Archive: 2012

Information v. Advocacy: The D.C. Circuit Puts the Current Version of the FDA’s Cigarette Label Requirement Up in Smoke

By Ethridge Brittin Ricks, Editor-in-Chief (Vol. 12)
August 27, 2012

In a 2-1 decision on August 24, 2012, the D.C. Circuit Court of Appeals ruled that the Food and Drug Administration’s (FDA) mandate requiring graphic images on cigarette packages is unconstitutional. The D.C. Circuit’s ruling seems to oppose a Sixth Circuit decision in March that upheld the FDA’s general authority to compel cigarette companies to place the images on their packages. Despite acknowledging that commercial speech is generally afforded less First Amendment protection, and that the government can “use shock, shame, and moral opprobrium to discourage people from becoming smokers,” Judge Janice Roger Brown noted in the majority opinion that, “this case raises novel questions about the scope of the government’s authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest – in this case, by making ‘every single pack of cigarettes in the country [a] mini billboard’ for the government’s anti-smoking message.”

At the center of this smoky controversy is the FDA’s unfiltered attempt at influencing current and potential smokers. The Family Smoking Prevention and Tobacco Control Act of 2009 gave the FDA the power to regulate the manufacture and sale of tobacco products. In accord with their new authority, the FDA planned to require cigarette companies to place one of nine graphic images on cigarette packages, which would take up to 50% of their package labeling. The nine graphic images ranged from images of diseased lungs to a man on a respirator. Additionally, the images would be coupled with a “1-800-QUIT-NOW” hotline phone number.

While the D.C. and Sixth Circuit seem to be at odds, it is not clear to what extent they disagree. The Sixth Circuit did not rule on the specific constitutionality of the nine images, and the D.C. Circuit did not necessarily negate the right of the government to impose their ideological view on a company, as the majority noted, “for present purposes, we can assume, without deciding, that if such compulsion is constitutionally permissible, the state’s actions must still with stand the applicable level of scrutiny.” Rather than criticizing the FDA’s power in general, the D.C. Circuit aimed its opinion at the labels themselves, ruling that “many of the images do not convey any warning information at all, much less make an ‘accurate statement’ about cigarettes.”

The D.C. Circuit took specific exception to what they viewed as the FDA’s failed attempt to justify the images, as the majority ruled the “FDA has not provided a shred of evidence . . . showing that the graphic warnings will ‘directly advance’ its interest in reducing the number of Americans who smoke.” Given the directed rhetoric of the D.C. Circuit, the FDA could possibly appease them by changing the nature of the images. However, the FDA is currently reviewing the D.C. Circuit’s decision, and an appeal to the Supreme Court is likely.

Joe Camel and the Marlboro Man will not be the only ones interested in how the Supreme Court handles the circuit split. In light of recent attempts to regulate fast-food restaurants, the circuit split could affect other industries as well. The issues pertaining to the tobacco companies are relevant to advertising in general, and the Supreme Court now has the opportunity to make an impactful decision regarding First Amendment jurisprudence.

Facebook, The Workplace, and Free Speech

By Deborah A. McDermott
September 3, 2012

Daniel Ray Carter, Jr., was fired for “liking” a page on Facebook. This was not a pornographic, racist, or other website prohibited by workplace rules. It was a Facebook page for a candidate who was challenging his boss, the sheriff of Hampton, Virginia. In mid-August, Facebook and the ACLU filed amicus briefs (PDF) supporting Carter’s constitutional right to express his opinion, signaling this case’s potentially precedent-setting nature.

Carter filed a lawsuit claiming that his First Amendment rights had been violated, which is now before the U.S. Court of Appeals for the 4th Circuit. Mr. Carter’s “speech” raises substantial constitutional questions and creates the appearance of impermissible retaliation for “criticism” of the sheriff’s (his employer’s) office. But Carter’s criticism was tacit to the extent that is arguably not criticism.

The ACLU’s interest was triggered by the United States District Court for the Eastern District of Virginia, Newport News Division’s ruling that “liking” a page does not warrant protection because it does not involve “actual statements.” The ACLU worries if this ruling is upheld, a host of Web-based, simple mouse-click actions, such as re-tweeting (clicking a link to post another’s tweet on your Twitter account), will not be protected as free speech.

The Supreme Court has consistently held (Pickering v. Bd. of Educ., 391 U.S. 563 (1960) and its progeny) that public employees are protected by the First Amendment when they engage in speech about matters of public concern. These rights can be overcome only when the employee’s interest in the speech is outweighed by the government’s interest in the orderly operation of the public workplace and the efficient delivery of public services by public employees.

The Supreme Court has also held that public employees retain their First Amendment rights when speaking about issues directly related to their employment, as long as they are speaking as private citizens (Garcetti v. Ceballos, 547 U.S. 410, (2006)). By posting through his personal Facebook page, Mr. Carter was “speaking” in his own voice and not on behalf of the local Police Department.

Under current law, it appears as though the Hampton, Virginia sheriff’s actions are unconstitutional because Carter used computer technologies to communicate matters of public concern, the election of a sheriff. As new technologies emerge, the law often struggles to keep pace. The First Amendment must be interpreted to protect these new forms of communication. As Rebecca K. Glenberg, legal director of the ACLU of Virginia argues, “Pressing a ‘like’ button is analogous to other forms of speech, such as putting a button on your shirt with a candidate’s name on it.”

Empty Threats? Social Media, National Security, and the First Amendment

By Alexandra M. Tronolone, Staff Member (Vol. 11)
September 10, 2012

Last week brought President Barack Obama to North Carolina for the Democratic National Convection (“DNC”), and with his arrival came the expected security concerns—run of the mill political protests and direct physical threats come to mind first. But it’s 2012, and things are different now.

The day before the DNC began, a 21-year-old named Donte Jamar Sims tweeted, “Ima hit president Obama with that Lee Harvey Oswald swag,” and “The Secret Service is gonna be defenseless once I aim the Assault Rifle at Barack’s Forehead.” According to court documents and CNN, a Secret Service intelligence research specialist discovered the tweets. If Sims is convicted of threatening the President, he faces a maximum of five years in prison and a $250,000 fine.

The pseudo-anonymity of the Internet—interpersonal communication behind the barrier of a computer screen—can encourage people to say things they might never say face-to-face. It breeds invincibility and otherwise absent confidence, the opportunity to speak in attention-getting hyperbole. But what many people fail to understand is that violent threats made on the Internet are not viewed by law enforcement as empty nor as mere hyperbole. As evidenced by Sims’s tweets last week, threats made on social media outlets like Facebook and Twitter are taken seriously, especially when they concern the President of the United States.

In balancing the First Amendment with national and local security, recent court decisions involving Facebook and Twitter have tipped the scales in favor of security. Just weeks before the DNC, a Florida college student was sentenced to three years probation and 250 hours of community service for posting assassination threats against the President on Facebook. Although the student said that he never intended to carry out the threats, U.S. District Judge Marcia Cooke admonished, “[w]hen you write something for cyberspace, you write it for the world.”

Criminal cases stemming from the Occupy Wall Street movement have also seen courts favor law and order over First Amendment and privacy rights. As CNN reported, this past July, a New York Criminal Court ordered Twitter to relinquish a protester’s tweets and data from a three-and-a-half-month period. The protester was arrested along with 700 other protesters at an October march on the Brooklyn Bridge. The ACLU has spoken out against the ruling, stating, “[t]he government shouldn’t be able to get this sensitive and constitutionally protected information without a warrant and without first satisfying First Amendment scrutiny.” Twitter filed its appeal on August 27.

Social media expands the scope of threats, and, by doing so, takes courts into underdeveloped territory. According to the Executive Director of the First Amendment Center, “[a]s it made the quantum leap from parchment to paper through the electronic era to digital formats, First Amendment law on freedom of expression has lagged behind technology.” How courts throughout the country deal with the diverse array of First Amendment and social media issues will likely be a question of time and the development of precedent.

Appalling But Not Blasphemous: Why The Anti-Islam Film Is Protected Speech

By Kelly A. Crecco, Executive Editor (Vol. 12)
September 17, 2012

On the eleventh anniversary of 9/11, the U.S. ambassador to Libya and three other Americans were killed during an attack on the U.S. consulate in the Libyan city of Benghazi. The attack was purportedly sparked by an American-made film that presented a highly critical portrayal of the prophet Muhammad. The Wall Street Journalreports that the film entitled “Innocence of Muslims” was produced by a man who identified himself in a telephone interview as Sam Bacile, but whom the FBI believes to be Nakoula Basseley Nakoula. In the interview, Bacile described the film as “a political effort to call attention to the hypocrisies of Islam,” and later referred to Islam as “a cancer.”

Although the movie was posted on YouTube in early July, it was not until very recently that it began to garner attention outside of the U.S. Following the attack in Libya, violent protests have spread throughout the Muslim world into dozens of other countries. People are outraged not just because of the film’s mocking depiction of Muhammad but because they believe the U.S. government should have prevented the film from becoming public in the first place. Unlike many other countries where any video posted onto the Internet must initially be approved by the government, the U.S. has a long tradition of free expression that limits the government from taking any such action. Shortly after the deadly attacks in Libya, Secretary of State Hillary Clinton tried to explain the nature of the First Amendment. She clarified:

I know it is hard for some people to understand why the United States cannot or does not just prevent these kinds of reprehensible videos from ever seeing the light of day. . . . In today’s world with today’s technologies, that is impossible. But even if it was possible, our country does have a long tradition of free expression, which is enshrined in our constitution and our law. And we do not stop individual citizens from expressing their views no matter how distasteful they may be.

Clinton’s remarks encompass the essence of the freedom of speech component of the First Amendment—Americans are allowed to express themselves as they wish and the government is not allowed to interfere.

Of course, there are some exceptions to protected speech. In Brandenburg v. Ohio, the Supreme Court established a two-prong test for determining whether or not speech is protected, holding that: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.” Under this test, it would be difficult to prove that the anti-Islam film is not protected speech. While the film has in fact induced “lawless action” around the globe, it is unlikely that the film’s direct purpose was to spur this type of action. Even if this was the intent, the movie originally appeared on the Internet over two months ago, and it is only within the past week that violence has erupted; thus, the imminence requirement of the test would likely not be satisfied.

Deplorable as it is, the anti-Islam film is protected speech and as such, the U.S. government could not have stopped it from disseminating around the world. The takeaway from the tragic events that have taken place in the past week is that a view expressed by one man or an insignificant minority certainly does not represent the sentiment of all Americans and most importantly, that no matter how offensive free speech may be, violence is not a justified response.

Anti-Islam Ads: Hate Speech or Protected First Amendment Activity?

By Justice D. Warren, Articles & Notes Editor (Vol. 12)
September 24, 2012

According to an Associated Press article, an anti-Islam advertisement were to go on display in 10 Metropolitan Transit Authority (MTA) subway stations in New York on Monday after a federal judge in the Southern District of New York ruled that the MTA could not refuse the advertisement on the basis of its content.

The American Freedom Defense Initiative (AFDI) sponsored the ad, which read, “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad.” The same ads recently appeared on San Francisco city buses; authorities there placed disclaimers beside the ads explaining that the city did not support the message and that all revenue generated from the ads would go to charity.

Pamela Geller, the executive director of AFDI who once headed a campaign against an Islamic center near the World Trade Center site, was the driving force behind the ad. Geller also filed suit in the District of Columbia last week to enjoin Washington’s transit system from preventing display of the ad.

“If it’s not a film it’s a cartoon, if it’s not a cartoon it’s a teddy bear,” Geller said. “What are you going to do? Are you going to reward Islamic extremism? I will not sacrifice my freedom so as not to offend savages.”

Judge Paul A. Engelmayer issued a permanent injunction of MTA’s restriction last month after granting AFDI’s request for a preliminary injunction in July. Judge Engelmayer demonstrated a clear commitment to First Amendment principles in the case:

As a threshold matter, the Court notes that the AFDI Ad is not only protected speech—it is core political speech. The Ad expresses AFDI’s pro-Israel perspective on the Israeli/Palestinian conflict in the Middle East, and implicitly calls for a pro-Israel U.S. foreign policy with regard to that conflict. The AFDI Ad is, further, a form of response to political ads on the same subject that have appeared in the same space. As such, the AFDI Ad is afforded the highest level of protection under the First Amendment.

MTA refused the ad under its “no-demeaning standard,” which restricts ads that “contain[] images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation.”

Following the Second Circuit’s ruling in New York Magazine v. Metropolitan Transportation Authority that displays in transit systems constituted designated public forums, Judge Engelmayer applied strict scrutiny in the case, requiring that MTA have a compelling interest in blocking the ad and that the means chosen be narrowly tailored to achieve that interest. Judge Engelmayer found that, as worded, MTA’s no-demeaning standard was not narrowly tailored because it allowed advertisers to demean groups of people that are not protected under the regulation.

The ruling in the MTA case came before violent protests erupted in the Middle East in response to an anti-Islam film that was released on YouTube earlier this month. It will be interesting to see if recent events will have any effect on Geller’s request for an injunction in D.C. should the case go to court.

The Supreme Court in Brandenburg v. Ohio carved out an exception to First Amendment freedoms through a two-prong test for determining whether the speech is protected. Under Bradenburg,speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and it is “likely to incite or produce such action.” While it seems evident that the anti-Islam film would not meet this test, it is possible that AFDI’s ad could.

The aftermath of the anti-Islam film could provide the D.C. court’s evidence that AFDI’s ad is in fact “likely to incite or produce” imminent lawless action. And, unlike the film, AFDI’s ad comes with a specific directive, encouraging viewers of the ad to “Defeat Jihad.” At a time in which global tensions are high surrounding anti-Islam sentiments, it is feasible that a court could consider the current state of affairs in determining the value of certain speech.

In the end, it is doubtful that the D.C. court would be willing to split with the Southern District of New York on this issue because the ads have appeared in San Francisco without producing “imminent lawless action” (though many artists have taken to covering up portions of the ad with their own content). Regardless of how that court decides, the debate will continue nationwide over the efficacy of providing First Amendment protection to speech that may leave certain people susceptible to violence.

The New York Times and Free Speech

By Charlotte R. Stewart, Managing Editor (Vol. 12)
October 8, 2012

The New York Times has recently adopted a new policy authorizing reporters to refuse to cede editorial authority to sources. “Quotation approval” refers to the practice by reporters of granting sources “as a condition of an interview, that quotes be submitted afterward to the source or a press aide to review, approve or edit.” Absent this agreement, subjects decline to be interviewed, meaning that as a matter of good business practice, reporters must acquiesce in order to gain the access they need to do their jobs. In July of this year, Jeremy Peters, political reporter for the New York Times, published an article describing the impact of after-the-fact quotation approval on campaign reporting. In response, the Times’ Public Editor, Margaret Sullivan, called for the Times to adopt a new policy to combat this industry-wide practice.

Publishing spontaneous speech by political and government figures keeps the public informed about its leaders and bolsters professionalism among journalists. Insofar as the new policy is directed at this end, the Times has taken a commendable step towards restoring public confidence in the Fourth Estate. They have also taken a risk that choosing to retain editorial authority over quotations will not jeopardize their reporters’ access to key political figures. For those who are cynical about whether there will be any effect on industry practice or Beltway press relations, a brief illustration of the Times’ past successes is in order.

In New York Times v. Sullivan, the Supreme Court held that “the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct.” The Times won its case, benefiting not only the national press but the civil rights movement as well. Unburdened by the prospect of defending and paying costly libel actions, smaller regional papers and groups were free to disseminate information describing controversial acts by public figures.

In the 1971 case New York Times v. United States, the Times and other papers famously won the right to publish the Pentagon Papers despite assertions by President Nixon that national security was an overriding concern. Justice Hugo Black explained in his concurrence not only why the government’s interest did not outweigh the presumption that prior restraints on speech are unconstitutional, but that the preliminary injunctions attending these challenges were themselves a threat to free speech. Justice Black stated that the Founding Fathers’ intent in protecting the press was so that it could “fulfill its central role in our democracy,” including the responsibility to “effectively expose deception in government.” He further posited that “the guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.” Those interested in exploring the ultimate impact of this case can find invaluable resources.

The collateral impact of these battles on civil rights, foreign policy, and domestic security exemplifies why a free press is vital to a sound republic. It remains to be seen whether the Times’ policy of rejecting quotation approval will ultimately lead to a more informed public, or if it will merely restrict access to key government officials. The latter would be unfortunate. Amidst concerns about the declining relevancy of newspapers in America, the question arises: If institutions like the Times are not around to fight for a free press, to whom does the responsibility fall?

North Carolina Gets Religion and Uses Speech to Lower Crime

By Benjamin K. Kleinman, Staff Member (Vol. 11)
October 14, 2012

The Ohio court of appeals recently held that a trial judge did not violate the First Amendment rights of a juvenile offender when he ordered the young man to write a 1,000-word essay on why racism is wrong. According to the First Amendment Center, the case dealt with a racially charged fight that began when one high school student started hurling racial slurs at another. The court rejected the First Amendment argument that compelling the juvenile offender to write an essay about racism amounted to “thought control,” infringing on his constitutional rights.

North Carolina has taken the issue of “compelled speech,” as a way to reduce criminal activity, to a whole new level. In Raleigh, North Carolina law enforcement agencies joined together to combat gang violence and drug crime, replicating a highly successful strategy first launched in High Point, North Carolina. The initiative, now called Project Safe Neighborhoods, sought to increase communication between police, community, and gang members as a method to reduce violence.

The impact of the program was profound. Evaluations of the High Point strategy revealed that the drug market vanished overnight. Three years after the High Point intervention, reductions in violent crime dropped 41%. Most importantly, at the time of the last formal evaluation in 2009, there had not been a homicide within the targeted area in five years. In Raleigh, two hundred days after the initial intervention, violent crime in the area was down 42% (David M. Kennedy, Deterrence and Crime Prevention158, 162 (2009)).

Speech was the key tool used to reduce the violence. Central to the strategy was a series of discussions between police and community members, addressing critical misunderstandings that prevented the reduction of violent crime in the past. As the police listened to community members, they began to understand that arrests and street stops were not seen by the community as well intentioned police work. Instead, the police realized that community members often viewed stop and arrest tactics through a powerful racial and historical lens, understanding that the law enforcement methods were frequently considered a form of oppression.

In turn, community members recognized that their mistrust and lack of communication with the police, regarding the violence in their neighborhood, was read by both law enforcement officials and gang members as tolerance and support of the violence (David M. Kennedy, Deterrence and Crime Prevention149 (2009)).

The key operational moment in the strategy was a “call-in.” The “call-in” was an in person meeting at which law enforcement officials and community members spoke with a unified voice in front of gang members and their probation officers.The message was clear: gang violence was severely hurting the community and must end. By speaking in a unified voice, the police and community members articulated a standard of behavior that the gang members subsequently followed.

While the power of speech to reduce crime is remarkable, these successful programs often have a religious element to them. In High Point, for example, the local pastor often led and hosted the meetings. When a religious element is involved, courts have been far from clear on the issue of compelled speech and mandatory participation in certain programs as a form of criminal sentencing. Some courts have upheld a plaintiff’s right to not participate in court programs that had an objectionable religious component. SeeWarner v. Orange County Dept. of Probation, 827 F. Supp. 261 (S.D. N.Y. 1993) (dealing with an Alcoholics Anonymous program). Yet another New York court, also dealing with an Alcoholics Anonymous program, remarked that not every state action implicating religion is invalid if one or a few citizens find it offensive. See Boyd v. Coughlin, 914 F. Supp. 828 (N.D. N.Y. 1996) (finding that relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution).

Let’s hope that if parolees participating in these programs bring suit against North Carolina, courts follow the rationale laid out in the Boyd case. Speech, even with a hint of religion, is just too powerful a tool not to be used freely.

Social Media and Teachers’ First Amendment Rights

By Samantha L. Thompson, Staff Member (Vol. 11)
October 22, 2012

New York City guidance school counselor Tiffani Webb was fired from her job at Murry Bergtraum High School after racy photos of her in lingerie showed up on the Internet. Although this is only the latest in a recent string of educators losing their jobs for online behavior, Webb’s situation is slightly different; the pictures were taken over seventeen years ago, before she became a government employee. Additionally, as the Huffington Post reports, she disclosed her previous modeling career before she was hired by the Department of Education twelve years ago. She had been investigated three times by the DoE, but due to her excellent reviews and track record had always been cleared to work again. In December 2011, just days before she was to be tenured, Webb was fired for “conduct unbecoming” of a DoE employee. A three person panel cited the fact that “[t]he inappropriate photos were a accessible to impressionable adolescents,” in dismissing Webb. She is now suing the Department of Education for wrongful termination, sex discrimination, and violation of her First Amendment rights.

With the rise of social media’s prominence in our society, teacher’s personal lives have been put under a microscope. Educators across the United States have been fired for online behavior. Some of the behavior makes a better case for termination. In Pennsylvania, a teacher was fired (and then later reinstated) for divisive, insulting blog posts about her students. In her personal blog she called her students “rude, disengaged, lazy whiners,” “frightfully dim,” and one student “[j]ust as bad as his sibling.” Other online behavior, however, such as when 24-year-old Ashley Payne was pressured into resigning after posting a picture of herself on vacation holding a beer, raises more eyebrows within the community. A Georgia Superior Court Judge ruled against Payne when she sued to be re-instated.

There is no doctrine governing acceptable online behavior for teachers. Courts are left to decide on a case-by-case basis what is or is not legal grounds for termination. Under Pickering v. Board of Education (391 U.S. 563 (1968)), the Supreme Court held that in the absence of proof of a teacher knowingly spreading false information, he or she has the right to speak out on issues of “public importance” without worrying about termination. Pickering was later distinguished by Garcetti v. Ceballos(547 U.S. 410 (2006)), which held, in a 5-4 opinion by Justice Anthony Kennedy, that public employee statements made pursuant to their employment are given no First Amendment protections; in order for public employee statements to receive protection, statements must be made in their role as private citizens. Courts have attempted to parse these decisions into modern doctrine governing online behavior, but little progress has been made.

Teachers are striving to find a balance between participating fully in social media and censoring their activities as to not offend students or employers. The prominence of social media has left many citizens, not just teachers or public employees, wondering for how long your past will be able to haunt you and affect your future. In this day and age when everything is documented, it seems as if no one can afford to make a mistake.

While the exact nature of permissible teacher online behavior has yet to be determined, it is clear that there must be guidelines outlining acceptable online activities. The issues emanating from social media have taken the courts into new, unprecedented territory. How courts handle this issue under the umbrella of First Amendment protections is surely to be a prominent issue in the near future.

Christian Cheerleaders & Religious Speech

By Anna  Jordan Cobb, Staff Member (Vol. 11)
October 28, 2012

“If God is for us, who can be against us? Romans 8:31” and “I can do all things through Christ which strengthens me! Phil 4:13” are a few examples of the banners cheerleaders displayed at Kountze High School in East Texas. For three weeks, football players ran through the large banners containing quotes from the Bible while entering the field. While the student cheerleaders believed this was just a way to exercise their freedom of speech, an unknown person complained to the Freedom From Religion Foundation, who in turn communicated with the school superintendent. Banners were subsequently prohibited at games. The mother of one of the cheerleaders, along with fourteen other parents, brought suit to challenge the school district’s decision to bar the cheerleaders’ signs. She claims that everyone at the small town high school agrees with the statements on the banners and for that reason they should not be a problem.

On October 18, Hardin County District Judge Steve Thomas stated that he decided to “preserve the status quo” and granted an injunction to allow the banners and bar the continuance of the ban. Thomas claimed that the school district had put into effect an “unlawful policy prohibiting private religious expression” prohibiting the cheerleaders “from exercising their constitutional and statutory rights.” As the Los Angeles Times reports, the injunction will be upheld until the case goes to trial on June 24, 2013.

Several Texas politicians have commended Judge Thomas’s ruling, including Governor Rick Perry who issued a statement expressing his approval. Texas Attorney General Greg Abbott also agreed with the judge’s decision and issued a statement praising him. Abbott said “[j]ust as schools cannot command students to support a particular belief, those same schools cannot silence a student’s religious belief. The Constitution does not give preference to those who have no religious beliefs over those who do.”

However, the school district’s lawyer and other commentators argue that a Supreme Court ruling in 2000, Santa Fe Independent School District vs. Doe, 530 U.S. 290, held this kind of religious display at a public school as against the First Amendment. In that case, Justice Stevens wrote that a student delivering a prayer over the loudspeaker before each football game was a violation of the Establishment Clause. “One of the purposes served by the Establishment Clause is to remove debate over this kind of issue from governmental supervision or control”, Stevens wrote, in order to avoid the danger of a unified church and state. The school district contends the cheerleaders represent the school as participants in a school sponsored organization. They argue that as members of a student group, their speech can be regulated since it is probable that people will confuse the cheerleaders’ speech with the schools’ speech.

The American Civil Liberties Union of Texas cites the aggressive support for Christian beliefs in state classrooms, assemblies, and ceremonies as widespread. In East Texas, supporters of the Kountze Independent School District’s ban recognize that minority non-believers feel threatened and intimidated by the use of Christian banners.  The Concerned East Texans for the Separation of Church and State group formed in response to the banners and has rallied their cause by showing up to the football games with banners of their own protesting the Christian signs. The Anti-Defamation League issued a statement saying that “[p]ublic schools are for children of all faiths or no faith . . . so students should not be subjected to an exclusionary school-sponsored religious message on campus.”

The superintendent himself, a Christian, says he is personally torn on the matter. The banners are sure to continue to create controversy until the case is decided in June.

This case highlights one of the many issues in the area of student First Amendment rights, especially because it involves religious speech.

Can a Bar Association Violate First Amendment Rights Through Its Dues Collection Process?

By Porsha M. Robinson, Articles & Notes Editor (Vol. 12)
November 18, 2012

In October 2012, Nebraska State Senator and Attorney, Scott Lautenbaugh, filed a class action suit against the Nebraska State Bar Association (NSBA). The suit seeks to have the NSBA’s lobbying and dues procedures deemed unconstitutional. Among the claims for relief are claims that: the collection of the dues constitute compelled speech and association, violating the First Amendment; and that the procedures implemented by the NSBA are inadequate as they do not allow members to object or affirmatively consent to the collection of dues to be used for lobbying purposes.

Membership in the NSBA is currently mandatory. The dues that are paid by members are used to provide continuing education for active lawyers, regulate the practice of law, and discipline attorneys. Along with that, the NSBA also has a “Legislative Program,” where they participate in lobbying, as well as track and take positions on bills. These activities are wholly or partially funded by mandatory member dues. Many of the bills that the NSBA had taken a position on in the past two years did not have anything to do with the legal profession, rather included topics such as: “concealed handguns, government contracts, divorce, grandparent visitation, child support, truancy, and criminal sentences.”

The First Amendment protects the counterpart of the freedom to associate and the freedom of speech; the First Amendment protects the freedom not to associate and the “freedom to avoid subsidizing group speech with which an individual disagrees.” Members of the NSBA may support some of the bills that the NSBA opposes and vice versa. For this reason, Lautenbaugh does not believe that mandatory member dues should be used for legislative lobbying or other activities (including those that may conflict with his personal beliefs). He believes that the use of his dues for this purpose constitutes government-compelled speech and violates his First Amendment rights.

The NSBA attempted to protect the First Amendment rights by adopting certain procedures. The first attempt was a one-sentence “check-off” procedure (“Lobbying Check-Off”) option on annual dues notices. It allowed members to check off if they did not want a portion of their dues to be used for the purpose of lobbying (this check off is basically assuring the members that their dues would not be used to pay outside lobbyists). The other procedure was for members who did not utilize the Lobbying Check-Off procedure. These members had access to a “Member Dues Grievance Procedure” that allowed members to challenge particular expenditures. Only one person ever took advantage of this procedure though; this may be due to the fact that an executive committee of the NSBA made the final determination in regards to the grievance. The annual dues notice that the NSBA sends out does not seek the affirmative consent of members to use their dues for political, ideological, and other nonchargeable activities.

The claim states that because members are not “being provided with an immediate rebate of, or advance reduction in, the amount of dues being spent on non-chargeable activities, and without being provided an opportunity to opt in to non-chargeable activities . . . members are being forced to associate with and subsidize the NSBA’s political speech, lobbying efforts, and other non-chargeable activities; and are otherwise deprived of their rights to free speech and free association under the First Amendment.” It also states that the procedures implemented by the NSBA are not “narrowly tailored to allow members to object to non-chargeable expenditures, in order to protect their fundamental rights to freedom of speech and association” (failing to provide safeguards known as the “Hudson requirements”). Furthermore, the claim states that there is no “opportunity to affirmatively consent to the use of their dues for nonchargeable activities.”

Lautenbaugh relies heavily on a Supreme Court case decided in June, Knox v. Service Employees International Union, Local 1000 (PDF). In this case, a California public-employee union “charged nonmembers a fee to cover its collective-bargaining activities, but informed the nonmembers and allowed them to ‘opt out’ of the cost of the union’s political and ideological activities.” Later, in order to raise funds to oppose ballot initiatives, the union increased monthly dues, but the increase didn’t allow for an opt-out provision as before and those who initially opted out had to pay a portion of the increase (even though such increase was solely for political activities.) So basically, the union was requiring those nonmembers who objected to pay a fee in order to advance union’s political and ideological activities. The Court held that since unions have “no constitutional right to receive any payment from these employees” the general rule that “individuals should not be compelled to subsidize private groups or private speech” should prevail in this case.

It seems that the applicability of Knox will be tested in a bar association context. The difference is that Knox was in regards to a public-employee union and this case relates to lawyers and the mandate that they be members of their state bar.

Photography Is Not a Crime: The Year of the Citizen Journalist

By Sidney L. Fowler, Chief Article & Note Editor (Vol. 12)
November 25, 2012

Carlos Miller’s recent trial victory represents another small step in the successful assertion of the First Amendment rights of citizen-journalists. Miller, who runs the website Photography Is Not A Crime, was charged with resisting arrest when he refused to stop filming and evacuate an area during an Occupy Miami event. While the American Civil Liberties Union states that police only have the right to stop an individual from photographing in a public space when the photographer’s activities “are truly interfering with legitimate law enforcement operations” a quick glance down Miller’s website shows that police are quick to use charges of resisting arrest to confiscate then delete digital images.

As the Supreme Court noted in Dun & Bradstreet v. Greenmoss Builders (472 U.S. 749 (1984)), the right for citizens to debate on matters of public concern is “at the heart of the First Amendment’s protection.” In the words of Thomas Jefferson, “our liberty depends on the freedom of the press,” for without a functioning press to alert citizens of governmental corruption and abuses of power, the democratic process cannot properly function. The First Amendment provides freedom for newsgathering activities, but does not allow journalists to break the law in their attempts to gather information. However, it is important for courts to show deference to journalists’ newsgathering activities, including and especially amateur journalists, in order to further this vital social activity.

2012 could well be called the year of the citizen journalist. The Occupy movement was heavily covered by its own members, recording and distributing the movement’s fractious message, and reporting on the repeated clashes with police. The Occupy protests demonstrated the power of amateur reporters to put a check on governmental force; from the initial outcry over the NYC pepper spray incident to a one million dollar settlement over a similar incident at UC Davis. When Oakland police seriously injured Iraq veteran Scott Olsen, citizen journalists provided on-the-scene coverage.

The power of citizen journalists extended far beyond the Occupy movement through 2012. Mitt Romney’s “47% Speech” represented a major milestone in the 2012 Presidential Election. Amateur journalists spotlighted the NYC Police Department’s controversial stop and frisk program by surreptitiously recording, then broadcasting, these encounters over the Internet. Former NYC police officer Adrian Schoolcraft’s recordings, cataloguing misconduct within his department, continued to make national news. In April, The Cato Institute “mainstreamed” independent researcher David Packman’s site Injustice Everywhere, showing a growing acceptance of these alternative and specialized news services.

The need for citizen journalists is greater than ever. Public confidence in the traditional press has been declining since the early 1970s. Many major news agencies filter information through ideological lenses to appeal to target demographics. Major agencies have also reduced the size of their news bureaus in response to declining profits. This creates voids of confidence and coverage that might be more easily filled by independent citizen journalists. At the same time, the expanding complexity of both the government and the private sector increases the need for public awareness. The financial collapse of 2008 demonstrated how entangled private sector industries can be, and the dangers of a lack of oversight. Many sectors of the US government have greatly expanded since 9/11.

Given the growing power of citizen journalists, it’s unsurprising that authority figures sometimes overextend their power and restrict citizens from recording their activities. It’s easy to confiscate a digital camera, delete images, and avoid negative publicity. Citizen journalists frequently lack professional training, and on many occasions genuinely interfere with police business. Overall, police tolerance of amateur journalists during the Occupy protests and other recent events is commendable. However, courts should be wary of situations when “stop filming” turns into “resisting arrest;” often the filming does not constitute legitimate interference with police activities. To protect the First Amendment right to gather information and debate matters of public concern, courts should show deference to citizen journalists and at the very least, not hinder this fledgling movement from gaining traction.