Friday First Amendment Roundup

A new feature collecting first-amendment related news from around the country. I'm not promising this will happen every Friday, but I'll do my best. And now I'm thinking I should have called it "First Amendment Rodeo!" Oh well. Here we go!!

We start in Philadelphia, where the Third Circuit dismissed a civil suit against the city by Repent America, stemming from the arrest of eleven Repent America members at the 2004 "OutFest" LGBT block party in Center City.

As the Delaware County Times reports, the court ruled that while Repent America had the right to be present at the event (overruling a lower court ruling that the permit issued to event organizers PhillyPride effectively shut Repent America out) but that they crossed a line by intentionally disrupting the permitted event.

World Net Daily, always a fascinating read, offers their own (somewhat slanted) take on the ruling.

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Frank D. LoMonte has a guest column at the Seattle Post-Intelligencer about attempts to limit the speech rights of public high school students across the country, including some here in Pennsylvania. Not satisfied with being little dictators inside their own walls, some school administrators now want the power to discipline students for their speech outside of school. These are the first few aftershocks of Morse v. Frederick (AKA "Bong Hits 4 Jesus"); where once schools taught their students civics, the lesson now is "sit down, shut up, and do as you're told."

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On the international stage, the Beijing Olympics are casting a spotlight on many Chinese human rights offenses (including an alleged instruction from Chinese authorities that bars near the Olympic Village are not to admit anyone black or Mongolian) but also on the speech-limiting practices of American corporations (like Google and Microsoft) doing business in China.

The United Nations, meanwhile, is considering a resolution that would criminalize any criticism, parody, or defamation of any religion. Similar laws already stand in many nations - including Canada, where people are sued with some regularity for critical comments or jokes directed at religions. Julia Duin at the Washington Post fears the UN restrictions would be so strict that "anybody anywhere could sue for merely having hurt feelings."

Arlen Specter and Joe Lieberman agree, and took time out to write a piece for the Wall Street Journal saying so. Congress is currently considering three separate bills that would protect Americans from being sued in foreign courts over Constitutionally-protected comments.

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On the topic of religion and offense, how about that New Yorker cover, huh??

Jayne Lyn Stahl at the Huffington Post casts the rollicking fracas over the cover in the light of history, presenting reflections on free expression and offensiveness from some folks you may have heard of - including Richard Nixon ("the rights of free speech...do not carry with them the right to advocate the destruction of the very government which protects the freedom" - good old Dick!), FDR, and Salmon Rushdie ("What is freedom of expression? Without the freedom to offend, it ceases to exist.")

I especially love that Rushdie quote. After all, speech that offends no one requires no law to protect it. Right?

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Speaking of offensive speech... The US Court of Appeals for the Armed Forces ruled that a white-supremacist soldier's racist AOL profile was protected by the First Amendment because he did not direct the statements at anyone in particular (a majority of the world's population, sure, but no one in his unit) and "they did not interfere with his job performance or with any military mission," and that he could therefore not be disciplined or discharged because of the profile.

One wonders how an Army paratrooper's job performance is not impaired when he identifies his race as "Aryan," quotes "the imprisoned matyr" [sic] David Lane, and recommends a book in which white Christians kill a mixed-race couple, and when said Army paratrooper's job partly entails making informed decisions about what people he should and should not shoot. One of the five justices did file a dissent.

Still, I guess it's good to see that even if you're enlisted, the Constitution still protects your right to express yourself as a racist jerk.

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Finally, on the Establishment Front (all quiet since Christmas - right, Bill?) the Texas State Board of Education has approved an elective Bible course to be taught in public high schools. Now, before you go and assume the Board went off half-cocked (a little Texas humor for you, there), read what the Dallas Morning News has to say:

"Among those who urged the board to issue specific guidelines for the class was Rep. Scott Hochberg, D-Houston, who helped write the 2007 law. Mr. Hochberg warned that without specific guidance from the state, some schools would run afoul of the First Amendment requirement of religious neutrality for such classes."

Of course, in the end the majority of the Board voted just to approve "a Bible course" and not to issue any guidelines to tell schools how they should go about teaching it.

"Attorney General Gregg Abbott has told the baord that while the state standards for the Bible class appear to be in compliance with the First Amendment, his office can't guarantee that the courses taught in high schools will be constitutional because they haven't been reviewed.

Critics contend that the board standards for the course are so vague and general that many schools might unknowingly create unconstitutional Bible classes that either promote the religious views of teachers or disparage the religious beliefs of some students."

A Bible class that promotes the religious views of the teachers? In Texas? I don't see what everyone is so worried about. I mean, how often do you hear about teachers pushing their religious views on students?

Sarcasm aside, Texas Board of Education, let me be the first to say: "Thank you for your contribution to the ACLU."

So in conclusion: Texans have never been big on the separation of Church and State. (Sorry, I couldn't resist!)

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Two small notes:

If you missed the New York Times FISA ad that ACLU ran this week, you can see it here.

And lastly, most of you will (hopefuly) be as happy as me to read that Proposition 8, which would ban same-sex marriage in California, is currently trailing in polls 51 to 42 percent, with less than four months remaining until the vote.

Chris in Philly

Saying 'no' to...federal funding

Refusing government funding--it's an illogical idea, no? Not when the money is mandated for ineffective programs that are rich in censorship, misinformation and cross the line of the separation of church and state. So it goes with Title V funding for abstinence-only-until-marriage programming.

Last Wednesday the Pittsburgh Post-Gazette published this article on the state's refusal to accept Title V funding.

So far, two letters to the editor, "Sensible Rejection" and "Teach What Works" have appeared in support of the article (and the refusal).

Pennsylvania is just one of the many states to refuse the funding.

Perhaps we're heading in a direction that champions access to comprehensive information and knowledge?

Ellen at Duvall

Is this lady the coolest or what?

According to ProgressNowAction, that pesky First Amendment interfered with one of Sen. John McCain's supposedly public town hall meetings:

On orders from McCain's security detail, Denver police escorted a 61-year-old woman away who was waiting in line to attend a so-called town hall meeting with McCain that was billed as open to the public.

Fortunately, these folks weren't dealing with just anybody. They were dealing with a librarian. As Rachel Maddow said on Countdown, those people are "trained democracy super heroes."

The incident was captured on videotape and posted on YouTube:




Ed Brayton at the excellent blog Dispatches from the Culture Wars has a post on it as well.

So here's what I'd like to propose: We need to teach those folks who would bully 61-year-old ladies into giving up their constitutionally protected free speech rights as to just what the First Amendment is all about. So next time McCain comes to your town, convince your Mom to hold up a similarly worded sign. When the security thugs enlist the local police force, you tell your Mom that defense of the First Amendment is worth getting arrested for. Tell her it would make her the bestest Mom ever. You know she'd do it if you ask. Moms are like that. I know my mother plans to be there. Just as soon as I ask her.

Lauri in York

"They failed freedom. We're suing."

I spent about two hours last night perusing the internet about the FISA bill. The reaction to the ACLU's announcement that we will go to court to stop this law has been swift and overwhelmingly positive, so I'd like to share the email sent last night to national's listserv.

Dear Andy,

Today, elected officials in Washington sold out the Constitution -- again.

Cowed by the Bush administration’s pre-election scare tactics, the Senate passed privacy-stealing FISA legislation undermining your Fourth Amendment rights.

This is not a “compromise,” as some in Congress would have us believe. The only thing they compromised is your freedom. Donate to the ACLU, and stand up for your rights.

The FISA Amendments Act allows for mass, untargeted and warrantless surveillance of all communications coming into and out of the United States. And to top it off, it hands immunity to telecom companies for their role in domestic spying. This means your phone calls can be tapped and emails read with virtually no proof of threat, and there's no chance to learn how the telecoms invaded your privacy.

It’s outrageous, unconstitutional and un-American. That’s why the ACLU is prepared to challenge this unconstitutional law the moment President Bush signs it -- and you can rest assured they’ll be meeting our lawyers in court.

Help the ACLU protect your privacy. Donate now to the ACLU to defend your rights.

In one fell swoop, Congress has not only legalized the Bush administration’s secret NSA spying program, it has given the government even more power to listen to our phone calls and read our emails than even the Bush administration illegally claimed for itself under its secret program. And, by granting telecoms immunity, it greatly harmed the chances of ever learning the extent of the administration’s lawless actions.

Stand with the ACLU in defending your rights. Support the ACLU’s lawsuit and all of our other critical work defending the Constitution.

While politicians lack resolve, the ACLU and its supporters do not. Stand with the ACLU by making a gift today.

In defense of freedom,

Anthony D. Romero
Executive Director
ACLU

Andy in Harrisburg

Prof Turley: Fourth Amendment "eviscerated" and other FISA outrages

Well, the fix, errrrr, the vote is in. The U.S. Senate, including PA Senators Arlen Specter and Bob Casey, today voted today to make the Fourth Amendment and the Foreign Intelligence Surveillance Act mere guidelines, rather than law. The FISA Amendments Act allows the government to spy on Americans without ever telling the FISA court who they're spying on or why they're doing it.

Writer Glenn Greenwald of Salon.com and law professor Jonathan Turley have been among the clearest voices on this issue. Here's Turley on last night's Countdown.



National ACLU's Amanda Simon blogged the debate, including this:

Specter followed Leahy and said passing this law without knowing the full details of the program is like buying a pig in a poke.

And then Specter voted for the bill. Ol' Arlen has mastered the technique of arguing against a bill that he plans to vote for.

I did chuckle, though, when I opened my email and had a message from national's listserv with the subject line, "They failed freedom. We're suing." Here's national's press release, announcing the ACLU's intention to go to court over this abomination.

Andy in Harrisburg

Civil liberties summer reading list

SF is not going to become a place where authors can pitch us to read and review their books, so any writers out there, don't bother writing us that email. But the two books I've most recently completed have a civil liberties connection, so this seems like as good a place as any to share.

I most recently finished Freedom for the Thought that We Hate: A Biography of the First Amendment by Anthony Lewis. This was a great book for learning more about the history of free speech and free press in the United States. (Despite the title, the book focuses on speech and press and not other aspects of the 1st A.) This book is a reminder that we really are in the high time of free speech in America.

The book reads a bit like a history text, but it is a relatively easy read. Lewis has a topic for each chapter and then explains key cases on that topic.

Before that, I finished off The Devil in Dover: An Insider's Story of Dogma v. Darwin in Small-Town America by regular SF contributor Lauri Lebo, aka "Lauri in York". This was a great read. I killed it off in five days, which is highly unusual for me. I had multiple sittings where I read 50-75 pages at a time, again highly unusual.

The real draw of Lauri's book is the narrative she spins. The book reads like a novel, and it's incredible that it's non-fiction! As a native of this area, Lauri gives great context of life in south central PA, which adds flavor to the broader story of America's battle over evolution.

For fans of the first amendment and civil liberties, check these out!

Andy in Harrisburg

Successes at the state capitol

Yesterday I referenced the recently completed spring session of our state legislature, which came to a close last Friday. We had a few successes and no defeats over the last month that are worth reporting.

Most significant, on June 27, the PA House passed House Bill 2537, a bill blocking the Commonwealth from seeking certification in Real ID, by a unanimous vote. The day of the vote, I talked with a reporter who started the interview by saying, "You're not going to call it a real nightmare, are you?" Clearly, our branding of Real ID had sunk in.

One of the more surreal moments of my ACLU career came during this debate. Rep. Sam Rohrer (R-Berks County) introduced an amendment to block PA from participating in any federal law that requires the collection of biometric data. Rep. Rohrer, one of the most conservative members of the legislature, and Rep. Babette Josephs (D-Philadelphia), one of the most liberal members of the legislature, argued on the floor about who had the support of the ACLU. (For the record, we neither supported nor opposed the Rohrer amendment. We supported HB 2537 with or without the amendment.)

Now it's on to the Senate. If this bill were signed today, PA would become the 11th and largest state to opt out of Real ID, a crumbling federal program.

But that wasn't our only task at the capitol in the last few weeks. We also beat back a proposal I took to calling The Illegal Clothing Act of 2008, an amendment that would turn "criminal gang activity" into a criminal offense, as if the existing criminal conspiracy laws aren't enough. And how would law enforcement identify a criminal gang member, according to this amendment? The clothes he wears. Where he lives or spends time. Photographs (of what, exactly, we don't know). This idea was so bad we could call it the Fund the ACLU Act. If it ever became law, we would likely litigate against it and we would likely win. Here's our memo to the House on this issue (PDF).

This inane idea died without ever coming to a vote, but we expect to see it back in the form of legislation since the amendment was based on a bill that was introduced this session. Fittingly, in the midst of that work, Penn State released the results of research showing that investment by the PA Commission on Crime and Delinquency in juvenile crime prevention and intervention programs saved the Commonwealth more than $300 million dollars, money that otherwise would have been spent on court costs, incarceration, law enforcement, etc. That study is available here (PDF).

With the General Assembly now on break until after Labor Day, they can do no harm to civil liberties.

Andy in Harrisburg

A plague on both their houses: Part....oh, hell, I've lost track

The state legislature is on summer break, which means civil liberties are safe once again. And it means I can get back to the most important part of my job- blogging.

About a month ago, I said that both candidates for president will likely provide opportunities for criticism throughout the course of the campaign. That was said in the context of criticizing Senator McCain. As if on cue, Senator Obama has provided not one, not two, but three opportunities for critique over the last three weeks. In no particular order...

Faith-based initiatives. Obama announced his intention not only to continue President Bush's faith-based initiative program but to expand it by giving more tax dollars- your money- to it. Unlike Bush, Obama also said that those receiving the federal funds may not discriminate in hiring.

Let's be clear. Faith-motivated folks do a lot of great work. I talk with clergy and others motivated by faith on almost a daily basis. But giving tax dollars to faith-based programs, even with Obama's pre-conditions, tap dances dangerously close to the line of government-endorsed religion. Under Bush, this program was largely a giveaway to his evangelical friends.

And enforcing Obama's requirements is tricky. Rev. Barry Lynn of Americans United was on The Bill Press Show last week, and he said that a recent report from the Government Accountability Office showed that one-third of recipients of faith-based initiative funding did not know that they are not supposed to proselytize in carrying out their programs.

The Pittsburgh Post Gazette responded with an editorial on Sunday.

This costly course is headed for the choppy seas that the founders wisely avoided. Sadly, it seems Mr. Obama needs his own wall of separation between pandering and policies.

The death penalty for child rape. Must the senator from Illinois pander to the lowest common dope, errr, denominator? It's not possible for someone who has been through the Illinois death penalty experience to support expanding capital punishment, is it?

It is well-known and well-documented that the death penalty is falling apart. Since SCOTUS reinstated the DP in 1976, 129 innocent people have been sentenced to death (that we know of). Some innocent people have probably been executed. There are all kinds of problems on indigent defense, the impact of race (of the defendant and the victim), the costs of carrying out capital punishment, the negative effects on victims, and on and on. In fact, just last week, a state commission in California- the state with the largest death row in the country at 600-plus- released a report showing that Cali's system of capital punishment is "close to collapse."

And, most telling of all, advocates for children and sexual assault victims do not support the death penalty for child rape. This from the Texas Association Against Sexual Assault:

Victim advocates have long been concerned that the death penalty for child sexual assault cases could backfire and result in lower reporting rates and fewer convictions of sex offenders.

The issue of child sexual abuse is complex. Most child sexual abuse victims are abused by a family member or close family friend. The reality is that, child victims and their families may feel greater reluctance to come forward, knowing that doing so could effectively send a grandparent, cousin or long time family friend to death row. In addition, capital punishment trials are notoriously stressful for the witnesses involved, and typically face a lengthy appeals process. This forces the child witness to relive these painful events over and over again, severely disrupting their healing process.

FISA. The night of the Potomac primary, Obama gave a speech in Wisconsin in which he went on a riff about protecting the Constitution. Four months later, he'll vote for a bill that expands the government's power to conduct surveillance without a warrant and allow those who broke the law in previously conducting such surveillance off the hook. Apparently, the Obama campaign sees the Constitution as a tool to win primary votes, rather than rock-solid principles to stand by. Following the Arlen Specter model, Obama will support efforts to strip telecom immunity from the bill...and then will vote for the bill if/when that amendment fails.

Obama has been getting hammered for his position and, to his credit, replied to his critics. Then Glenn Greenwald pointed out everything that's wrong with Obama's stance on the issue.

This is why I do issues work, rather than partisan politics.

Andy in Harrisburg

July 4: A day for repentance

Wow, columnist Chris Satullo raised the roof today in The Philadelphia Inquirer. This is a must-read. Here's a snippet.

This year, America doesn't deserve to celebrate its birthday. This Fourth of July should be a day of quiet and atonement.

For we have sinned.

We have failed to pay attention. We've settled for lame excuses. We've spit on the memory of those who did that brave, brave thing in Philadelphia 232 years ago.

The America those men founded should never torture a prisoner.

The America they founded should never imprison people for years without charge or hearing.

The America they founded should never ship prisoners to foreign lands, knowing their new jailers might torture them.

Such abuses once were committed by the arrogant crowns of Europe, spawning rebellion.

Today, our nation does such things in the name of our safety. Petrified, unwilling to take the risks that love of liberty demands, we close our eyes.

Andy in Harrisburg