60. Scheidler v. National Organization for Women, No. 04-1224, and Operation Rescue v. National Organization for Women, No. 04-1352. Opinion by Stephen Breyer. The vote was 8–0. Samuel Alito did not participate.
61. 18 U.S.C. § 248.
62. The federal Respect for America’s Fallen Heroes Act restricts demonstrations during funerals to no closer than 300 feet from a military cemetery, 150 feet from a road leading to the cemetery, and no nearer in time than one hour before and after a service.
63. The trial judge dismissed the claims of defamation and “publicity given to private life,” leaving for the jury: intrusion upon seclusion, infliction of emotional distress, and civil conspiracy. But he also erred in empowering the jury to decide a purely legal question: whether or not the speech enjoyed First Amendment protection, a constitutional question reserved to the courts. Two of the three judges on the appeals panel overturned the award as a First Amendment violation, noting that the words were obviously opinion and not provable or disprovable facts about the Snyders. The third judge concurred, but on the basis of insufficient evidence, without reaching a decision on the free speech issue. Snyder v. Phelps, No. 08-1026 (4th Cir.), Sept. 24, 2009. Once the Supreme Court agreed to hear the case, Snyder was supported in amicus curiae briefs by the attorneys general of forty-eight states and by forty-two senators led by the majority and minority leaders. Nevertheless, by an unusual liberal-conservative consensus of 8–1, the Supreme Court ruled that the First Amendment protected the Westboro demonstrators. The majority, with Justice Alito dissenting, found that the case turned “largely on whether that speech is of public or private concern.” Snyder had argued that the context—his son’s funeral—rendered the protests private, a position the Court rejected. “While these messages may fall short of refined social or political commentary,” wrote Chief Justice John Roberts, “the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import.” The justices noted that the protesters had coordinated with the police, had remained at a distance, and had not been noisy or violent. Thus, the Court left First Amendment case law intact. Snyder v. Phelps, No. 09-751 (2011).
64. For example, in a letter the day before a funeral demonstration, Mark A. Goodwin, prosecuting attorney of Carroll County, Missouri, wrote to the Westboro group: “Dobson Street from Main Street to Virginia will be blocked off for your protest. This is public property that is approximately Four Hundred Twenty (420) feet from the front doors of the First Baptist Church where the memorial service is to be held. There is a clear line of sight to the church and you will be able to reach your target audience. The protest must be over by no later than 9:00 a.m., as the funeral begins at 10:00 a.m. Anyone continuing to protest after 9:00 a.m. will be arrested, photographed, fingerprinted, booked and placed on a Twenty-Four (24) hour hold pending charges.” Mark A. Goodwin to Margie J. Phelps, May 16, 2006. Other Missouri prosecutors warned the group that violations of the statute would be vigorously prosecuted.
65. W. Stephen Geeding, Prosecuting Attorney, McDonald County, Pineville, Mo., to Whom It May Concern, March 2, 2006.
66. AP, March 26, 2007. The Sixth Circuit upheld the lower court’s decision. Phelps-Roper v. Strickland, No. 07-3600, Aug. 22, 2008.
67. Missouri Revised Statutes, Miscellaneous Offenses, § 578.03.
68. United States v. Schwimmer, 279 U.S. 644 (1929). The Court ruled 6–3 against a Quaker woman from Hungary denied citizenship for her pacifist refusal to state that she would take up arms to defend the United States, despite her eloquent regard for the American system and Constitution. Oliver Wendell Holmes wrote the dissent. The policy remains in effect, denying citizenship to a Jehovah’s Witness in North Carolina who asked to take a modified oath. ACLU of North Carolina, http://www.acluofnorthcarolina.org/legal/docket.html.
69. Ward, 491 U.S. 781.
70. AP, March 15, 2007.
71. The funeral of Michael Wendling. The clip can be viewed at http://www.youtube.com/watch?v=Wzb01eE8pF0&NR=1.
72. Laws 1977, 28, § 928, Mutilating a Flag.
73. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
74. The trial judge ruled that the prosecution could proceed, and Phelps-Roper filed a constitutional challenge in federal court, which she won. “Neb. Prosecutors, Funeral Protester Reach Deal,” AP, Aug. 24, 2010; “Federal Court Overturns Neb. Law on Flag Desecration,” AP, Sept. 3, 2010.
CHAPTER EIGHT: INSIDE THE SCHOOLHOUSE GATE
1. First Amendment Center, “The State of the First Amendment 2007,” national telephone survey of 1,003 respondents conducted Aug. 16–26 by New England Survey Research Associates. Sampling error plus or minus 3.2 percent. Data on teachers and principals from John S. and James L. Knight Foundation, “Future of the First Amendment,” Jan. 2005, based on responses to written questionnaires by over 100,000 students, 8,000 teachers, and 500 principals and administrators in 544 high schools. Conducted by the Department of Public Policy at the University of Connecticut, http://firstamendment.jideas.org/findings/findings.php.
2. Among active student participants, 61 percent endorse the right to publish without government approval, as opposed to 51 percent of all students. As the degree of involvement in school media declines, so does approval of the right “to burn or deface the American flag as a political statement,” from 39 percent of those most active down to 15 percent of students with no participation whatever. Knight Foundation, “Future of the First Amendment,” Key Findings 2, 4, and 8.
3. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
4. Mark Singer, “I Pledge Allegiance,” New Yorker, Nov. 26, 2001.
5. Quotations from Tinker’s Web site, schema-root.org, and interview with the author, April 21, 2008.
6. Notes by Lorena Jeanne Tinker, Dec. 16, 1965, http://schema-root.org/region/americas/north_america/usa/government/branches/judicial_branch/supreme_court/decisions/schools/tinker_v._des_moines/~jft/ljt.notes.1965.html.
7. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Hugo Black and John Marshall Harlan dissented.
8. Division for Public Education, American Bar Association, Biography of Christopher Eckhardt, http://www.abanet.org/publiced/lawday/tinker/chrisbio.html.
9. Barber v. Dearborn Public Schools and Judith Coebly, Supplemental Memorandum in Support of Preliminary Injunction, No. 03-71222 (E.D. Mich. 2003).
10. “Michigan School Bans Student’s Anti-Bush T-Shirt,” AP, Feb. 19, 2003.
11. Barber, Sept. 30, 2003.
12. “Teen Barred from Forming Anarchy Club, Wearing Anti-war T-Shirt,” AP, Nov. 2, 2001; “Teen Anarchist Sues School Principal: The Verdict,” Court TV News, Aug. 27, 2002; Emily Was, “The Consequences of Objection,” Washington Post, Dec. 9, 2001, p. C1.
13. Kevin Canfield, “Emblems of a Nation of Discontent and Dissent,” San Francisco Chronicle, Aug. 8, 2004.
14. ACLU of North Carolina, “Gay-Straight Alliance Clubs in Rowan County High Schools,” http://www.acluofnorthcarolina.org/?q=student-youth-rights.
15. “Federal Judge Rules That Students Can’t Be Barred from Expressing Support for Gay People,” ACLU release, May 13, 2008, http://www.aclu.org/lgbt/youth/35265prs20080513.html. Transcript in Gillman v. Holmes County School District, Judge Richard Smoak, http://www.aclu.org/images/asset_upload_file971_35264.pdf. Damages of $1 plus legal fees awarded to Heather Gillman. The offending principal was David Davis at Ponce de Leon High School, Ponce de Leon, Florida.
16. David L. Hudson Jr., The Silencing of Student Voices: Preserving Free Speech in America’s Schools (Nashville: First Amendment Center, 2003), p. 19.
17. Ibid., p. 17.
18. A student, sent home for a T-shirt saying “San Diego,” submitted for review two T-shirts supporting John Edwards for president and one reading “Freedom of Speech.” The school district rejected them. Palmer v. Waxahachie Independent School District, No. 08-10903 (5th Cir. 2009).
19. Lowry v. Watson Chapel School District, 508 F. Supp. 2d 713 (E.D. Ark. 2007), and Amended Complaint, Feb. 6, 2007; 2007 Jefferson Muzzles, Thomas Jefferson Center for the Protection of Free Expression, http://www.tjcenter.org/muzzles/muzzle-archive-2007/#item08; “Watson Chapel School District Student Handbook,” pp. 27–29, http://watson2.arsc.k12.ar.us/District%20website%20material/Board%20Policies/StudentHandbook.doc.
20. Hudson, Silencing of Student Voices, p. 65.
21. Michael J. Steinberg to Todd Roberts, Superintendent, Ann Arbor Public Schools, March 25, 2008, http://www.aclumich.org/pdf/psasletter.pdf.
22. Federal Equal Access Act, 20 U.S.C. §4071. See also Board of Education of the Westside Community Schools et al. v. Mergens, 496 U.S. 226 (1990), and Mich. Comp. Laws § 380.1299(1).
23. David Jesse, “Anti–School Camera Group Gets Official Status,” Ann Arbor News, March 26, 2008. Michael J. Steinberg, e-mail to author, April 27, 2008.
24. Harper v. Poway Unified School District et al., No. 04-57037 (9th Cir. 2006).
25. “Student, School District Settle Lawsuit over War Posters,” AP, Nov. 30, 2001. The school district agreed to pay $21,000 in legal fees, $2,000 compensation to the student, and $1,000 for his parents’ lost wages.
26. Hudson, Silencing of Student Voices, pp. 89–90; Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir. 2001).
27. ACLU, “Students’ American Flag T-Shirts Are Protected Speech,” May 11, 2010, http://www.aclu.org/blog/free-speech/students-american-flag-t-shirts-are-protected-speech; Lindsay Bryant, “Live Oak High School Flag Feud Entices Tea Party Rally,” Morgan Hill Times, May 10, 2010, http://www.morganhilltimes.com/news/265549-live-oak-high-school-flag-feud-entices-tea-party-rally#.
28. For an overview of Confederate flag cases, see Michael J. Henry, “Student Display of the Confederate Flag in Public Schools,” Journal of Law and Education, Oct. 2004.
29. Melton v. Young, 465 F.2d 1332 (6th Cir. 1972). The panel was divided, 2–1.
30. Phillips v. Anderson County School District, 987 F. Supp. 488 (D. S.C. 1997).
31. West v. Derby Unified School District, 206 F.3d 1358 (10th Cir. 2000). The Supreme Court denied cert.
32. Denno v. School Board of Volusia County, 218 F.3d 1267 (11th Cir. 2000).
33. Castorina v. Madison County School Board, 246 F.3d 536 (6th Cir. 2001). The appeals court overturned a district court judge’s summary dismissal of the students’ complaint and sent it back for trial. The school board then settled.
34. ACLU of West Virginia, “Charleston School Officials Violated Student’s Rights by Punishing Him over a T-Shirt, Court Rules,” June 1, 2005, http://www.acluwv.org/Newsroom/PressReleases/06_08_05.htm.
35. Some see government violating free speech on campuses in the 1995 Solomon Amendment, 10 U.S.C.A. § 983 (Supp. 2005), which cuts off federal funding to universities that deny equal access to military recruiters. The Supreme Court unanimously upheld the law against arguments that it restricted a law school’s First Amendment rights to free speech and association, noting that debate and demonstrations over the recruiting were not impeded. The Court did not interpret the law as requiring schools to observe the First Amendment as a condition of funding. Rumsfeld v. Forum for Academic and Institutional Rights, No. 04-1152 (2006). The vote was 8–0, with Samuel Alito, who joined the Court after oral argument, not participating.
36. Title VI, 42 U.S.C. § 2000d, enacted in 1964, and Title IX of Education Amendments, enacted in 1972, 20 U.S.C. § 1681.
37. Robert J. Corry et al. v. Leland Stanford Junior University et al., No. 740309 (Superior Ct., Santa Clara County, Calif., Feb. 27, 1995).
38. David Horowitz, The Professors: The 101 Most Dangerous Academics in America (Washington, D.C.: Regnery, 2006).
39. Barry Latzer and Jerry L. Martin, Intellectual Diversity: Time for Action (Washington, D.C.: American Council of Trustees and Alumni, 2005); Students for Academic Freedom, “Academic Bill of Rights,” http://www.studentsforacademicfreedom.org/documents/1925/abor.html.
40. David Tatel, “Racist Speech on Campus and the Protection of First and Fourteenth Amendment Values,” address, Southern University Conference, Boca Raton, Fla., March 23, 1991.
41. John Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).
42. UWM Post Inc. v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991).
43. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). A juvenile was convicted of a misdemeanor for burning a cross in the yard of a black family. Antonin Scalia found the law too narrow in its ban on a particular viewpoint.
44. Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993). George Mason is part of the Virginia state university system.
45. Matthew Fraser reads an excerpt on NPR that is slightly different from the quotation in the court record, http://www.npr.org/templates/story/story.php?storyId=8993111.
46. Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986). Thurgood Marshall and John Paul Stevens dissented.
47. Hudson, Silencing of Student Voices, p. 26.
48. Thomas v. Board of Education, Granville Central School District, 607 F.2d 1043 (2nd Cir. 1979). Jon O. Newman concurring, quoted approvingly by the majority in Fraser.
49. Broussard v. School Board of the City of Norfolk, 801 F. Supp. 1526 (E.D. Va. 1992).
50. Hudson, Silencing of Student Voices, pp. 73, 76.
51. Boroff v. Van Wert City Board of Education, 220 F.3d 465 (6th Cir. 2000) (Ronald Lee Gilman dissenting).
52. The American Center for Law and Justice filed an amicus brief, explaining in a statement: “School districts must not be entrusted with the authority to arbitrarily determine what student speech is offensive and off limits. In the future, that could put all student speech at risk—including speech that advocates Christian beliefs on any issue.” David Masci, “Strange Bedfellows: Why Are Some Religious Groups Defending ‘Bong Hits 4 Jesus’?” Pew Forum on Religion and Public Life, March 26, 2007, http://pewresearch.org/pubs/436/bong-hits-4-jesus.
53. Morse et al. v. Frederick, No. 06-278 (2007) (Clarence Thomas concurring; Stevens, David Souter, and Ruth Bader Ginsburg dissenting). The five who carved out an exception to First Amendment protection—John Roberts, Scalia, Thomas, Anthony Kennedy, and Alito—were joined by Stephen Breyer only to find the principal immune from damages. Breyer would not have made it a constitutional question. The question of the justices’ Catholicism has been addressed by Geoffrey R. Stone in compiling data showing huge disparities in abortion cases. Among ten justices appointed since Roe v. Wade in 1973, he notes, the non-Catholics have “cast twenty-one votes in support of abortion rights (75%), and seven votes to constrict those rights (25%),” while the Catholics have “cast only one vote in support of abortion rights (6%), and sixteen votes to contract abortion rights (94%).” (Scalia was so infuriated by Stone’s article that he pledged never to speak at the University of Chicago as long as Stone remained on the faculty there.) The arrival on the Court of a sixth Catholic, Sonia Sotomayor, who is regarded as liberal, may change this pattern. Stone, “Justice Sotomayor, Justice Scalia, and Our Six Catholic Justices,” Huffington Post, Aug. 28, 2009. For Scalia’s remark, made to the biographer Joan Biskupic, see Adam Liptak, “Stevens, the Only Protestant on the Supreme Court,” Week in Review, New York Times, April 9, 2010. After the confirmation of Elena Kag
an, who is Jewish, the Court had no Protestant justices for the first time in its history.
54. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). There were only eight sitting justices following Lewis Powell Jr.’s retirement.
55. Mike Hiestand, “Hazelwood School District v. Kuhlmeier: The Supreme Court Decision, Its Aftermath, and What It Means for Student Media 20 Years Later,” SPLC Report 29, no. 1 (Winter 2007–2008), p. 32, http://www.splc.org/report_detail.asp?id=1406&edition=44#end34.
56. Maggie Beckwith, “Twenty Years of Hazelwood,” SPLC Report 29, no. 1 (Winter 2007–2008), p. 19, http://www.splc.org/report_detail.asp?id=1399&edition=44. Judges do “forum analysis” to determine the extent of First Amendment protection. A “public forum,” such as a town square, a street, or a sidewalk, is open to any speaker. A “limited” or “designated” public forum is opened by a government agency to particular people, such as students in a school paper and citizens at a town meeting. A student publication with this status has more protection than offered in Hazelwood. A “non-public forum,” which may include a courtroom, or a newspaper under strict school control, affords the least protection for speech. School intent and historical practice are critical. The Hazelwood paper had never been labeled a forum, and the adviser exercised ultimate control, allowing the Court to find for the first time that a student publication was not necessarily a forum. Lower courts have subsequently overturned the censorship of school publications that are considered forums because administrators have historically taken a hands-off approach to their content. Hiestand, “20 Years Later,” p. 32.
57. 2007 Jefferson Muzzles, Jefferson Center, http://www.tjcenter.org/muzzles/muzzle-archive-2007/.
58. 2009 Jefferson Muzzles, Jefferson Center, http://www.tjcenter.org/muzzles/muzzle-archive-2009/#item07.
59. Desilets v. Clearview Regional Board of Education, 137 N.J. 585, 593; 647 A.2d 150 (N.J. 1994).
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