Tag Archives: free speech

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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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 http://www.youtube.com/watch?v=5xUy2inkGHQ 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 http://www.youtube.com/watch?v=t0LFKwfvvNY.  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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Abigail wants the election to end.

By now, most people have either seen or heard about the young girl who broke down crying because she was so sick of hearing about the presidential election.[1]  Indeed, if we track social media responses we find that many adults agree with the youngster and they are sick of hearing from and about both President Obama and Mitt Romney.  Many of these reactions are due to the negative and false statements that seem inherent in modern political campaigns.

There are organizations, the Center for Responsive Politics to name one, that try to keep politicians honest by fact checking statements and publicizing the results.  It seems that the states have also developed a method—a legal method—to achieve the same end.  The Wall Street Journal Blog today[2] reports that several states have criminal laws that sanction false campaign speech—at least false speech waged at your opponent.  Prosecutions are rare.  Still, it does beg a free speech question.  Last term in US v. Alvarez (No. 11-210) the Supreme Court determined that the Stolen Valor Act was unconstitutional.  Essentially, lying about winning a military award, even if you do so to gain office, is protected speech.

Rick Hasen, the Wall Street Journal Blog reports, makes the argument that Alvarez likely voids state laws regarding false campaign speech.[3]  And I agree that it is likely that Alvarez along with the available more narrow remedies for libel and slander make the laws unconstitutional.  But there is another precedent that also leads to the same result and certainly does so in conjunction with Alvarez.  In Republican Party of Minnesota v. White (563 US 756 (2002)), the Supreme Court held that Minnesota’s “announce clause” was an unconstitutional burden on the speech and prohibited speech based upon its content.  Minnesota tried to level the playing field for incumbent judges and their opposition.  Since the judges were restricted in terms of discussing issues or announcing position due to the canon of judicial conduct, challengers would face the same restrictions.  The state’s interest in impartiality was not sufficient to withstand strict scrutiny.

The false campaign speech laws are similar to the  ‘announce clause’ from White.  They criminalize speech based upon its content.  In White, Scalia agreed with the Court of Appeals that the ban “burdens a category of speech that is “at the core of our First Amendment freedoms”—speech about the qualifications of candidates for public office.”

Combine the Republican Party of Minnesota v. White with US v. Alvarez and there seems to be a constitutional right to lie on the campaign trail about your own qualifications and your opponents.  Perhaps we can blame the Supreme Court[4], at least partially, for Abigail’s tears and total toddler meltdown.

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Baggy pants ban: a hypothetical

Last week Cocoa, a city in Florida, enacted a ban on ‘baggy pants’.  The ban goes into effect in January of 2013 and already there are concerns that the law will be used discriminatorily.[1]    This is not the first time the ‘baggy pants’ controversy has reared its head.  And, back in 2008, while I was teaching Civil Liberties I utilized the issue as the hypothetical for my moot court simulation.  Given Cocoa’s new law, I thought it might be useful for me to put the hypothetical up for use in teaching this term.  I deliberately played up the possibility of racism in the passage and the enforcement of the ban.  My apologies to the Minnesotans for using the Mall of America, but it’s a foreign concept to my Oregonian students.  Statistics are from 2008.


Robinson v. Stubbing, Councilman of Bloomington, MN



Bloomington, Minnesota is a mid-sized suburban town located about half way between the twin cities of Minneapolis and St. Paul.  It has a population of about 85,000.  The population is almost split between male and female (41 and 44 thousand respectively).  A little over 83,000 members of the community classify themselves as one race, and 75,000 are White.  About 4,000 people are Asian or Pacific Islander, and almost 3,000 are Black.  The median age is 40 years.  There are over 18.000 children 18 or under living in the community.  Normally, a city like Bloomington would escape notice and wouldn’t generate much in the way of tourism dollars; however, the city limits of Bloomington contain the quintessential mall experience: The Mall of America.


The Mall of America is the nation’s largest indoor shopping venue.  It houses more than 500 stores and is roughly the size of several national league ballparks combined.  The clientele of the mall is diverse thanks to the overwhelming size of the mall and the variety of stores, attractions, and food venues and the proximity to both Minneapolis and Chicago.  During long Midwest winters, the Mall offers a warm and hospitable respite for Minnesotans, Iowans, Illini, and South Dakotans from the cold.  Inside there is a Dinosaur Walk Museum, and underground Aquarium and a park to entertain children.   There is an indoor miniature golf course, a flight simulator, and an indoor NASCAR stock car racing competition track. The Mall of America sells itself as a family attraction as well as a shopping “Mecca”.


Since 2005, there have been several similar accidents in the Mall involving young male shoppers.  The most serious occurred in May 2008; a youth, aged 12, was caught in the escalator.  More specifically, his pants were caught in the mechanism and he was badly hurt before he could be freed.  This was the fourth such incident since tweens and teens starting wearing the saggy pants style popularized in hip hop videos.  Other similar incidents have occurred.  Six reports have been filed with mall security when young males have tripped after their pants have suddenly fallen down around their ankles.  In one incident, the young man tripped and fell into an elderly woman in a wheelchair; while the woman escaped with only a broken pair of glasses and some embarrassment, the potential for more serious harm was noted.  There have also been two fender-benders in the parking lots due to young men stopping suddenly while crossing traffic to pick up their pants from around their ankles.
Additionally, the managers of the Mall have fielded a variety of complaints about conduct in the Mall.  Over the past year and a half, the bulk of the complaints have come from parents concerned about the exposure of their younger children to what many called “indecent exposure” or “lewd behavior”.  These complaints refer to the visibility of the underwear and buttocks of kids wearing their pants several sizes too large.


Concerned for the safety of their patrons and the general family friendly atmosphere, the Mall asked the city council to issue a ban on this style of pants.  The city council debated the merits of the ordinance.  Of the nine members of the council, seven spoke out in favor of the citywide ban.  Councilwoman Braun noted that the “so called fashion began in the prison population.  Prisoners are not issued belts for fear of beatings or hangings, so their pants sag.  This is not fashion that is appropriate for a family community.”  Another councilman, Peyton Von Stubbing agreed.  “We have to consider the financial impact this style has on our community.  This type of dress is associated with gangs and deters families from spending money in our community out of fear.”  To back up his allegations, Stubbing produced several of the complaints filed at the Mall Managers’ office; at least three noted the presence of gangs and fear for safety within the Mall.


Councilwoman Annie Kinsella disagreed.  “It’s simply a style of dress and its beyond the scope of our authority to tell people how to dress.  It’s a matter of expression.”


A local member of the community and a retired prison guard offered his thoughts when the floor was opened to citizen’s views.  “Prisoners, Black prisoners, used the bagginess of their clothing to conceal weapons. These people are a menace to society.”  Local teens also expressed themselves to the Council. The high school football coach disagreed.  His players, he said, liked to wear the baggy pants because they think it looks cool and it’s comfortable.


“Comfort,” shot back Councilwoman Braun, “can be had without revealing your underwear or buttocks to the world.  As for expression, what type of message does a dress style convey beyond sloth and slovenliness.”


In the end the Council agreed that the type of dress discussed was not acceptable in their family community.  The final ordinance banned “oversized clothing including bagging or slouching pants or jeans.”  Bagging or slouching was defined as “dipping below the waist to show either the buttocks or the undergarments.”  Tickets could be issued for wearing the style.  Fines ranged between $50 for a first offense to $500 for a third or more violation.


The ban went into effect immediately and the next weekend several children were issued tickets on the grounds of the Mall.  This practice continued for several months. The city records indicate that most, if not all, of the tickets were handed out to young men.


Around the winter holidays Denzel Robinson, made a trip to the mall with his sister and aunt.  He was ticketed for wearing his pants too low.  He brought the ticket home to his father.  His father, Donnie Robinson, is a top attorney in Chicago and the President of the Illinois Black Trial Lawyers Association.  He couldn’t believe that his son received a ticket for wearing the latest style of clothing.  He challenged the city’s ban in court.  He claimed that the ordinance violated his son’s right to free expression.


The city countered that this is a reasonable exercise of its police powers—it is protecting the safety of its citizens.  The many accidents at the mall were cited as justification as well as the complaints of the parents. This is not an issue of free speech.  There is no message conveyed by the style of dress.  Even if the ordinance infringes upon some form of expression, it is within the power of the city to create a valid place ban to ensure safety and preserve the continued economic viability of the Mall.


The Robinsons lose in the lower courts.  Both the city court and the state court of appeals side with the city.  The Minnesota Supreme Court refuses to hear the case noting that although the justices consider the ban silly, it is not unconstitutional.  Donnie Robinson, with the backing of his firm, and the Illinois BTLA, files a petition for a writ of certiorari challenging the ordinance and its suppression of expression. His request is granted.  After the grant of certiorari, the ACLU asks for permission to file a brief amicus curiae to address an additional issue not discussed by either of the parties—the violation of the 14th amendment by the city of Bloomington.  The Solicitor General of the United States also asks permission to intervene as amicus curiae on behalf of Bloomington and Minnesota to argue that there is no violation of the 14th amendment.


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To Cheer or Not to Cheer

In Texas, a group of middle school cheerleaders like to create hand-made signs bearing Christian messages.  The football players would then “bolt” through the banners as they ran onto the field.[1]  The cheerleaders decided that they would use messages “give glory to God” rather than the typical alliterative “Bludgeon the Bears” or “Take out the Tigers”.  The superintendent of the schools, with the backing of the Texas Association of School Boards, banned the banners.  The superintendent informed parents that religious displays at school events are not permitted.

Why not?  In 2000, the Supreme Court ruled that student led prayer at a school event violates of the establishment clause.[2]  Writing for the majority, Justice Stevens noted that, “The Santa Fe school officials simply do not “evince either ‘by policy or by practice’ any intent to open the [pregame ceremony] to ‘indiscriminate use,’ …by the student body generally.  Rather the school allows only one student, the same student for the entire season, to give the invocation.”  In this case, the student body voted whether to keep the invocation and then voted on who would deliver it for the season.  Stevens, agreeing with the District Court, concludes that this method ensures minority views will not be voiced.  Additionally in this case, “…the policy, by its terms, invites and encourages religious messages.  The policy itself states that the purpose of the message is to ‘solemnize the event’.  And so the Santa Fe school could no longer elect a member of the student body to give an invocation over the loud speaker at a football game.

So the facts in the two cases are not quite on all fours.  Here no loud speaker is used.  No vote is taken.  And, the banners, according to one of the reports there are 10 banners—one for each home game.  The players run through a banner at the beginning of the game,[3] so the same message is not repeated.  No vote is taken to determine who provides the message, although the 17 varsity cheerleaders have total control of the messages.

The differences between this case and Santa Fe v. Doe are enough to ask which line of precedent would (or should) the Court follow, if it were to hear this case.  Should Santa Fe and Morse v. Frederick control and no religious messages are allowed at school-sponsored events and school officials can disallow such messages if they go against the school’s (or district’s) policy?  Or is this more akin to Tinker v. Des Moines?  A small group of students write a message and then put it before the onrush of the football players.  We don’t even know if the banner is visible to the spectators. Indeed, after the first players run through, the message is no longer intact.  No material disruption occurred.  Is this a free speech or an establishment case?  In my view, it is closer to Tinker given that no school official supported the ‘policy’ and the banners are a message from the cheerleading squad to the players.  However, if I presented this hypothetical to my students, I am sure I would have several that would disagree and could do so with significant support and vigor.



[2] Santa Fe Independent School District v. Doe 530 US 290 (2000)

[3] Although the same article from the Houston Chronicle has a picture of the cheerleaders hanging smaller banners on a fence.

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