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 cases you cite go to that question. Marc Stern
-----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Gene Summerlin Sent: Friday, November 05, 2004 11:44 AM To: 'Law & Religion issues for Law Academics' 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 [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 _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
