Tag Archive | "1st amendment"

I Pledge Allegiance To The Court

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I Pledge Allegiance To The Court


So a lawyer walks into a bar…  Strike that.  A lawyer walks into a courtroom and refuses to recite the Pledge Of Allegiance.  A lawyer in Tupelo, Miss., was thrown in jail Wednesday for refusing to say the Pledge of Allegiance in court.

I was frankly unaware that there were jurisdictions that required court attendees to cite the pledge.  Silly me.  High School classrooms, sporting events and KKK rallies but a courtroom?  Needless to say, finding an attorney in contempt for refusing to regress to high school and recite was a judicially boneheaded and “un-American” move by the presiding judge.  He must have been doing some early work on his future campaign for elected office when Constitutional Law was being taught at his law school.

Lawyers often give up a lot of things when they walk through those hallowed doors to appear before the bench. Dignity, truth, ethics and emotional control are often surrendered. One thing we do not surrender is our First Amendment Rights which includes the right to choose not to say the Pledge Of Allegiance.  I wonder if he issues bench warrants at ball games for people who do not participate in the National Anthem or God Bless America.  I will avoid sitting next to him when I have hot-dog in mouth.

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Candy, Christ and Kids

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Candy, Christ and Kids


The 5th U.S. Circuit Court of Appeals in New Orleans has held that Plano school principals violated students’ constitutional rights when they confiscated Christian-themed materials, including candy cane pens, that students planned to hand out at school.  The pencils one girl tried to distribute read, “Jesus is the Reason for the Season,” and the candy cane pens a student tried to pass out in December 2003 had cards attached to them that explained the Christian origin of the candies.

As reported in the Dallas Morning News, the case focused on several winter break parties from 2001 to 2004 at Thomas Elementary and Rasor Elementary. Lynn Swanson, the principal at Thomas, stopped a third-grade boy from distributing the candy cane pens with the Christian message that read, in part, “The blood Christ shed for the sins of the world.”

A month later, Jackie Bomchill at Rasor prevented a girl from handing out tickets for a Christian drama and from distributing religious-themed pencils. The boy’s parents and others whose children were prevented from handing out the materials sued the school district.

The courts have held that the constitutional rights of students are not surrendered at the school door.  The courts have also held however ,that schools can however regulate activities that disrupt the educational purpose.  This was most recently addressed by the Supreme Court  in the  Bong Hits For Jesus case in which a student, during a school sanctioned off premises event, put up a banner on a public sidewalk that read, “Bong Hits 4 Jesus”.  The banner was confiscated and the student disciplined. The court found in part, that as the banner promoted illegal drug use, it did disrupt the educational mission and the speech was therefore not protected under the 1st Amendment.

In this case, we are dealing with censoring of a private exchange of a  a benign religious message.  It is not occurring in the classroom, at the behest of the school or in any type of school sanctioned manner.  The mere fact that it occurs on school premises does not in itself inure it with this quality   There is no disruption to the educational mission and no illegal activity is encouraged.  The school is not sanctioning it, encouraging it or endorsing it simply by the mere fact that it is occurring.

The fact that it is an elementary school student versus a high school student in my mind is irrelevant.  The message is the message regardless of age.  To claim that the 1st amendment applies differently to the message in the 4th grade versus high school in my mind is the very essence of a viewpoint discrimination and the school unacceptably invading the province of the parents how they raise their children.

In the end, the 1st Amendment applies to the government’s attempt to regulate our speech including religious expression. That means that the school can not engage in conduct that endorses  religious viewpoints.  It does not mean that the school can muzzle a student from expressing their viewpoints in a non-school endorsed private manner.  If I do not agree with the message that is my job as a parent to deal with it at home and not to try to censor the message simply because I disagree.

You can read case here.

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Flag That T-Shirt!

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Flag That T-Shirt!


Assistant Principal Miguel Rodriguez sent home 5 students at Live Live Oak High School in Morgan Hill, California for T-shirts showing the American flag. Rodriguez felt that clothing displaying the American flag on Cinco de Mayo was incendiary.  He was wrong.  He made a mistake.

The students were engaging  in  constitutionally protected 1st Amendment expression. This is not a close call. For a good discussion on the case law in this area  you can go to the Volokoh website.

The principal later apologized.  No further action was taken against the students nor was it made part of their permanent records.

The parents are still up in arms, holding town hall meetings and screaming about lawyers on Fox News.  A town hall meeting is appropriate as the principal should have to explain his actions and issue a mea culpa if that’s what the parents are after.  Beyond that, let’s move on.  I suspect the students want to move on.  Unlike the parents they have no agenda.

The students have not been damaged in any way.  To my knowledge they simply got a day off school.  The students  have no 1st Amendment claim if no official punitive action is made part of their permanent record.  The parents should quit pushing their own agendas.  No harm no foul.  Flag On!

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Veto This Sucker!

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Veto This Sucker!


Israeli Ambassador to the United States Michael Oren was invited to speak  to about 500 students at University of California at Irvine on Feb. 8.

About 6 minutes into the presentation a number of protesters from the Muslim Student Union rose and began chanting, “MR. OREN! MASS MURDER IS NOT FREE SPEECH!” as well as allegedly yelling “Killers!” “How many Palestinians did you kill?”

Mr. Oren left the stage but eventually came back out and finished his presentation. The protesters were removed from the venue by security.  11 were arrested for disrupting a public proceeding and the students among them face university discipline.

There has been debate over whether the students who were engaging in what is being called a “heckler’s veto” should be punished. Were the students engaging in protected free speech which would preempt any type of discipline?  Has the the line between free speech and the academic freedom needed to put on such presentations without disruption been blurred beyond recognition?  In coming to any conclusion it is important to keep in mind that UC-Irvine is a State University.  This was a University sponsored event.  Both the Federal 1st Amendment and the California 1st Amendment would therefore be in play.

While I  disagree that there is no right to a heckler’s veto as an absolute, I am on the side of Erwin Chemerinsky, Dean of the UC Irvine School of Law in his editorial published in the L.A. Times and Professor Alan Dershowitz in his Huffington Post editorial.  This was not spirited political debate in which a response was expected or allowed. It was coordinated censorship.  What’s the point of academic freedom if it can not be exercised to the benefit of the student body to the same extent as the protesters would expect if someone they admired was speaking.

From a practical spectator standpoint, I would also be pissed as hell if I was sitting in that auditorium unable to hear because of obnoxious students. I don’t care if they are Muslims, Jews, Hindus or Hare-Krishna’s.They are ruining the experience I have a right to enjoy and engage if I so choose.  Let’s be clear.  This was a structured event. It was not a “free for all come-all” in a public square. Unlike a public square, the protesters got into the event to the exclusion of other protesters and spectators. That is not open free speech as if they were in the square and anyone could chime in.   It implies rules of conduct and a level of respect and decorum.

I understand that free and unpopular speech does not always occur in convenient places. One of the the points of protest is to do it in a manner to make a point.  As obnoxious as these kids were, that can not be brushed off.  Free speech sparing is not always done by the Marquess Of Queensbury Rules.  We can only protest if we are nice and polite?  Were the framers always polite in their dissent of the crown?  They never shouted down the King’s emissaries as they addressed the colonies on new taxes?

In the end, the video speaks for itself to the detriment of the motives of the yelling students. This was not a spirited debate. This was an attempt to silence by screaming.  The epitome of verbal terrorism. It was an attempt to stifle the academic freedom rights of Ambassador Oren and other students on the same level they claim their rights were snuffed out.  This was not a come all campus wide  protest on the University Green.  This was an invited speaker, organized event in which the attendees had a right of reasonable quiet enjoyment and Ambassador Oren had a right to retort to any protest.  This  was not an open public square available to all who want to shout down the shouters.  The hecklers should have been escorted out.

The statute under which the hecklers were arrested reads as follows:

Every person, who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character, other than an assembly or meeting referred to in Section 302 of the Penal Code….. is guilty of a misdemeanor”

In Hill v. Colorado the court held that the First Amendment right to free speech was not violated by a Colorado law limiting protest, education, distribution of literature or counseling within eight feet of a person entering a health-care facility.

What this tells me is that the University and city can establish reasonable content neutral rules that prohibit acts that endanger the safety of the speaker or the other members of the audience. They however can not regulate based on the content of the speech.  It does not end there.  I take issue with the California statute as applied here.   What does “disturb” or “break-up” mean?  Would it even be possible to craft a jury instruction?  There is an argument that these words as applied to the protesters are so vague as to be unenforceable and therefore unconstitutional as applied to the protesters.

In the end, I am glad the protesters were escorted out.  I have the same right to listen that they have to be heard.  They can be heard outside the event.  They do not have the 1st amendment right to shout down to the exclusion of all others in the room. This is not a public square.  I however am uncomfortable with any academic discipline or legal action against the protesters.  They wrere not inciting either the speaker or the crowd to violence against the speaker or other members of the crowd.  We should be arresting the dangerous, not the obnoxious.

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