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
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.
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
I would not advise a religion only ban if it was aimed at the subject matter
of the leaflets. The question I posed is whether a religion only
distribution only list can be prohibited. (The same question would arise if
students distributed literature only to one racial or ethnic group.) None of
the
The problem I see is that the state is not
discriminating; students are and they would have a freedom of speech and
association claim. The state could not on a public sidewalk invoke civil rights
laws to prohibit a distribution of literature to Jews or Christians only, could
it?
Marc
In a message dated 11/5/2004 11:54:51 AM Eastern Standard Time,
[EMAIL PROTECTED] writes:
a simple
prohibition on religious discrimination against students would do the
trick,
How would such a simple
prohibitionwork if the religion of those targeting Jewish students
requires or
What if a black student group distributed flyers to other black students, inviting
them to join the group, inviting them to join some off-campus group, inviting them to
some rally or discussion of issues related to blacks, and so on? Or what if a Jewish
student group distributed leaflets to
Marc
I know of no case dealing with prohibitions against the targeting of
students based on religion or race. I think the school's best argument
would be that targeted communications impinge on the rights of other
students. If the meaning of harassment is context specific, as I think it
is,
I'm not sure we disagree about the standard as much as about what level
of maturity we ought to expect of kids in their mid (15 is not quite
late) teens. In nice, secure, suburban neighborhoods in my area, where
Jews are not a tiny minority, anti-Semitic vandalism occurs with
suprising frequency,
It's interesting how the rhetoric of harassment works its way into the analysis. Here
we have what sounds like a simple attempt to convert people, with no threats, insults,
or even repetition; yet it ends up being labeled as imping[ing] on the rights of
other students, as harassment, and
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
In answering the many good questions that have been raised in this
discussion, wouldn't it be helpful to know the precise content of the
pamphlets? Can Mark Stern help us in this regard? Surely one
cannot say that proselytizing pamphlets are per se threatening or
intimidating.My own view
I will ask to see them. My contact described them in terms to general to be
helpful.
Marc
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Lupu
Sent: Friday, November 05, 2004 1:16 PM
To: [EMAIL PROTECTED]
Subject: pamphlets at school
In answering the
I think the real world practice of law in this area makes Marty's easy solution not nearly so easy in fact. Is a student discriminating against a Catholic if he gives her a pamphlet on why praying the rosary is a form of idol worship unless he also hands a copy of the pamphlet to the Orthodox
Whoops -- accidentally sent this to CONLAWPROF instead of RELIGIONLAW; retransmitting
it here.
-Original Message-
From: Volokh, Eugene
Sent: Fri 11/5/2004 1:05 PM
To: [EMAIL PROTECTED]
Cc:
Subject: Re: Pamphlets at School
Eugene and Marc are, of course,correct:
The case is not quite as simple as I suggested. Let me try to
break down the questions they raise:
1. Could a state prohibit private
discrimination "on a public sidewalk" generally? Well, no legislature
would ever do so, because we are nowhere near
If possible, Eugene, Alan, and Chip are all correct. The school need
not allow such activity in the classroom (distributions generally) and
should be concerned about intimidating material (in the classroom or
outside). Conversely, students have the right to target follow
students of
I still don't get Marty's discrimination argument. These pamphleteers
are not excluding anyone (they'd probably be happy to give the
pamphlet to anyone who wanted it). They're just choosing an
audience. What if a group of evangelical Christian teens at a public
school decided to pick five
You
raise a lot of good points. In response only to point (5): The
notion that proselytizing is more suspect because it may be received as
"offensive and unwanted" (I agree with that premise) seems to me either to
ignore or to reject something at the heart of the endeavor. Proselytizing
--
Can a school teach respect for diversity and tolerance for difference
and teach civility and respect for others' beliefs without targeting
those who say everyone else is damned and seeking to quash such speech
on campus?
I fear that one of the problems is the desire for neat, clear,
In a message dated 11/5/2004 7:58:41 AM Pacific Standard Time, [EMAIL PROTECTED] writes:
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
Well, I don't disagree with the Court's recent
decisions that proselytizing should receive as much free speech protection, as a
doctrinal matter, as other forms of attempted persuasion. And I certainly
do not think that an "endeavor should get less protection
becausethe subject of the
Title: Message
It seems to me that Marty's proposal is indeed
for content-based restrictions, not justcontent-neutral antidiscrimination
rules. He suggests that the rule is facially content-neutral -- presumably
"no singling people out based on religion for speech or conduct that they're
Marty Lederman writes: 1. Could a state prohibit private
discrimination on a public sidewalk generally? Well, no legislature
would ever do so, because we are nowhere near any sort of social
consensus that legislatures should start regulating the choices we make
in our everyday interactions, on
Title: Message
Oddly enough, I agree with one point that Marty
suggested: If someone is giving material or saying things to a particular
person, and that person says "please stop giving me this stuff," then the
government may generally give the recipient that sort of veto power (though
I'm puzzled. Is Mark genuinely saying that it should be
considered harassment -- and thus presumably punishable under hostile
environment harassment law (unless Mark agrees with me that hostile
environment harassment law is unconstitutional to this extent) -- for
people to express the
In a message dated 11/5/2004 5:29:28 PM Eastern Standard Time, [EMAIL PROTECTED] writes:
Oddly enough, I agree with one point that Marty suggested: If someone is giving material or saying things to a particular person, and that person says "please stop giving me this stuff," then the government
The purpose of the story was simply to point out, as I thought I made
clear, that a great many Christians who thought nothing problematic
about converting Jews suddenly found speech offensive when they were the
converters. I suspect, by the way, that we agree that harrassment is
the wrong word.
I'm glad that we agree such speech shouldn't be called
harassment. But I'm puzzled by Mark's second paragraph. Why does the
fact that *schools* may not teach religion or atheism mean that schools
may or even must restrict *students* who want to advocate religion or
atheism?
Mark
Two issues here.
1. Must schools restrict proslytizing by students.
2. May schools constitutionally restrict proslytizing by students.
I'm focusing on the second. Eugene and I agree that religion is
different from ordinary speech in at least the sense that religion may
not be the subject of
It seems to me that Mark's claim goes far, far beyond what the Tinker court
stated. Nothing in Tinker seems to suggest that religious speech is
second class speech and less deserving of protection than other forms of
pure speech that the First Amendment clearly protects. Speech about
religion,
Hmm; I had thought Mark's original point was both the second and
potentially the first -- It does seem fairly clear to me that under the
Establishment Clause a state can say (perhaps must say, given mandatory
attendence) that no pro[se]lytization shall go on in the schools, as he
put it in
This is part of a long argument Eugene and I have had, one we will
probably not resolve here. it seems to me quite apparent from the text
of the first amendment that Congress intended to deal with speech and
religion separately, with an understanding that religious proselytizing
is somehow
I don't quite understand how Mark's textual argument works.
The Establishment Clause does distinguish *government* actions
vis-a-vis religion from government actions vis-a-vis politics. But that
doesn't justify restricting speech by citizens, such as students.
The Free
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