Fox News Forgets Fact in Christian Graduation Speech Story

[Newsom Michael]

I think that Marty's analysis is as good as it gets on this point.  I
still have my qualms about the "equality" or "neutrality" principle that
is implicit in his analysis.  I wonder whether an "anti-disruption"
principle or something like that might lead to a marginally better
approach, and I Marty offers up such a principle.

 

Maybe the point is some concern as to whether one can confidently
prescribe categories of disruptive or offensive speech.

 

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Sunday, August 06, 2006 1:22 PM
To: Law & Religion issues for Law Academics
Subject: Re: Fox News Forgets Fact in Christian Graduation Speech Story

 

"the school should not exercise any control over the content of their
speech at all."

 

I'll hazard a guess that this has never, not once, been the case in any
school in America.  Or let me be more specific:  Many schools have, of
course, refrained from exercising control over a graduation speaker's
speech, but not a single one would disclaim the authority to do so.
Almost every school would, for instance, prohibit a string of
obscenities, or double entendres.  See Bethel.  Beyond that, it is not
at all difficult to think of plenty of topics and viewpoints that
virtually any school would prohibit (or with respect to which they'd
turn off the microphone) -- insults of teachers and fellow students,
speeches that are ridiculously off-topic -- and, more likely than not,
most partisan political speech. 

 

In other words, there is a wide range of inappropriate graduation-speech
content.  The reason the issue rarely comes up is that, not
surprisingly, the vast majority of graduation speakers confine
themselves to what is generally thought to be within the wide range of
the appropriate at situations such as these.  (Wouldn't you?)

 

In other words, this isn't like Speaker's Corner, or some other public
forum, and never will be.  Thus, there's no getting over the problem of
endorsement.  If a school would forbid the speaker from leading cheers
for the re-election of the President, or for the electoral prospects of
Hillary Clinton, or would ask a student to apologize for condemning
persons of a particular religion, but would permit the speaker to say
that "Jesus died for you on the cross," there is at least a modest sense
of endorsement:  Not endorsement of the truth of the matter, mind you,
but endorsement of the idea that "Jesus died for you on the cross" is
within the range of speech that is relevant and appropriate for a
graduation ceremony.  My personal view is that if the school did accept
such a statement as appropriate -- or, e.g., accepted as appropriate the
statement "Jesus is a scam" or "women have a religious duty to stay at
home" or [you can fill in the blanks with your favorite hypo] -- it
would be an Establishment Clause violation, albeit not the most
important one of all time.  My quick 'n' easy rule of thumb is that
specifically religious speech can be treated no better than political
speech, or else there's a possible Establishment Clause problem.  And if
it's treated no worse than such political speech, there's certainly no
Free Speech problem.

 

And therefore the school here was well within its rights to ask the
student to apologize for a statement that was grossly inappropriate, and
that she knew would never have been approved had she included it in the
rehearsal version that she recited for the principal.  Indeed, asking
for such an apology in this case strikes me as just about the perfect,
most civil and modest response for the school to have taken.  They're
not asking her to disclaim her beliefs about Jesus, or to stop trying to
convince others of those beliefs -- merely asking her to acknowledge how
manifestly inappropriate it was to use that particular occasion, and her
privileged position, to make a statement of religious truth of that
nature. 

	----- Original Message ----- 

	From: Ed Brayton <mailto:stcynic at crystalauto.com>  

	To: Law & Religion issues for Law Academics
<mailto:religionlaw at lists.ucla.edu>  

	Sent: Sunday, August 06, 2006 12:46 PM

	Subject: Re: Fox News Forgets Fact in Christian Graduation
Speech Story

	 

	AAsch at aol.com wrote: 

	I much appreciate the kind words (particularly coming from the
author of the conlaw book I still use and have been using since law
school).

	 

	There was actually another interesting fact about the Erica
Corder case in Monument, CO that wasn't in the Fox News story. Erica
Corder's father is on the board of directors of James Dobson's Focus on
the Family which is based near there (the father's connection to FoF is
reported in the Colorado Springs Gazette). If anyone's interested, I
took my argument to the Colorado Springs Gazette online forum in more
extended written form at:
http://forums.gazette.com/gazette/viewtopic.php?t=345&start=30

	 

	What I'm having difficulty figuring out, however, is exactly
where to draw the line in graduation speech preapproval cases. Does
anyone have any good citations (or opinions) on when preapproval of a
message becomes endorsement? Also, how do high schools fashion
preapproval policies so they are not arbitrary or discriminatory?

	I would argue that if the graduation speaker is chosen according
to some objective criteria, as when the valedictorian automatically is
invited to speak, then the school should not exercise any control over
the content of their speech at all. Then the speech is purely their own,
there is no message of endorsement, and the student can say whatever
they want. Free speech preserved, establishment clause problem
eliminated, everyone hapy.
	
	Ed Brayton

	
________________________________


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