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, often perpetrated by teens. I wouldn't find it
unreasonable (or overly sensitive) for the local 15 year old Jewish kids
to find a targeted religious message intimidating to the point of
threatening.
One question about your standard, Eugene. Are you suggesting it would
be the same inside the classroom as in the street?
Robin Charlow
Hofstra University School of Law
Hempstead, New York 11549
email: [EMAIL PROTECTED]
phone (516) 463-5166
>>> [EMAIL PROTECTED] 11/05/04 12:09 PM >>>
I think we ought to be careful in First Amendment cases -- even those
arising in government-run schools -- to find speech to be unprotected
because either its content or its manner is intimidating. Speech that
genuinely is threatening ought to be unprotected; but I would hope that
by their late teens, students recognize that (1) others may seek to
convert them to their religion, and (2) there's nothing inherently
threatening about such attempts at conversion. Certainly if there are
other circumstances that make the conversion attempt threatening (e.g.,
a threat of violence or a threat by a teacher to grade a student down if
he doesn't convert, even if the threat is implicit), it could be
restricted on those grounds. But simply the fact that (1) it's a
conversion attempt, and (2) it's not aimed at people who have already
been converted ought not, I think, strip the speech of protection,
either as to its content or its manner.
And even if a few students do subjectively feel intimidated, perhaps
because they incorrectly assume that all attempts at conversion are
somehow backed with the threat of violence, I don't think that such a
heckler's veto could be justified, in the absence of evidence that the
feeling of intimidation is reasonable as well as genuine.
-----Original Message-----
From: [EMAIL PROTECTED] on behalf of Robin Charlow
Sent: Fri 11/5/2004 11:53 AM
To: [EMAIL PROTECTED]; [EMAIL PROTECTED]
Cc:
Subject: Re: Pamphlets at School
Isn't there something different about a targeted distribution?
It's not
simply speech that others might disagree with or find offensive,
but
speech that could be intimidating precisely because of the
targeting.
Perhaps intimidating speech would meet the standard of impinging
on the
rights of other students.
Robin Charlow
Hofstra University School of Law
Hempstead, New York 11549
email: [EMAIL PROTECTED]
phone (516) 463-5166
>>> "Gene Summerlin" <[EMAIL PROTECTED]> 11/05/04 11:43 AM >>>
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
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