FAQ

First Amendment Center (5)

View category →

The Freedom Forum Institute’s First Amendment Center does not provide legal representation and does not fund litigation. We’re a nonprofit organization focused on education and information about First Amendment issues.

No, you need a qualified attorney for that. Laws differ from state to state. Martindale, Findlaw and other online legal services offer ways to find lawyers by specialty where you live. However, the information posted on our site may help you and your attorney. Use the search engine for topics or terms that interest you.

No. We are an educational organization. We provide information and sometimes expert testimony that members of Congress or others may find useful, but we do not lobby.

Our website has a wealth of information that may be useful in your project. Search the site for your topic and other terms that interest you. If you quote or paraphrase our information, be sure to cite where you obtained it.

Yes, as schedules and duties permit, Freedom Forum Institute’s First Amendment Center experts speak to groups and conferences or participates in programs. Generally, the inviting group must fund travel-related expenses for the First Amendment Center participant. The Center welcomes invitations to participate in nonpartisan, educational events about First Amendment issues.

Free Spirit (11)

View category →

The deadline is Feb. 1, 2020. Applications must include the completed application, journalistic work, two essays, letters of reference, a high school transcript, and a color headshot photo. Incomplete applications will not be accepted.

Applications may be accepted beyond the deadline from select states that have an insufficient number of qualified applicants.

No. Applicants are not required to list SAT or ACT scores, because juniors typically don’t take the exams until spring. However, scores should be supplied if they are available.

Two essays with a maximum of 500 words each must be submitted with the application. First, applicants must explain why they want to pursue a career in journalism; and second, what characteristics make them a “free spirit.”

No. We require samples of writing, photography, audio, video or other media that were produced for publication or for classroom assignments.

All candidates will be notified by mail no later than mid-May 2020. Recipients will be required to sign an acknowledgment form to confirm their acceptance. Scholars’ names will be posted online in early June 2020.

Freedom of Speech (73)

View category →

Many books have been subject to censorship, although most are targeted for (a) vulgar or sexually explicit language; (b) “racist” language; (c) gay and lesbian themes; and/or (d) discussions of witchcraft and the occult.

The American Library Association’s Office of Intellectual Freedom keeps track of efforts to censor books and has published a list, “The 100 Most Frequently Challenged Books of 1990-2000.” Books new and old make up the list, from the 19th century classic “The Adventures of Huckleberry Finn,” to the critically acclaimed “I Know Why the Caged Bird Sings,” to the current-day best-selling Harry Potter series.

Maya Angelou’s “I Know Why the Caged Bird Sings” receives complaints for a rape scene and for being perceived by some as “anti-white.” Mark Twain’s “Huckleberry Finn” has been subject to censorship for language deemed demeaning to African-Americans. J.K. Rowling’s hugely popular Harry Potter series draws the ire of some who say it celebrates witchcraft.

School districts should develop policies on how to handle challenges to books and how to ensure that decisions regarding removal of books from the library or the curriculum respect the Constitution and reflect sound educational policy. School officials must also ensure that a book is not removed simply because a concerned parent or special-interest group dislikes its content.

 

Particularly in situations involving illegal or unethical behavior, the press takes seriously its responsibility to keep the public informed. People want and need to know what is happening on public campuses, especially if they have children attending school or thinking of doing so. As with any important story, reporters will want to learn as much about the people involved or suspected of being involved so that they can assemble the uncontested facts into an accurate picture of the situation. This goal would be served by having access to some of the records protected by FERPA, because the information would help the reporters to understand that situation and the individuals who might be involved. Without access to the government-controlled educational records, pieces are left out of the puzzle.

The most commonly mentioned secondary effects with respect to adult businesses are decreased property values and increased crime. Government officials often argue that adult businesses will reduce the property values of surrounding areas and lead to greater crime. Many courts give a high level of deference to municipal officials when it comes to secondary effects.

However, some studies have actually contradicted the general assumptions that all adult businesses cause adverse secondary effects. For example, a study by the Fulton County (Ga.) police department showed fewer police calls made from adult businesses than from regular bars. Another city-commissioned study from Fulton County showed that property values increased around some so-called gentleman’s clubs.

Not exactly. In the Pico case, the Court ruled that books could not be removed from a public school library unless they were educationally unsuitable or “pervasively vulgar.” The ruling did not extend to the acquisition of books — leaving schools to decide which books they would purchase.

No, a public school may not pick and choose which student groups it wishes to allow. A school would violate the First Amendment if it censored certain student groups on the basis of their viewpoints.

In 1984, Congress passed the Equal Access Act to prohibit discrimination against certain student groups based on their speech. The act was passed to prevent discrimination against student religious groups.

In its 1990 decision Westside Community Board of Education v. Mergens, the Supreme Court ruled that a Nebraska high school violated the Equal Access Act by denying recognition of a student Christian club when it allowed many other noncurriculum student clubs.

The Equal Access Act provides that a “public secondary school has a limited open forum whenever such school grants an offering or an opportunity for one or more noncurriculum-related student groups to meet on school premises during noninstructional time.”

The act forbids public secondary schools that receive federal funds from denying “equal access” to student groups based on the “religious, political, philosophical, or other content of the speech.” This means that, as the Mergens case demonstrated, a school cannot allow the formation of a chess club and at the same time deny the formation of a Bible club.

Unfortunately, some school districts that do not wish to recognize certain student groups have taken drastic action in order to avoid violating the Equal Access Act. These districts have simply prohibited all student extracurricular groups. A school district in Utah banned all student groups to avoid recognizing a gay-and-lesbian group. Meanwhile, a school district in California banned all student groups in order to avoid recognizing a Christian group.

(For more information on student clubs, see Religious clubs FAQs in the Religious liberty in public schools section.)

Such a regulation would probably be OK, as long as the government applied it evenhandedly. On its face, this requirement appears reasonable and does not discriminate against speech on the basis of content or viewpoint.

Freedom of the Press (39)

View category →

Truth is an absolute defense to libel claims, because one of the elements that must be proven in a defamation suit is falsity of the statement. If a statement is true, it cannot be false, and therefore, there is no prima facie case of defamation. There are numerous jurisdictions (including Florida) that have adopted the substantial-truth doctrine, which offers protection to a defendant of a defamation claim, as long as the “gist” of the story is true.

In the 1964 ruling New York Times v. Sullivan, the U.S. Supreme Court held that the First Amendment protects the publication of all statements regarding public officials unless the statement was made with actual malice — “with knowledge of its falsity or with reckless disregard of whether it was true or false.” The Court set a new standard by requiring that a public-official defamation plaintiff show evidence of actual malice by clear and convincing evidence. If the plaintiff is a private person, then only negligence needs to be proven, assuming the defamatory statement was false. However, if the private person wants to recover punitive damages, she must show that actual malice existed, as well.

Assuming that sidebar conferences and meetings in chambers are not being used to circumvent hearings that should be held in open court, the right of access does not extend to such discussions. Courts that have considered this issue have denied access on the grounds that there is no historical tradition of access to these portions of a trial. These discussions, however, almost always are recorded by the court reporter, and many courts, if asked, will release transcripts of the discussions after the trial.

Yes, newspapers do have a First Amendment right to refuse letters to the editor and ads. Since they are privately owned entities whose editors have editorial control, they are free to promote whatever political, social or economic view they wish.

The U.S. Supreme Court addressed the issue of editorial control and freedom of the press in 1974 in the case Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241. This case concerned a Florida political candidate who brought suit against The Miami Herald pursuant to the state’s “right-to-reply” statute after the paper refused to print the candidate’s reply to editorials critical of him. The statute in question required a newspaper to provide equal space to a political candidate to reply to any criticism of the candidate’s personal character or official record printed by the newspaper. The Supreme Court found the statute to be unconstitutional in that it violated the First Amendment right to a free press.

The Court wrote:

“A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.”

 

Generally, the material published must be private information that “is not of legitimate concern to the public.” Its disclosure must also be “highly offensive to a reasonable person.” Material private enough to trigger this tort claim could include disclosure of sexual orientation, medical history, or other personal, private facets of a person’s life. The pressing question in public disclosure of private-facts cases is whether the information is newsworthy or of legitimate concern to the public. Newsworthiness is evaluated by an examination of several factors, including the social value of the disclosed material, the depth of intrusion into personal life, and the extent to which the person is already in public view. Even Louis Brandeis and Samuel Warren, authors of a famous 1890 law review article, “The Right To Privacy,” wrote: “The right to privacy does not prohibit any publication of matter which is of public or general interest.”

Anonymous juries were first used in the late 1970s and the early 1980s in trials of drug kingpins and other defendants who posed a special danger to jurors. In those cases and in cases in which there is a high risk of jury tampering, anonymous juries are necessary to protect both jurors and the integrity of the judicial system. Since the mid-1990s, however, judges often have empaneled anonymous juries in cases, including civil cases, in which the only “risk” to jurors is the possibility of being approached for press interviews after the case. Anonymous juries should not be used so lightly, however, particularly because being anonymous almost always suggests to jurors that the defendant is dangerous. An anonymous jury is also often beyond scrutiny, even by the parties in the case. One of the jurors in the anonymous jury seated to hear one of mobster John Gotti’s trials, for example, was a man with ties to organized crime. Many believe this juror contacted Gotti’s attorneys, arranged for a bribe and ensured Gotti’s acquittal. Because of the jurors’ anonymity, neither the prosecutors nor the news media were aware of this juror’s background until after the trial.

Many different types of conduct can cause someone to file an intrusion/invasion-of-privacy lawsuit. Common examples include trespassing on private property without the owner’s consent; installing hidden cameras or other secret surveillance equipment to monitor someone’s behavior; and harassing a person by continually following him.

An example of conduct that was held to be intrusive enough to warrant judicial relief was the case of paparazzi photographer Ron Galella. Galella was relentless in his pursuit of photographs of Jackie Onassis and her children. After a court injunction and appeal, Galella was prohibited from approaching within 25 feet of Jackie O., blocking her movement in any public place and engaging in “any conduct which would reasonably be foreseen to harass, alarm or frighten the defendant.”

Freedom of Religion (89)

View category →

Yes. So far, two federal district courts have considered the act’s land-use provisions. (Additional courts have considered RLUIPA’s institutionalized-persons provisions.) Both in Freedom Baptist Church v. Township of Middletown and Charles v. Verhagen, the courts found RLUIPA to be a constitutional exercise of congressional power. A number of other cases are currently pending, and it is likely that several will produce rulings from the various federal appellate courts. Once a case with convenient facts reaches the appropriate stage, the Supreme Court will almost certainly take the opportunity to rule definitively on RLUIPA’s constitutionality.

Although outside groups generally have no right to distribute religious materials on campus, flyers from religious groups may be another matter. If a school allows outside groups such as the Girl Scouts to send fliers home with students about programs for youth, some courts have ruled that schools may not deny that privilege to a religious group. *

* See Hills v. Scottsdale S.D. County Pub. Schools, 9th Cir. 2003; Rusk v. Crestview Local School Dist., 6th Cir. 2004; Child Evangelism Fellowship v. Mont. Co. Public Schools, 4th Cir. 2004.

In 2002 the Supreme Court ruled in the case of Zelman v. Simmons-Harris that, under certain conditions, communities may create a voucher program for use at a variety of schools without violating the U.S. Constitution, even if some of the vouchers are redeemed at religious schools.

Citing precedent, Chief Justice William Rehnquist’s plurality opinion looked first at the purpose of a voucher program: It must exist for a valid secular purpose and not to promote any particular religion, he wrote.

The Court’s analysis then focused on whether a voucher program advances religion. The justices agreed that a neutral benefit program could be constitutional, even if religious institutions received some of the funds. Arguments occurred over the specifics of what constitutes a neutral program, and whether the funds could go directly to a religious group or if they must pass first through a private individual who would decide how to allocate the resources.

In both the plurality and concurring opinions, a majority of the Court focused primarily on whether or not a government benefit program was neutral on its face in matters of religion. In his plurality opinion in Zelman, Rehnquist said:

“[Previous cases] make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.”

What does all of this mean? The Court indicates that communities must consider several factors when creating a voucher program:

1. Is the proposed voucher program neutral with respect to religion? If the plan favors one religion over another, or non-religion over religion, then it will violate the establishment clause of the First Amendment.

2. Will the vouchers be made available to students based on religiously neutral criteria? That would mean deciding who gets a voucher must be based on such non-religious bases as financial need or attendance at poorly performing school, etc. Also, the schools that are allowed or not allowed to receive vouchers must similarly be appraised on the basis of secular criteria, such as academic performance and ability to adhere to safety codes.

3. The voucher must be awarded to an individual, not the religious institution, and the individual must, through private choice, make the decision as to where the voucher is to go. The government cannot influence this decision. This is necessary to demonstrate the government voucher is going to benefit the individual — as opposed to benefiting religion. This last element was by far the most contentious issue for the justices in the Zelman decision.

While all of the above material focuses on whether a voucher program is legal under the federal establishment clause, states must also look at their state constitutions. Most states have their own constitutional prohibitions against providing public funds to religious entities. These restrictions are often more restrictive than the U.S. Constitution.

This issue has come to the forefront in Colorado, where, in May 2003, a group of taxpayers sued the state over a newly implemented voucher program. Many of the arguments are based on Colorado’s constitutional prohibitions against allowing public money to go to religious entities.

Other issues are also involved, many revolving around policy questions and political realities.

No. Just because schools may not prohibit the distribution of all student materials does not mean that schools have no control over what may be distributed on school premises. On the contrary, courts have repeatedly held that schools may place reasonable “time, place and manner” restrictions on all student materials distributed on campus. Thus, schools may specify when the distribution can occur (e.g., lunch hour or before or after classes begin), where it can occur (e.g., outside the school office) and how it can occur (e.g., from fixed locations as opposed to roving distribution). One recent decision upheld a policy confining the distribution of student literature to a table placed in a location designated by the principal and to the sidewalks adjacent to school property. Of course, any such restriction must be reasonable.

It is also likely that schools may insist on screening all student materials prior to distribution to ensure their appropriateness for a public school. Any such screening policy should provide for a speedy decision, a statement of reasons for rejecting the literature and a prompt appeals process. Because the speech rights of students are not coextensive with those of adults, schools may prohibit the distribution of some types of student literature altogether. Included in this category would be:

Materials that would be likely to cause substantial disruption of the operation of the school. Literature that uses fighting words or other inflammatory language about students or groups of students would be an example of this type of material. Student speech may not be prohibited simply because it is considered offensive by some (see Saxe v. State College Area School Dist., 3rd Cir. 2001).

Material that violates the rights of others. Included in this category would be literature that is libelous, invades the privacy of others or infringes on a copyright.

Materials that are obscene, lewd or sexually explicit.

Commercial materials that advertise products unsuitable for minors.

Materials that students would reasonably believe to be sponsored or endorsed by the school. One recent example of this category of speech was a religious newspaper that was formatted to look like the school newspaper.

Though schools have considerable latitude in prohibiting the distribution of materials that conflict with their educational mission, schools generally may not ban materials solely on the basis of content. Similarly, schools should not allow a heckler’s veto by prohibiting the distribution of only those materials that are unpopular or controversial. If Christian students are allowed to distribute their newsletters, then Buddhists, Muslims and even Wiccans must be given the same privilege.

No. The Equal Access Act states that “employees or agents of the school or government are present at religious meetings only in a nonparticipatory capacity.”

For insurance purposes, or because of state law or local school policy, teachers or other school employees are commonly required to be present during student meetings. But if the student club is religious in nature, school employees may be present as monitors only. Such custodial supervision does not constitute sponsorship or endorsement of the group by the school.

If the Supreme Court struck down Congress’ attempt to protect religious liberties in the Religious Freedom Restoration Act, why wouldn’t it just do the same thing with RLUIPA?

Congress has different constitutional sources for its authority. If the Supreme Court denies it the power to create a law under one source, Congress may still be able to accomplish its goal using a different source. Congress justified its passage of RFRA under a section of the 14th Amendment that gives it the power to pass laws deemed necessary to protect the liberties ensured by that amendment, which would include the First Amendment’s guarantee of “free exercise of religion.” The Court held that under that section Congress was only permitted to develop laws that would enforce the standard of protection deemed necessary by the Court itself, as opposed to the stricter general standard embodied in RFRA.

RLUIPA’s justification was rooted in Congress’ power to regulate matters touching on interstate commerce. The Supreme Court has only rarely overturned congressional acts based on the interstate-commerce clause, so it is possible (though far from a certainty) that the Court would find a sufficient tie to interstate commerce to justify Congress in creating RLUIPA. It is important to note that even if the Court finds that Congress acted from the proper source of authority, the act might still be found to violate the establishment clause and therefore be unconstitutional.

Individuals do not forfeit First Amendment protections when they accept public-sector employment. Public employees also can speak about religious matters in the workplace to a certain degree, particularly if the speech is not communicated to the general public. However, the employer has a right to ensure that the employee’s religious speech does not disrupt office work or otherwise become distracting to other employees to the extent that it hinders productivity. Furthermore, no employee has the right to engage in religious harassment or create a hostile work environment. If the fellow employee tells his religious-minded co-worker to stop proselytizing, the co-worker should desist from further conversations on the subject.

Freedom of Assembly (13)

View category →

A law discriminates on the basis of viewpoint if it singles out a specific point of view for regulation. Consider a protest at a military funeral in which demonstrators denigrated the soldier and offended family members. If government officials punished that protest but allowed a demonstration praising the deceased, a serious charge of viewpoint discrimination could be leveled, because only protesters advocating a specific type of message were targeted.

The U.S. Supreme Court held on Feb. 28, 2006, in a case involving anti-abortion protests, that federal extortion and racketeering laws cannot be used to ban demonstrations. Use of those laws against protesters also was opposed by unions and a variety of social activists. Many states currently are considering laws that would ban protests at funerals, but those bans would be based on different kinds of laws. The proposed state bans often set out time limits starting before and ending after funeral services, or map out physical distances to separate families from demonstrators.

As a general rule, the government cannot ban speech — including public protests — because of the protest’s “content,” or subject matter. Government can restrict the time, place and manner of the speech in order to meet a higher need, such as public safety. What a demonstrator might say without challenge at noon in the public square likely would have First Amendment protection, while that same speech at midnight under an apartment building window likely would not.

No. The government can limit such protests depending on several factors. First, violent protests are outlawed anywhere. The text of the First Amendment provides for “the right of the people peaceably to assemble.” The key word is “peaceably” — violent protesting is not allowed.

Second, not all government property is treated the same for First Amendment purposes. The U.S. Supreme Court has established the public-forum doctrine to examine whether certain types of public property are open to First Amendment expressive activity. These categories include traditional public forums, limited or designated public forums and nonpublic forums. Still other government property is not considered a forum at all.

First Amendment rights apply the most in a traditional public forum, such as a public park. In its 1939 decision Hague v. C.I.O. the U.S. Supreme Court explained: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”

The general rule is that government officials may not impose content-based restrictions on speech in a public forum. This means that city officials must not treat different persons and groups of persons differently on the basis of the content (and viewpoint) of their messages. The government can justify content-based speech restrictions only by showing that it has a compelling state interest in imposing them (such as safety or security concerns), and that it has done so in a narrowly tailored way. Even in a public forum, the government may impose reasonable time, place and manner restrictions that are content-neutral, leave open ample, alternative ways for expression and are narrowly tailored. This means that city officials could limit protests to certain hours of the day and perhaps certain locations. Again, the key terms are “reasonable” and “content-neutral.”

The next category is a limited or designated public forum (though some lower courts distinguish between limited and designated — see discussion in Speaking at public meetings section).

In a limited public forum (such as a meeting room on a public college campus that is frequently used by outside groups), the government designates the certain types of subject matter that can be discussed at the location. After the government has created such a forum, setting boundaries on classes of speakers or topics, the government must meet the standards of a traditional public forum; namely, restrictions on speech must be reasonable and viewpoint-neutral. The theory is that when the government opens a forum up to the public, it shouldn’t be able to skew discussions by over-regulating expression.

Still another category is the nonpublic forum, a place where the government has greater leeway for control, as restrictions on expression must only be reasonable and viewpoint-neutral. What this means is that the right to protest is often affected by the location and purpose of the government property where the protest takes place. In United States v. Grace (1983), the U.S. Supreme Court wrote that the “public sidewalks forming the perimeter of the Supreme Court grounds, in our view, are public forums and should be treated as such for First Amendment purposes.” The same protest rights would not apply inside the Supreme Court building or on the steps right outside the Court. In U.S. v. Kokinda (1990), the U.S. Supreme Court ruled that postal sidewalks were not public forums, writing that they do “not have the characteristics of public sidewalks traditionally open to expressive activity.” The Court clarified that “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.”

In sum, there is no unfettered right to protest on government property. Protests must be peaceable, and the government has the right to impose content-neutral, reasonable time, place and manner restrictions on expression. Furthermore, as the Supreme Court said in Kokinda, “the government’s ownership of property does not automatically open that property to the public.”

The government has greater power to regulate expression when it acts as a proprietor controlling its internal operations than it does as a sovereign lawmaker. This means that government officials could limit protests inside a courthouse because the government has important operations to conduct. It must be able to control its operations to carry out its functions. The government must be able to carry on its own speech and expression free from interference. Contrast this with the public sidewalks two blocks from a courthouse. Here, the government cannot argue that it is conducting its own internal operations. Speech restrictions there would implicate a forum analysis and trigger a higher degree of judicial scrutiny.

Simply attending peaceful meetings of an organization will not make a person guilty, even if other members of that organization commit lawless acts. Guilt can be shared only if the organization and its members have a common plan to break the law.

In most cases, yes. Most states consider shopping malls to be the private property of the mall owner. Just as with any piece of private property, owners can make rules regarding that property, including what is appropriate attire. Think of “No shirt, no shoes, no service.”

In 1976, the U.S. Supreme Court decided the case Hudgens v. National Labor Relations Board. This case involved a group of labor union members who were picketing inside a privately owned mall. The union members filed suit claiming, in part, that their First Amendment free-speech rights had been violated after they were asked to leave the premises or be arrested for criminal trespass. The court looked at past cases and found that the First Amendment does not prevent a property owner from restricting the exercise of free speech on private property, in this instance, the shopping mall. So, for example, if a mall shopper were asked to cover a shirt that the mall owners found to be offensive, the shopper would have to comply or leave.

New Jersey and California have found their state constitutions to provide more freedoms than the U.S. Constitution — meaning that in these states constitutional rights to free speech can prevail over the private-property interests of mall owners. See Pruneyard Shopping Center v. Robins (1980). However, most states that have addressed this issue have found in favor of property owners.

0 Comments - Leave a Comment

Freedom of assembly is explicitly guaranteed in the First Amendment, securing the right of people to meet for any purpose connected with government. Freedom of association protects the activities and composition of such meetings. This right is not explicitly set out in the Constitution but is instead derived from fundamental privacy interests and the rights of speech, petition and assembly.

Freedom to Petition (9)

View category →

Courts seldom address the petition clause in isolation, instead grouping it with other rights to free association and collective speech. The U.S. Supreme Court has noted that the right to petition at least provides the opportunity to institute nonfrivolous lawsuits and mobilize popular support to change existing laws in a peaceful manner.

No. The U.S. Supreme Court has incorporated the petition clause of the First Amendment as part of the 14th Amendment’s guarantees against the states. The petition clause applies equally to state and local governments and protects petitions directed to the judicial, executive and legislative branches.

The First Amendment does not mandate that the government consider the public’s petitions or actually provide any “redress.” At a minimum, the government must have a mechanism for receiving complaints and grievances from the public, even if only to file them without consideration. Of course, due process — the guarantee that justice will be administered fairly — would apply if a citizen’s “petition” took the form of a court case.

No, parties can attempt to file such suits, but the First Amendment’s petition clause guarantees the right of all interested parties to attempt to enlist the government on their side of an issue or dispute. The vast majority of the case law and commentary — both popular and scholarly — supports that right, and suggests that the remedy for dissatisfaction with the statements of another party is more speech directed toward government, not more litigation.

Lobbyists try to persuade government officials either to support or oppose various policy issues. Therefore, lobbying can be considered a form of petitioning the government for redress of grievances, subject to protection under the First Amendment’s petition clause. Although there has not been a great deal of judicial analysis on First Amendment protections afforded to lobbying, the courts have carved out several parameters. First, the petition clause does not grant a lobbyist the absolute right to speak to a government official, nor does it grant a lobbyist the right to a hearing based on his or her grievances. In addition, the clause does not create an obligation for a government official to take action in response to a grievance. Finally, any statement made while a lobbyist petitions a government official does not receive greater protection than any other expression protected by the First Amendment.

A libel suit, whether involving online or off-line speech, is one of the ways a SLAPP suit could be disguised; anti-SLAPP laws would apply. However, not all libel suits are SLAPP suits. Anti-SLAPP laws would apply only if it were found that a suit was filed in response to or in retaliation for citizen communications with government entities or employees, or for speech to bring attention to an issue of public interest or concern.

In 2001, U.S. District Judge David O. Carter determined that California’s anti-SLAPP statute does apply to cyber-SLAPPs. (See Global Telemedia International Inc. v. Doe et al., 132 F. Supp. 2d 1261 (C.D. Cal. 2001))

In 2003, the Massachusetts Appeals Court cited that state’s anti-SLAPP statute in throwing out a libel lawsuit against a website operator whose posted statements suggested a town official was a Nazi. (See MacDonald v. Paton, 57 Mass.App.Ct. 290 (2003) and “State appeals court rules online libel suit was really SLAPP.”)

Other state anti-SLAPP statutes may also apply to online libel suits. See “Anti-SLAPP statutes: state summary” for a state-by-state list.

Students (4)

View category →

It depends. If you attend a private school, the First Amendment will not protect you from any restrictions your school places on your right to protest. (The First Amendment prevents the government from punishing you for your speech. It doesn’t prevent a private organization for punishing you for your speech.)

If you attend a public school, you do have First Amendment rights, even at school. However, your rights are more limited than the rights of adults. Your school can punish you for taking part in a protest if it causes substantial disruption of school activities, or if it invades the rights of others.

This standard was established by the Supreme Court in a case called Tinker v. Des Moines Independent Community School District. The students in that case wore black armbands to school to protest the Vietnam War, and were suspended for refusing to take them off. The Supreme Court found that their First Amendment rights had been violated, because the armbands were considered a non-disruptive expression of their political point of view.

You may decide that you are willing to incur those penalties, but remember to consider alternative methods of advocacy and protest as well.  Sometimes civil disobedience–challenging the rules on matters of conscience and policy–is justifiable.  But sometimes there are several different ways to achieve the same goal.

This is may be a fire code violation–contact the proper authorities if you are concerned.

You may not be able to vote–but you have the First Amendment rights to speak, assemble, and petition.

Organizing marches and rallies can raise public awareness for your cause. Doing so off-campus and outside of school hours will be protected by the First Amendment.  Reach out and collaborate with as many people as possible–parents, teachers, school administrators, and members of your community–in order to have the greatest possible impact.

The right to petition means the right to ask for the laws that you want and speak out against the ones that you don’t want.  Contact your elected officials and tell them what you think.   Letters, phone calls, and personal interactions at town hall meetings have more of an impact than emails and tweets.  Contact your Senators and members of Congress, since they’re elected to serve you.  Don’t forget that state and local officials also make laws that impact you.  The My Reps website allows you to find and contact your federal, state, county, and local elected officials.  This guide by  former Congressional staffer Emily Ellsworth contains some very helpful tips on what you should say and do.

Parents (1)

View category →

First, you may want to reach out to the school administrators and/or the school board and make your own voice heard on how you feel about this policy.

In giving advice or instructions to your children, you should consider the potential penalties but also discuss the underlying issues behind the walk-out.  You may wish to help your child with alternative forms of activism–for instance, by contacting your legislators on their behalf.  (After all, you have a vote.)

This could also be an opportunity to work collectively with other parents and your school leaders to organize a community discussion about the political issues, and also the on the the larger civic lessons surrounding free speech, protest, and representative democracy.

Teachers (1)

View category →

If you’re caught between students motivated to join in protests, marches or other kinds of activities that are under the general heading of “free expression” [that is actual speech or expressive conduct] and your administration’s view of such actions as disruptive and therefore prohibited, perhaps you can strike a compromise between these groups  – a task that teachers’ lounge chatter daily confirms. How about leading your students in discussion about the history of protest in America, or the explore the various sides of what Supreme Court justices wrote in the “Tinker” court case.

While the 7-2 majority on the court supported student free speech rights – with some caveats – one justice wrote that the decision would usher in an entirely new era of “permissiveness” that it seems would wreck American public schools. To engage your students in a discussion, you can find review the basic information about the case and use this discussion guide from Newseum Education.

School Administrators (1)

View category →

You first face the decision of whether to forbid the walk-out at all or to simply deal with the disruption caused by a walk-out.  (This decision might depend on whether you are considering the disruption caused by a 17-minute walkout versus that of an all-day walkout).  You then face the decision of whether or not to punish the participants.  Note that a punishment must be proportional to the misconduct committed.  Furthermore, if you decide to mark truant the students who participate in a walk-out, keep in mind that the punishment for them cannot be any more severe than the punishment for students who are truant for another reason.

Simply locking students into their classrooms in order to keep them from leaving may well be a fire code violation. Such a “lockdown” lacks the urgent “true threat” justification that a court might accept with regard to an active, dangerous incident in your building or near your location.

You should also consider that there may be another approach altogether. Given that we live in an age where there is much concern that young people don’t understand the Constitution or support free speech, punishing them for exercising it, even if the even if the Tinker decision gives school administrators that discretion, seems counterproductive. In the words of law professor Erwin Chemerinsky, “Schools cannot teach the importance of the First Amendment and simultaneously not follow it.”

This could be a teaching moment for your students and your community.  In cooperation with students, parents, and teachers, you may wish to organize a town hall meeting in which all sides surrounding the political issue or debate are head.  Newseum Ed’s Teaching Controversial Topics instruction guide provides tools and tips for educators on leading classroom conversations about sensitive topics.  

You can also use this as an opportunity to educate your students about how the First Amendment works and how far their rights extend.  You can start by introducing students to what the limits of free speech are, both inside of school and out of it, with discussion materials from Newseum Ed about what counts as a violation of the First Amendment and what you can and can’t say in school.

 

 

 

 

Lawyers (8)

View category →

Yes, students do possess First Amendment rights at school.   The U.S. Supreme Court famously wrote in Tinker v. Des Moines Independent Community School District (1969) that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  However, the Court cautioned that students’ rights must be considered “in light of the special characteristics of the school environment.”

That is an excellent question.  The determination of what constitutes a “substantial disruption” is decided on a case-by-case basis.  The interruption of classes, threats to teachers, racially harassing conduct and significant race-based tension, fights or violent behavior on school grounds, the flooding of angry calls from parents, the canceling of school events, and emotional distress suffered by teachers have all been considered substantial disruptions within the meaning of the Tinker standard.

No, courts have stated that school officials do not have to wait for an actual disruption or riot.  The 9th U.S. Circuit Court of Appeals explained in Karp v. Becken (1973): “The First Amendment does not require school officials to wait until disruption actually occurs before they may act.”

This where the “reasonable forecast” part of the standard comes in play.   In Dodd v. Rambis (S.D. 1981), a federal district court judge reasoned that students’ distribution of leaflets urging fellow students to engage in another student walkout was substantially disruptive to school activities.  The judge explained: “The First Amendment does not require school officials to forestall action until disruption of the educational system actually occurs. Indeed, this is the very essence of the forecast rule.”

For example, in many cases involving Confederate flag garb, courts have reasoned that a significant amount of race-based tension at the school is enough to satisfy the “reasonable forecast of substantial” disruption standard.

Usually, courts find that student walkouts are substantially disruptive under the Tinker standard.  They focus on the fact that classes and class schedules are disrupted and the students who remain in school are distracted.

Furthermore, the 9th U.S. Circuit Court of Appeals in Corales v. Bennett (2009) reasoned that a high school’s anti-truancy policy was a “content neutral rule that furthers an important interest unrelated to the suppression of expression.”  The appeals court explained that the anti-truancy rule “furthers several substantial government interests, including enforcing compulsory education, keeping minors safe from the influences of the street, maximizing school funding based on attendance  and limiting potential liability for negligent failure to supervise a truant student properly.”

The other part of the Tinker test is sometimes called the “invasion of the rights” prong or “invasion of the rights of others” test.   The Court in Tinker explained that student speech is not protected by the First Amendment if it impinges on the rights of other students.  The Court has not explained the contours of this test.

However, lower courts have applied this test to prohibit student speech that sexually harasses other students or to student speech containing anti-gay themes.  For example, the 9th Circuit ruled in Harper v. Poway Unified School District (2006) that school officials could prohibit a student from wearing t-shirts containing Biblical verses condemning homosexuality. The appeals court explained: “Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn.”

Absolutely not.  U.S. District Court Judge Rodney Sippel expressed this well years ago in Beussink v. Woodland IV School District (E.D. Mo. 1998), writing “Disliking or being upset by the content of a student’s speech is not an acceptable justification for limiting student speech under Tinker.

In a case out of Tennessee, Giles County public school officials contended that a t-shirt with pro-gay and lesbian themes would be disruptive to the school. A review federal district court judge disagreed in Young v. Giles County (M.D. Tenn. 2015), writing that “[m]erely invoking the word ‘disruption’ falls far short of the showing that Tinker requires.”

Workplace Integrity Curriculum (7)

View category →

Harvard’s John Kotter has written that people don’t “Analyze, think, and change.” Instead, they “See, feel and change.” I think this curriculum has the potential to help people see the world through the eyes of others and feel how everyday actions, big and small, can have a profound impact for better or worse. But best of all, they get to create their own roadmap, not be handed one with every route pre-determined for them. After all, journalists love nothing more than ideas and solutions of our own creation. So, they’ll have the chance to do that in the Workplace Integrity modules. I’m confident it can work.

It’s the product of both research and experience. I drew on the findings from the Power Shift Summit, EEOC data on harassment and discrimination, research on bias in decision making, contemporary writing on gender and diversity issues, and combined it all with my own experiences working with journalists and leaders who want to improve their cultures.

Let me answer that by providing a peek at the Facilitator’s Guide for the curriculum, where the learning objectives are laid out:

Format: The interactive program consists of three modules, designed to be taught in succession, as one complete event. Each session builds on the others.

Learning objectives: Participants who complete the workshop should be able to take away these skills from each of the modules:

  1. Critical Thinking: How to analyze common workplace exchanges related to harassment, discrimination and incivility — checking facts, providing context, identifying bias, surfacing assumptions and challenging logic.
  2. Courageous Conversations: How to better understand conflict and responses to it. How to speak proactively (introducing subjects) and reactively (responding to the words and actions of others) to ensure workplace integrity.
  3. Cultures of Respect and Trust: How to assess and improve your workplace culture.

I’ve spent a great deal of time helping newsrooms who want their cultures to be more investigative, multi-platform, digital-first, audience-centric, enterprising, collaborative or breaking-news focused. To do that, I developed a very practical analytical framework for assessing a culture, and exercises for staff to use to upgrade it. I built on that foundation to apply it to the Workplace Integrity curriculum. Now, newsroom teams will address “Cultures of Respect and Trust” — with both of those terms carefully defined and translated into daily choices and behaviors. We use a format that allows staff to work together in teams, under the guidance of a skilled facilitator who knows and loves journalism and journalists, and speaks the language of the newsroom.

The issues are complex and intertwined. Even if we magically ended sexual misconduct in workplaces tomorrow, we’d still be left with longstanding issues of inequality in pay and power — and even in respect. The curriculum aims to make these connections and discuss the intersections among gender, race and ethnicity, age, and power. It constantly challenges the participants to try to see every item we discuss from multiple perspectives, especially those different from their own. And, while it teaches people how to respond to improper workplace behavior, there’s an even bigger emphasis on how each of us, but especially leaders, has the opportunity to be proactive. “Courageous Conversations” will fail as a session if all it does is help victims push back or report wrongdoing. What it must also do is help us all find the words to propose solutions, take a stand, and embed the values of workplace integrity into our everyday communication.

The 2016 report of an EEOC task force reviewed research on traditional anti-harassment training and found scant evidence that it worked. It often made people defensive. The videos used could be corny or dated, and online versions of training could come off as a “box-checking” exercise. I know from my many years of teaching ethics and diversity that talking across differences, and raising issues of power and privilege, is hard work for humans. Framing it as compliance to company rules doesn’t set the table for candid, earnest and even painful conversations. But it is in those that we find the human insights that inform our minds and hearts. Whenever I’ve had success in helping organizations improve their cultures, it’s been through setting the table for conversations people wouldn’t otherwise have, and helping them see the world through others’ eyes in an open-minded atmosphere of trust. That’s the goal of the Workplace Integrity curriculum.

Power Shift Project (0)

View category →

It’s the product of both research and experience. I drew on the findings from the Power Shift Summit, EEOC data on harassment and discrimination, research on bias in decision making, contemporary writing on gender and diversity issues, and combined it all with my own experiences working with journalists and leaders who want to improve their cultures.

Let me answer that by providing a peek at the Facilitator’s Guide for the curriculum, where the learning objectives are laid out:

Format: The interactive program consists of three modules, designed to be taught in succession, as one complete event. Each session builds on the others.

Learning objectives: Participants who complete the workshop should be able to take away these skills from each of the modules:

  1. Critical Thinking: How to analyze common workplace exchanges related to harassment, discrimination and incivility — checking facts, providing context, identifying bias, surfacing assumptions and challenging logic.
  2. Courageous Conversations: How to better understand conflict and responses to it. How to speak proactively (introducing subjects) and reactively (responding to the words and actions of others) to ensure workplace integrity.
  3. Cultures of Respect and Trust: How to assess and improve your workplace culture.

I’ve spent a great deal of time helping newsrooms who want their cultures to be more investigative, multi-platform, digital-first, audience-centric, enterprising, collaborative or breaking-news focused. To do that, I developed a very practical analytical framework for assessing a culture, and exercises for staff to use to upgrade it. I built on that foundation to apply it to the Workplace Integrity curriculum. Now, newsroom teams will address “Cultures of Respect and Trust” — with both of those terms carefully defined and translated into daily choices and behaviors. We use a format that allows staff to work together in teams, under the guidance of a skilled facilitator who knows and loves journalism and journalists, and speaks the language of the newsroom.

The issues are complex and intertwined. Even if we magically ended sexual misconduct in workplaces tomorrow, we’d still be left with longstanding issues of inequality in pay and power — and even in respect. The curriculum aims to make these connections and discuss the intersections among gender, race and ethnicity, age, and power. It constantly challenges the participants to try to see every item we discuss from multiple perspectives, especially those different from their own. And, while it teaches people how to respond to improper workplace behavior, there’s an even bigger emphasis on how each of us, but especially leaders, has the opportunity to be proactive. “Courageous Conversations” will fail as a session if all it does is help victims push back or report wrongdoing. What it must also do is help us all find the words to propose solutions, take a stand, and embed the values of workplace integrity into our everyday communication.

The 2016 report of an EEOC task force reviewed research on traditional anti-harassment training and found scant evidence that it worked. It often made people defensive. The videos used could be corny or dated, and online versions of training could come off as a “box-checking” exercise. I know from my many years of teaching ethics and diversity that talking across differences, and raising issues of power and privilege, is hard work for humans. Framing it as compliance to company rules doesn’t set the table for candid, earnest and even painful conversations. But it is in those that we find the human insights that inform our minds and hearts. Whenever I’ve had success in helping organizations improve their cultures, it’s been through setting the table for conversations people wouldn’t otherwise have, and helping them see the world through others’ eyes in an open-minded atmosphere of trust. That’s the goal of the Workplace Integrity curriculum.

One of the most popular sessions I teach in leadership workshops is “Difficult Conversations.” I traditionally have the workshop participants share scenarios from their own experiences, and then I coach them on how to handle them. I’ve heard so many great case studies, and coached so many conversations, that I drew from that experience. The cases are nuanced and real. I intentionally crafted them in second-person voice. “You” are facing various proactive and reactive scenarios: proposing a change in intern onboarding, reacting to a powerful, talented and mercurial co-worker, responding to unwelcome physical contact, stepping in when a person is being harassed, and coaching a coworker who brings a concern to you. When “you” consider your options, we also ask “you” to consider how the case might play out differently for a variety of other “you’s” — who differ from you in multiple ways.