Category Archives: Freedom of Speech, Assembly, and Association

Rights ch 5, Short Course ch 13

Love, marriage, and divorce

These days most of the discussion regarding the right to privacy and the equal protection clause is focused upon same sex marriage.  At the same time that some states or adopting and other states are banning the practice, states are also modifying their divorce laws.  This week the “Healthy Marriage Act” was introduced in the North Carolina Senate.  Among other things, the law requires that couples observe a two-year waiting period before obtaining their divorce, although they do not have to live together.  Additionally, during the waiting period, the husband and wife (yes, the law does presume that marriage remains between a man and a woman) must take courses on communication and conflict resolution; again, the couple does not have to take these classes together.  If the marriage resulted in children, the couple is required to “complete a course of at least four hours on the impact of divorce on children.”[1]


If the right to privacy argument—that marriage is a fundamental right—wins the day and prevents bans on same sex marriage, does that same argument prevent a state from creating ‘undue burdens’ on the dissolution of that contract?  After all, the state’s interest in passing these amendments to the NC divorce laws is the same as those against same sex marriage.  The state seeks to protect the institution of marriage by 1) banning same sex marriage and 2) forestalling the dissolution of a marriage contract.   Preventing men and women from making their own choices over the intimate decision about when to divorce seems equivalent to preventing gays and lesbians the same choice about when to marry.  As Justice White noted in Griswold v. Connecticut:

‘Surely the right invoked in this case, to be free of regulation of the intimacies of [p503] the marriage relationship, “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.” Kovacs v. Cooper, 336 U.S. 77, 95 (opinion of Frankfurter, J.).’ Concurring opinion.

If the decision to marry is covered by the right to privacy, then its complement, divorce, should also be covered.


If we use the privacy jurisprudence, we are left with determining if the NC law creates an undue burden.  While the justices have difficulty determining what an undue burden is in terms of privacy and abortion, it might not be as difficult to do so in terms of privacy and divorce.  Perhaps the waiting period is too onerous?  The justices may allow a 24- or 48-hour waiting period before obtaining an abortion, but 2 years (or 17,520 hours) is considerably longer.


Even if we are unwilling to claim that the waiting period or the courses are an undue burden, the law still has problems in terms of 1st amendment protections.  To receive the dissolution of the marriage, you must take two to three courses.  Again, if we have the right to receive information (Stanley v. Georgia), do we have the concomitant right to avoid it?  Sure, the state requires us to take a drivers course before getting a license, but there are other options (public transportation, bicycle, walking) and the interest of the state in road safety is, at the very least, significant.  But there is no other option to obtaining a divorce short of moving to another state and establishing residency.  Otherwise, a couple is forced to remain in a marriage.


Examining marriage from the dissolution stage, and dealing with restrictions there, may allow the Court to navigate through the “unchartered territory” Justice Kennedy mentioned in his oral arguments last week.  Divorce jurisprudence could pave the way for marriage jurisprudence.

[1] North Carolina Senate Bill 518 Section 1.a.3


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A Hypothetical for Spring Break

Its Spring Break this week at Oregon State University hailing the end of winter term and the commencement of spring term.  In other places, you are just getting back from that crucial mini-break in the middle of the spring semester.  Just in case you are not ready to get back to the classroom, I thought I’d share a hypothetical I used this last term in my Civil Liberties course.

Droy, Pollick & DeLahoja v. City of Ithaca

Ithaca, NY like Boulder, CO hosts an active pedestrian mall though the population of the City of Ithaca—30,014—is dwarfed by Boulder’s 97,385.  Ithaca, located in central New York is often called ‘Gorge-ous’ for the famous gorges that run through the Cornell University campus.  Ithaca College sits at the other end of this small town.  The bitter cold winters and whipping winds coming off the gorges keep the pedestrian mall low-key throughout much of the year.  Summer brings out the people.  The presence of the Ivy League Cornell and its history of famous faculty—including John Cleese, Charles Evans Hughes, and Carl Sagan—lend an academic air to this upstate town.  The Moosewood Café began here and the recipes that make the famous vegetarian cookbook get their start in this natural foods restaurant.  Ithaca, though housed in NY state hosts the insular air of its New England neighbors.


In Ithaca, the challenge to a state law comes from two cadets from the police academy and one from the Cornell University campus police.[1]  All three were dismissed after successfully finishing the rigorous training academy because their tattoos were visible and did not meet standards of the Tattoo Review Committee.  None of the three wanted to have their tattoos removed.  The procedure is painful and expensive.  More importantly, the would-be officers claimed that the tattoos were personal expression.


The Ithaca police enacted the tattoo regulation in 2003 after undergoing an external review of its relationship and efficacy among the community.  The review included several of the larger police forces in the region.  The review revealed that the presence of visible tattoos, particularly ones associated with weaponry, goth culture, gang culture (Chinese characters were associated with the Tongs; skull and barbed wire tattoos were associated with biker and street gangs) decreased trust and respect for the police department.  Given these findings, the city required that visible tattoos be removed to maintain the reputation and image of the Ithaca and Cornell police force.  Additionally, the state police noted in their amicus brief that tattoos are too unique and prevent officers from doing good undercover work because they can be identified so easily.  This new ordinance was passed just before the cadets entered the program and there was no pre-screening requirement for entrance to the academy.


There is a bypass procedure.  Ithaca established a Tattoo Review Committee for each law enforcement agency.  Using a set of tattoos defined by the city council in conjunction with the experts from the external review as guides for determining the appropriateness of the tattoos, the review committee examines petitions by law enforcement officers and determines if the tattoo would be detrimental to the image of the police force.  In this case, Regina Li Droy has a tattoo of Chinese characters around her left ear.  The tattoo, Droy testifies in trial court, is the name of her grandmother and the tattoo signifies her respect for her ancestors—she listens to their teachings.  Charles Pollick has barbed wire tattoos around his biceps.  He got the tattoos after a friend of his captured while serving in Afghanistan.  The barbed wire represents the prison camp and his remembrance of his friend’s plight.  Both of these tattoos were denied exemptions from t he Ithaca Tattoo Review committee.  Finally, Daniella DeLahoja has a tribal tattoo on her shoulder and arm.  The tattoo she asked for was associated with several myths that represent power and wisdom.  The Cornell Tattoo Review Board required removal of this tattoo before employment could be offered because of its close resemblance to gang and prison tattoos.  Other tattoos were acceptable including an American bald eagle, a Tinkerbell tattoo, and a four-leaf clover.


The lower courts of New York were in agreement.  The state, local, and university police have a significant and compelling interest in limiting visible tattoos that might affect their ability to do their job.  The Court of Appeals (the highest court in New York) went further declared that the limiting the regulation to visible tattoos and providing for a review of such tattoos from a board of their peers is a minimal intrusion.  However, they expressed concerns that the external review did not always use a uniformed person when providing the stimulus for their interview questions.  In reviewing the report, the judges noted some anecdotal evidence that the presence of a uniform erased or minimized the tattoo’s deleterious effect. Howeer, the judges of the Court of Appeals denied that tattoos are a form of expression for the officers therefore the regulation passed the rational basis test.  As one judge noted, “A good amount of time these tattoos are not visible—during winter when long sleeves are worn or when the officer’s hair is down when off duty. To claim a violation of freedom of expression, expression must at least be visible to have any effect or coverage under the 1st Amendment.”  And, in a bit of off hand dicta, the opinion notes that the court is not even sure whose expression would be at issue, even if it were expression. Would it be expression of the artist who drew the tattoo or the bearer of the art?


The would-be officers appeal their losses to the United States Supreme Court.  The Court grants certiorari on the issues of the 1st Amendment.  The Court questions whether tattoos are speech. If so, what kind of speech, whose speech, and what level of protection?  No other issues will be addressed.  The Court has agreed that the parties have standing and the cases are justiciable.


[1] Cornell University is a hybrid university.  Some programs within the college are private (e.g. Liberal Arts) and others are part of the state university system (e.g. Restaurant and Hotel Management).

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Constitutional law making political science harder

In 1998, the Supreme Court decided the First Amendment case NEA v. Finley.[1]  In the case, artists were challenging new funding regulations placed on the National Endowment of the Arts.  Specifically, the new regulations required the NEA to consider “general standards of decency” when awarding grants.  Congress enacted the new rules for funding after several federally funded exhibits created significant controversy.  The public outrage surrounding the Mapplethorpe exhibit and the perception that the work was obscene and/or pornographic had at least one profile gallery cancel their plans to host the federally funded art[2] and lead Congress to alter their directives to the NEA to avoid funding such controversial artwork.    In this case the Court essentially said that its Congress’ money and they could spend it how they choose.  There is no right to receive grant money or right to have your expression funded; if government wishes to advantage some content over others when providing competitive funding, it may due so.

How does this ruling make it harder to conduct political science research?  Today’s Congress is extremely polarized and gridlocked. It has been well documented that many conservative Republicans generally eschew scientific knowledge that contradicts their view of the world (see Chris Mooney’s War on Science).[3]  Apparently, the animus extends to work that seeks to describe and explain how our government works, or perhaps why it is not working very well these days.  Rather than understand why we are seeing greater polarization in Congress or why this state of polarization is stalling the legislative machinery more so than in earlier eras of polarization, it is much more prudent to simply ignore the issue like the proverbial ostrich.

Now, we know that members of Congress cannot stop political science research without running awry of the First Amendment.  They can, however, refuse to spend their money on it.  And that is exactly what is currently proposed in the Senate.  Senator Coburn, and expected to be attached to the budget resolution for 2014.  The text of the amendment reads as follows:

Purpose: To prohibit the use of funds to carry out the functions of the Political Science Program in the Division of Social and Economic Sciences of the Directorate of Social, Behavioral, and Economic Sciences of the National Science Foundation, except for research projects that the Director of the National Science Foundation certifies as promoting national security or the economic interests of the United States.

Why would the gentleman from Oklahoma push to defund political science?  His press secretary put it this way, “Political Science would be better left to pundits and voters, ” or “Rather than ramping up the amount spent on political science and other social sciences, NSF’s mission should be redirected…”[4] To his credit, Coburn cushions this by saying this redirection in funds should be for medicinal or technological research projects.[5]

No political scientist would gainsay medical or technological research.  However for members of Congress to use the constitutional power to spend with bias recognized in Finley to remain ignorant of the work of the government or trends therein is more than simply putting one’s head in the sand.  However, as Finley clearly shows us, political science or any social science has no right to government funding and if a political scientist is applying for NSF funding, she may find her academic freedom or speech chilled.

If it passes, will the Coburn amendment stop social science?  Certainly not.  NSF funding was never guaranteed and much work continues without its support.  Will we lose critical information?  Certainly.  If the National Election Study misses an election or two, our ability to understand longitudinal trends and current elections will be undermined.  Perhaps if there is a threat to incumbency advantage or a realignment of voters from the two major parties that threaten his safe seat, Mr. Coburn will be more willing to fund political science—at least fund it enough to figure out how to keep his job.

[3] No doubt there are also Democrats and Independents that suffer from the same parochial blinders.

[5] .  To his press secretary’s detriment, pundits and voters do not conduct political science research when they lobby, proselytize, or vote.  As any Introduction to American Government student can attest: politics is not political science.

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Firearms and the FIRST Amendment?

NPR and The New Yorker have recently reported that Sen. Ted Cruz (R-TX) and Sen. Dianne Feinstein (D-CA) exchanged words on the Senate floor about Sen. Feinstein’s recently proposed legislation to restrict firearms.[1]  The legislation, sparked by the horrific shooting incident at Sandy Hook Elementary School, would ban assault rifles and certain ammunition clips.

Sen. Cruz criticized the legislation by making an analogy between the Second and First Amendments, and asked Sen. Feinstein if she would “consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights.”

Sen. Feinstein’s initial response to the question and the coverage on broadcasts of the story on NPR focused on her defense of her understanding of the Constitution—as a senator of longstanding, she didn’t need a lesson on the Constitution.  Buried in her later remarks to Sen. Cruz’s remarks was the recognition that “there are different tests for different amendments.”  And I think this is a teachable moment.

To my hearing, Sen. Cruz’s comments reflected an understanding of constitutional rights that I think is also shared by the NRA and likely others as well—that rights articulated in the Bill of Rights are absolute, particularly as regards the Second Amendment.  But I think this understanding as a legal matter is incomplete.

As students of constitutional law are aware, no right is absolute.  Because individuals live in societies, reasonable regulations are imposed on individual behavior to prevent harmful actions by individuals who want to exercise their rights in unreasonable ways.  Is it okay for individual students to pray before a math test?  Yes.  Is it okay for the math teacher to lead those students in a state-mandated prayer before the math test?  Not so much.  Constitutional law is all about cases where the Court must balance the individual right in question against the state’s interest in reasonable regulation.  The question, of course, is what constitutes “reasonable” regulation.  Is a ban on assault weapons “reasonable,” or is it a serious restriction of an individual constitutional right that guarantees access to all weapons?  The answer to these questions rests on consideration of the importance and urgency of the government’s reason for the ban and the importance and nature of the individual’s right to bear arms.

Sen. Cruz’s remarks suggest that access to weapons is like access to books—implicit in his comments is that since access to books is not restricted under the First Amendment, access to firearms of all types shouldn’t be restricted either.  Yet, the Court has not provided an absolute protection for access to books; for example, school boards under Pico may remove books from a school library if they find that the books are “pervasively vulgar” or not suitable for educational purposes.[2]  This limitation would be consistent with the recognition of the importance of access to ideas as part of the educational function, balanced against the need for school boards to shape curricula for the development of young minds.  Can one draw an analogy to access to assault weapons, arguing that since the purpose of the right to bear arms is  self-protection, banning one type of weapon doesn’t significantly diminish that purpose, and thus, determining the government’s purpose in imposing this restriction would be crucial in determining the constitutionality of the legislation

[1] Eyder Peralta, “’I Am Not a Sixth Grader’: Sens. Feinstein, Cruz Spar on the 2nd Amendment,” The Two Way: Breaking News from NPR, 3/14/2013; (accessed 3/15/2013); Amy Davidson, “Feinstein and Cruz Fight About Guns,” The New Yorker, 3/14/2013; (accessed 3/15/2013).

[2] Board of Education v. Pico, 457 US 853, at 871.  Discussed in Claire Mullally, “Banned Books,” First Amendment Center, 9/13/03,; accessed 3/15/13.

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No Booing Allowed. Feel Free to Applaud.

The town board of Riverhead, NY recently passed a new rule governing its town meetings.  You cannot boo nor can you snicker, sneer, or engage in any behavior deemed disruptive.  You can however clap, and possibly cheer.  The board members deleted the term ‘applause’ before passing the new rule by a 4 to 1 vote.[1]  Granted there is no penalty attached to the rule, the rule would still chill protected speech.  In essence, the rule here matches the rule in Tinker v. Des Moines.  Some types of speech, such as positive reactions to the board’s statements or decisions, are allowed, other speech “disrupt[s] the formality of a town board meeting.”[2]

Certainly a town board or city council has an interest in maintaining decorum at their meetings.  Certainly it becomes more difficult if the meetings include significant outbursts and tirades in the middle of formal proceedings, however, if we examine the proceedings of parliamentary systems we see that booing, jeers, and cheers are the order of the day.[3]  Yet, meetings still progress and are productive.  According to the Wall Street Journal’s Law Blog, this ban is not an aberration.[4]  It seems that local governments are stifling opposition and potentially curbing reasonable and non-disruptive speech just as the principal in Tinker did by curtailing the children’s armbands.  And while school’s can to curtail speech that may cause a ‘material disruption’, a town board is not acting in loco parentis for the town residents.  They are representatives of the local population.  Given this fact, shouldn’t those residents motivated enough to attend a local board meeting be able to express their disdain, or approval, without courting reprimand?

If we are looking for an example of current law or rule that is overbroad or vague, this one seems to be a good candidate.  And if its not overbroad, the exclusion of applause (positive reinforcement) is likely also a content-based restriction.  Only negative disruptions are prohibited.  Applause can certainly be disruptive and extend the length of any speech or debate, witness the State of Union speech each and every year.  There are so many times a president must stop to allow his partisan brethren to applaud that news organizations count the applause and measure the success of the speech based upon the number and timing.  (If your interested, the Washington Post reports that the number of lines that garnered applause in 2013 was 101.)[5]  And it is unlikely that the need for decorum only in the negative case would pass strict scrutiny.

[2] ibid

[3] See for David Cameron criticizing Gordon Brown in 2007 or more recently, Australian Prime Minister Julia Gillard’s tirade against sexism in the Australian Parliament navigate to  Last accessed March 11, 2013.

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You can’t say that on television or in school!

Yesterday the Court of Appeals for the Third Circuit sat en banc hearing arguments in the “I ♥ Boobies” bracelet case.  In listening to oral argument, I was struck when one of the judges stated at 16:33, “I understand your policy position, but I am still frankly trying to understand your legal position.  And I Will concede that while my colleagues may well be able to find a coherence in the Supreme Court’s school speech cases, some of it has eluded me which is why I am trying to [unintelligible] with Tinker, with Frasier, and with Morse.”


The oral argument, even if you only listen to the first 20 minutes[1], the argument for the school district and the questions from the bench reveal the difficulties created for schools since Frasier and Morse.  Both of these cases provided a great deal of discretion for schools to police language.  Frasier suggests that the ‘double entendre’ is grounds for sanction.  Morse extends that discretion to statements that are ambiguously related to drugs even if there is no clear meaning.  As reported by the Morning Call, the school’s attorney noted that allowing this speech “”…threatens to open the floodgates to cause-based marketing fueled by sexual innuendo,” school district lawyer John E. Freund said, noting hat other diseases, including testicular cancer, have spawned awareness campaigns with slogans designed to get attention through titillation.”[2]



The claim of the school in the case before the Third Circuit is that two women wearing plastic bracelets that read “I ♥ Boobies” on the same day that others in the school, including teachers,  were wearing other paraphernalia supporting breast cancer awareness.  Essentially, the school district is arguing that 1) the statement on the bracelet has two meanings and one is to titillate and 2) that the mere presence of the word “boobies” on a bracelet causes a material disruption when we are dealing with middle schoolers.


How far does this reasoning extend?  Is anything that might cause an outbreak of giggles or juvenile jokes now susceptible to censorship?  I am not a fan of the slippery slope argument, but the Court’s cases since Tinker seems to head in that direction—reducing school discourse and free speech to such an extent that schools are allowed to quash any speech that might be taken in a sexual way or as associated with drugs? Can the schools eliminate homophones (or close relatives) that tend to get grade and middle schoolers flustered?  What will be next?  “Call of Duty” phone skins or t-shirts will be banned because some younger students might take the opportunity to take the conversation in a different direction?  On Career Day, parents must use different words to describe their jobs as analysts?

Perhaps the Third Circuit will find a way to stop the avalanche down this slope that the school district wishes to ride.  And if presented to your class as a hypothetical, this case seems like a good one to use to draw distinctions between Tinker and its progeny.

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Linda Merola and Cynthia Lum’s new article “Emerging Surveillance Technologies: Privacy and the case of license plate recognition (LPR) technology,” forthcoming in the November/December issue of Judicature[1], brings to mind the 1984 Rockwell song, “I always feel like someone is watching me.”  Merola and Lum examine LPR from the perspective of the community in this article, finding that many individuals are unaware of the technology or its use in their community.  More importantly, respondents to their survey note that the use of this technology would cause some reconsideration of both legal and illegal activities.  We may slow down on a highway knowing that as we pass a camera our license plate is recorded.

And Merola and Lum inform us that more than just our license plate number is recorded.  Usually four different data points are collected: the date, the time, the GPS location of the vehicle, and the license plate number.  These data can then be stored or erased.  Saved data can be “linked with vehicles registered owners via state motor vehicle databases and preserved, thereby creating records with substantial details about citizens’ daily movements…”

Clearly 4th amendment search and seizure questions are bound to arise with the greater use of this technology.  Unlike the GPS beeper at issue in U.S. v. Jones[2], there is no trespass to place a device on a vehicle.  It is simply a series of cameras, faster than the naked eye and by Jones there would be no constitutional violation.[3]  As Merola and Lum note, lower courts have been less amenable to a privacy claim when the information could be gathered by police observation.  License plates must be visible while on the road, and this settles the question.  The concurring opinions using the Katz standard, though, would likely find a violation of the reasonable expectation of privacy.

While the 4th amendment arguments are intriguing, another of their findings in this article suggest that LPR, and likely similar technologies, may chill 1st amendment rights.  Using LPR, police may be able to track movements through a given day.  What meetings are attended; what commercial establishments are visited; or what protests you choose to attend.  In this way, LPR and similar technologies go awry of Watchtower Bible & Tract Society of NY, Inc et al v. Village of Stratton.[4]  In Stratton, the Court nullified a village ordinance that required all canvassers to register with the village, and receive a permit.  Challenged by the Watchtower congregation of Jevovah’s Witnesses, the Court determined that the freedom of religion and freedom of speech included anonymous speech.  The registration ordinance required identification of the canvassers.

License Plate Recognition technology, and its similar counterparts like facial recognition software, could achieve the same ends as the registration ordinance or the McCarthy hearings.  Individuals can be “outed” in their beliefs, their habits and proclivities, and their associations without every saying a word.

[1] Volume 92 Number 3.

[3] Although we should remember that in Kyllo v. US 533 US 27 (2001), the Court disallowed a warrantless search via thermal imaging device because the device was not generally in public use and allowed peace officers to ‘see’ inside the home.  Of course, this search takes place in a home, not on the public roads in a vehicle.

[4] 536 US 150 (2002)

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