Friday First Amendment Roundup: August 8, 2008

This week we had Bush making a little use of the Bully Pulpit before the Beijing Olympics, victories for student speech, and two decidedly different cases involving minors and sexual expression.

Let's start with the President. Normally when the Bush administration gets mentioned here, it's not in a positive sense (we are, I remind our readers, a non-partisan organization - but the President has never been a great friend of the Constitution) but for once, we can give him a little credit. In a somewhat bold move, on Thursday the President spoke in Bangkok against China's human rights violations, including imprisoning political dissidents and pressured China to offer its citizens more freedom.

Granted, there are plenty of us who wish Bush would be a stronger advocate for freedom and human rights here in the States; but many expected the President to keep quiet and polite on China's heinous human rights record. The speech ticked off Chinese officials, who responded with statements including "The Chinese government puts people first" and "Chinese citizens have freedom of religion. These are indisputable facts."

Of course Bush went on to do interviews with Chinese state-run media, who cut apart and edited his words to say pretty much whatever they wanted - a move for which he is (as he is no doubt used to) being criticized.

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Back at home, the ACLU has had to back down on their demands on behalf of protesters at the Democratic National Convention in Denver after a federal judge ruled that the current plans do not infringe on the protester's first amendment rights. Those plans include a 47,000 square-foot "free speech zone," surrounded on three sides by concrete barriers and chain-link fence [You can speak freely, as long as you do it in this here cage] and a distance of at least 200 feet between protesters and the delegates at all times.

The AP quotes Marc Silverstein, legal director of the ACLU of Colorado, as explaining changes in the law since the September 11 attacks have favored security over expression. "That's sad," said Silverstein, "but that's the state of the law."

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To see the consequences of "free speech zones," take a look at Mary S. Rider of North Carolina, who was arrested for leaving the designated protest area at the execution of death row inmate Samuel Fillipen in 2006. On August 8 Rider was ordered to pay a fine of $354; she refused, saying that she was expressing her rights to free speech and religious expression by protesting against the death penalty. In lieu of her fine she will now serve 15 days in prison.

Here's a new alternative energy source: let's hook a generator up to Tom Jefferson. At the rate he must be spinning, we should be able to power the Eastern Seaboard.

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Also sentenced this week was Karen Fletcher of Donora, PA. Fletcher owned and operated a web site, RedRoseStories.com, featuring fictional text-only depictions of child rape, kidnapping, and torture. Fletcher said that she believed she had been abused as a child, and that writing and publishing these stories helped her find solace from her own inner demons.

Fletcher plead guilty, but her sentence still flies in the face of legal precedent. Because her site did not exploit any actual children, but featured only works of text-only fiction, precedent suggests that her work was protected by the first amendment. Blogger Timothy Sandefur has posted a great explanation as to why the Supreme Court says that child pornography is not constitutionally protected, but text-only fictional works like Fletcher's are.

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Meanwhile in Hamburg, Iowa, a state judge has defended as free expression the right of a 17-year old girl to dance nude at a local strip club. It's a pretty entertaining story, really. Here are some of the highlights:

• The strip club, called Shotgun Geniez (yes, that's how they spell it) was owned at the time by the former mayor of Hamburg.
• The girl in question, who was 17 at the time of her fully-nude performance, is the niece of a local county Sheriff.
• As part of his defense against the three counts of public indecent exposure, the club's owner claimed Shotgun Geniez was an "art establishment," and as proof pointed out that patrons were sometimes given sketch pads so they could draw the "models."

In the end, judge Timothy O'Grady did not have to rule on whether the dance was art or not, because he ruled that the club meets the standard definition of a theater, and that fact exempts Shotgun Geniez from Iowa obscenity laws that grant first-amendment based exemption to theaters, art centers and museums. Owner/former major Clarence Judy was acquitted of all charges. Prosecuters have not yet decided whether to appeal the case to the Iowa Supreme Court.

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A U.S. District judge in Las Vegas has ruled that the Las Vegas police department cannot prevent one of their detectives, an Orthodox Jew, from wearing a beard. The question of whether he can wear his yarmulke will go to a jury. This is one of those things I'd probably understand better if I were a lawyer.

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The California State Senate has passed a bill that protects teachers who promote free student speech from retaliation. The bill, supported by the California Newspaper Publishers, was inspired by Janet Ewell, a teacher in Garden Grove, CA who was removed from her position as journalism advisor when she allowed too much freedom in the school newspaper. This is from the Orange County Register article:

In 2002 after allowing students to run several negative editorials in the student paper on dirty bathrooms, bugs in cafeteria food and teachers not being around enough during lunch and after school to help students, Ewell was told by then-principal Gene Campbell that she would be removed from her adviser role. She said he told her journalism students that the editorials were part of his decision to "take the journalism class in a new direction."

She fought his decision and was reinstated with a warning, and the student paper, La Nueva Voz, under her direction took first place two years in a row in student journalism competition.

But after a time switch that kept many students from being able to take the class, Ewell thought the class was being discontinued for the fall of 2005. She was surprised when she discovered that another teacher would fill the journalism adviser role.

The new bill will not do much for Ewell, but it will help to protect other teachers like her, teachers who stand up for the constitution and teach students that they do in fact have rights, from administrative retaliation. We need more teachers like Janet Ewell.

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Finally, back here in Philly, the Third Circuit has upheld a federal district court decision that Temple University's former anti-harassment policy was in fact an unconstitutional speech code. The original lawsuit, filed by the Alliance Defense Fund on behalf of Christian DeJohn, a former Temple student and sergeant in the PA Army National Guard, charged that Temple's policy was vague and overbroad, and that because of the policy DeJohn felt that he could not freely express his views about women in the military.

DeJohn had claimed that Temple refused him a graduate degree due to discrimination against his views, but the university responded that their refusal to grant a degree was based only on his poor academic performance. The district court dismissed this portion of DeJohn's claim, citing Temple's academic freedom to evaluate the performance of their students, and these claims were not a part of the Third Circuit appeal.

In their ruling, the Third Circuit ruled that the harassment policy was unconstitutional because it outlawed speech based on the speaker's purpose or intent, even if it did not disrupt the school's operations. They also ruled that outlawing "hostile" or "offensive" speech limited legitimate political speech.

Chris in Philly