Rights at Risk: The Limits of Liberty in Modern America (Vintage)
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60. Dean v. Utica, 345 F. Supp. 2d 799 (E.D. Mich. 2004).
61. Richard Just, “Unmuzzling High School Journalists,” Washington Post, Jan. 27, 2008.
62. David L. Hudson Jr., “Hazelwood Still Extends Far Beyond Student Press,” First Amendment Center, April 21, 2008, http://www.firstamendmentcenter.org/commentary.aspx?id=19943.
63. The district attorney, who was also named in the girl’s suit, reportedly said that there was sufficient evidence, but that because the two boys were African-American, the blacks on the grand jury would not vote to indict them. John Doe et al. v. Silsbee Independent School District et al., No. 09-41075 (5th Cir. 2010).
64. Belyeu v. Coosa County Board of Education, 998 F. 2d 925 (11th Cir. 1993).
65. Fales v. Garst, 235 F.3d 1122 (8th Cir. 2001).
66. Pickering v. Board of Education, 391 U.S. 563 (1968).
67. Lacks v. Ferguson, 154 F.3d 904 (8th Cir. 1998). The teacher, Cecilia Lacks, won a jury verdict in federal district court, which was overturned by the Eighth Circuit. The Supreme Court denied cert. Hudson, Silencing of Student Voices, p. 82.
68. The teacher, Margaret Boring, at Charles D. Owen High School in Buncombe County, North Carolina, chose Independence, which “powerfully depicts the dynamics within a dysfunctional, single-parent family—a divorced mother and three daughters; one a lesbian, another pregnant with an illegitimate child,” according to her lawsuit. She argued that the play was about “love, compassion, communication, and forgiveness—all family values.” She lost 7–6 in a decision by the full membership of the Fourth Circuit in 1998. (Federal appeals courts usually hear cases in panels of three judges; thereafter, the losing side may petition the court to rehear the case en banc, “in the bench,” or “full bench,” that is, with all the judges in a circuit participating.) Hudson, Silencing of Student Voices, pp. 83–84; Boring v. Buncombe Board of Education, 136 F.3d 364 (4th Cir. 1998).
69. Diana Jean Schemo, “In Small Town, ‘Grease’ Ignites a Culture War,” New York Times, Feb. 11, 2006; “Play Canceled; Mo. High School Drama Teacher Quits,” AP, March 20, 2006.
70. 2007 Jefferson Muzzles, Jefferson Center, http://www.tjcenter.org/muzzles/muzzle-archive-2007/#item11.
71. Lisa Kocian, “Author Defends Memoir on Korea, Apologizes for Furor,” Boston Globe, Feb. 16, 2007; Yoko Kawashima Watkins, So Far from the Bamboo Grove (New York: HarperCollins, 1986).
72. Board of Education, Island Trees Union Free School District No. 26 v. Pico et al., 457 U.S. 853 (1982). Plurality opinion by William J. Brennan Jr., dissent by William H. Rehnquist.
73. The bill, championed by Republican state representative Lance Kinzer, chairman of the House Judiciary Committee, had not passed as of 2010.
74. Hudson, Silencing of Student Voices, p. 86; Board of Education of Jefferson County School District R-1 v. Wilder, 960 P.2d 715 (Colo. 1998) (Gregory Hobbs dissenting).
75. N. R. Kleinfield, “The Elderly Man and the Sea? Test Sanitizes Literary Texts,” New York Times, June 2, 2002, pp. A1, A30. The discovery was made by Jeanne Heifetz, the mother of a Brooklyn high school student.
76. 2009 Jefferson Muzzles, Jefferson Center, http://www.tjcenter.org/muzzles/muzzle-archive-2009/#item05.
77. In 2010, a federal judge upheld a New York City school district’s ban on teachers wearing political buttons. David L. Hudson Jr., “Hazelwood Limits Teacher Speech, Too,” First Amendment Center, Jan. 30, 2010, http://www.firstamendmentcenter.org/commentary.aspx?id=22559.
78. Richard M. Berthold, “My Five Minutes of Infamy,” History News Network, Nov. 25, 2002.
79. Diana Jean Schemo, “New Battles in Old War over Freedom of Speech,” New York Times, Nov. 25, 2001; William Lobdell, “Academics and Muslims Await Results of Probe,” Los Angeles Times, Nov. 26, 2001.
80. Amy Resseguie, “CSU Prof Withdraws from Teaching over Political Statements,” Rocky Mountain Collegian, Sept. 28, 2004. The complaining student, Heather Schmidt, approached him after class and claimed that he told her to switch courses. He quoted himself as saying, “If you are having trouble with what you’ve heard in today’s lecture, I think you’re going to have trouble with lots of things we’re going to talk about in this class, and there may be other sociology classes that might better suit your needs.” She took his advice. The college president later exonerated him entirely.
81. Jennifer Jacobson, “A Liberal Professor Fights a Label,” Chronicle of Higher Education, Nov. 26, 2004.
82. Michael Janofsky, “Professors’ Politics Draw Lawmakers into the Fray,” New York Times, Dec. 25, 2005.
83. Ward Churchill, “Some People Push Back: On the Justice of Roosting Chickens,” http://www.kersplebedeb.com/mystuff/s11/churchill.html.
84. Remarks by Chancellor Phil DiStefano at the CU Board of Regents special meeting, Feb. 3, 2005.
85. Report of the Investigative Committee of the Standing Committee on Research Misconduct at the University of Colorado at Boulder Concerning Allegations of Academic Misconduct Against Professor Ward Churchill, May 9, 2006. He won a jury verdict in state court, but the judge threw it out based on the university’s quasi-judicial immunity and found that the plagiarism and fabrication were sufficient grounds for dismissal. Churchill v. University of Colorado, No. 06CV11473 (Dist. Ct., City and County of Denver), Judge Larry J. Naves, July 7, 2009. The judge’s ruling was upheld by the Colorado Court of Appeals.
86. Quoted in Vartan Gregorian, “The Relevance of Academic Freedom,” Herbert Gutman Memorial Lecture, City University of New York, Oct. 15, 2002.
87. Anne D. Neal, President, American Council of Trustees and Alumni, fund-raising letter, Dec. 1, 2004. Co-founders with Lynne Cheney included Senator Joseph Lieberman, former governor Richard Lamm of Colorado, the social scientist David Riesman, and the author Saul Bellow.
88. Bruin Alumni Association, http://www.uclaprofs.com/letter.html.
89. George Washington, address to officers of the army, March 15, 1783.
90. “Texas Boy Earns ‘A,’ Six Days in Jail for Halloween Tale,” AP, Nov. 3, 1999. The district attorney was Bruce Isaacks.
91. Federal Bureau of Investigation, “School Shootings: What You Should Know,” Oct. 6, 2006, http://www.fbi.gov/page2/oct2006/schoolshootings100606.htm.
92. Mary Ellen O’Toole, “The School Shooter: A Threat Assessment Perspective,” edited by Arnold R. Isaacs, Critical Incident Response Group, FBI Academy, Quantico, Va., 2000, http://www.fbi.gov/publications/school/school2.pdf.
93. James C. McKinley Jr., “Students Hurt as 6-Year-Old Drops Pistol,” New York Times, Apr. 20, 2011, p. A15.
94. S.G. v. Sayreville Board of Education, No. 02-2384 (3rd Cir. 2003), citing Bethel v. Fraser in allowing schools “to prohibit the use of vulgar and offensive terms in public discourse.”
95. ACLU of Rhode Island, “Investigation Is ‘Inappropriate Intrusion’ on First Amendment, ACLU Says,” Feb. 2, 2006.
96. Ponce v. Socorro, No. 06-50709 (5th Cir. 2007).
97. James LaVine, “Last Words,” LaVine v. Blaine School District, 257 F.3d 981 (9th Cir. 2001) (appendix, Andrew J. Kleinfeld dissenting).
98. 2009 Jefferson Muzzles, Jefferson Center, http://www.tjcenter.org/muzzles/muzzle-archive-2009/#item05.
99. The two suicides were Ryan Patrick Halligan in 2003, who was called gay online and ridiculed by a girl who distributed sections of their personal instant messages, and Megan Meier in 2006, who hanged herself after being manipulated on Myspace by a neighborhood mother, Lori Drew, posing as an adolescent boy who first befriended her and then posted such remarks as “Megan Meier is a slut. Megan Meier is fat.” A jury convicted Drew of violating Myspace’s terms of service, but the conviction was overturned by a federal judge who ruled the law unconstitutionally vague. United States v. Lori Drew, No. CR 08-0582-GW (D.C. C.
D. Ca. 2009), Decision on Defendant’s F. R. Crim. P. 20(c) Motion. See http://www.ryanpatrickhalligan.org/ and “Parents: Cyber Bullying Led to Teen’s Suicide,” ABC News, Nov. 19, 2007; Student Press Law Center, “Md. Legislators Approve Bill Aimed at Curbing Cyber-bullying,” April 9, 2008, http://www.splc.org/newsflash.asp?id=1734&year=; Rebecca Cathcart, “Judge Throws Out Conviction in Cyberbullying Case,” New York Times, July 2, 2009.
100. 2008 Jefferson Muzzles, Jefferson Center, http://www.tjcenter.org/muzzles/muzzle-archive-2008/#item09. The student was Avery Doninger of Lewis S. Mills High School in Burlington, Connecticut. Neither the district court nor the Second Circuit would grant her motion for a preliminary injunction to rerun the election or appoint her class secretary. “Avery’s blog post created a foreseeable risk of substantial disruption” at the school, the appeals court ruled. Doninger v. Niehoff, 527 F.3d 41 (2nd Cir. 2008).
101. Hudson, Silencing of Student Voices, pp. 54–55.
102. Thomas, 607 F.2d 1043. See David L. Hudson Jr.’s overview on cyber-speech at http://www.firstamendmentcenter.org/speech/studentejipression/topic.aspx?topic=cyberspeech.
103. Klein v. Smith, 635 F. Supp. 1440 (D. Me. 1986).
104. Beussink v. Woodland R-IV School District, 30 F. Supp. 2d 1175 (E.D. Mo. 1998).
105. Emmett v. Kent School District Number 415, 92 F. Supp. 2d 1088 (W.D. Wash. 2000). The site, named the “Unofficial Kentlake High Home Page,” carried a disclaimer, saying it was independent and for entertainment. The expulsion was later converted to a suspension, which was erased from school records after the judge’s ruling. The school board reimbursed the student for $6,000 in legal fees and paid $1 in damages.
106. J.S. v. Bethlehem Area School District, 807 A.2d 803 (Pa. 2002).
EPILOGUE: THE CONSTITUTIONAL CULTURE
1. Judge Learned Hand, address in Central Park, New York City, on “I Am an American Day,” May 21, 1944.
2. Facebook did not violate the Fourth Amendment, however, because constitutional protections apply only to government actions, not to private entities. Nick Bilton, “Price of Facebook Privacy? Start Clicking,” New York Times, May 12, 2010.
3. Survey descriptions from Ann Beeson, ACLU associate legal director, interview with author, April 3, 2003. The ACLU refused to make detailed results of these polls public: Emily Whitfield, ACLU spokesperson.
4. The majorities in the four states who thought various provisions went “too far” were: 60–65 percent for secret indefinite detention, 51–55 percent for government collection of travel and medical records, 50–59 percent for FBI tracking of religious attendance, 51–58 percent for requiring librarians to reveal names, 53–61 percent for requiring Internet providers to reveal names. Belden Russonello & Stewart for ACLU, polling Nov. 20–25, 2003, sampling error plus or minus 4.9 percentage points.
5. A sample of 715, interviewed from Oct. 25 to Nov. 23, 2004. Margin of error plus or minus 3.6 percentage points. The Media and Society Research Group, Cornell University, “Restrictions on Civil Liberties, Views of Islam, & Muslim Americans,” Dec. 2004.
6. The American Revolution Center, The American Revolution: Who Cares? 2009, pp. 16–17. The survey had a margin of error of plus or minus four percentage points. The right to own firearms was supported as “essential” by 45 percent, “important but not essential” by 35 percent, and “not important” by 19 percent.
A NOTE ABOUT THE AUTHOR
David K. Shipler worked for The New York Times from 1966 to 1988, reporting from New York, Saigon, Moscow, and Jerusalem before serving as chief diplomatic correspondent in Washington. He shared a George Polk Award for his coverage of the 1982 war in Lebanon and was executive producer, writer, and narrator of two PBS documentaries on the Israeli-Palestinian conflict, one of which won an Alfred I. DuPont–Columbia University Award for excellence in broadcast journalism. He is the author of five other books: Russia: Broken Idols, Solemn Dreams; Arab and Jew: Wounded Spirits in a Promised Land (which won a Pulitzer Prize); A Country of Strangers: Blacks and Whites in America; The Working Poor: Invisible in America; and The Rights of the People: How Our Search for Safety Invades Our Liberties. He has been a guest scholar at the Brookings Institution, a senior associate at the Carnegie Endowment for International Peace, a trustee of Dartmouth College, chair of the Pulitzer jury on general nonfiction, a writer in residence at the University of Southern California, and a Woodrow Wilson Visiting Fellow. He has taught at Princeton University, at American University in Washington, D.C., and at Dartmouth College. He writes online at The Shipler Report.