According to the United States Supreme Court, public school students do not “shed” their free speech or other constitutional rights “at the schoolhouse gate.” Specifically, the Court recognized that even the peaceful display of controversial insignia–black armbands worn to school to protest the Vietnam War–enjoyed First Amendment protection. Yet the Court has also recognized that public school administrators have to be able to maintain an environment in their schools that doesn’t interfere their pedagogical purpose. Under some circumstances, therefore, administrators may place restrictions on free speech in public schools that would not be permissible anywhere else. Thus, administrators of public secondary schools have the incredibly difficult task of balancing student rights with maintaining a school environment conducive to its educational purpose. The difficulty of the task, however, does not excuse a failure to undertake it.
In 2016, eighteen-year-old Maxine Yeakle was a student at Boca Raton Community High School in Boca Raton, Florida. Maxine was now old enough to vote in her first presidential election and, as with many people in the United States in 2016, she had strong feelings about who would make the best president—and who would not. Maxine expressed her views on this issue by wearing to school a T-shirt emblazoned with “Hillary for Prison.” A number of Maxine’s classmates took issue with the T-shirt’s message and loudly expressed their opposition in class, even after a teacher warned them to stop.
In her next class, the assistant principal had Maxine removed from class and informed her that she either needed to change into another shirt or receive an in-school suspension for violating the school’s dress code policy. That policy prohibits “attire or grooming which substantially or potentially disrupts the educational environment” and provides the Principal with the authority to decide on what violates the policy and what doesn’t. When faced with the duty to balance the student’s right to free expression with the need to maintain an orderly classroom environment, the Boca Raton Community High School administration placed a thumb on the “order” side of the scale, completely disregarding Maxine’s rights. It wasn’t Maxine’s T-shirt that disrupted class, it was the loud verbal opposition of the students who objected to the T-shirt’s message. Unlike Maxine, those students were not threatened with any sort of disciplinary action despite having been told by a teacher to stop.
Through the way they responded to this incident, the administration sent the completely wrong messages to its students. Regardless of whom one supports in an election campaign, participation in our democratic system should be encouraged. By punishing Maxine’s peaceful, non-disruptive engagement in the first presidential election in which she could vote, the school did exactly the opposite. Second, by punishing Maxine but not the students who were actually disrupting the class, the school sent a message that hecklers have the right to veto speech they don’t like, when they ought to be encouraging respect for the individual right of free speech. For teaching the wrong lessons about the rights and responsibilities of free speech, a 2017 Jefferson Muzzle goes to the Boca Raton Community High School Administration.
The country’s attitude about marijuana is in a state of flux. On one hand, marijuana remains a Schedule I drug in the federal classification system making it on par with heroin and cocaine. Yet half the states have legalized marijuana for medical use and several of those states subsequently legalized it for recreational use (in varying degrees). Polls indicate that while many might otherwise support a campaign to legalize marijuana for medical use in their states, they actively oppose any such effort fearing it will serve as a gateway to legalizing it for recreational use—something they do not support.
In 2014, Illinois lawmakers wanted to legalize medical marijuana, but also wanted to take steps limiting any further legalization. Unfortunately, in an effort to accomplish this result, Illinois lawmakers were willing to ignore First Amendment principles. The Illinois General Assembly passed a bill signed by then Governor Pat Quinn that included a provision that flatly banned medical marijuana dispensaries from donating to political candidates. The belief was that medical marijuana dispensaries would quickly move to urge lawmakers to take the step to full legalization as soon as they were allowed to do business.
In 2015, two libertarian politicians, Claire Ball and Scott Schluter, sued to strike down the law on First Amendment grounds. The Illinois Attorney General and other state officials defended the measure all the way through 2016 and early 2017. In a decision issued on March 24, 2017, U.S. District Court Judge John Z. Lee ruled that the ban violated the businesses’ First Amendment rights. Quoting from a number of U.S. Supreme Court decisions, Judge Lee wrote, “There is no right more basic in our democracy than the right to participate in electing our political leaders. The First Amendment safeguards this right by afford[ing] the broadest protection to political expression and association. And the Supreme Court has made clear that [s]pending for political ends and contributing to political candidates both fall within the First Amendment’s protection of speech and political association.” Because the Illinois General Assembly, the Illinois Governor, and the Illinois Attorney General all played roles creating or defending this unconstitutional restriction, the State Government of Illinois receives a 2017 Jefferson Muzzle.
Not all censorship is malevolent. Many censorious acts are motivated by laudable goals that have little to do with speech. In such cases, it is often the censors’ good intentions that blind them to the negative impact on the speech rights of others. While it is understandable that people tend to be most concerned about free speech when the government suppresses dissent, we must also be vigilant against the less obvious but equally harmful government actions motivated by good (albeit misguided) intentions. As U.S. Supreme Court Justice Louis Brandeis said, “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.” In 2016 the California Legislature and Governor Jerry Brown committed just such a well-intentioned, but obvious, blunder.
Hollywood is infamous for its double standard concerning gender. With notable exceptions, women of a certain age seem to vanish from starring roles and the public eye as the Hollywood machine discards them for the younger newer model. Although this happens with male actors as well, it typically occurs at a much later age. Men are regarded as gaining maturity and gravitas with age and continue to receive starring roles in the same sorts of movies they did in their youth.
The California legislature, rightfully concerned about age discrimination in Hollywood, attempted to redress this issue but did so without any apparent regard for free speech principles. The law they passed, and Governor Brown signed banned “commercial online entertainment employment providers” that charge a fee from listing the age of actors in their profiles. The use of the plural “providers” was probably unnecessary as the law really only affected one site, the Internet Movie Database, commonly known as IMDB. The site is best known to the public as a resource that allows users to look up movies and television shows to see which actors appeared in them or to start with the actor and see what projects they were involved with. While that service is free, IMDB also offers a paid subscription service that entertainment professionals use when making casting decisions. That service offers a great deal more information about performers, including their ages.
This well-meaning law is misguided for a number reasons. First, it effectively targets just one company–always a dubious enterprise in the crafting of a law. Further, it is completely ineffective in preventing the discovery of actresses ages. The idea that IMDB is the only means to learn the ages of actresses on-line is beyond naïve. So much so, one has to question whether the politicians passing the law knew it would be ineffective but passed it anyway simply to earn favor with Hollywood.
For the purposes of this Muzzle, however, the most concerning aspect of the law is that it prohibits the publication of truthful, lawfully obtained information. Even if the law was well-intentioned, as long as it is on the books it will serve as precedent that government can control not only what we say but also what we can hear.
IMDB is challenging the law in court and it will almost certainly be found unconstitutional. The error here is that in their zeal to address age discrimination in the entertainment industry, the California legislature and Governor Brown either gave little thought to the implications for free speech, or they ignored them altogether. Either way, the disregard of First Amendment principles earns the legislature and Governor a 2017 Jefferson Muzzle.
In its 1943 decision, West Virginia State Board of Education v. Barnette, the U.S. Supreme Court held that the Free Speech Clause of the First Amendment to the United States Constitution protected public school students from being forced to salute the American flag and say the Pledge of Allegiance. Said the Court: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” It is difficult to see how the same “fixed star” would not apply with equal force to a rule requiring public school students to stand during the National Anthem. Apparently, this inconsistency does not trouble school officials in Collier County, Florida.
Last September, Lely High School Principal Ryan Nemeth told students during morning announcements that they would be ejected from school sporting events if they failed to stand for The Star-Spangled Banner. “You will stand, and you will stay quiet. If you don’t, you are going to be sent home, and you’re not going to have a refund of your ticket price,” said Principal Nemeth.
The ACLU of Florida quickly reached out to Collier County School District officials informing them of the likely unconstitutionality of the policy. Less than a week after Principal’s Nemeth’s announcement, officials with the Collier County School District reportedly stated Principal Ryan Nemeth’s message was taken out of context and he regretted what he said.
If only the school district had left it at that. Instead, the district issued a statement that said students would be allowed to sit quietly during the anthem or Pledge of Allegiance if they submit a written note from their parents. It wasn’t long until the National Coalition Against Censorship (NCAC) reached out to Collier County School Superintendent Kamela Patton informing her that requiring parental consent for students to exercise their constitutional rights “exerts a chilling effect on students’ free speech rights and is likely to undermine the educational process by preventing political debate on contentious issues.” The NCAC properly cited the U.S. Supreme Court decision, Tinker v. Des Moines, for the principle that students have the constitutional right to engage in respectful and non-disruptive political speech during school activities.
NCAC also pointed out the logical and legal inconsistency of the parental consent requirement: “there is no justification for the selective application of the policy, which requires ‘students who participate in district athletic programs’— but not students who attend games ‘as a member of the public’— to obtain parental permission before sitting or kneeling for the anthem.”
We would add to NCAC’s admonition a subtler flaw in this policy. The school, as a governmental entity, is barred by the First Amendment from directly forcing students to abandon their speech rights. By requiring students to receive parental consent, the school is effectively giving itself the authority to punish students for expression that the school disapproves, unless the parents say they may not. This policy replaces the presumption of protected speech with a presumption that it is constitutionally permissible to punish students for exercising their First Amendment rights. This constitutional sleight-of-hand is unacceptable.
In the Tinker case, the Supreme Court stated “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” For failing to recognize that First Amendment protection also extends to the school’s ticket office, the Collier County School District earns a 2017 Jefferson Muzzle.
The United States Senate is often referred to as “the most deliberative body in the world.” The august body has earned this moniker through the centuries due to its unique composition and robust traditions that are generally less reactive than the House of Representatives. For this reason, it has also been called the “saucer” that cools the heat of the “teacup” of the House. Given this reputation for careful deliberation, it was surprising that the Senate unanimously passed the Anti-Semitism Awareness Act (AAA) in 2016.
The Senate was concerned with the recent uptick in the numbers of reported anti-Semitic activities and incidences on college campuses and a perceived lack of action by the Department of Education (DOE). Under Title VI of the 1964 Civil Rights Act, the DOE houses an Office of Civil Rights (OCR) which is charged with investigating, among other things, incidences of apparent discrimination on college campuses. The OCR is meant to determine if acts of discrimination and intimidation based on the target’s race, color or national origin rise to the level of creating a hostile environment. Despite the reported rise in the number of incidences, there has been not one such determination made regarding anti-Semitic activities. This is often attributed to a fairly loose definition of anti-Semitism used by the OCR. To redress this, the Senate voted to pass the AAA which would import from the State Department a very broad definition of anti-Semitic activity – very broad indeed.
Whether the Department of Education’s current definition of anti-Semitism is sufficiently protective of Jewish students may be debatable. However, the State Department’s definition is entirely too broad and captures nearly any speech critical of Israel for any reason. For instance, the definition includes “demonization” or “defamation” of Israel as well as holding Israel to a “Double Standard.” The State Department offers these definitions by way of example:
Double Standard for Israel:
Using these definitions would almost inevitably lead to the silencing of voices on campus through actual actions by the OCR or simply the fear of such actions.
The measure that passed in the Senate was not taken up by the House before last term expired, but it is expected to be raised again in this session. Therefore, the Senate will have another chance to be more deliberative in considering this measure. In hopes it will inspire the “saucer” to put greater thought into considering the free speech rights of all students, the U.S. Senate is awarded a 2017 Jefferson Muzzle.
Whether it is education, business, entertainment, politics, or even personal relationships, social media has effected almost every aspect of American society in the 21st century. Even government officials utilize various social media tools to both convey information to constituents and receive messages from them. Perhaps because communicating with the public through social media is a relatively recent phenomenon, some government officials act as if the centuries-old protections of the U.S. Constitution do not apply to social media communications. In 2016, a Tennessee County Sheriff learned that First Amendment principles are as relevant to social media as they are to a print newspaper.
In Spring of 2016, Bradley County Tennessee Sheriff Eric Watson, a Christian, celebrated the Easter Sunday holiday by posting on the Bradley County Sheriff Facebook Page an image of a stone being rolled away from a tomb with the title “He is Risen.” The image was accompanied by the comment:
Many of you will attend your churches for special services to celebrate this day, fill and color eggs, and have Easter egg hunts with your children. Those will be special memories spent with your family and friends. But we all know this special day goes beyond those activities…Today is one of the most historic days; not only did Jesus die on the cross for our sins, but he rose on this day! Luke 24:2-3 says, ‘And they found the stone rolled away from the tomb, but when they went in they did not find the body of the Lord Jesus.’ Mankind was redeemed forevermore when he was resurrected from the grave. Jesus paid the ultimate sacrifice, and offered himself for our sins. This day represents the best gift any of us could receive, which is ‘Eternal Life’ with our Heavenly Father!!!
The Bradley County Sheriff Facebook Page allowed visitors to post their own comments in response to the Sheriff’s posts. A resident of Bradley County, an avowed atheist, posted a comment objecting to the Sheriff’s religious message as a breach of the wall between church and state, which is found in the Establishment Clause of the First Amendment. The resident soon found her comment deleted and her account blocked preventing her from making further comments on the Facebook page. She complained to the Sheriff’s office, and her account was unblocked, but the removal of critical comments continued.
In conjunction with the organization American Atheists, the Bradley County resident filed a lawsuit against the Sheriff’s Department claiming violations of the First Amendment’s Establishment and Free Speech clauses. The county admitted no wrongdoing but settled the lawsuit for $41,000 in damages, paid the plaintiff’s attorneys fees, and agreed to stop promoting religion on official government social media accounts. In a press release, Sheriff Watson stated the lawsuit was an “inevitable clash between three clauses of the First Amendment.” The Sheriff may have been accurate in describing the incident as of a clash of First Amendment clauses (Free Speech, Establishment, Free Exercise), but the time has long passed that such conflicts should be deemed “inevitable.” Putting aside the issues raised by the Establishment and Free Exercise clauses, it has long been established that the Free Speech clause protects speech regardless of its viewpoint, especially when that viewpoint is critical of the government. In other words, Sheriff Watson should have known better than to censor comments from the Facebook page because they reflected beliefs different from his own. For his belated awareness of fundamental First Amendment protections, Bradley County Sheriff Eric Watson earns a 2017 Jefferson Muzzle.
Every two years much of the world turns its attention to the Summer or Winter Olympics. Most participating nations administer their country’s participation within their governments. The United States does not. The United States Olympic Committee (USOC) is a non-profit organization chartered by Congress to organize and administer the U.S. participation in the games. To assist in accomplishing this task, the USOC is given the sole right, as part of its charter, to market and profit from the games and its trademarks over words such as “Olympiad,” “Olympics,” and the logo with interlocking rings. The earning of money through private sponsorships is how the USOC is able to support athletes and arrange the games. In 2016, the USOC exercised its monopoly to profit from the summer games in Rio by excessively restricting the speech of non-official sponsors in a manner that harmed many individual athletes’ financial ability to compete in the games.
The money that the USOC raises through corporate sponsors is significant but insufficient to spare athletes (particularly the lesser known ones) from the need to work outside of their sports or to procure their own sponsors, if possible. Though permitted by the USOC, these sponsors of individual athletes are not “official” sponsors of the Olympic games. The USOC works zealously to prevent these unofficial sponsors from doing anything that could lead one to believe that an unofficial sponsor might be official. The guidelines for the 2016 Summer Olympics in Rio allowed unofficial sponsors to create campaigns around the athletes as long as they did not feature any Olympic symbols, were pre-approved by the USOC, and conformed to strict time guidelines as to when they could run. Nearer to the games commencement, unofficial sponsors were not permitted to reference their sponsored athletes or in fact do anything that might acknowledge the existence of the Rio Olympics. They were not allowed to post any social media or company website material that mentioned the athletes or the games. They were also prohibited from posting or re-posting anything that contained terms like “Olympic” or “Rio” or even the words “summer,” “medal,” “gold,” “silver,” “bronze,” “sponsor,” or “victory.” Any messages of encouragement such as “go for it” or “good luck” were considered trademark violations by the USOC who threatened to seek sanctions against any violators. Further, even the competitors themselves were not allowed to thank or acknowledge their unofficial sponsors. Thus, for a period of approximately a month before, during, and after the games, these unofficial sponsors of individual athletes, who made it possible for the athletes to compete, were prohibited from using even the most casual reference to the Olympics.
The USOC certainly has the right to protect its trademarks but its efforts at the Rio games went much further than necessary to accomplish that goal. Further, in the spirit of the games and in the tradition of camaraderie on the world stage, it would send a wonderful message to show the world not just American athletic prowess, but also American values, including our abiding devotion to free speech for all people. For pursuing harsh efforts to censor speech in the name of trademark protection, to detriment of non-official sponsors and athletes alike, the United States Olympic Committee earns a 2017 Jefferson Muzzle.
To quote the late, great philosopher Yogi Berra, “It’s like déjà vu all over again.” In 2014, Modesto Junior College in Modesto, California, earned a Jefferson Muzzle for denying a student the right to distribute copies of the U.S. Constitution on campus without first receiving a permit from the College. After obtaining a permit, the student could only only pass out the constitutions within a small designated “free speech zone.” The Foundation for Individual Rights in Education (FIRE) recruited a law firm to represent the student in a lawsuit against the school for violating his First Amendment rights. As a result, the student received $50,000 in damages and MJC agreed to abolish the procedure necessitating administrative permission for free-speech activities, allow free expression in all “areas generally available to students and the community,” and never reinstitute its old policy.
Three years later, Pierce College stops student Kevin Shaw from passing out Spanish language copies of the U.S. Constitution, telling him that he would be removed from campus if he continued unless he first obtained a permit and then confined his efforts to a designated “free speech zone.” Located in the western San Fernando Valley, Pierce College is a two-year public institution that serves 22,000 students each semester and is part of the Los Angeles Community College District (LACCD). The Pierce College’s free speech zone takes up 616-square feet of the school’s 426-acre campus. This means that the free speech zone is just .003% of Pierce College’s campus. As in the case involving Modesto Junior College, FIRE recruited a law firm to represent Shaw in a lawsuit against the college’s unconstitutional policy. The case is pending.
Public colleges such as Pierce College certainly may undertake efforts to protect classes from disruption, ensure equal access to scarce facilities, and impose content-neutral time, place, and manner regulations designed to maintain safety and order. But designating a miniscule area of campus as where all free speech activity must occur is both unconstitutional and antithetical to the traditional notion of the academy as a home for the free exchange of ideas. Free speech on college campuses should be the rule, not the exception. Pierce College is likely to be taught this lesson when Kevin Shaw’s case against the school goes to trial. In the meantime, the Pierce College administration can consider this 2017 Jefferson Muzzle a “homework” assignment to review before class begins in court.
It is an unfortunate truth that many violators of the First Amendment refuse to see the error of their ways even when confronted with evidence of the unconstitutional nature of their actions. Apparently, such is the case with North Carolina’s School Superintendent for Cumberland County. In September of 2016 near the beginning of the National Football League’s new season, football fans and non-football fans alike were watching Colin Kaepernick of the San Francisco 49-ers. Kaepernick had sparked a great deal of interest by kneeling during the National Anthem before his games in protest of the treatment of African Americans in the U.S. – particularly at the hands of police. Across the country people were outraged – quite often even those who would defend his right to choose not to stand. On the other hand, many college and high school athletes were even joining Mr. Kaepernick’s protest at their own games. A high school teacher in Fayetteville, North Carolina thought this was an excellent opportunity to teach a lesson about free speech.
In order to effectively demonstrate to his class the robustness of American protection of free speech, high school teacher Lee Francis felt he needed do something dramatic. Taking his cue from not one, but two U.S. Supreme Court decisions holding that desecrating an American flag was protected by the First Amendment, Francis placed a flag on the floor and stepped on it.
A number of students objected to Francis’s method. Two students reportedly left the classroom in disgust and another caught part of the lesson on video to show it to others.
When Cumberland County Schools Superintendent Frank Till, Jr. learned of the incident, he gave Francis a ten-day suspension and then transferred him from his teaching position to a warehouse job. The Cumberland County School Board later upheld the suspension. Superintendent Till told a television reporter, “There are other ways to teach First Amendment rights without desecrating a flag.” Unsurprisingly, Superintendent Till did not renew Francis’s contract when it came up for renewal.
While a school administration has the authority to set forth guidelines and teaching standards that its teachers must meet, there was no policy in place that Francis violated with his admittedly provocative teaching method. Considering that Francis’s action was supported by two very applicable Supreme Court decisions, Superintendent Till and the Cumberland County School Board’s disciplinary actions were excessive, if not unconstitutional. This is not to say Francis is a First Amendment purist. Following the incident, he made comments claiming the student who caught the incident on video broke the law and should be punished. But such blustering is far less severe than firing an employee for constitutionally protected expression. Moreover, the irony of disciplining a teacher for teaching a lesson on free speech by engaging in constitutionally expression deserves the dubious distinction of a Jefferson Muzzle.