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.

Court’s generally do not like to get into arguments over what constitutes artistic expression/art  unless it’s obscene.  Obscenity is easy. Courts know it when they see it.  How about an a tramp stamp? An “obscene”  tramp stamp?  Where does the  ink “hit the skin” 1st  Amendment wise?

John Anderson, a tattoo artist, thinks it hits it wherever he plies his trade.  The City Of Hermosa Beach, California disagreed. They denied his request to open a Tattoo Parlor.   It was denied on the basis of local zoning laws which do not  allow tattooing anywhere in the city. Officials claim the ban is justified as Anderson is only providing a service and not creating art.  They also argue that the parlors are  a risk to the public’s health, safety and welfare. The city also contends that tattooing poses health risks, creates “aesthetic concerns,” and would impose a financial burden on the city to provide adequate inspection and regulation.  Anderson claims  that this is a denial of  his 1st Amendment right of expression in tattooing.   The lower court agreed with Hermosa Beach. Tramp Stamp denied.

What will the 9th circuit do?  At 1st blush, it seems that the city of Hermosa Beach is correct int that they are simply regulating a service and not art. I’m not so sure.   The mechanical means of  placing  the tattoo  may be a service but the end result is art.  The service is already regulated to one degree or another all over the country. If you are going to regulate art, there had better be a compelling reason that can not be achieved in some lessor manner than an all out ban.  This is where the ink hits the skin.  The service aspect is already regulated in less intrusive manners.  The art tags right along with it.   Add the fact that this is the liberal California 9th circuit.  Wouldn’t shock me if some of the brethren on the bench were stamped.  The end result is that the service is already regulated and the total ban on the art will be stricken down as unconstitutionally broad.  Score a 1st Amendment victory for the Tramp Stamp.  I can’t define what one is but I know it when I see it. Potter Stewart would be proud.

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!

There has been another instance of a person using a intercom to make a racially charged statement. This time it was at Whole Foods.  I have frankly been trying to get my hands around what crime was committed the 1st time it happened at Walmart.

To refresh my readers on the facts, in March  a teen boy was able to access the intercom in a New Jersey Walmart and put out the following announcement:

“Attention Wal-Mart customers: All black people leave the store now.”

An investigation was conducted by law enforcement, The teen has been charged with bias intimidation and harassment.

By charging this teen with those two crimes, we are attempting to punish speech, not conduct. This is something the 1st Amendment frowns on unless very narrow exceptions criteria are met. It must fit into a specific class of speech that takes it out of the realm of 1st Amendment protection. We do not punish people for simply using racially charged hate speech with nothing more. Some examples of speech that does not have protection are speech that incites others to imminent violence and fighting words.

Bias intimidation is an enhancement crime.  A person can not be guilty of bias intimidation without being guilty of an underlying crime which is in this case harassment.

The issue becomes whether in engaging in the offensive speech in asking blacks to leave the Walmart does the harassment charge comport with the 1st Amendment.  The New Jersey Harassment statute reads as follows:

Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a.Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

I have 3 issues with the statute. The 1st is the use of the phrase “communication or communications. It is sweeping in all types of speech including political speech and other speech which would enjoy 1st Amendment protection. The 2nd is the phrase “extremely inconvenient hour”  One person’s inconvenience is anther’s normal work day. If I make an anonymous 7am call to my state representative who voted for Health Care reform and drop a couple f-bombs have I violated the harassment statute?  A lot of people are probably guilty of harassment in this country right now.

The 3rd thing that bothers me is the phrase “likely to cause annoyance or alarm” What does that mean?  It is vague.  Moreover, it seems there would be existing laws that could have just as easily been used to prosecute this boy such as trespassing or possibly criminal mischief.

As despicable and offensive as the teens speech was, I believe the New Jersey Harassment harassment statute is void on its face as being unconstitutionally vague and unconstitutional in its use to punish the speech of the teen.