Posts Tagged ‘First Amendment’

Should Ferris High School Have to Cancel School for the Westboro Baptist Church Protest?

The Westboro Baptist Church protested outside nearby schools today.  See article.  In response, Ferris High School closed early. Was this the right thing to do?  Shouldn’t the police prohibit any protest that would be so close as to disrupt a public secondary school?

Here is the background: If you don’t already know, the Westboro Baptist Church is a small group out of Topeka Kansas that thinks homosexuals are destroying our country, and feels that God is punishing the U.S. for its tolerance of homosexuals by killing American soldiers overseas.  The church has outraged many Americans by protesting nearby military funeral with signs that read “God hates Fags”, “Thank God for IEDs”, “Thank God for dead Soldiers”, “Semper Fag” etc.  In response, there have been large counter-protests staged.  A group call the Patriot Guard Riders follow the Westboro protests at funerals and try to drown out the protesters with their loud motorcycles.  The Westboro Baptist Church has been sued for intentional infliction of emotional distress by families of deceased veterans.  Albert Snyder, the father of a young man killed in Iraq in 2006, sued and won $500,000.  However, the appellate court overturned the jury award on appeal, and the case is now pending before the U.S. Supreme Court.  The oral arguments have been held, and it looks like the court is poised to rule that the particular protest that Mr. Snyder sued over was protected by the First Amendment.  Part of the problem with the  case is that the Westboro protest was 1000 feet away from the funeral, and the funeral wasn’t actually disrupted.  More on that case here.  Meanwhile, today in Spokane the church wasn’t protesting at any funerals, rather the church singled out locals schools.  The protestors visited Gonzaga, Whitworth, EWU, and Ferris High School.  Check out this YouTube video of the Spokane protests.

According to the Spokesman-Review article, “Ferris High School students were released from school before the Westboro members arrived to avoid congestion from all of the protesters, said Terren Roloff, Spokane Public Schools spokeswoman. Administrators also did not want students to have to be exposed to the church’s hateful and offensive messages as they left, she said.”
In my opinion, the police should have set up a perimeter around Ferris High School in which protestors were not allowed. Under court precedent, the government is permitted to take measures to prevent disruption of classes for children in public schools. In this state, school attendance is compulsory. See RCW 28A.225.010. Additionally, under Article 9, Section 1 of our state constitution, public education is a right for children.  So while, the society may have to put up with raucous protests near universities, such is not the case of our secondary schools.  Under the “captive audience doctrine” the government can protect people from having to listen to disturbing messages while they are “stuck” in school, on the job, at job centers, and occasionally even at their home.  Different rules apply there than in a town square, a park, or random street corner.  “Captive” listeners have a recognizable privacy interest in avoiding unwanted communication where “the degree of captivity makes in impractical for the unwilling viewer or auditor to avoid exposure.”  Hill v. Colorado, 530 U.S. 703, 718 (2000).  The Ninth Circuit Court of Appeals has ruled that it is appropriate to consider that a public school consists of an audience that is “essentially captive and composed of impressionable adolescents…” Nurre v. Whitehead, 580 F.3d 1087, 1094 (2009).

For more news on the protest at Ferris High School see here. What do you think? The Westboro Baptist Church does an average of 6 protests per day. Should we really have to cancel school days just for them?

Riverside High School Student Suspended for “I Love Boobies!” Bracelet

At Riverside High School in Spokane County, and elsewhere around the nation, students have clashed with school officials over their right to wear bracelets that support breast cancer awareness. The bracelets read “I Love Boobies!” and are sold by the Keep A Breast Foundation. The Keep A Breast Foundation is a non-profit corporation committed to reducing breast cancer, and the group focuses on educating younger people. The Spokesman-Review today covered the story of how Dakota Jewell and  Zack Jordan were suspended from Riverside High School for two days  on Thursday for allegedly refusing to remove their bracelet that read “I Love Boobies!”  When word got out that the two boys were suspended, many of their classmates joined them, wearing similar bracelets, and creating signs with the same slogan.  More students were suspended Friday.  The Spokesman-Review reported that Dakota Jewell donned the bracelet because he has had family members die of the disease and he wanted to promote awareness.   Several students joined their friends in protest and were also suspended, and now some students are vowing to wear the bracelets this Monday as well. I have been in contact with a few of the students and have given them some pointers on how to have their rights respected, and how to avoid suspension.

Similar disputes are going on nationwide.  Other schools nationwide have tried to prohibit these bracelets in school.   I have not heard of any such cases going to court.  It is certainly a matter of freedom of speech, but maybe the ACLU isn’t volunteering to take up causes like this because the speech really doesn’t involve overtly political or religious speech.  But that’s just a guess.  Last week, Professor Howard Wasserman of Florida International University School of Law offered his opinion on the subject of “I Love Boobies” bracelets in school.  Wasserman accused the cancer foundation of going for the “lowest common denominator”.  He opined that the students wouldn’t “have a prayer” of prevailing on first amendment grounds.   However, professor Kathleen Bergin of South Texas College of Law wrote last month that she thought the “I Love Boobies” bracelets might be protected by the first amendment.  She wrote: “… it’s hard to see much of a difference between arm bands worn to protest the Vietnam War, which the First Amendment protects, and a bracelet worn to raise awareness about cancer.”  (The legal precedent she refers too is Morse v. Tinker, which I blogged about last year here.)  In the Tinker decision, the U.S. Supreme Court upheld the right of high school students to wear black armbands to protest the Vietnam war and to push for a truce.  The school banned all armbands, and when the students wore them anyway, they were suspended.  In 1969, the Supreme Court struck down the school rule, explaining that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

But a student’s right to freedom of speech is not unlimited, and in 1986, in Bethel School District v. Fraser, the U.S. Supreme Court upheld the punishment of a student who used vulgar and lewd language when speaking at a school assembly.   The student gave the following speech in support of a candidate for student government:

I know a man who is firm — he’s firm in his pants, he’s firm in his shirt, his character is firm — but most . . . of all, his belief in you, the students of Bethel, is firm.  ‘Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts — he drives hard, pushing and pushing until finally — he succeeds. ‘Jeff is a man who will go to the very end — even the climax, for each and every one of you.

The bracelets the kids at Riverside wear are certainly less disruptive than giving a speech such as the above.  My opinion is that a court would strike down Riverside’s prohibition of such bracelets.  I believe a court would likely side with Dakota Jewell and Zack Jordan.  The “I Love Boobies” bracelets are not as “political” as armbands protesting a war.  However, the way breast cancer research is funded, and the way its survivors are treated is a very hot political issue in the country.  And lets face it the word “boobie” might be a little silly or immature, but it is hardly “vulgar” or “lewd”.

I have a great deal of sympathy for the students of Riverside.  They will be faced Monday with a decision of giving up their rights or attending class.  I remember when MaryBeth Tinker spoke at Gonzaga (see post), she mentioned that it was three years after her suspension before the case went to court.   It would seem to be pretty demeaning to the students to be told that they are so immature that they cannot handle seeing the word “boobie” in small print around someone’s wrist.  If it were my son or daughter, I would tell him to go to school with the bracelet on, but with a little black tape covering the “offensive” word.  Nothing protests censorship like duct tape.

For earlier posts on the subject of freedom of speech in the school setting. see here, here, and here.

What do you think?  Was the principal right to ban these bracelets?  Could these bracelets lead to sexual harassment at all?  Does it matter that these kids seem to have a well-intentioned concern for people with cancer?

Shadle Park Teacher Brad Read Placed on Leave For Passing Out Lyrics to “Commencement Day” by Blue Scholars

You have to wonder about those students at Shadle Park High School.

The Blue Scholars

Their popular English teacher Brad Read was placed on leave the other day for passing out the lyrics to a rap song, and the students have not come out publicly in his defense.  Apparently some parents complained about the song that contained foul language.  Here are a sample of the lyrics by Seattle hip-hop artists Blue Scholars:

With the grade point average hanging over head,
Brother sister please don’t believe the bullshit they said.
Fuck the pledge of allegiance and arrogant teachers
But peace to the people who don’t ever preach in the front of a classroom
All day long, planting seeds of revolution,
We dedicate this song.
It goes one for the student who refuses to submit
And two for the teachers who are underpaid as shit
It’s the next generation of miseducated youth
Who demonstrate the truth and manage to make it through

If you want to check out the Blue Scholars video, click here.  Looking at the lyrics you can kind of see that the problem may have less about the word “fuck” and more about the the irreverence of the song.  The latest word on the subject was that the teacher Brad Read was on leave pending an ” investigation.”  See article in the Spokesman-Review.  What is there to investigate?  He passed out some lyrics – give him an oral warning and put him back to work.  Why are the students at Shadle Park High School putting up with this baloney?  Are they content to have to deal with a substitute while the school administrators meet to make sure that the students are exposed to only the blandest, most non-controversial curriculum?  Isn’t it an insult to the students’ intelligence for the school to think that Shadle Park kids need to be sheltered from the words “fuck” and “bullshit”?  I blogged earlier this year about students of the past demonstrating with black armbands.  (See post.)  Maybe armbands aren’t the way for the students of today. But what about starting a Facebook page in the defense of this aptly-named English teacher?

I guess it is a school’s job to build character. And I suppose one virtue the school is supposed to instill is courage. It doesn’t show a lot of courage for school officials to overreact and put a teacher on leave simply because one person complains about something that might be controversial. Couldn’t this have been handled short of putting teacher Brad Read on paid leave? It does not show a lot of courage for Shadle Park to kowtow to the person or people who complained. It is a waste of the school district’s money to be paying a substitute and having a teacher sit at home. I would kind of like to know the name of this school official who freaked out about these lyrics. He or she should be named in the paper. So far all I have seen in the paper is the name of the spokesperson for Shadle Park High School.

(Note from 9/24/10: To see the outcome of this case, see the recent post here.)

Strippers in Grand Coulee? Entrepreneur Tests the Laws (and Sensibilities) of Eastern Washington

The Star – Online broke a news story earlier this month about a local bar owner who announced his plan to have topless dancers at his establishment in Grand Coulee.  See story.  Ted Wolf, the owner of Wolf’s Den Tavern, apparently announced his intentions at a city council meeting.  The city’s police chief reviewed the city code, and apparently did not find any prohibition on such an activity.  The news story explains the regulations that one would face would come from the State Liquor Control Board.  Under the law, if it weren’t for the Tavern’s liquor license, the government would be limited in its ability to restrict such topless dancing.   The Washington Supreme Court has ruled that the expression of a nude dancer receives constitutional protection.  See Kitsap County v. Kev Inc. (1986).  Courts consider nude dancing “low value” speech, but nevertheless speech that is protected by the first amendment.  In Erznozick v. City of Jacksonville (1975) the U.S. Supreme Court ruled that entertainment involving nudity cannot be banned.   However, the U.S. Supreme Court also ruled that States may prohibit sexually explicit live entertainment in places where alcohol is served because states are vested with the power to regulate alcohol under the 21st Amendment.  New York State Liquor Authority v. Bellanca (1981).   In Washington, the State does allow topless dancing at bars provided that the dancers are compensated and remain on a stage 6 feet away from patrons.  See WAC 314-11-050.  These sort of performances are not typically very lucrative for the licensees, and as reported by The Star, only one such topless bar exists in Eastern Washington.    Most nude dancing occurs in establishments that only serve soft drinks.  In some of those alcohol-free establishments, it is pretty much anything goes if you believe the frequent news reports of west-side newspapers.  However, local governments are able to prevent dancer-on-patron contact with local regulations.   For example the city of Bellevue prohibits fully nude dancers from coming within 4 feet of patrons, requires stages to be well-lit, and requires that the “adult cabarets” close by 2 a.m.  The State Supreme Court found Bellevue’s ordinance to be constitutional in the case of Ino Ino, Inc. v. Bellevue (1993).  In that case, the court rejected the argument of the dancers that the lighting and proximity restrictions interfered with their freedom of expression.   In this country, dancing involving nudity is subject to what we call “time, place, and manner” restrictions.   Oftentimes, local officials attempt to restrict the dancing so much that clubs simply give up and move to other locales.  Such intent on the part of city officials is hard to prove, and State Supreme Court has explained that “a court should not strike down an otherwise constitutional statute on the assumption that the legislative body had a wrongful purpose.”  See Ino Ino, Inc. v. Bellevue.  Additionally, courts have upheld local zoning ordinances that prohibit “adult” establishments within 1000 feet of a church, park, school, or even a residence.  Such was the U.S. Supreme Court’s holding in Renton v. Playtime Theaters (1986), a case that originated in Renton, Washington.  These strict regulations were found to be justifiable due to the “secondary effects” of adult entertainment, meaning the crime and prostitution and drug use that often is associated with these clubs.  I am not sure that merely providing topless dancers would justify such stringent regulation.  Adult bookstores and “lap-dance” clubs, particularly when concentrated in certain areas, are bound to have more problems then a single tavern providing dancing only on Friday and Saturday nights.   Additionally, many local governments do not have any nudity-restrictions at all when it come to the female breast.   It will be interesting to see how this plays out.  The city of Grand Coulee is attempting to change their ordinances right now to stop Ted Wolf from allowing topless dancing at his Wolf’s Den Tavern.

What do you think?  Should Grand Coulee take active steps to try to prevent such dancing within city limits?

Student Rights Discussed at Gonzaga School of Law by Mary Beth Tinker

New ImageI had the pleasure of seeing Mary Beth Tinker speak at Gonzaga School of Law last night on the subject of the free speech rights of students.  In 1965, eighth grader Mary Beth Tinker was suspended from school for protesting the Vietnam War, and took her case all the way to the U.S. Supreme Court.  Although she was just thirteen, she donned a black armband with a peace sign, and politely refused to remove it when asked.

Mary Beth Tinker with her brother who also joined the protest.

Mary Beth Tinker with her brother who also joined the protest.

She wore the armband to support a Christmas Truce, as urged by Robert Kennedy, and did not return to school until January 1st, when the protest was scheduled to end.  Although she lost her case at the lower courts, Mary Beth Tinker ultimately prevailed at the U. S. Supreme Court in the landmark case of Tinker v. Des Moines School District.

Mary Beth Tinker spoke at Gonzaga School of Law about her background growing up and how her parents were civil rights activists.  Her parents assisted with voter registration efforts for African-Americans in the South.  Although her parents were also active in the anti-war movement, she explained that the decision to protest was her own.  The ACLU took up her case, and the final ruling did not come out until 1969.

The most recent case addressing the freedom of speech for students is Morse v. Frederick, in which the U.S. Supreme Court ruled that a school district properly seized a banner from a student which read “Bong Hits 4 Jesus”.  bong-hits-4-jesus The Supreme Court indicated that the First Amendment rights of a student did not protect speech that promoted drug use.  Many lawyers disagreed with the courts ruling because the student in question held the banner on a public sidewalk outside of the school.

One thing that I kept in mind when I heard about Mary Beth Tinker’s case,  is that student protests 40 years ago had the potential for being more volatile.  I think that the student anti-war protests that occur today do not concern the school administration because young people do not seem to be as involved.  (I should have asked Ms. Tinker if she agreed with this but I did not think of this at the time).  While at this time student political protests seem dormant in this country, in other countries student activists are a force to be reckoned with.   Remember what student free speech did to Iran last summer?  Do you remember seeing the images posted on Twitter and Flickr?  These are good reminders on why the protection of  free speech is so important, even for the high school set.  Similar student movements changed the Ukraine in 2004 (Orange Revolution) and Georgia in 2003 (Rose Revolution).

Although today it seems pretty basic that a student can wear an armband in the U.S., it was not so clear in 1966.   Look at the transcript of Justice White grilling the ACLU lawyer at the Supreme Court during oral argument in 1968:

JUSTICE WHITE: Then why didn’t they take it [the armband] off when they went to class?

MR. JOHNSTON: Well, there would be no reason to take it off when they went to class.

JUSTICE WHITE: Because it was ineffective, nobody would notice it.

MR. JOHNSTON: It was not disruptive in the class your honor.

JUSTICE WHITE: You mean physically, but how about the attention of the students?

MR. JOHNSTON: Well, there is no testimony by any of the teachers that it was in any way distracting or disruptive.

JUSTICE WHITE: Why did they wear, again, why did they wear the armband?

MR. JOHNSTON: They wore the armband to convey a message.

JUSTICE WHITE: To convey the message.

MR. JOHNSTON: That’s right.

JUSTICE WHITE: They anticipated students would see it and understand it and think about it.

MR. JOHNSTON: That’s correct.

JUSTICE WHITE: And when they did it in class, they intended the students to do it in class.

MR. JOHNSTON: Well, I think it’s a fair assumption that the method of . . .

JUSTICE WHITE: They intended the students to think about it outside of class but not in class.

MR. JOHNSTON: I think they intended; I think they chose a message, chose a method of expression your honor, which would not be disrupting, distracting, disrupting.

JUSTICE WHITE: Physically it wouldn’t make a noise. It wouldn’t cause a commotion, but don’t you think that it would cause some people to direct their attention to the armband and the Vietnam war and think about that rather than what they were thinking about, supposed to be thinking about in the classroom?

Justice White’s questions seem a little bit crazy today, but maybe at the time discipline may have been pretty strict.  I sometimes speak at schools (see here) and it does seem like students today definitely multi-task a little during class.   So while Justice White grilled the ACLU lawyer, Justice Thurgood Marshall had tough questions for the school’s lawyer.  In particular Thurgood Marshall was curious as to how seven children with armbands could threaten the order of a school district with 18,000 students.

JUSTICE MARSHALL: Seven out of eighteen thousand and the school board was afraid that seven students wearing armbands would disrupt eighteen thousand?

MR. HERRICK: I think . . .


MR. HERRICK: . . . the court plays, that that doesn’t give us the entire background that builds up to what was existing in the Des Moines schools at the time the armbands were worn. Uh, the, as we view it, the right of freedom of speech or the right of demonstration in the schoolroom and on the school premises must be weighed against the right of the school administration to make a decision which the administration, in good faith, believed and its discretion was reasonable to preserve order and to avoid disturbance and disruption in the schoolroom.

JUSTICE MARSHALL: Been any disruption?

MR. HERRICK: I’ll refer to that also, your honor. There had been with John Tinker, what I would call disruption. One or two of the boys who had been struck, I believe the record shows.

JUSTICE MARSHALL: Well, how many boys are struck in the Des Moines school system per day normally?

MR. HERRICK: Well, if the court please, I think the question there gets back to the first issue that I undertook in the states. Does the school if we have an aroused community have to wait until disruption occurs or may it act to prevent it?

JUSTICE MARSHALL: Well, the school system was aroused? Where is that in the record?

The transcript of this case, and the audio of the oral argument, are available through  Ultimately Justice White was convinced to rule that the armband was constitutionally protected speech and joined with the majority opinion.  Anytime you listen to the old oral arguments of court cases on constitutional law, you are reminded at how quickly attitudes about constitutional rights can change.

For questions about laws for teens, Mary Beth Tinker recommended the site //  The content is by a retired judge and there is a lot of discussion on freedom of speech in school.

Anyway, my visit back to Gonzaga University School of Law was enjoyable.  It seems like there are more cool things going on at GU Law then when I went there.  After Tinker’s presentation, several law students were setting up a display for a project protesting human trafficking, see here.  The display was an “interactive passport installation” and was staffed by students and Gonzaga alumna Katie Stone Botezatu.  But that is the subject of a future blog post maybe.

This Tinker lecture was actually something I just happened to stumble onto when I used the law library after court Thursday.  Does anyone know of any good way to follow events down there at Gonzaga?  I track a lot of GU activities on facebook, but I am apparently still missing a lot.

Steve Graham is a criminal defense lawyer, and he splits his time between Spokane and Seattle, Washington. Visit his website by clicking:
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