Supreme Court

College students’ free speech rights were endangered by a 2013 court ruling that at first glance had nothing to do with them – essentially criminalizing violent rap lyrics on Facebook.

First Amendment student advocates are back at the Supreme Court now to argue that another unrelated case will be used to stifle what students can say and do on campus.

The Foundation for Individual Rights in Education (FIRE) filed a friend-of-the-court brief asking the high court to uphold a ruling that says “specialty license plates” aren’t government speech. The ruling concerns a “Confederate veterans” group that wants their own plate in Texas.

What’s the student connection, you ask?

If the Court … holds that the messages and images that appear on state-issued specialty license plates are government speech, public college administrators nationwide will exploit the ruling as a new opportunity to further restrict protected expression on campus. Should this Court decide that specialty license plates are government speech because state officials are involved in the production process, college and university administrators will soon claim student and faculty expression that involves university procedures is likewise “government speech” that they have the power to control and censor.

Despite this Court’s repeated recognition of the crucial importance of free speech on public college campuses, censorship of student and faculty speech is endemic. In FIRE’s experience, college administrators often exploit perceived ambiguities in the law in an attempt to justify restrictions on faculty and student speech. Many colleges already wield dubious claims of trademark infringement against students and faculty in order to curtail speech that is controversial or critical of the institution, alleging that such speech will be mistaken for institutional speech—a contention that touches upon the core issue in this case.

NORML-ISU.norml-isuOne of those instances is happening at Iowa State University, where the administration has told a pro-marijuana campus group it can’t wear T-shirts advocating its cause because they say “ISU” and have the school’s cardinal mascot, implying the school endorses illegal drugs.

FIRE is litigating that case as part of its Stand Up For Speech project, and a judge has already ruled that the case can go forward, including against ISU’s president in his personal capacity. The group told the high court:

In fact, FIRE is aware that at least one university is awaiting the outcome of this case to support its argument in federal district court that a student organization’s T-shirts amount to institutional speech and may thus be censored without violating the First Amendment. In denying the university’s motion to dismiss, the judge stated that the university’s argument could not provide a legal basis to dismiss the case at present but that the issue was undecided and this case was before the Court.

The Supreme Court needs to be aware of unintended consequences from its rulings, FIRE said, referring to the Garcetti decision, which said public employees can be punished for making “statements pursuant to their official duties”:

When this Court left open the possibility that its holding in Garcetti was applicable to the scholarship and teaching of public university professors, universities immediately began to argue—with success in some circuits—that such speech was unprotected, to the continuing detriment of academic freedom on campus. Absent an explicit holding that the speech of students and faculty on public university campuses is presumptively private speech, a holding for Petitioners would do similar damage to freedom of expression.

In a blog post explaining its brief, FIRE notes that trademarks are also at issue in another Stand Up For Speech case,  at Chicago State University, which involves a faculty blog that’s critical of the administration and has been targeted for censorship on “government speech” grounds.

Read the blog post.

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Unlike ‘Hobby Lobby,’ Christian school won’t have to pay fines for noncompliance

Geneva College isn’t “complicit” in providing abortion drugs for students and employees by telling the government it won’t pay for them in its health plan, the 3rd U.S. Circuit Court of Appeals ruled this week.

The appeals court overturned a district court ruling that found “self-certification” by the Presbyterian school in Pennsylvania violated the Religious Freedom Restoration Act.

The Alliance Defending Freedom, which represented the school, said in a statement Wednesday it was “seriously considering” appealing the ruling.

The crux of the dispute lies in whether Geneva College “triggers, facilitates, and makes [it] complicit in the provision” of abortion drugs by its insurance company when it registers its religious objections with the government.

The appeals court decision, written by Judge Marjorie Rendell, distinguishes the case from the Supreme Court’s ruling in the Hobby Lobby case, where a for-profit corporation run by an evangelical family was facing the choice of providing health coverage that includes abortion drugs or paying “substantial fines.”

Geneva College, by contrast, is “not faced with a ‘provide’ or ‘pay’ dilemma because they have a third option—notification pursuant to the accommodation—to avoid both providing contraceptive coverage to their employees and facing penalties for noncompliance with the contraceptive coverage requirement,” Rendell wrote.

Self-certification does nothing to trigger abortion-drug coverage, Rendell said: “Federal law, rather than any involvement by the appellees in filling out or submitting the self-certification form, creates the obligation of the insurance issuers and third-party administrators to provide coverage for contraceptive services” under the Affordable Care Act.

Forcing the government itself to facilitate ‘spiritual development’?

Geneva College chooses to avoid complicity in abortion precisely through a “declaration that they will not be complicit in providing coverage” – the self-certification form, Rendell said. “Ultimately, the regulatory notice requirement does not necessitate any action that interferes with the appellees’ religious activities.”

The judge said the college was trying to exercise “a religious veto” against an insurance company’s legal requirement to provide contraceptive coverage.

Rendell used the hypothetical example of a man who takes time off work on a religious holiday but refuses to submit a “time-off request” because it would make him complicit in someone else working on that religious holiday, in violation of his beliefs.

The decision cites a Supreme Court precedent involving American Indian objections to the use of a Social Security number to get welfare benefits. The high court said in the Bowen decision: “Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family.”

Rendell said the district court was “misguided” in accepting Geneva College’s claim that its self-certification was the “central cog” that enabled students and employees to get abortion drugs.

Because it has “dispelled the notion that the self-certification procedure is burdensome,” the appeals court “need not consider whether the burden is substantial” on the college, according to the opinion.

Rendell also said the judges wouldn’t consider whether self-certification was the “least restrictive means” of providing abortion drugs to women. That’s part of the legal standard known as strict scrutiny, which courts apply when considering infringements on constitutional rights.

“Geneva College simply wants to abide by the Christian faith it espouses and teaches instead of being forced into an unacceptable inconsistency by the government,” Alliance Defending Freedom said after the ruling. “The administration has no business punishing people of faith for making decisions consistent with that faith.”

Greg Piper is an assistant editor at The College Fix. (@GregPiper)

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Religious groups that operate on college campuses sometimes find themselves under fire for requiring their student leaders to follow certain faith-based rules, or express faith at all.

InterVarsity Christian Fellowship has run into this challenge throughout California and in some other states.

The group got validated by the 6th U.S. Circuit Court of Appeals for a related right on Thursday – the right to require its own employees to follow faith-based rules.

The appeals court ruled that an InterVarsity employee who was let go because her marriage fell apart can’t sue the organization under employment discrimination laws, because it’s protected by the First Amendment’s “ministerial exception” as most recently defined by the Supreme Court in 2012.

Though it’s an equal opportunity employer, InterVarsity requires employees annually to agree with its “purpose statement and doctrinal basis,” one of which concerns marriage.

The court said that though InterVarsity isn’t a denomination, it’s a “religiously affiliated entity” that actively ministers in a Christian light. Because the employee has a “formal title” – spiritual director – and “religious function,” her job falls under the ministerial exception.

Though the employee claims that InterVarsity “waived” its right to use the exception – apparently because it didn’t dismiss men in ministry who got divorced – the court said the Supreme Court spoke clearly in 2012 in saying that religious organizations simply can’t waive their ministerial exception rights.

The Alliance Defending Freedom, which filed a brief in favor of InterVarsity, applauded the decision, specifically its finding that the First Amendment’s religion clauses are a “structural limitation imposed on the government … that can never be waived.”

Read the decision.

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If you don’t know much about First Amendment law, start with the Tinkers.

Siblings Mary Beth and John went all the way to the Supreme Court in 1969 to defend their right to wear black armbands to their public school, a silent protest against the Vietnam War. The majority opinion recognized that students – and their teachers – don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Though that precedent for the rights of students has been muddied by subsequent rulings, Tinker still carries substantial weight – which is why it’s so heartening to see the siblings return to the high court to demand speech rights in the face of the “heckler’s veto.”

They filed a friend-of-the-court brief in favor of California students who were told they couldn’t wear American flag-themed clothing on Cinco de Mayo because Hispanic students complained.

Their lawyers are the UCLA law professor and blogger Eugene Volokh and Bob Corn-Revere, a D.C. heavy-hitter who’s leading the Stand Up for Speech litigation project.

Keep your Manson T-shirts at home

The 9th U.S. Circuit Court of Appeals approved the school’s action, saying it wasn’t a First Amendment violation, sparking a severe rebuke from three judges who asked for a full-court rehearing.

Even aside from the circuit split – the 9th Circuit diverged from the 7th and 11th – it’s long past time for the Supreme Court to answer “the question of student political speech at school,” the siblings said:

The lack of guidance [about applying Tinker] has left lower courts in the dark about how Tinker should apply in elementary and secondary schools today. This case is an excellent vehicle to offer such further guidance that will provide much-needed clarity for judges, administrators, and students.

Many school speech cases involve speech that might potentially lead to a hostile, even violent, reaction. Tinker itself involved such speech. This case is thus within the core of the Tinker doctrine, and provides an opportunity to address how the First Amendment applies to such potentially provocative speech. Indeed the Ninth Circuit’s approval of a heckler’s veto in this case shows how far some courts have traveled from Tinker.

The siblings warn that students will get the idea that “threatening speakers is an effective way to suppress speech,” producing more threats and more suppression of speech beyond patriotic sentiments.

The brief amusingly lays out the convoluted interpretations of Tinker, where in some parts of the country students can wear T-shirts with anti-homosexual messages, while in others, they can’t wear Marilyn Manson T-shirts because that band “promote[d] destructive conduct and demoralizing values.”

You think Vietnam was polite disagreement?

And nothing has really changed since Tinker, the brief says – debate over Vietnam was “vehement” across the country, and the district judge who upheld the anti-armband policy warned that wearing armbands would “disturb the disciplined atmosphere required for any classroom.”

The Tinker house even got death threats:

One person telephoned the Tinkers’ home on Christmas Eve and said “the house would be blown up by morning.” … A woman called for Mary Beth, and when the young teen got on the line, said, “Is this Mary Beth? … I’m going to kill you.” … The Tinkers received other threatening telephone calls as well. They also received hate mail, and their house was vandalized with red paint.

The heckler’s veto was also attempted during the civil rights movement and in the expulsion of Jehovah’s Witness children who refused to salute the flag, the brief says:

In such an atmosphere, a school principal confronted with a wave of patriotic fervor might conclude that preventing potential disruption justifies forcing a few dissenters to profess love for flag and country. After all, if the Ninth Circuit is correct in holding that the need for order in the public schools trumps the heckler’s veto doctrine, why not dispense with the prohibition against compelled speech as well?

School officials have “some latitude” to maintain order and prevent physical confrontations, but not “absolute discretion,” the brief says:

The [9th Circuit] decision … undermines constitutional values by teaching law-abiding students that the peaceful must surrender their rights in the face of hostility from the violent. Nothing could be more antithetical to First Amendment principles, especially in view of recent events.

Hinting at the growing use of anonymous communications tools like Yik Yak, the brief says:

[Students] might be able to convey their threats indirectly or anonymously, thus facing little risk of punishment. And for this little risk, they would get a substantial reward, in the form of successfully shutting up the speech they dislike – a cheap exercise of power over others that is especially likely to appeal to some

It’s a powerful brief, so read the whole thing.

h/t Student Press Law Center

Greg Piper is an assistant editor at The College Fix. (@GregPiper)

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Tom H. Hastings teaches in the Conflict Resolution program at Portland State University. He also is the director of PeaceVoice, the website of which is probably what you’d expect: a massive conglomeration of race/class/gender articles.

Mr. Hastings has had it with gun violence, and, as such, wants the United States to ditch the Second Amendment.

Wisconsin Gazette.com reports:

This morning of Dec. 25, 2014, of the nine top stories from US Reuters, six were about shootings — four new ones and two about the national movement against shootings of citizens by police. This pandemic of sick violence, punctuated by mass killings of children, has gone on far, far too long. It is long past time to repeal the stupid Second Amendment.

The fate of the Second Amendment should have been sealed when the U.S. Supreme Court ruled in 2008 that past rulings by their predecessors were wrong, that in fact the amendment that provided for a “well regulated militia” really guaranteed every individual the right to own a gun. Wow. That is an interesting reading of the English language. What the Supremes have done is to not only warp the meaning and make it into twisted law, but to further prohibit states and local governments from declaring their places free of legal guns. The conservative court once again rules against the power of states, a principle that used to be associated with darn liberals who wanted to make sure everyone had the right to vote, for example, even though they weren’t properly white enough. Now when a city or state wants to outlaw firearms, too bad. The conservatives took away their powers and rights in favor of Big Brother.

To say that Hastings’ knowledge of history (United States and legal) is wanting would be an understatement. For instance, the “principle” which imposes the Bill of Rights on the states, the Fourteenth Amendment — which Hastings lauds — is the very basis by which the Supreme Court held that an individual is constitutionally permitted to own a gun.

Not to mention, Hastings got wrong the year of that landmark decision: The case was decided in 2010, not 2008. In 2008, the Supreme Court decided District of Columbia v. Heller which pertained only to an individual’s gun ownership in federal enclaves — like the District of Columbia. It did not apply to the individual states.

2010’s McDonald v. Chicago is the case which applied the Second Amendment to the fifty states.

It’s certainly bad enough that a “progressive” like Hastings would like to pick and choose which constitutional rights states and localities should be able to deny their citizens; equally bad is his lack of contemporary cultural insight.

For, while Hastings is correct that the “only logical path … is to repeal” the Second Amendment, currently that task is so daunting as to be virtually impossible. Merely take a glimpse at the American public’s view on guns and gun rights over the years.

Note the historical trend: The last four years have seen record high percentages of people saying “no” to banning the possession of handguns.

The one trend among the public that seems to benefit Hastings’ view is the desire for stricter gun laws — forty-seven percent currently favor such. However, while a mere fourteen percent want less strict laws, thirty-eight percent think current laws are sufficient. Combined, that still puts gun control advocates in the minority.

Read the full article.

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Back in May of 2010 — May 5th, to be exact — several (Caucasian) students at California’s Live Oak High School wearing shirts with the American flag on them were asked to leave school because they refused to turn their shirts inside-out.

What, what? Students had to turn their shirts around … because American flags were on them?

Yep — it was Cinco de Mayo, after all.

School officials at the heavily Hispanic school were concerned that Latino students would be offended by seeing Old Glory on the Mexican holiday (a holiday not even widely celebrated in Mexico), and that some fights could result.  Indeed, some 200 Mexican/Mexican-American students protested in a march that day upon hearing about their devious Old Glory-clad peers.

The gringos went to court … and lost. The Ninth Circuit recently declined to hear their appeal, citing “prior events” that took place at the school, including an “altercation” (presumably between a white and Hispanic student), as a rationale. (There had been some 30 fights between white and Latino students in the past six years at the school.) The appellate panel said “school officials ‘acted properly to prevent a substantial and material disruption of school activities.’”

(Check out The College Fix coverage of this case here and here.)

The US Supreme Court indeed has granted a lot of leeway over the last few decades to public school officials when it comes to regulating student speech. One notable ruling from seven years ago is the “Bong Hits 4 Jesus” case (Morse v. Frederick) in which a (public school) student unfurled a banner with “BONG HiTS 4 JESUS” on it across the street from his school during the Olympic torch relay.

SCOTUS Chief Justice John Roberts wrote for the majority in the case (emphasis added):

Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers . . . poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.

Perhaps anticipating the ensuing controversy, those in the majority with Roberts emphasized that this ruling “applied only to advocacy of illegal drug use.” Justice Samuel Alito, joined by Justice Anthony Kennedy, noted the “Bong Hits” case “‘provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue’ … including student opposition to the drug laws themselves” (emphasis added).

Confused yet?

You probably should be. The courts have pretty much been all over the map when it comes to lower ed. student speech rights.

The standard for such rights had been the Tinker case from 1969. The SCOTUS ruled then that students were indeed permitted to wear black armbands at school to protest the Vietnam War. The famous quote to emerge from the case was “Students don’t shed their constitutional rights at the school house gates.”

But since then, Tinker has arguably been eroded, despite Justice Alito’s reassurance in the Morse case. In addition to Morse, 1988’s Hazelwood v. Kuhlmeier allowed school administrators to censor student newspapers, even despite “protective” measures taken by student writers and editors.

Which brings us back to the situation at Live Oak High School. Does Morse apply here? Why or why not? Have we actually reached the point in this country where showing the American flag can legitimately be banned … despite it being displayed in front of our schools … and in each classroom within?

As an educator, I can fully appreciate the need for an “orderly educational environment,” and back in 2007 during the Morse case I was fairly sympathetic to the high court’s reasoning.

But these days, I’m not so sure.

If we’re actually at the point where a display of our own flag can be considered “offensive” — and hence banned — then where does it end? Will administrators now ban student displays of other national flags because they may offend some students, i.e. native-born Americans? And/or because such displays, like at Live Oak HS, may lead to some student scuffles?

Or, are only certain (politically correct) groups permitted to be “offended?”

More importantly, will this case now go to the US Supreme Court … and will the justices legitimize the heckler’s veto that the case enshrines?

Dave Huber is an assistant editor of  The College Fix. Follow him on Twitter @ColossusRhodey.

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