RE: Lesser protection for religious advocacy
Maybe we should separate the two questions being asked here, to wit: 1. Can't the state regulate the use of it's property?, and 2. Can't one say that failure to do so might amount to state action? Even if the answer to the latter question is, No, that still leaves the first question. Public schools are not completely open public fora, like streets, and I don't read Tinker to say otherwise. It seems to me the question boils down to how much and what type of regulation may be imposed either in the classroom or in the school but outside the classroom, given that neither school setting is a full free speech zone, and that both involve non-mature (here I think I differ with Eugene) captive audiences (given compulsory attendance). It's not entirely clear to me that messages admonishing the only-Jewish-recipients to find Jesus (assuming that's what these were) are, as someone else described them, discussions of religion or theology, or even discussions. Whether they are nevertheless protected by the Free Speech guarantee, so that a public school that chooses to curtail this private speech is prohibited from doing so, is still debatable. Does Tinker say that schools can only limit speech so inciteful that it threatens a breach of the peace? If so, how is the school different from a public street? Robin Charlow Hofstra University School of Law Hempstead, New York 11549 email: [EMAIL PROTECTED] phone (516) 463-5166 [EMAIL PROTECTED] 11/10/2004 11:58:32 AM I agree that the application of the principle has to be carefully thought through. I think that the totality of the facts in the particular case control the application. We have long understood that the rules that apply in the common schools are different than the rules that apply elsewhere. In that context, one can safely say that the schools cannot, by inaction, permit this sort of targeted leafleting. There is no slippery slope here unless the Supreme Court cases on religion in schools are all wrong. -Original Message- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 5:24 PM To: 'Law Religion issues for Law Academics' Subject: RE: Lesser protection for religious advocacy The idea that the govt is responsible for all that it does not prohibit must be treated with great care. It has the potential of making govt responsible for all of life, and of eliminating the sphere of private action. Taken far enough, it is totalitarian. Thus, for example, the argument I heard at one AALS section meeting that Catholic refusal to ordain women as priests violates the 14th Amendment, because the govt's refusal to extend anti-discrim laws to churches results in church discrimination being state action. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: marc stern [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 2:14 PM To: 'Law Religion issues for Law Academics' Subject: RE: Lesser protection for religious advocacy That the failure to regulate might constitute state action-as in failing to ban private segregation- was one of the most hotly contested issues of the mid-sixties civil right litigationTHE Supreme court ,if my memories of law school are reliable, always dodged the question. It largely became moot as a result of the 1964 civil rights act. Marc Stern _ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, November 09, 2004 5:05 PM To: [EMAIL PROTECTED] Subject: Re: Lesser protection for religious advocacy In a message dated 11/9/2004 5:00:06 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Can't the state regulate the use of its property? Can't one say that failure to do so might amount to state action? Seems at least plausible that if you can make that work, you can find state action in the failure of a local government agency to prevent assaults on public sidewalks. After all, they are public property. Jim 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: UW Service requirement
Isn't this situation analogous to Rust? The government subsidizes the speech it prefers, in Rust by paying the speaker only to convey its approved messages, here by awarding academic credit only for its approved activities. Whether it's right or wrong to consider religious service community service, the government, at least under Rust, gets to make that choice, no? Rust did also say that the university is a traditional sphere of free expression so fundamental . . . that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines, but it's not clear how that proviso would apply here. [EMAIL PROTECTED] 11/10/2004 5:25:16 PM Well, it does come back to the disagreement, but it highlights yet another problem with the OK to discriminate against religion school. Such discrimination often involves the government saying that some viewpoints -- religious ones -- are not a community service, while other viewpoints -- secular political ones -- are. It seems to me to be an impermissible judgment for the government to make, as to student speech. Perhaps there should be some more protection for religious speakers than just nondiscrimination (though I'm skeptical about that). But surely there should be at least that protection. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Wednesday, November 10, 2004 2:06 PM To: Law Religion issues for Law Academics Subject: Re: UW Service requirement Comes back to the disagreement mentioned by someone else earlier -- religion is a special case in all respects. Non-discrimination is not sufficient. On Wednesday, November 10, 2004, at 04:06 PM, Volokh, Eugene wrote: Hmm; can a university really say that converting people to a belief about gun control, or animal rights, or environmentalism is a community service, but a belief about following some religious moral code, and some religious route to salvation is not? Is the government entitled to value persuasion to some such viewpoints more than persuasion to other such viewpoints? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Wednesday, November 10, 2004 1:01 PM To: Law Religion issues for Law Academics Subject: Re: UW Service requirement Well, one might be a community service and the other not. Providing a forum for and presentation of political discussion and viewpoints is not the same as doing that for a particular religion. Steve On Wednesday, November 10, 2004, at 03:41 PM, Volokh, Eugene wrote: Seems to me hard to see how a university can give community service credit for student speech advocating controversial political viewpoints (presumably viewpoints of the student's own choice), but deny credit for student speech advocating controversial religious viewpoints. I recognize that the university might take the view that persuading people to support gun control is a community service, but persuading people to accept Jesus is not -- but I don't think it can discriminate among student causes based on that viewpoint. Eugene -- 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 Lay not up for yourselves treasures upon earth, where moth and rust doth corrupt, and where thieves break through and steal; but lay up for yourselves treasures in heaven, where neither moth nor rust doth corrupt, and where thieves do not break through nor steal. For where your treasure is, there will your heart be also. Matthew 6:19-21 ___ 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. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ There are obviously two educations. One should teach us how to make a living and the other how to live. James Truslow Adams ___ 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
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
