The First Amendment

1
The First Amendment

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  government for a redress of grievances.

2
First Principles

• The First Amendment affirms the freedom of the
  individual.
• Free expression is the foundation the
  cornerstone of democracy.
• The First Amendment tells the government to keep
  its hands off our religion, our ideas, our
  ability to express ourselves.
• Other people have rights, too.
• When rights collide, government must balance
  them.
• The First Amendment helps us make choices.

3
Which of the following types of clothing are
protected forms of student expression?
4
The Tinker StandardTinker v. Des Moines
Independent School Dist. (1969)

• Student speech cannot be censored as long as it
  does not materially disrupt class work or
  involve substantial disorder or invasion of the
  rights of others.

5
Heritage or Hate?
6
Split Opinions

• School officials are not required to wait until
  disorder or invasion occurs. They merely need
  the existence of facts which might reasonably
  lead school officials to forecast substantial
  disruption.
• --Phillips v. Anderson School District, 1997
  (South Carolina)

• The plaintiffs wore the shirts to express a
  certain viewpoint and that viewpoint was easily
  ascertainable by an observer. . . . . The
  school board enforced the dress code in an uneven
  and viewpoint-specific manner, thereby violating
  core values of the First Amendment.
• --Castorina v. Madison County School Board, 2001
  (Kentucky)

7
Liberals Suck??!?
8
The Fraser StandardBethel School District No.
403 v. Fraser (1986)

• Because school officials have an interest in
  teaching students the boundaries of socially
  appropriate behavior, they can censor student
  speech that is vulgar or indecent, even if it
  does not cause a material or substantial
  disruption.

9
Fashion Style or Political Statement?

• Does the First Amendment protect the right to
  wear baggy pants?
• If youre trying to make a political statement,
  does it matter if other people get it?

10
The Message Matters

• (Bivens v. Albuquerque Public Schools, 1995)
• A reasonable observer would not find a
  particularized message in sagging pants.
• "Sagging is not necessarily associated with a
  single racial or cultural group, and sagging is
  seen by some merely as a fashion trend followed
  by many adolescents all over the United States."

11
Is there a difference between Gay and Straight
Pride?
12
Tinkering with Tinker?

• Harper v. Poway School District
• (9th Circuit, 2006)
• A school may regulate student speech that would
  impinge upon the rights of other students.
  Public school students who may be injured by
  verbal assaults on the basis of a core
  identifying characteristic such as race, religion
  or sexual orientation, have a right to be free
  from such attacks while on school campuses.
• -- Judge Stephen Reinhardt (majority)
• I have considerable difficulty with giving
  school authorities the power to decide that only
  one side of a controversial topic may be
  discussed in the school environment because the
  opposing point of view is too extreme or
  demeaning.
• -- Judge Alex Kozinski (dissent)

• Hansen v. Ann Arbor Public Schools
• (E.D. Michigan, 2003)
• This case presents the ironic, and unfortunate,
  paradox of a public high school celebrating
  diversity by refusing to permit the
  presentation to students of an unwelcomed
  viewpoint on the topic of homosexuality and
  religion, while actively promoting the competing
  view.
• --The Honorable Gerald E. Rosen

13
The Three Rs of the First Amendment

• Rights -- Individual (Each of us is born with
  certain inalienable rights)
• Responsibilities -- Mutual (Each of us must
  accept the responsibility to guard the rights of
  others -- especially those with whom we most
  deeply disagree)
• Respect -- Universal (Each of us must commit to
  debate out differences with respect