RE: Pamphlets at School
You have to put the question in context. Intimidation is not an abstract idea. It matters greatly if, for example, Jews are a distinct minority in a community in which there is a large overwhelming religious majority AND if the pamphlets were tied to that majority. Second, the line is drawn at high-school graduation. So it does not matter if the Jewish students are in their late teens. Third, it would be nice to ask these children just what THEY thought, rather than assuming that we know what they think or feel. The dismissal of the problem as simply one of a heckler's veto begs the question of context or setting. Here we have a targeted appeal, aimed ONLY at the Jewish students. And in any event, it is hard to square the objection that there is merely a heckler's veto with Engel and Schempp. Finally, one needs to be careful about a dismissive appeal to a heckler's veto. There are some rather unfortunate decisions that made that appeal and I am not sure that one would want to associate oneself with those cases. (They are all discussed, of course, in my article on Common School Religion.) -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 12:10 PM To: Law Religion issues for Law Academics Subject: RE: Pamphlets at School 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
RE: Pamphlets at School
The analogy is inapt. Jewish students were not targeting Jewish students. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 12:21 PM To: Law Religion issues for Law Academics Subject: RE: Pamphlets at School 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 students whom they knew to be Jewish to Yom Kippur services? (1) Would the school be able to ban such targeted distribution, too? (2) If the school didn't punish such distribution, but in practice only punished the distribution of Christian-themed leaflets to Jewish students, would that be constitutional? ___ 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.
RE: Pamphlets at School
Marc Scarberrys point is more than merely prudential or morally right. The country is suffering from an epidemic of bullying and real lives are hurt or damaged as a consequence. This case may be nothing more than one more instance of a disturbing cultural and social trend. I cant believe that the Constitution gets in the way of curbing bullies. And if bullying lies at the heart of this case, then surely there must be a remedy. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 1:46 PM To: [EMAIL PROTECTED] Subject: Re: Pamphlets at School Marc Scarberry's civility point has an appeal to it. But as the proposed cancellation of all clubs in Salt Lake City schools, in order to avoid having to allow GLBT clubs, proved, threatening to shut everyone down is easier than actually doing so. A civility rule that requires students to refrain from creating in affected classes a sense of otherness, or excludedness, would have to be drawn fairly broadly to do the job without appearing to select religious considerations as the basis of the regulation. But drawn on the larger scale, how many schools will succeed in a program of that sort which requires that all teams be selected with one choice in order to avoid making some students feel less desirable, that requires the band to include the tone deaf lovers of music making with the skilled, etc.? The truth is that students, like other human beings congregate in groups that include some, exclude others, and do so, sometimes quite deliberately and other times, quite incidentally. And because that kind of discrimination is so commonplace and accepted, it is difficult to imagine how a program that must reach that level to survive constitutional challenge will withstand commonsensical ones. Jim Cutting off Our Noses to Spite Your Faces Henderson Senior Counsel ACLJ ___ 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.
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
Re: Pamphlets at School
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
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 schoo
RE: Pamphlets at School
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
RE: Pamphlets at School
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 Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Marty Lederman Sent: Friday, November 05, 2004 11:52 AM To: [EMAIL PROTECTED]; Law Religion issues for Law Academics Subject: Re: Pamphlets at School 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 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
Re: Pamphlets at School
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 encourages its members to do so on religious rounds?Wouldn'tMarty's "simple prohibition on religious discrimination" discriminate against members of any religion who must leaflet students in the manner of Marc's (true) example? These are straightforward questionsin the sense that I have no ax to ground regarding this issue or so I think. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ 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.
RE: Pamphlets at School
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 students whom they knew to be Jewish to Yom Kippur services? (1) Would the school be able to ban such targeted distribution, too? (2) If the school didn't punish such distribution, but in practice only punished the distribution of Christian-themed leaflets to Jewish students, would that be constitutional? As to the Civil Rights Act analogy, I wonder how far antidiscrimination law can indeed go in selection of recipients for speech (or for that matter subjects of speech). Lower court cases are split on whether groups have a constitutional rights to admit only people of certain races or genders to their speeches; but I would think that the better view is that a group is indeed entitled to discriminate in its choice of audience. Likewise, one lower court case upheld the right of a group to choose speakers based on race, there in a KKK parade that excluded blacks (and, I think, Jews as well). And of course Boy Scouts v. Dale suggests the same. Shifting a bit from choice of audience to choice of subjects, NAACP v. Claiborne Hardware involved the NAACP's attempt to target blacks who refused to abide by a boycott; I suspect it may have involved targeted audience communication as well, for instance if NAACP members approached noncomplying blacks to remonstrate with them but not noncomplying whites. Or is Marty's claim simply that antidiscrimination rules are categorically permissible in government-run schools, even if there must be some First Amendment exemptions from such rules outside government-run schools? Incidentally, I don't think this is an open-and-shut issue in either direction -- I sympathize, for instance, with arguments that teachers (even teachers at private schools) may be barred by law from singling out students based on race, religion, sex, etc. for ridicule in class, even though they have a right to express racist, anti-religious, or sexist views to the class as a whole. But I don't think it's quite as easy as antidiscrimination rule, therefore end of story. Eugene -Original Message- From: [EMAIL PROTECTED] on behalf of Marty Lederman Sent: Fri 11/5/2004 11:51 AM To: [EMAIL PROTECTED]; Law Religion issues for Law Academics Cc: Subject: Re: Pamphlets at School 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] mailto:[EMAIL PROTECTED] To: 'Law Religion issues for Law Academics' [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] Sent: Friday, November 05, 2004 11:43 AM 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
RE: Pamphlets at School
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, public schools ought to have more discretion in protecting students against targeted speech than would be permissible in other settings. Another approach might focus on the fact that the pamphlets were left on student's desks. Schools have some authority to control whether school property that is designated for particular purposes is used for other purposes. Desks are not mailboxes for private communications. Even if they were utilized as the site for some school approved communications between private parties, some content discriminatory regulations would be upheld (See Perry -- upholding content-based restrictions on the use of school mailboxes) I am dashing out to catch a flight and can not spend more time on this right now. But I will give more thought to it over the weekend. The school will have to proceed carefully, but there may be ways for it to protect students of minority faiths from this kind of behavior. Alan Brownstein UC Davis At 08:55 AM 11/5/2004, you wrote: This is a multi-part message in MIME format. --=_NextPart_000_00C7_01C4C32E.D6D7B7F0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: 7bit 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 Stern _ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman Sent: Friday, November 05, 2004 11:52 AM To: [EMAIL PROTECTED]; Law Religion issues for Law Academics Subject: Re: Pamphlets at School 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 mailto:[EMAIL PROTECTED] [EMAIL PROTECTED] To: 'Law Religion issues for Law Academics' mailto:[EMAIL PROTECTED] [EMAIL PROTECTED] Sent: Friday, November 05, 2004 11:43 AM 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
RE: Pamphlets at School
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
RE: Pamphlets at School
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 something from which people are entitled to be protect[ed]. But do people really have a right not to hear occasional polite calls -- even occasional polite calls that are directed at them -- to change their beliefs and ideologies? Yes, I know that some students might perceive this as offensive or even intimidating. Still, it seems to me that, given the First Amendment, such individual perception isn't reason enough to lead the law to confer a right not to have certain views addressed to you. Also, if this is harassment, and infringement of rights, then does it follow that the government may -- using hostile environment harassment law -- actually require even private schools (which, after all, are bound by many states' antidiscrimination laws) to restrict such messages from students to classmates? Eugene -Original Message- From: [EMAIL PROTECTED] on behalf of Alan Brownstein Sent: Fri 11/5/2004 12:38 PM To: marc stern; Law Religion issues for Law Academics Cc: Subject: RE: Pamphlets at School 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, public schools ought to have more discretion in protecting students against targeted speech than would be permissible in other settings. Another approach might focus on the fact that the pamphlets were left on student's desks. Schools have some authority to control whether school property that is designated for particular purposes is used for other purposes. Desks are not mailboxes for private communications. Even if they were utilized as the site for some school approved communications between private parties, some content discriminatory regulations would be upheld (See Perry -- upholding content-based restrictions on the use of school mailboxes) I am dashing out to catch a flight and can not spend more time on this right now. But I will give more thought to it over the weekend. The school will have to proceed carefully, but there may be ways for it to protect students of minority faiths from this kind of behavior. Alan Brownstein UC Davis At 08:55 AM 11/5/2004, you wrote: This is a multi-part message in MIME format. --=_NextPart_000_00C7_01C4C32E.D6D7B7F0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: 7bit 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 Stern _ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman Sent: Friday, November 05, 2004 11:52 AM To: [EMAIL PROTECTED]; Law Religion issues for Law Academics Subject: Re: Pamphlets at School 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 mailto:[EMAIL PROTECTED] [EMAIL PROTECTED] To: 'Law Religion issues for Law Academics' mailto:[EMAIL PROTECTED] [EMAIL PROTECTED] Sent: Friday, November 05, 2004 11:43 AM Subject: Pamphlets at School While the school could potentially
RE: Pamphlets at School
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 speech
or expressive conduct because of its direct emotional impact on listeners or
viewers is content-based. Boos v. Barry, 485 U.S. 312. "Regulations that
focus on the direct impact of speech on its audience" are properly analyzed
under content-based standards. Id. at 321. Thus, "if the ordinance . . .
[is] justified by the city's desire to prevent the psychological damage it felt
was associated with . . . [the speaker's message], then analysis of the measure
as a content-based statute . . . [is] appropriate." Id.
To be sure, regulations which address the secondary effect of certain
types of speech may be content-neutral, see Renton v. Playtime Theaters,
475 U.S. 41, but "[t]he emotive impact of speech on its audience is not a
'secondary effect.'" Boos, 485 U.S. at 321. Regulations which restrict
speech "due to its potential primary impact . . . must be considered
content-based." Id.; Forsyth County v. Nationalist Movement, 505
U.S. 123, 134 (1992) ("Listeners' reaction to speech is not a content-neutral
basis for regulation.").
"Indeed, if it is the speaker's opinion
that gives offense, that consequence is a reason for according it constitutional
protection." Simon Schuster, Inc. v. Members of New York State Crime
Victims Board, 502 U.S. 105, 118 (1991) (internal quotation marks and
citations omitted). As succinctly noted by the Court in Madsen v. Women's
Health Center, expressive activities cannot be banned when "the only
plausible reason" for objecting to the speech is the audience's disagreement
with the message. 512 U.S. at 773 (the display of images which were observable
inside abortion facility could not be banned on the basis that the patients
found the images "disagreeable").
I
question whether a school could essentially ban speech based upon its emotive
impact under the backdoor rational of prohibiting discrimination.
Essentially, the school is telling speakers you can only communicate your
message to those who don't disagree with you. The Court has often stated
that a centralpurpose of the First Amendment is to protect speech which is
"provocative and
challenging," because it "induces a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to anger." Gannon, 450
F.2d at 1232 (quoting Terminiello v. Chicago, 337 U.S. 1, 4
(1949)).
Gene SummerlinOgborn Summerlin Ogborn P.C.210
Windsor Place330 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: Marty Lederman
[mailto:[EMAIL PROTECTED]Sent: Friday, November 05, 2004
10:52 AMTo: [EMAIL PROTECTED]; Law Religion issues for Law
AcademicsSubject: Re: Pamphlets at School
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
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 l
pamphlets at school
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 is that, if the school allows pamphletting in class (it doesn't have to), then this attempt to persuade is presumptively as protected as an attempt to persuade students to work for John Kerry or to become vegans. And does it really make sense to say that all students must be targeted if any are to be targeted? That just seems like a way to drive up the cost of speech. (Are Jewish students really going to feel better about this campaign if the pamphlets are placed on everyone's desk?) Chip Lupu Ira C. (Chip) Lupu F. Elwood Eleanor Davis Professor of Law The George Washington University Law School 2000 H St., NW Washington D.C 20052 (202) 994-7053 [EMAIL PROTECTED] [EMAIL PROTECTED] ___ 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.
RE: pamphlets at school
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 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 is that, if the school allows pamphletting in class (it doesn't have to), then this attempt to persuade is presumptively as protected as an attempt to persuade students to work for John Kerry or to become vegans. And does it really make sense to say that all students must be targeted if any are to be targeted? That just seems like a way to drive up the cost of speech. (Are Jewish students really going to feel better about this campaign if the pamphlets are placed on everyone's desk?) Chip Lupu Ira C. (Chip) Lupu F. Elwood Eleanor Davis Professor of Law The George Washington University Law School 2000 H St., NW Washington D.C 20052 (202) 994-7053 [EMAIL PROTECTED] [EMAIL PROTECTED] ___ 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.
Re: Pamphlets at School
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 Jewish boy who completely agrees with his view on idol worship? Without giving such a pamphlet to the Goth who is convinced, along with Marilyn Manson's lead singer, that religion is bunk? I wonder that the government, federal or state, can require "the poorly financed causes of little people" to be squandered by denying to the "little people" the right to choose to whom they will address their message. Can the First and Fourteenth Amendments have become so vacuous? Jim "You Gotta Talk to Everyone or We Won't Let You Talk to Anyone" Henderson Senior Counsel ACLJ ___ 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.
Re: Pamphlets at school
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 (1) It seems to me that one of the jobs of high schools is to teach maturity to students; and 15, an age where many students are having sex and some are committing crimes, is probably a good age for students to learn that, even though there are a few anti-Semitic vandals, one shouldn't be fearful of all Christians who want to convert Jews. We certainly think that students shouldn't ascribe the crimes of a few blacks to blacks generally, or the racism of some whites to whites generally. Likewise, that there are some anti-Semitic thugs committing occasional crimes shouldn't, I think, lead to a reduction of the rights of Christians who want to convert Jews to Christianity. And to the extent that students connect the two, and end up becoming afraid of proselytizing Christians generally because of the actions of some vandals, we should teach them to resist the connection, rather than endorsing the connection ourselves. (2) I do not think that the rules on the street should be identical to those in K-12 school. Tinker quite correctly concluded that schools ought to be free to restrict speech that seems genuinely likely to materially disrupt the educational process -- though, as Tinker itself held, that a few people are offended doesn't itself equal the constitutionally required disruption. I'm not sure that the speech here is disruptive enough under the Tinker standard (or at least no more than the black armbands would be). But I'd be happier if the discussion focused on disruption, rather than on supposed intimidation or supposed harassment, since it seems to me that a focus on the latter terms would require stretching them quite substantially. Eugene ___ 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.
Pamphlets at School
art; but if anyone had tried to convince someone else to convert to a different religion, that would have been seen -- quite rightly, in my view -- as another kettle of fish entirely, and completely inappropriate. This question -- whether religious proselytizing, especially of students, can and ought to be viewed as equivalent (as a legal matter, anyway) to other forms of persuasion -- is a much broader and more contentious topic than the discrete question Marc has asked, and one on which I think we're unlikely to shed more light than heat. Let me simply suggest two reasons -- related to one another -- why such proselytizing seems sodifferent, and much more offensive/inappropriate, to many of us than, e.g., trying to persuade studentsto vote for Kerryor to become vegans: (i) Such proselytizing, unlike other forms of persuasion,does tend to single out its audience on the basis of the audience's religion -- and there is verygood reason that we think people ought not be singled out on the basis of religion in public life (including in school), whereas we have much less concern withsingling out "audiences for persuasion," including student audiences, on the basis of their political affiliation or diet. Hence, the common existence of bans on religious discrimination (beginning, perhaps, with article VI, sec. 3), andno comparablehistory of prohibiting discrimination on the basis of politicalaffiliation or carnivore-status. (ii) Most folks (but not all!) view their religion as more fundamental, more ingrained, more personally constitutive, and more private, than our numerous other "preferences" and personal characteristics. - Original Message - From: marc stern To: 'Law Religion issues for Law Academics' Sent: Friday, November 05, 2004 11:59 AM Subject: RE: Pamphlets at School 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 Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Marty LedermanSent: Friday, November 05, 2004 11:52 AMTo: [EMAIL PROTECTED]; Law Religion issues for Law AcademicsSubject: Re: Pamphlets at School 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. ___ 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.
pamphlets at school
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 Jewish students that each knew best, invite the Jewish acquaintance(s) to a conversation in the hall, and then say something like I like you and you're my friend, so I'd hate to see you burn in hell for failure to accept Jesus. Will you please come to church with me on Sunday so you can learn more about this? Unless this sort of proselytizing takes the form of persistent and unwanted attention, amounting to interference with the freedom of movement or educational pursuits of others, I do not understand the basis for suppressing it. Arguments for gay and lesbian rights may be just as threatening to deep structures of identity as arguments to convert to evangelical Christianity; may the school ban gay rights pamphlets, targeted at members of churches that preach against homosexuality? Vegans, by the way, can be quite aggressive in their proselytizing efforts -- or have you never seen or heard a vegan-led protest about fur coats or eating the flesh of animals raised under inhumane conditions? There is indeed an attempt at moral intimidation in these protests, and it should be stalwartly defended. The remedy in these situations, as Brandeis said, is counterspeech, not enforced silence. Chip Lupu Ira C. (Chip) Lupu F. Elwood Eleanor Davis Professor of Law The George Washington University Law School 2000 H St., NW Washington D.C 20052 (202) 994-7053 [EMAIL PROTECTED] [EMAIL PROTECTED] ___ 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.
RE: Pamphlets at School .:.
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 -- which, bear in mind, iswidely understood asan affirmative Christian obligation-- is not preachingto the choir (who presumably won't be offended), but rather an effort to change minds. Isn't it a little perverse to say that the fact that the endeavor should get less protection becausethe subject of the proposed change is deeply meaningful to both the speaker and the listener? -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of Marty LedermanSent: Friday, November 05, 2004 1:50 PMTo: Law Religion issues for Law AcademicsSubject: 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 any sort of social consensus that legislatures should start regulating the choices we make in our everyday interactions, on the sidewalks or in our homes -- even where they might be a consensus that some such choices are invidious. "Law does not, in our legal culture, commonly deal withdinner invitations and the choice of children's back-yard playmates." Charles Black, 81 Harv. L. Rev. at 102. Thus, I don't think any of us will live to see the answer to Marc's question (could a state prohibit private persons from discriminating against others on a public sidewalk?) -- the constitutional question will not arise because there is unlikely to be any such statute. 2. On the other hand, we are, of course, familiar with a well-known set of prohibitions on discrimination in public spaces -- namely, public accommodation laws, modeled on title II. Those laws do not prohibit all discrimination in public spaces, but are instead limited to discrimination that has some real, tangible effect on access to meaningful privileges and benefits of public life, including, most obviously, actualaccess to public spaces, events, and the like. Does that extend to prohibiting speakers from excluding certain audiences for speech conducted in a public setting? I think it often does as a matter of statute, and I had thought the cases were fairly uniform thatspeakers in a public accommodation (e.g., an auditorium,a bandstand) can constitutionally be prohibited from discriminating w/r/t their audience; but Eugene is correct that there is some split of authority, including the City of Cleveland v. Nation of Islam case. I do not think the constitutional claim is very strong -- but then again, I think Dale is wrongly decided. 3. Turning to schools: Marc is correct that, in general, antidiscrimination provisions -- at least those at the federal and state level with which we're familiar -- run against the schools themselves (including private schools), rather than against the students. But this means, in part, that schools have a legal obligation to prohibit student-to-student discrimination that tangibly affects the education of the discriminated-against students. See Davis v. Monroe County. Accordingly, I imagine that most schools in this nation do implement some sort of behavior codespursuant towhich students are not permitted to discriminate against one another on certain grounds, including race, sex and religion. 4. Of course schools do not enforce such rules against every sort of student discrimination -- e.g., choosing one's friends or dates,or picking sides in a kickball game -- for the same reason that legislatures do not prohibit racial and religious discrimination in every sphere of our lives (including how we treat others in everyday social interactions). And they certainly do not prohibit discrimination when it has absolutely no adverse impact on the "disfavored" class, such as in Eugene's example of aJewish student group distributing leaflets about Yom Kippur services to students whom they knew to be Jewish.But they do enforce anti-discrimination laws in those circumstances where the conduct -- including expressive conduct -- obviously is unwanted, or causes tangible harm, or is offensive. See, e.g., Davis itself. The fact that the school limits its anti-discrimination enforcement only to these sorts of harmful (or "severe and pervasive") cases does not make the prohibition content-based, contra Gene Summerlin -- in part because the prohibition is not limited to discriminatory speech, but applies as well
Re: Pamphlets at School
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, bright-line answers instead of recognition of the full complexity of everyday interactions and beliefs. Students may well have a right to be free from harassment, but who decides and on what standard? Is it the person who is targeted? Is it that person's subjective response? Does it matter if it is a group targeting another group (I know Eugene does not believe in any sort of group-based analysis in this area) as opposed to individuals in conversation? Some people have highly sensitive antennas -- like Woody Allen's character in many of his movies with the Jew who hears Jewish slurs everywhere -- e.g., D'you eat yet is heard as Jew! Eat yet! Is that the standard? Or is it the result of a poll with majority rule? Many whites in many parts of the country said nr thoughtlessly -- not with subjective ill will. If the poll showed that they did not associate it with being derogatory does that make it all right? Can we distinguish between evangelism and proselytizing? Can we distinguish between information and advocacy? Should we? When we are called upon to advise our schools on such behavior, do we educate about nuance or just say no? A strange twist has been at work where those who decry the expulsion of religion from schools have created the monster they feared -- where teachers and principals ban the Bible completely and such. Life is not so simple. And some of these sorts of interactions are the very stuff of life in school. But in my experience the majority all too often are insensitive to the sensibilities of the minorities and see nothing intimidating or wrong with shunning or the HS analogs or with bold pronouncements of solidarity with their majority faith friends, despite the likely response of others. The minorities live with things those of the dominant faith simply, as a whole, don't recognize exists and can't seem to understand. Though I reject my colleague's positing the existence of a Protestant Empire as an accurate or even helpful heuristic device in most instances, in this instance, I think it apt. My kids went through schools where this was the case and they were pretty bright and strong-willed and able and willing to defend themselves for the most part. But why should they need to be in a situation where that need to defend themselves is a constant part of life? This is, it seems to me, what teaching tolerance is all about -- not accepting everyone's beliefs as equal, but respecting the differences and not condemning them through word or action -- such as proselytization. A bit of a ramble. Sorry. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar Our scientific power has outrun our spiritual power. We have guided missiles and misguided man. - Martin Luther King Jr., Strength to Love, 1963 ___ 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.
RE: Pamphlets at School
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 targeted distribution of any pamphlet. Any responses? Marc Stern Instead of delving into the morass of content based restrictions, how about a pragmatic solution: a "Did you bring enough for everybody?" rule. A rule requiring that any in-class student distributions be given to every student makes no judgment about the content of the speech or, even, whether it is beneficial or harassing. It would apply equally to distributions where the recipients feel excluded like the Jewish students here as to cases where non-recipients feel excluded, say in the case of classroom distribution of Valentine's cards. In fact, some schools do require that Valentine's cards be universally distributed in class or not distributed at all without constitutional challenge. Wouldn't this pragmatic solution make irrelevant an otherwise interesting constitutional discussion? Allen Asch ___ 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.
Re: Pamphlets at School
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 proposed change is deeply meaningful to both the speaker and the listener."I suppose all thatI meant to convey by my point No. 5are these two things: (i) Putting aside constitutional doctrine, we should not blithely assume that proselytizing is in any meaningful sense equivalent -- to the listener or to the speaker -- as other forms of attemtped persuasion. (ii) I did not mean to suggest that schools themselves should formally distinguish between religious proselytizing and other forms of student-to-student speech, and treat the former as categorically disfavored. I was simply trying to suggest that schools can prohibit unwanted speech directed to a certain class of students, andthat, as a practical matter, most students will in fact view religious proselytizing as very much unwanted, if not highly inappropriate. If a student asks that such entreaties cease, the school is well within its rights, I think, to honor that student's request. And the fact that different students will be offended by different speech addressed directly to them does not render unconstitutional, or content-based, the underlying school policy of respecting the sensitivities of the targeted student audience. Cf. Rowan. - Original Message - From: Menard, Richard H. To: 'Law Religion issues for Law Academics' Sent: Friday, November 05, 2004 2:29 PM Subject: RE: Pamphlets at School .:. 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 -- which, bear in mind, iswidely understood asan affirmative Christian obligation-- is not preachingto the choir (who presumably won't be offended), but rather an effort to change minds. Isn't it a little perverse to say that the fact that the endeavor should get less protection becausethe subject of the proposed change is deeply meaningful to both the speaker and the listener? -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of Marty LedermanSent: Friday, November 05, 2004 1:50 PMTo: Law Religion issues for Law AcademicsSubject: 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 any sort of social consensus that legislatures should start regulating the choices we make in our everyday interactions, on the sidewalks or in our homes -- even where they might be a consensus that some such choices are invidious. "Law does not, in our legal culture, commonly deal withdinner invitations and the choice of children's back-yard playmates." Charles Black, 81 Harv. L. Rev. at 102. Thus, I don't think any of us will live to see the answer to Marc's question (could a state prohibit private persons from discriminating against others on a public sidewalk?) -- the constitutional question will not arise because there is unlikely to be any such statute. 2. On the other hand, we are, of course, familiar with a well-known set of prohibitions on discrimination in public spaces -- namely, public accommodation laws, modeled on title II. Those laws do not prohibit all discrimination in public spaces, but are instead limited to discrimination that has some real, tangible effect on access to meaningful privileges and benefits of public life, including, most obviously, actualaccess to public spaces, events, and the like. Does that extend to prohibiting speakers from excluding certain audiences for speech conducted in a public setting? I think it often does as a matter of statute, and I had thought the cases were fairly uniform thatspeakers in a public accommodation (e.g., an auditorium,a bandstand) can constitutionally be prohibited from discriminating w/r/t their audience; but Eugene is correct that there is some split of authority, including the City of Cleveland v. Nation of Islam case. I do not think the constitutional claim is very strong -- but then again, I think Dale is wrongly decided. 3. Turning to schools: Marc is correct that, in general, antidiscrimination provisio
