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" <[EMAIL PROTECTED]>
To: "'Law & Religion issues for Law Academics'"
<[EMAIL PROTECTED]>
Sent: Friday, November 05, 2004 11:43
AM
Subject: Pamphlets at School
> 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
> [EMAIL PROTECTED]
>
>
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] 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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