Does Banning ALL 1st Amendment Activities Violate the 1st Amendment?

Yes.  But after seeing a post from my friend Asa Burck on the funniest Supreme Court decisions, I just had to blog about it.

We previously discussed in class that when there is a content-neutral ban on speech that it doesn't face as tough of judicial scrutiny as other bans.  LAX took it one step further and in 1983, tried to pass a law banning the pamphlet people from hanging around the airport.


Jews for Jesus was the first religious group to get kicked out under the new rule, and they filed a lawsuit.  Justice O'Connor made a somewhat giggle-filled comment, ""The issue presented in this case is whether a resolution banning all 'First Amendment activities' at Los Angeles International Airport (LAX) violates the First Amendment."


The Court unanimously ruled LAX's ban on all 1st Amendment speech violated the 1st Amendment.  No shocker there.  


For more information and to see other funny Supreme Court rulings, see:  http://www.cracked.com/article_19147_5-awesomely-sarcastic-supreme-court-decisions_p2.html#ixzz1KGhXoA5n

1st Amendment Remedies: The Glenn Beck Story

Last week, Glenn Beck and Fox News announced they would be parting ways sometime later this year.  The controversial host has said outlandish things like how President Obama is a racist, 9/11 families complain too much, and the Egyptian Revolution is really an attempt to establish a new world order, known as the "Caliphate."

Prior to this year, Glenn Beck had somehow managed to obtain a massive audience and following.  However, since his antics and theories evolved from fringe to potentially certifiably crazy, his audience left in droves.  In the past year Beck's audience dropped drastically:  29% overall and 35% among 25-54 year olds. Hundreds of advertisers refused to have their products shown while his show was on the air due to his hateful speech.

I contend that this is exactly what the First Amendment was designed to do.  We, as a society, allowed Glenn Beck's ideas to flow freely out into the market place of ideas.  Initially, when this country was struggling and jobs were hard to get Glenn Beck's messages echoed a growing frustration.  But as the economy began to recover and people started to return to some level of normalcy, Beck's incoherent, chalkboard drawn-out delusions did not carry weight.  People turned the channel.  His ideas failed.  Fox News saw the writing on the wall (pun intended) and had to break it to Beck that his time was numbered.  They cordially came to an agreement on departure, but one cannot help but notice why he is leaving.  Less and less people were accepting of him in the free market place of ideas.

No doubt that Fox News is still a powerhouse drawing in the most prime-time news watchers.  Fox News did the right thing if they want to stay that way by eliminating a voice that was not only losing potential sponsors, but was also costing America air-time that could be filled by a more well-reasoned voice.

1st Amendment remedies... sure sounds better than talking about actually killing Michael Moore, which is what Glenn Beck said he wanted to do to Mr. Moore,  who has wildly different political views than him.

For more information on Glenn Beck's departure:  http://www.bloomberg.com/news/2011-04-06/glenn-beck-leaves-as-fox-host-for-new-role-with-news-network-1-.html

Although Constitutionally Protected, Speech Has Consequences: Quran Burning

Last month, a whacked out Floridian "pastor" burned the Islamic holy book, the Quran, after putting it on a mock trial.  This event was deemed newsworthy by some and the news traveled to Afghanistan, where U.S. servicemembers are putting their lives at risk in defense of our great nation.

Once the news reached the people of Afghanistan, thousands went out in the street to protest.  These protests got violent and ended up resulting in the deaths of over 20 people.  Beyond that, these protesters now have yet another reason to try and kill U.S. servicemembers who are deployed there.

Some Senators have thought about taking action against this pastor, but as we all know there is very little chance that can be done.  As Jack Cafferty states, "It's not clear he broke any U.S. laws, just the law against stupidity."

Although this speech may be protected, I think it serves as a grim reminder that although our words may be protected, we have a personal duty and responsibility to try and utilize our First Amendment rights in a way that best serves not only our society, but the world at large.

For more information on the Quran burning issue, please go to:  http://www.cnn.com
Jack Cafferty's Blog on the issue:  http://caffertyfile.blogs.cnn.com/2011/04/04/should-anything-be-done-about-the-pastor-in-florida-who-burned-the-quran/?iref=allsearch

Take Me Out to the Ball Game

In 1908, Jack Norworth and Albert Von Tilzer wrote "Take me Out to the Ball Game."  For Opening Day 2011, I thought I would set aside my serious thoughts about the First Amendment and enjoy a form of speech that almost every American can enjoy and sing.  Here are the original lyrics to "Take Me Out to the Ball Game."

Katie Casey was baseball mad,
Had the fever and had it bad.
Just to root for the home town crew,
Ev'ry sou  Katie blew.
On a Saturday her young beau
Called to see if she'd like to go
To see a show, but Miss Kate said "No,
I'll tell you what you can do:"

Take me out to the ball game,
Take me out with the crowd;
Buy me some peanuts and Cracker Jack
I don't care if I never get back.
Let me root, root, root for the home team,
If they don't win, it's a shame.
For it's one, two, three strikes, you're out,
At the old ball game.
Katie Casey saw all the games,
Knew the players by their first names.
Told the umpire he was wrong,
All along,
Good and strong.
When the score was just two to two,
Katie Casey knew what to do,
Just to cheer up the boys she knew,
She made the gang sing this song:

Take me out to the ball game,
Take me out with the crowd;
Buy me some peanuts and Cracker Jack
I don't care if I never get back.
Let me root, root, root for the home team,
If they don't win, it's a shame.
For it's one, two, three strikes, you're out,
At the old ball game!!!!!

Happy Opening Day, America!!!

Westboro's "Epic" on Matt Snyder

This week's blog asks one question:  Do you find this posting by the Westoboro Baptist Church to be actionable (libel?  IIED?)?  It was put up on the internet for all to see in conjunction with the protests at his funeral.

“God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil.

. . . . . Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they condemned their own souls. They also, in supporting satanic Catholicism, taught Matthew to be an idolater.

Then after all that they sent him to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life, putting him in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that?”

Huckabee's your Huckleberry

Former Governor of Arkansas, Mike Huckabee, has shown how our freedom to speech may have significant social limitations.  When Huckabee stated:

And one thing that I do know is his having grown up in Kenya, his view of the Brits, for example, very different than the average American.... But then if you think about it, his perspective as growing up in Kenya with a Kenyan father and grandfather, their view of the Mau Mau Revolution in Kenya is very different than ours because he probably grew up hearing that the British were a bunch of imperialists who persecuted his grandfather.

The obvious problem with this comment is that Obama did not grow up in Kenya.  He grew up in America and spent 5 years of his youth in Indonesia.  Huckabee tried to correct his (mis)statement when he said he meant to say Indonesia instead of Kenya.  Well, that doesn't make much sense either because Indonesia was a Dutch colony and the Mau Mau Revolution happened in Kenya.

While Mike Huckabee certainly has a Constitutional right to make comments about the public discourse of our country and our President that equate to nothing more than bologna, the public market place for ideas most certainly should let this rant by Huckabee sink to the bottom along with Glenn Beck, Rush Limbaugh, and other "birther" comments.  My hope is our society will place an appropriate "limit" on speech like this by rejecting this misinformation and by not making Mr. Huckabee a viable candidate for President.

Here is the Fact Check on Huckabee's comments: 
http://voices.washingtonpost.com/fact-checker/2011/03/huckabees_kenya_clarification.html

Alito's Dissent in Snyder v. Phelps is the Voice of Reason and Law

As many of you know, I have been following the Snyder v. Phelps case for an extremely long period of time.  Today, the Supreme Court issued the final word on the issue as to whether the First Amendment protects the Westboro Baptist Church from tort liability stemming from their protests of a fallen Marine’s funeral.

What many of you may not know is that before the ruling today, I was leaning towards the idea that this speech was protected under the First Amendment.  In fact, after I read the 4^th Circuit opinion in 2009, I was certain the Westboro protests would be upheld by the United State Supreme Court.  What I didn’t know is that after reading today’s majority opinion and the dissent by Justice Alito, I would actually change my mind and find the speech by the Westboro Baptist Church not to protected by the First Amendment.  In the following paragraphs I will point out exactly why I agree wholeheartedly with Justice Alito.

It is important to first note that our Constitution, Supreme Court, and society as a whole has placed the First Amendment nearly in a league of its own.  We especially ensure speech conducted in the public discourse receives special protection under the First Amendment.   As the Court points out, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”  Connick v. Myers, 461 U.S. 138, 145 (1983).  Exactly what kind of speech is public or private, however, is not as easy of a distinction as it sounds.  In order to determine whether speech is of public or private concern the Court must review the “context, form, and context” of the speech, “as revealed by the whole record.”  Id. at 147-8.  In other words, the Court needs to look at the totality of the circumstances surrounding the speech communicated to determine its nature.

When looking at the speech in its entirety, the majority opinion makes a tragic flaw by only analyzing the signs as part of the public discourse.  As Justice Alito’s dissent points out, Westboro issued a press release announcing they were attending Matt Snyder’s funeral, got as close as they could to the service without actually trespassing, and “launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.”  The Westboro Baptist Church went far enough in their press release to state how Matthew Snyder “died in shame, not honor.”  Beyond that, after the funeral, Westboro Baptist Church wrote an online account, titled “Epic,” that explicitly names Matthew and his parents using language that most certainly is outrageous.  See Justice Alito’s dissent for the language of the Epic.  Justice Alito appropriately points out “[t]he protest and the epic are parts of a single course of conduct that the jury found to constitute intentional infliction of emotional distress.”  Westboro Baptist Church consciously and deliberately went to the Snyder funeral in an attempt to stir up pain and emotion on behalf of Matthew’s loved ones.  When looking at the speech in its entirety, it was “abundantly clear” Westboro Baptist Church went far beyond any form of public commentary and because of this, their speech does not enjoy First Amendment protection normally afforded to speech on public issues.

After ascertaining the speech of Westboro was not protected as public debate, the intentional infliction of emotional distress (IIED) claim becomes quite easy to parse out.  The majority opinion explains that In order to win on an IIED claim, the plaintiff must show the defendant “intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress.”   Did Westboro Baptist Church intentionally go to Matthew Snyder’s funeral and outrageously show signs like “Thank God for 9/11,” ”Semper Fi Fags,” “Thank God for IED’s,” and “God Hates You”?  Yes.  No one disputes that.  No one disputes these signs are outrageous.  Second, did Westboro Baptist Church cause Mr. Snyder severe distress?  Yes.  In fact, experts at trial pointed out how his emotional anguish from the protests has not only caused severe depression, but has also exacerbated his pre-existing health conditions.

Justice Alito’s dissent also appropriately points out that it is not a proper defense that Westboro Baptist Church was standing where the police told them to.  One does not have to trespass on another’s property in order for speech to be defamatory or for it to be considered “fighting words.”  Imagine the absurdity of a defendant admitting he defamed the plaintiff, but because he said it at the public park his speech was protected.  This is not what our First Amendment was meant to protect.

This was a private funeral.  After making a press release about Matthew Snyder, Westboro Baptist Church came to and bombarded the area immediately next to the location of the funeral service.  They had signs directed at Marines (which Matt Snyder was), signs dealing with roadside bombs (which caused Matthew Snyder’s death),  signs thanking God for fallen service members (which Matt Snyder was), and signs saying “You’re Going to Hell” (at Matt Snyder’s funeral, which certainly makes one think the sign was directed at the deceased).  After the funeral, Westboro Baptist Church posted an online article again specifically naming the Snyder’s while using degrading remarks towards them, causing great emotional pain to the entire Snyder family.  

After looking at the speech in question in its entirety, I do not believe the Westboro Baptist Church’s actions enjoy protection under the First Amendment and would find them liable for damages under the IIED claim.  For the reasons above, I join in Justice Alito’s dissent.

I strongly recommend you read Justice Alito’s dissent in its entirety as it is one of the most eloquent dissent’s I have read in quite some time.  Here is the opinion for the majority, concurrence, and dissent:  http://www.supremecourt.gov/opinions/10pdf/09-751.pdf

Questions regarding Snyder v. Phelps

Here are some of the questions and concerns the Justices asked during oral arguments of the Snyder v. Phelps case that will be decided this year:

"Do you think that a person can put anything on the Internet? Do you think they can put anything on television, even if it attacks, say, the most private things of a private individual?"  --Justice Breyer

Justice Sotomayor was "trying to tease out the importance of whether the person's a private or public figure" because Albert Snyder went on the local news and discussed the funeral procession and his son before Westboro came and protested.

"The question is whether the First Amendment must tolerate exploiting this bereaved family."  Justice Ginsburg

Justice Scalia pondered whether Albert Snyder could claim emotional distress because he went and found the "Epic" poem posted on the internet about his son by the Westboro Baptist Church.

Justice Kagan asked Margie Phelps of the Westboro Baptist Church if a protester could follow a veteran to work every day calling him a war criminal in attempt to understand exactly where the line is drawn between free speech and harassment.

Justice Alito brought in the image of an innocent grandmother and whether she could be confronted at a bust stop outside a cemetery and be spoken to "in the most vile terms"about her grandson being killed in action.

"[I]f you recognize that there can be a tort of emotional distress in [in some cases], isn’t that, the factual question of whether it rises to that level of outrageousness, which is part of the tort for the jury?" -- Justice Roberts attempting delve into exactly what "outrageous" is and whether the initial jury decision for the Snyder family was proper.

Justice Kennedy expressed concern that by finding in favor of Westboro Baptist Church the Supreme Court would allow any group to follow any citizen around at any point and harass them.  He stated, "torts and crimes are committed with words all the time."

As you can see, I only named 8 of the 9 justices as Justice Thomas continued his approximate 5 year silence streak on the bench during this oral argument.

These are all wonderful and extremely difficult questions; and that is how I will leave them for today, as questions.

You can listen to the 1 hour oral argument here.  It is worth your time if you are looking to learn more about this issue:  http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=09-751

They're coming....

[Please refer to my prior blog, "Thoughts on Snyder v. Phelps case" if you would like a background of the Supreme Court case involving the Westboro Baptist Church.  I am going to keep this short as I just learned this news and am still soaking it in.]

The Westboro Baptist Church is coming to Fargo to picket a school play about the murder of a homosexual student in Wyoming named Matthew Shepard (the play is meant to teach about tolerance) .  So what is a guy to do?  After taking a step back from my initial anger, the answer came to me:  Meet them in a First Amendment battle of ideas.

I plan to picket the picket with my friends and other concerned citizens.  Hopefully much to the disappointment to the Westboro Baptist Church I will be a flag waiving, proud veteran who supports equality for ALL people, and a 1st Amendment protected picketer of the picket.  Read the links below and join the Facebook group if you want to protest the protest with me.  Each individual standing against this hate makes a difference.

http://www.valleynewslive.com/Global/story.asp?S=14002437

http://www.facebook.com/profile.php?id=29416942#!/event.php?eid=194025807291606

Freedom of Speech & Press (or lack thereof) in China, Iran, and putting it in an Egyptian Context

I urge you first to watch this link from the Rachel Maddow show.  At least watch the first 2 minutes and 15 seconds about what Chinese adolescents think about what happened over 20 years ago in Tiananmen Square.  Their reactions sent chills down my spine.

http://www.msnbc.msn.com/id/26315908/ns/msnbc_tv-rachel_maddow_show/#41398592

The image of one man blocking a tank, that we as Americans have grown up understanding as the iconic image of an individual standing up to an oppressive government, is an image that Chinese youth think is either made up or needs some kind of "context" to be fully understood.  It is not because the Chinese citizens have chosen to forget those events in Tiananmen Square.  It is because the government has taken drastic steps to make sure information does not get disseminated, to make sure the press is not free to report on government issues without the government's permission, and to limit access to the Internet (to name a minuscule amount of government's hindering of the free flow of information).

A similar tactic of "damage control" by the Iranian government happened after the historic protests in 2009.  The Iranian government forced confessions from some protesters, making them say they were "rioters, looters, and terrorists" in order to make the people think they needed the government to protect them.
Without an independent media and without the freedom to speak your mind without fear of prosecution, there is no free flow of information; there is no advancement of ideas on how to better a society.
 
But Egypt is potentially different.  Although Mubarak is doing what he can to initiate some form of "damage control" by sending in his own hired cronies to disrupt the previously relatively peaceful protests, it appears the power and will of the people have gotten to a point where no governmental action can turn them away from their natural want to be free.

Across the world we have seen oppressive governments spend immeasurable resources attempting to quell the people from being able to freely express themselves because the government fears knowledge will lead to chaos and to the end of their power.  However, if a government truly wants to avoid chaos and truly cares about the future of their country, it will allow for the freedom of expression and will allow for the people to peaceably determine the future of their country. 

In closing for this blog, I will defer to the far more eloquent Supreme Court Justice Hugo Black on the First Amendment and the role it plays in our society (as well as the potential it can play in other societies):

"The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means.  Therein lies the security of the Republic, the very foundation of constitutional government."

What voicing your opinion gets you in Iran

Earlier this week, two men were executed by hanging in Iran for their actions during the post-election unrest in 2009.  What did they do during this period of post-election unrest, you ask?  According the the state-run news agency in Iran, they were sentenced to death "for distributing placards and photos of the terrorist group, making videos and images during the post-election unrest in Iran in 2009 and chanting slogans in favor of the MKO." 

Yet, Hillary Clinton apparently didn't see the terrorist connections with making videos and images of the unrest in Iran.  She urged Iran to halt the executions as the men were  "exercising their right to free expression" back in August of 2010.

Iran paid no attention to the request and gave two of their own citizens the ultimate penalty for expressing themselves politically, something that we Americans cannot even fathom.  Of course the state-run news agency attempted to link these two men making videos of the civil unrest to a terrorist organization.  Yet, with no independent and free news agencies inside the country, the state can fill the airwaves with whatever falsities without any objections or independent verification.

These terrible destructions of a right we find so fundamental to our every day lives is almost incomprehensible.  The blessings that we share, to be able to freely speak for or against our government and to have a free and independent press deliver the news, are part of what has made our country so great.  We have constitutionalized in our government the natural want of humanity to be able to express itself.  I hope one day the people of Iran are able to enjoy same freedom of speech and press without having to worry about sacrificing their lives for those ideas.

The CNN.com article on the hangings:  http://www.cnn.com/2011/WORLD/meast/01/24/iran.executions/index.html?iref=allsearch

Thoughts on Snyder v. Phelps case

The United States Supreme Court heard oral arguments in the case Snyder v. Phelps on October 6, 2010.  However, I had been following this case long before October of 2010.

Most of you know that I was deployed in Iraq from 2006-2007.  Many of you don't know that my unit lost soldiers (injury and death) to roadside bombs while I was there.  When I began to hear about a Westboro Baptist Church protesting the funerals of our fallen service members (with signs like "Thank God for Dead Soldiers" and "Thank God for IEDs" it literally made me sick to my stomach and gave me an aching in my heart and stomach that words could never fully explain.  The church's position is that our service members are getting killed in Iraq because we tolerate homosexuality.

Then I learned that one father, Al Snyder, finally stood up and sued this vile and disgusting group for protesting his son's funeral.  The jury awarded him around $11 million, but the 4th Circuit reversed on 1st Amendment grounds and actually ended up ordering the father to pay the church $16k in fines.  We will wait to see how the Supreme Court weighs in on the issue.

But how should the Supreme Court rule?  How woud I rule if I was on the Court?  Usually my heart and mind work together in my political and legal thought.  However, this case pits the two against each other in many ways.  I have spent numerous nights wondering what the "right" decision would be for the Court and what that would mean for the freedom of speech in our country.  By stopping this revolting and nauseating group from doing something that stirs up hate and makes me want to commit violence against them, am I eroding our First Amendment right of free speech?  On the other hand, when do we decide where the line should be drawn in our freedom of speech?  Surely fighting words and intentional infliction of emotional distress put limits on that freedom, and for just cause.  Does the freedom of religion have a role to play here when a father is trying to bury his son?  After all, this was Al Snyder's last real chance to say goodbye to his son.  We all deserve a proper funeral.  Anyone who has given his life for his country deserves a respectable funeral to say the least.  Instead of allowing the family to get some form of closure at the service, the Westboro Baptist Church opened their wounds and poured salt on them, potentially never allowing them to properly heal.

It is moments like these where I am humbled by how little I know.  It is also a moment where I am glad to not be a judge involved in these kinds of decisions.  If the Supreme Court decides this speech is not protected under the First Amendment, I pray that this will give the Snyder's some form of closure in knowing Westboro will never be able to do this to another military family who has sacrificed and suffered enough.  If the Court rules the speech is protected, I will try and seek comfort in knowing the Patriot Guard is there as well to stand in front of the protesters with American Flags waiving for all to see; and may we all find some form of peace in Thomas Jefferson's quote, "If there be any among us who wish to dissolve this Union or change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it."

Interview with the father:  http://www.youtube.com/watch?v=AO6yZbwnIlk&feature=related

Oral Arguments:  http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=09-751

The reason for the Blog

AMENDMENT I

     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.

Classes being taken this semester

Well, since we are all in law school, maybe it would be interesting to see what everyone is taking for classes this semester.  I am pretty sure anyone can comment below, so feel free to tell people what you are taking!
My semester looks like this:  Agricultural Law, Administrative Law, Energy Law, Tribal Envrionmental Law Project, 1st Amendment in the Digital Age, and Water Law.