom Perrelli, Don Verrilli, Neil MacBride or the others were selected because of their views or experience on copyright issues. […] They all have extensive experience in areas other than copyright, and those non-copyright experiences, I suspect, had a lot more to do with their appointments than their anti-piracy work.

Second, the Department of Justice has virtually nothing to do with civil copyright litigation, which is almost almost always fought between private parties, with the DOJ paying no attention at all. […]

It is true that DOJ prosecutes criminal copyright infringement cases. But ask yourself when the last truly controversial criminal infringement case occurred. The fact is, criminal copyright cases are virtually all about blatant cases of commercial infringement (e.g., a factory stamping out pirated DVDs and selling them), not about interesting and controversial issues involving secondary liability or fair use. […]

Don’t get me wrong; I’m thrilled to have first-rate copyright lawyers in the top ranks of Justice. But I am under no illusion that they will be spending much of their time on copyright issues, or that the Obama Admistration’s IP policies will differ from the Bush Administration’s IP policies in any major way. The fact is that administrations of both parties have been admirably supportive of copyright owners and their legitimate efforts to enforce their rights.

Ben’s commentary is so thoughtful (and well cited, and even includes an “inside source”!), I thought it worth repeating here.  I agree that the day-to-day operation of the DOJ vis-a-vis copyright and other types of IP enforcement will not be significantly different under an Obama administration, nor that it would be significantly different if the Copyright Avengers had not been appointed.  But the differences may arise if, for example, there is a significant constitutional challenge to a copyright statute (a la Tenenbaum) and a Court of Appeals or the Supreme Court asks for the DOJ’s input. And rather than a victory for the “copyright,” perhaps because Obama did not appoint any Lessig-type attorney to the DOJ, it’s just a small defeat for the “copyleft.


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Rove lecturing about the First Amendment (?)

Karl Rove, speaking in California

According to this article, former George W. Bush adviser Karl Rove spoke to a crowd at Loyola Marymount University in California last night.  The topic of his speech:  The First Amendment.

The article reports the controversies, both in Rove’s speech and in reaction from the crowd.  What did the report include about the supposed topic of the night?

Among Rove’s more sympathetic questioners, the overriding concern was over liberal bias in the media.

“This election was unbelievably tilted to Obama, and that’s not healthy for the system,” Rove concurred. “That coverage is putting a finger on the scale.”

Rove argued that most members of the national media live in Washington and New York and went to eastern schools, and absorb the liberal views of their surroundings.

Now, it may be unfair “liberal” bias, such that the reporter neglected to discuss any of Rove’s additional comments about the First Amendment, but I would not be surprised if there were little, if any.  As the mastermind of misinformation, secrecy, and privilege, and whose party’s candidate for vice-president during this election cycle refused to talk to reporters except in the most controlled of situations, I can’t imagine that Mr. Rove has a lot of sympathy for an expansive version of the First Amendment.  His solution:  Blame the “liberal” media for negative coverage of his guy, even though the “liberal” media was extremely gracious (and trusting) for at least 6 years of the Bush 43 presidency.  Regardless of your view of the Bush 43 policies or Mr. Rove’s political tactics, I think you’d agree–he’s not the best guy in the world to lecture about the First Amendment.

EDIT: Apparently, Mr. Rove did speak about the First Amendment.  Although according to this (very) opposing viewpoint, that didn’t go over very well, either.

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A cease and desist letter… from the White House?

A number of news articles and commentators have noted that the Obama Administration plans on enforcing the President’s trademark and/or publicity rights against shifty manufacturers who have put Obama’s face or “trademarks” on a variety of products.

Will this cafepress.com creator be getting a cease-and-desist letter from the White House?
Will this cafepress.com creator be getting a cease-and-desist letter from the White House?

As the commentators have noted, there are serious First Amendment issues when a government official tries to prohibit a citizen’s use of the most powerful person in the world on any product, whether T-shirt, doll, or thong.  Does the thong above just seek to capitalize on the President’s personal image (perhaps that’s protectable under state law rights to publicity), does it send a political message supporting the new administration, or does it send a political message that the new president should “kiss my *****”?  Does the speaker matter?  Does the profit motive (or lack thereof) matter? How in the heck does a newly minted president (and perhaps a newly minted IP-czar) figure out what to do?

Here’s my working list of standards that the Administration could consider:

  • Differentiate between the President and other members of his family. Images of the president by himself, probably not actionable.  There have been dolls of all sorts of presidents, and my guess is that Bush, Reagan, and Nixon (or their estate) didn’t get a license fee.  That’s the cost of being a president.  Likewise, use of the First Lady’s image can be used, so long as the company does not claim or imply that the product is specifically endorsed by Mrs. Obama.  Images and likeness of the kids are not to be used except in bona fide news stories.  (The TY Maila and Sasha dolls walk the line, but probably shouldn’t deserve a formal, legal response unless the dolls are made to appear like the First Children, or are marketed as the Obama children).
  • Differentiate between elements of the Obama 2008 “campaign brand” and actions, policies, and statements of the President. What was remarkable about the Obama campaign was the degree to which the campaign was successful at branding the candidate — as the best agent for “change,” “hope,” and progress.  Part of that campaign branding certainly was the Obama “O” logo.  It’s certainly possible that consumers would believe that a product with the O logo would be either put out by, sponsored by, or endorsed by the campaign.  And use of the campaign logos  (without any political commentary) should not implicate the “core” First Amendment “political speech” rights. (Of course, that begs the question of whether a government official should be policing IP rights of Obama as a candidate or the Obama campaign).

Perhaps this thong, made by "Herban 420 Wear" on cafepress.com, is more violative of the Obama rights than the one above?
Perhaps this thong, made by “Herban 420 Wear” on cafepress.com, is more violative of the Obama rights than the one above?
  • Differentiate between simple uses of the President’s image as a subject of the merchandise and attempts to state or imply that the president endorses a particular product. This is the trickiest standard to craft.  The basic standard is pretty easy.  If someone places Obama’s face on a package with a talking balloon saying “I endorse this product,” that’s probably actionable.  Likewise, using Obama’s face on a T-shirt sponsored by a non-profit with the words “OBAMA IS A BAD PRESIDENT,” definitely not actionable.  But at what point does a commercial entity (like, say, Pepsi) have the right to freeride on the Obama brand, imply that Pepsi is implicitly endorsed as the “soft drink of change,” or that President Obama is a Pepsi drinker?

Probably not this far:

(link courtesy of Marc Ambinder via Copyrights & Campaigns)

  • Finally, I’d suggest that anyone in the administration err on the side of not taking formal (or informal) legal action. The last thing this president needs is a whole bunch of whiny bloggers (like me) saying that publicity lawsuits by the president is counter to his policy agenda, unnecessarily money-grubbing, and downright hypocritical.

Anyone else have any good ideas for guidelines? (Oh, and Mr. President, if you need a contract attorney to write your cease-and-desist letters, I’m available.)

UPDATE: CNN has a great listing of the Top 10 pices of “Obama Merch” from the inauguration.

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“Dear Justice Scalia, please let us ban lap dances…”

Because local officials in Idaho know more about the First Amendment than the Supreme Court:

Officials in this small eastern Idaho town have written to the U.S. Supreme Court, asking justices to reconsider rulings town leaders say harm the nation’s moral health.

In particular, the letter sent Thursday by officials in the town of 1,500 cites a 1981 case in which justices ruled the First Amendment prevents towns from banning adult-oriented entertainment businesses.

“We disagree,” city leaders wrote. “One study of the First Amendment and of the ideology that created it convinces us that the Framers merely intended to protect political and religious speech.”

The letter is signed by Mayor Glenn Dalling, City Council President Harold Harris, and Planning and Zoning Commission Chairman Brian Hawkes.

I must say, I’ve never heard of a letter writing campaign to the Supreme Court before.   Good for the public officials of Sugar City, Ohio, I guess. Something tells me, though, that more people in their down like boobie-bars than they may expect.

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