Pamphlets at School
Gene Summerlin
gene at osolaw.com
Fri Nov 5 10:06:52 PST 2004
Marty,
If the school attempted to regulate the distribution of Christian pamphlets
to Jewish students due to the emotional impact of the speech on the student,
the regulation would then be subject to attack as a content based
restriction. That is, a regulation which attempts to regulate speech or
expressive conduct because of its direct emotional impact on listeners or
viewers is content-based. Boos v. Barry, 485 U.S. 312. "Regulations that
focus on the direct impact of speech on its audience" are properly analyzed
under content-based standards. Id. at 321. Thus, "if the ordinance . . .
[is] justified by the city’s desire to prevent the psychological damage it
felt was associated with . . . [the speaker's message], then analysis of the
measure as a content-based statute . . . [is] appropriate." Id. To be sure,
regulations which address the secondary effect of certain types of speech
may be content-neutral, see Renton v. Playtime Theaters, 475 U.S. 41, but
"[t]he emotive impact of speech on its audience is not a ‘secondary effect.’
" Boos, 485 U.S. at 321. Regulations which restrict speech "due to its
potential primary impact . . . must be considered content-based." Id.;
Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992) ("Listeners
’ reaction to speech is not a content-neutral basis for regulation.").
"Indeed, if it is the speaker’s opinion that gives offense, that consequence
is a reason for according it constitutional protection." Simon & Schuster,
Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105, 118
(1991) (internal quotation marks and citations omitted). As succinctly noted
by the Court in Madsen v. Women’s Health Center, expressive activities
cannot be banned when "the only plausible reason" for objecting to the
speech is the audience’s disagreement with the message. 512 U.S. at 773 (the
display of images which were observable inside abortion facility could not
be banned on the basis that the patients found the images "disagreeable").
I question whether a school could essentially ban speech based upon its
emotive impact under the backdoor rational of prohibiting discrimination.
Essentially, the school is telling speakers you can only communicate your
message to those who don't disagree with you. The Court has often stated
that a central purpose of the First Amendment is to protect speech which is
"provocative and challenging," because it "induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people to
anger." Gannon, 450 F.2d at 1232 (quoting Terminiello v. Chicago, 337 U.S.
1, 4 (1949)).
Gene Summerlin
Ogborn Summerlin & Ogborn P.C.
210 Windsor Place
330 So. 10th St.
Lincoln, NE 68508
(402) 434-8040
(402) 434-8044 (FAX)
(402) 730-5344 (Mobile)
www.osolaw.com
gene at osolaw.com
-----Original Message-----
From: Marty Lederman [mailto:marty.lederman at comcast.net]
Sent: Friday, November 05, 2004 10:52 AM
To: gene at osolaw.com; Law & Religion issues for Law Academics
Subject: Re: Pamphlets at School
Marc's question was not whether the school could prohibit distribution of
religious literature; as I understand it, it was whether the school could
prohibit literature distributors from targeting Jewish students as the
audience for the literature, regardless of its content. I think the answer
to that question is probably "yes" -- a simple prohibition on religious
discrimination against students would do the trick, and it would be no more
unconstitutional than are the bans on religious discrimination in, e.g., the
Civil Rights Act.
----- Original Message -----
From: "Gene Summerlin" <gene at osolaw.com>
To: "'Law & Religion issues for Law Academics'"
<religionlaw at lists.ucla.edu>
Sent: Friday, November 05, 2004 11:43 AM
Subject: Pamphlets at School
> While the school could potentially eliminate the distribution of all
flyers
> or pamphlets as a time, place or manner restriction, I seriously doubt
that
> a content based prohibition on just religious speech would be upheld.
>
> The right to free speech includes the right to distribute literature.
Martin
> v. City of Struthers, 319 U.S. 141 (1943). The Supreme Court considers
the
> distribution of printed material as pure speech. Texas v. Johnson, 491
U.S.
> 397, 406 (1989). The peaceful distribution of literature is a protected
form
> of free speech just like verbal speech. United States v. Grace, 461 U.S.
> 171, 176 (1983) ("leafletting is protected speech."); Lovell v. City of
> Griffin, 303 U.S. 444, 451-52 (1938) ("liberty of circulating is as
> essential to [freedom of speech] as liberty of publishing; indeed
without
> circulation, the publication would be of little value.")
> The Supreme Court has recognized "that the right to distribute flyers
and
> literature lies at the heart of the liberties guaranteed by the speech
and
> press clauses of the First Amendment." ISKCON v. Lee, 112 S. Ct. 2711,
2720
> (1992).
>
> Of course, in a school setting the school has the right to prohibited
speech
> activities if those activities "substantially interfere with the work of
the
> school, or impinge upon the rights of other students." Tinker v. Des
Moines
> Indep. Sch. Dist., 393 U.S. 503, 509 (1969). However, the Tinker Court
made
> it clear that impinging upon the rights of other students is something
> substantially more than communicating a message that others disagree
with or
> find offensive. "Any departure from absolute regimentation may cause
> trouble. Any variation from the majority's opinion may inspire fear. Any
> word spoken, in class, in the lunchroom, or on the campus, that deviates
> from the views of another person may start an argument or cause a
> disturbance. But our Constitution says we must take this risk and our
> history says that it is this risk of hazardous freedom -- this kind of
> openness -- that is the basis of our national strength and of the
> independence of vigor of Americans who grew up and live in this
relatively
> permissive, often disputatious, society." Tinker, 393 U.S. at 508-09
> (citations omitted).
>
> Nor can school officials require "preapproval" of distributed material.
See
> Fujishima v. Board of Educ., 460 F.2d 1355, 1358 (7th Cir. 1972). See
e.g.,
> Nitzderg v. Parks, 525 F.2d 378, 383-85 (4th Cir. 1975); Baughman v.
Board
> of Educ., 478 F.2d 1345 (4th Cir. 1973); Quarterman v. Byrd, 453 F.2d 54
> (4th Cir. 1971); Eisner v. Stamford Board of Educ., 440 F.2d 803 (2d
Cir.
> 1971); Riseman v. School Committee, 439 F.2d 148 (1st Cir. 1971);
> Johnston-Loehner v. O'Brien, 859 F.Supp. 575 (M.D. Fla. 1994);
Slotterback
> v. Interboro Sch. Dist., 766 F.Supp. 280 (E.D. Penn. 1991); Riveria v.
Board
> of Regents, 721 F.Supp. 1189, 1197 (D. Col. 1989); Sullivan v. Houston
> Indep. Sch. Dist., 333 F.Supp. 1149 (S.D. Tex. 1971); Zucker v. Panitz,
299
> F.Supp. 102 (S.D. N.Y. 1969). See also Muller v. Jefferson Lighthouse
Sch.,
> 98 F.3d 1530 (7th Cir. 1996); Hedges v. Wauconda Community Unit Sch.
Dist.
> No. 118, 9 F.3d 1295 (7th Cir. 1993); Bystrom v. Friedley High Sch., 822
> F.2d 747 (8th Cir. 1987); Shanley v. Northeast Indep. Sch. Dist., 462
F.2d
> 960 (5th Cir. 1972).
>
>>From a practical perspective, if I were asked to advise the school I
would
> be sure to inform them that if they decide to enact such a ban, they
better
> start a litigation fund because it is sure to start a lawsuit.
>
> Good luck, Marc.
>
> Gene Summerlin
> Ogborn Summerlin & Ogborn P.C.
> 210 Windsor Place
> 330 So. 10th St.
> Lincoln, NE 68508
> (402) 434-8040
> (402) 434-8044 (FAX)
> (402) 730-5344 (Mobile)
> www.osolaw.com
> gene at osolaw.com
>
>
> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu]On Behalf Of marc stern
> Sent: Friday, November 05, 2004 9:58 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: (no subject)
>
>
> Anonymous students left pamphlets calling on students to accept Jesus on
the
> desks of Jewish public high school students and no other students. I
have
> been asked whether a school could ban religiously targeted distribution
of
> any pamphlet. Any responses?
> Marc Stern
>
>
>
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