Tag: first amendment

Origins of a Dream

Posted on | by Sam

Every year, we pay tribute to the legacy of Martin Luther King Jr. with school assemblies, community programs and – to the delight of students and teachers alike – a national holiday. Yet how many of us directly connect Dr. King’s heroism and accomplishments to his faith in – and use of – the five freedoms of the First Amendment?

Consider the August 28, 1963 March on Washington for Jobs and Freedom, the iconic rally that introduced King’s “I Have a Dream” speech to white America – he had delivered those lines to black audiences many times before – and produced the most memorable petition for a redress of grievances in the nation’s history. Nearly every American is familiar with King’s speech that day. Many of us were asked to memorize it as students. But few if any of us were also taught about that day – and the Civil Rights Movement – in the specific context of our founding principles as a nation.

At the time, Congress was wrestling with whether or not to pass President John F. Kennedy’s civil rights legislation, and young and old people across the country were being jailed for peacefully assembling to protest the South’s policies of institutional racism. And although African American leaders had talked for more than twenty years about staging a national march for civil rights in Washington, one that could harness all the energy and persuasive power of the movement thus far, the decision to have the march on August 28, 1963, was not finalized until July 2; that meant march officials had less than two months to coordinate, transport, organize, and prepare for the thousands – maybe even tens of thousands – of marchers they expected.

The organizers rushed to plan the march so it could occur while Congress was still debating the president’s civil rights program. They also wanted the march to coincide with the centennial celebration of the Emancipation Proclamation, the January 1, 1863 declaration by President Abraham Lincoln, in the midst of the nation’s third bloody year of civil war, “that all persons held as slaves” within the Southern states “are, and henceforward shall be free.”

Almost a hundred years since that war’s end, African Americans were still waiting for Lincoln’s words to be fulfilled. Indeed, although the formal institution of slavery had long since passed, laws discriminating against African Americans had immediately replaced it. In response, march spokesmen promised that the event would be a mass demonstration for freedom, and that the protesters would, peacefully, assemble at and around the Lincoln Memorial. The goal was to pressure Congress to pass Kennedy’s proposed civil rights legislation and to establish 1963 as the year racial discrimination in America ended for good.

Concerned about a backlash in Congress, Kennedy administration officials expressed reservations. Speaking to a Washington Post reporter, Attorney General Robert F. Kennedy sympathized fully with the cause and supported the marchers’ right to petition the government, but wondered if the march would achieve its desired result. “I certainly think at the present time Congress should have the right to debate and discuss legislation without that kind of pressure,” he said. Meanwhile, President Kennedy met privately with the leaders of the march to express his concern that it might damage the chances for passage of the civil rights bill.

According to John Lewis, the Chairman of the Student Nonviolent Coordinating Committee (SNCC) and, at 25, the youngest of the civil rights leaders , the President said: ‘We want success in Congress, not just a big show at the Capitol.’ Publicly, however, the President praised the planned march as a “peaceful assembly for the redress of grievances”–with strong emphasis on the word “peaceful.”

In the weeks leading up to the national march, newspapers ran small stories about violent clashes between civil rights protesters and local authorities in different parts of the country. While white officers wielded clubs and occasionally fired shots, black protesters were arrested by the hundreds – sometimes after demonstrating peacefully, sometimes after throwing bricks or breaking windows.

Meanwhile, the prospect of tens of thousands of black protesters in the nation’s capital–at a time in the nation’s history when racial stereotypes were deeply grounded in ignorance and fear–was enough to prompt some rather extraordinary measures. For the first time since the days of Prohibition, Washington, D.C., banned liquor sales. Fifteen thousand paratroopers in nearby North Carolina were placed on alert. And white journalists peppered black commentators with questions such as, “What is it that Negroes really want?” The African American psychologist Kenneth B. Clark did not shy away from the question. The black community, he told The New York Times three days before the march, wants to “give vitality to the democratic promise by using the machinery of democracy–the courts and the constitutional guarantees of freedom–to press relentlessly toward unqualified equality.”

Like Clark, the leaders of the march understood that the best way to counter the general population’s willful ignorance of racial injustice was by utilizing each of the First Amendment’s five freedoms to appeal to the nation’s conscience. They also realized the fight could not be seen as theirs alone; they had to demonstrate that all Americans had a stake in their success. Consequently, at a press conference in New York on August 18, Rabbi Joachim Prinz, the president of the American Jewish Congress, called on American Jews to join the march. In so doing, he urged, American Jews would also be protecting their own freedom, “for we have long known that no group is secure unless the rights of all are safeguarded.” On August 23, the Catholic Bishops of the United States urged in a joint pastoral letter that Catholics get involved as well, declaring that the conscience of the nation itself was on trial.

That spirit of brotherhood was reflected in the final program of speakers for the march, which began with an invocation from the Catholic archbishop of Washington and included remarks from the clerk of the United Presbyterian Church and the president of the Synagogue Council of America. “America must not become a nation of onlookers,” urged Rabbi Prinz, who was also on the program. “America must not remain silent. Not merely black America, but all of America. It must speak up and act, from the President down to the humblest of us, and not for the sake of the Negro, not for the sake of the black community but for the sake of the image, the idea and the aspiration of America itself.” Prinz’s words reached thousands of television viewers across the country, who tuned in to see images of white, brown, and black faces at the massive assembly. ABC and NBC even broke away from their regularly scheduled afternoon soap operas to join CBS and broadcast the program in its entirety.

The march neared its conclusion when the final speaker – thirty-four-year-old Martin Luther King Jr. – approached the podium. By 1963, King’s eloquence and charisma had led him to become the person most identified with the goals of the campaign for civil rights. By the time he rose to speak, police estimated that the crowd had grown to more than 200,000 people – far surpassing even the most optimistic estimates of the organizers.

Although he had spoken to countless black audiences over the years, most white Americans – including President Kennedy, who was watching the march on TV – had never heard King deliver a complete speech. Aware of the importance of the opportunity before him, King stayed up late into the night before the march, working on the language of his remarks. By the time he put down his pencil, however, he felt the speech was not his best work. Emotionally powerful in some places while politically subdued in others, King’s prepared remarks reflected his conscious decision, given the audience and occasion, to sacrifice some passion in order to achieve the march’s ultimate goal – the passage of Kennedy’s civil rights legislation.

King approached the podium on the steps of the Lincoln Memorial, looked out at the sea of faces silently awaiting his words, and began – still with mixed feelings, one would imagine – to deliver his remarks. Initially, the young preacher followed his prepared speech word for word. But toward the end, the spectacle of the moment, the history of the location, and the historic promises of the man whose marble likeness towered behind him prompted King to wander off the script.

As he began searching for a different note on which to conclude, gospel singer Mahalia Jackson, sitting just behind King on the platform, asked for the refrain of a speech she knew he had given many times before. “Tell ‘em about the dream, Martin.”

So he did. “I say to you today, my friends, that in spite of the difficulties and frustrations of the moment, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident: that all men are created equal.’ I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slaveowners will be able to sit down together at a table of brotherhood. I have a dream that one day even the state of Mississippi, a desert state, sweltering with the heat of injustice and oppression, will be transformed into an oasis of freedom and justice. I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream today.

The rest is history. Yet despite progress, including passage of the Civil Rights Act of 1964 and other subsequent changes in the law, much of King’s vision for America remains unfulfilled today. Indeed, despite King’s plea to his fellow Americans to “lift our nation from the quicksands of racial injustice to the solid rock of brotherhood,” racism and prejudice continue to plague the United States. For an afternoon, however, the image of thousands of peaceful protesters stretched out before a solitary, passionate young preacher gave Americans a glimpse of what Lincoln – the Great Emancipator—once termed “the better angels of our nature.” The New York Times called it “the greatest assembly for redress of grievances in the capital’s history.” And President Kennedy, in a press statement following the march, spoke about the hope the march had embodied: “What is different today is the intensified and widespread public awareness of the need to move forward in achieving these objectives – objectives which are older than the Nation,” he said. “The cause of 20 million Negroes has been advanced by the program conducted so appropriately before the Nation’s shrine to the Great Emancipator, but even more significant is the contribution to all mankind.”

(This story originally appeared in the book First Freedoms: A Documentary History of First Amendment Rights in America.)

Murdering Innocent Sikhs Does Not Make You a Patriot

Posted on | by Sam

Reading the initial reports of the mass shooting in Wisconsin that claimed six Sikh worshipers, I’m reminded of a little-known event from more than a decade ago. Taken together, the two events say a lot about where we are, and who we aspire to be.

It was September 15, 2001. The terrorist attacks that took down the Twin Towers and damaged the Pentagon had just occurred, and everyone felt angry, frightened, and shell-shocked. For Frank Roque, however, mere anger or sadness was an insufficient response; he wanted blood for blood.

Roque, an aircraft mechanic from Mesa, Arizona, spoke ceaselessly in the days after the attacks about “killing some towel-heads” or “slitting some Iranian throats.” On September 15, he spent the afternoon getting drunk at a local bar and openly threatening to “kill Middle Eastern people.”

After getting kicked out of the bar, Roque drove to a local Chevron station owned by a Sikh-American named Balbir Singh Sodhi and fired five bullets from a .38 handgun through the open window of his truck, killing Singh instantly. Later, when police arrested him at his home, Roque offered a simple explanation for his actions: “I’m a damn American,” he said proudly.

Although detailed information about yesterday’s assailant in the Sikh temple has not been released, what has been confirmed is that the gunman was a 40-year-old white man. And I worry that if he hadn’t been killed at the scene, his rationale would have sounded eerily similar to the addled, ignorant patriotism of Frank Roque.

The notion that anyone could think murdering fellow citizens reflects American values tells us a lot about the ways we have failed as a nation to ensure that all people understand, at its core, what it means to uphold those values.

To be sure, extremists like Frank Roque are rare, and there are plenty among us who can distinguish not only between extraordinary terrorists and ordinary Muslims, but also between Islam and Sikhism. And yet it is also true that too many of us believe that some people are more American than others, allowing institutions like a Sikh Temple in Wisconsin to become emblematic of the false notion that there are enemies in our midst.

Since its founding, the United States has been known as the world’s first new nation because it is the only place in human history where one’s standing in the civic order is not determined by bloodlines or kinship, but by a fundamental allegiance to principles and ideals. Anyone can be an American, at anytime, and equally so. We can practice any religion, proselytize any worldview, and promote any cause. And in a way the only guidance we have to do so and not rip each other to threads in the process comes from the 45 words of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Frank Roques among us threaten that social compact by their willingness to threaten the safety and security of their fellow citizens. But the rest of us also play a part when we refuse to heed the implicit instructions woven throughout the First Amendment’s five freedoms – not the right to say whatever we want, but the responsibility to guard the rights of others, especially those with whom we most deeply disagree.

In a better, more hopeful version of who we are, the first people to come to the defense of a brown Sikh minority in Wisconsin will be their white Christian neighbors. The first thing children will learn in school is how to balance individual rights and civic responsibilities.  And the last people to lay claim to being American will be ignorant, violent extremists like Frank Roque.

(This article also appeared in the Huffington Post.)

When it comes to the free-speech rights of teachers, the joke’s still on us

Posted on | by Sam

The good news is that Republican lawmakers in Arizona are now retreating from their recent proposal to require teachers to limit their speech to words that comply with FCC regulations on what can be said on TV or radio — a half-baked idea rightly characterized by one critic as the “most hilariously unconstitutional piece of legislation that I’ve seen in quite some time.”

The bad news is that, Arizona’s foolishness aside, when it comes to the free-speech rights of teachers, or any other public employee, the joke is on us.

The dark days began back in 2006, when a closely divided U.S. Supreme Court handed down a 5-4 ruling in the case Garcetti v. Ceballos. Up to that point, courts had always looked for two things when evaluating a public employee’s free-speech claims: first, whether the person was speaking out on a matter of public concern, and not just some personal grievance; and second, what the proper balance was between the individual’s right to free expression and the employer’s interest in ensuring an efficient, disruption-free workplace.
The legal precedent for this test stemmed from a 1968 Supreme Court case in which a public school teacher had been fired for writing a letter to his local paper in which he criticized budgetary decisions by the local school board. A lower court upheld the school’s decision to fire the teacher, but the highest court in the land reversed. Writing for the Court, Justice Thurgood Marshall was clear: “Absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.”
Then came Garcetti in 2006, a case that began when an assistant district attorney from Los Angeles, Richard Ceballos, wrote a memorandum criticizing the failure of his office to dismiss a case that was marred by false testimony. Ceballos no doubt felt comfortable that his actions would be protected under the existing standard for public employee speech, and, sure enough, the Ninth Circuit Court of Appeals upheld his right to blow the whistle on his superiors. But five Justices of the U.S. Supreme Court disagreed, resulting in not just a dramatic turn of events for Richard Ceballos, but a new categorical exclusion for official, job-related employee speech.
As First Amendment Center scholar David Hudson explains, “The Garcetti decision caused a sea change in public-employee First Amendment jurisprudence, as many employees who speak out on important issues or blow the whistle on corruption no longer have a constitutional claim.”
Sure enough, since 2006 it has become increasingly difficult for public employees to speak out on matters of public concern that relate to their official duties. As Hudson explains, “After Garcetti, the importance of the information is not relevant. Many employees have spoken out on matters of public concern – even rank corruption in the workplace – but if the speech can be classified as official, job-duty speech they have no First Amendment protection.” Hudson says this new climate has led to a new term lawyers use to describe their clients who still seek First Amendment protection. Instead of getting justice, they get “Garcettized.”
So let’s enjoy a short laugh at the foolishness and the poorly-constructed effort of Arizona’s lawmakers to muzzle their state’s public school teachers. And then let’s remember that a more carefully constructed bill may not be as outlandish, and unlikely, as we think.
(This article also appeared in the Huffington Post.)

Require kids to stay in school? Not so fast…

Posted on | by Sam | 4 Comments on Require kids to stay in school? Not so fast…

Anytime you hear government officials mandating new behaviors to a broad swath of the population, that mandate is likely to run afoul of the First Amendment. And so it is with President Obama’s announcement last night that all states must “require that all students stay in high school until they graduate or turn 18.”

Although Mr. Obama made other pronouncements about education — see Dana Goldstein’s good summary analysis in The Nation — the stay-in-school mandate was the one that caught my ear, since enforcing it would run afoul of both the United States Supreme Court and our historic commitment to religious liberty.

The case that established the precedent originated in Wisconsin, where a group of Amish families were convicted of violating the state’s school attendance law by withdrawing their children after they graduated from the eighth grade (the law required kids to stay in school until they turned 16). In the place of further formal schooling, the Amish children were expected to begin vocational apprenticeships in their communities that would better prepare them for the particulars of Amish life (and shield them from the vagaries of high school, which their parents felt would endanger their eventual salvation in the eyes of God).

The Wisconsin Supreme Court upheld the rights of the Amish families, a ruling the U.S. Supreme Court then affirmed. As Chief Justice Warren Burger wrote, “There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. . . [But] however strong the State’s interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests.”

I would imagine that Obama’s logic for the new mandate mirrors the logic that drove Wisconsin’s state officials, who advanced two arguments in support of their compulsory-education law. Referencing the writings of Thomas Jefferson, they pointed out how essential some degree of education is toward preparing citizens to “participate effectively and intelligently in our open political system if we are to preserve freedom and independence.” And they noted that education “prepares individuals to be self-reliant and self-sufficient participants in society.”

The Court accepted the merit of both assumptions — and saw a limit to the logic. “When Thomas Jefferson emphasized the need for education as a bulwark of a free people against tyranny,” Burger wrote, “there is nothing to indicate he had in mind compulsory education through any fixed age beyond a basic education. . . . The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

Consequently, the likelihood that this idea goes beyond last night’s speech is almost nil.  But the bigger issue is our willingness to accept such a simplistic notion about how to solve our school’s dropout crisis. Although there are myriad reasons why young people drop out of school, many do so because they feel uninspired and unengaged. If we begin with that basic fact, the real crime is less that so many children are dropping out, and more that so many of our schools are failing to ignite their students’ passion for learning or adequately prepare them for the world they will enter as adults.

The president’s proposal is therefore merely the latest example of our tendency to craft policies that address the symptom, and ignore the root. And that’s not change I can believe in.

BOOK TV Coverage of We Must Not Be Afraid to Be Free

Posted on | by Sam

This weekend, Book TV aired coverage of the March 19 discussion of my new book We Must Not Be Afraid to Be Free: Stories of Free Expression in America, which occurred as part of this year’s Virginia Festival of the Book.

Aside from a few crowd shots, where it appears people are preparing to have their teeth drilled without novocaine, I think it was an engaging, lively discussion about a topic that is as relevant today as ever. But judge for yourself at http://www.c-spanvideo.org/program/298563-1.

What It Means to be Free

Posted on | by Sam | 1 Comment on What It Means to be Free

On a Saturday evening in March 1919, attorney Robert H. Jackson, age 27, attended a lecture at Jamestown (New York) City Hall.  The lecturer, a lawyer named Winter Russell, was a somewhat prominent American Socialist.  The lecture occurred in a period of global turmoil, devastation caused by the just-concluded Great War and, in the United States, ideological clashes, violence, law enforcement excesses and widespread unease.

Jackson, who had just completed a short term as Jamestown’s corporation counsel and was building a private law practice, attended Russell’s lecture by assignment.  Jamestown’s mayor had appointed Jackson and other lawyers to serve on a committee that evening to “censor” the lecture.  It was anticipated, at least by the mayor and other Jamestown leaders, that Russell’s speech might cause disruption and need to be shut down.

Russell delivered a scathing speech.  He attacked the U.S. government for its recent prosecutions of Socialist Party leaders Eugene V. Debs and Victor L. Berger for claimed crimes that really were, as Russell saw things, right principles and human ideals.  Russell criticized the federal judges who had sentenced Debs and Berger to prison.  But no censorship occurred—Jackson and his colleagues watched, listened and, at the end of the evening, returned to their homes.

Jackson stewed, then wrote.  On Monday, he delivered this letter to the mayor, who was his mentor and friend, and to the Jamestown newspapers:

Dear mayor:

According to the duty which you thrust upon me, I attended the Socialist meeting last Saturday night addressed by Winter Russell, and desire to report to you that so far as I observed, there was no infraction of the letter or the spirit of our laws, and I desire to take this opportunity to decline any further service upon committees of this character and to respectfully suggest that they be discontinued.

The speech at this meeting consisted of a bitter attack upon the government for prosecuting, and upon the courts for convicting Eugene V. Debs for his attacks upon President Wilson and his policy.  He [Mr. Russell] denounced it as an attack upon free speech and complained that Debs was serving a long term in jail, while Theodore Roosevelt had not been prosecuted tho he called the president’s policy “treasonable,” and other attacks by richer and more influential men had passed unnoticed.  He [Russell] concluded with the usual dreamy nonsense about the time when four hours shall constitute a working day.  He predicted that if the government continued its policy of imprisoning men like Debs and Berger, it would bring on a revolution.

I see nothing illegal in any of this.  That we have a right to criticize a conviction was pretty thoroly established when the whole North arose in indignation at the conviction of John Brown, and when Abraham Lincoln made bitter attacks upon the Supreme Court of the United States because of the Dred Scott decision.  I suppose there is nothing treasonable in dreaming about a four-hour day, that is merely moonshine.

I must admit that I never understood why men like Roosevelt and [Senator Henry Cabot] Lodge are immune from laws which condemned Debs and Berger.  Not that I believe Roosevelt and Lodge should be prosecuted, but I believe that a Socialist has as good a right to criticize a Democratic president as a Republican has.  In fact, Mr. Mayor, the whole speech was very moderate compared with those attacks upon the government which I have been reading at the hands of eminent senators and gentlemen.

It is useless for us to have a cold chill every time the Socialists have a meeting.  We have embarked upon a policy as a government of imprisoning people who oppose the government.  Many of our eminent and well meaning citizens are rubbing their hands and saying, “Now that we have Debs in jail and Berger convicted, Socialism will die out.”  So said the Czar when he saw his political enemies exiled to Siberia; so said Louis the Fourteenth before the French Revolution; so said the Sanhedrin when they thought to kill out Christianity by crucifying Christ; so said the priesthood when they thought to kill out the Reformation by inquisitions.

Indignation meetings are the natural result of conviction of men like Debs and Berger, one several times a candidate for president of the United States who polled 897,000 votes in 1912, the last time he ran, and the other elected by the people of his district to represent them in Congress.  I have read somewhat of history, and I just now fail to recall any government which has set about the suppression of unrest by putting popular citizens or class leaders in jail which has not stirred up a revolution, and I do not expect the United States to be any exception to a rule so universal.  The prosecution of Debs and Berger is a tragic blunder.  Sound law perhaps, but bad state policy, provoking class hatred and social unrest.

Mr. Mayor, I am opposed to Socialism and its insidious and vicious policy but I am equally opposed to those short-sighted people who expect to stamp it out by persecution.  I am opposed to spying upon and persecuting and prosecuting and searching the Socialists, for they thrive on it.  No doctrine of military necessity now requires suppressing opposition to the draft.  All that is past.  Appointing smelling committees to go to these meetings merely advertises the meeting.  I think half the joy that the Socialists found in the Winter Russell meeting was in the knowledge that they were being watched, which proved to them that they had finally got under somebody’s sensitive skin and after I had heard the speech, I confess I felt a little ridiculous and I looked at the other members and they looked as ridiculous as I felt.  Mr. Mayor, it is quite time that we quit letting these Socialists make fools of us.

Our forefathers were a canny crowd.  They knew that free speech and a free press constitute the greatest safety valve that can be devised.  They provided for it in this country, that is they thought they did, so that people who have grievances can meet and discuss them and solicit votes and carry on their opposition peaceably.  The inevitable result of suppressing public gatherings and free speech is private gatherings and covert acts of violence and then the mob and then revolution.  In every country which is now suffering from Bolshevism the government has for years tried stamping it out by suppressing free speech, exiling, and imprisoning labor leaders and radicals, preventing public gatherings, and in general adopting the very measures which seem to be getting some standing in respectable circles in the United States.  We cannot adopt one half so drastic a measure against the Socialists as Russia did nor one half so effective, yet Russia failed, as we shall fail if we attempt similar methods.  Bolshevism has gained the least ground in the countries allowing the greatest freedom of discussion and the most ground where most oppressed and penalized.

When Civilization is in convulsions, it seems to me not only petty but rather dangerous to be sitting on the safety valve.  I think that our assumption of the right to censor what shall be said in these workingmen’s meetings is like our conviction of their leaders in that it seems to add to the hatred and bitterness already existing between capital and labor, and that if we desire these two great forces to co-operate we should cease to do these things which provoke antagonism and arouse slumbering hatred.

Very respectfully yours,

Robert Jackson

Jackson, of course, went on to become one of the U.S. Supreme Court’s most stalwart defenders of free-speech rights. But in 1919, still a young man, he delivered this letter on March 17 — a fitting St. Patrick’s day celebration.

(I share this courtesy of John Barrett, a professor at St. John’s Law School, by way of my good friend — and ace attorney — Dave Bowker.)

America’s Political (Dis)Harmony

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I know it’s still January, but I’m already looking forward to March 26, when I’ll visit the National Constitution Center and participate in a program on Civility & Democracy. During that event, which will culminate in a public Town Hall discussion, we’ll have the chance to consider some essential questions of American identity and organization — questions that have been made even more timely in the wake of the public debate following the shootings in Tucson:

  • Is partisan rancor the exception or the rule in American politics?
  • What would the Founding Fathers think of today’s political climate?
  • What factors contribute to eras of extreme partisanship?
  • Is partisanship “bad,” or simply the way democracies work?

I had been reflecting on those questions all weekend — and then in yesterday’s Washington Post I read a new piece by George Will, who was himself reflecting on the history of America’s political disharmony. “What made the American Revolution a novel event,” Will writes, “was that Americans did not declare independence because their religion, ethnicity, language or culture made them incompatible with the British. Rather, it was a political act based on explicit principles. So in America more than in Europe, nationalism is . . .’intellectualized’: ‘We hold these truths to be self-evident.’ Who holds them? Americans. Who are Americans? Those who hold those truths to be self-evident.”

Will suggests we are, at our core, a “disharmonic society” because the ideals of [our] creed are always imperfectly realized and always endangered. For Americans, government is necessary, but “the distinctive aspect of the American Creed is its anti-government character. Opposition to power and suspicion of government as the most dangerous embodiment of power are the central themes of American political thought.”

Agree or disagree?

P.S. Next month, a new book of mine (a narrative history of free speech in America) is coming out. The title, We Must Not Be Afraid to be Free, is a line from a Hugo Black opinion, and the book is largely a trip through his career, and his own evolving understanding of how to strike the right balance, both individually and as an open society, between honoring our freedoms and controlling our fears.

Justice Black — a FDR appointee and, as a younger man in his home state of Alabama, a former Klansman — is remembered as one of the Court’s most vigorous defenders of free-speech rights. And yet at the end of his long career, as he watched the social fabric of the country unravel during the 1960s, Black did an about-face — and began ruling against free-speech claims. His own journey therefore provides a useful window into the personal challenges associated with tolerating the exercise of freedoms when the very act of voicing those ideas runs the risk of tearing us asunder.

Free Speech for Teachers? Think Again . . .

Posted on | by Sam | 1 Comment on Free Speech for Teachers? Think Again . . .

In case you missed it, there was a major case last week involving the First Amendment rights of teachers to make curricular content decisions. And the Sixth Circuit Court of Appeals’ ruling puts another nail in the coffin of the free-speech rights of public employees.

In the most recent case, an Ohio teacher’s contract was not renewed after controversy erupted over a few book assignments she made with her High School English class. As recently as a decade ago, the teacher may have had a legitimate chance in court (although not neccesarily). That’s because, prior to 2006, the U.S. Supreme Court evaluated public employee free-speech claims by using a test with two basic prongs. First, the court would determine whether the speech in question touches on a matter of public concern. If it did not, the teacher would receive no First Amendment protection whatsoever. If the speech did touch on a matter of public concern, the court would proceed to the balancing prong of the test, in which it would balance the teacher’s interest in commenting upon a matter of public concern against the school officials’ interest in promoting an efficient workplace of public service.

Prior to 2006, courts sometimes sided with school officials even though the public school teachers’ speech touched upon a matter of public concern. In one 2001 case, for example, the Eighth Circuit determined that a school principal did not violate the First Amendment rights of three teachers who were ordered to quit talking about the care and education of special needs students. Subsequent appeals in the case acknowledged that the teachers’ complaints about the lack of care for special needs students touched on matters of public concern. Nonetheless, the appeals court noted that the teachers’ speech “resulted in school factions and disharmony among their co-workers and negatively impacted [the principal’s] interest in efficiently administering the middle school.”

Conversely, in 1993 the Eleventh Circuit reached a different conclusion in the case of Belyeu v. Coosa County Board of Education. In this decision, a teacher’s aide alleged that school officials failed to rehire her because of a speech she made about racial issues at a PTA meeting. The aide said the school should adopt a program to commemorate Black History month. Immediately after the meeting, the principal asked to speak with her and told her he wished she had raised this issue privately rather than publicly. A lower court determined that the speech clearly touched on a matter of public concern, but that the school system’s interest in avoiding racial tensions outweighed the aide’s right to free speech. On appeal, however, the Eleventh Circuit reversed, writing that the aide’s “remarks did not disrupt the School System’s function by enhancing racial division, nor, based on the nature or context of her remarks, was her speech likely to do so.”

This is all a precursor to 2006, however, when the U.S. Supreme Court effectively eliminated the free-speech rights of public employees in its 5-4 decision in Garcetti v. Ceballos. As my friend and former First Amendment Center colleague David Hudson explains, since Garcetti “public employers are able to defend themselves against allegations of retaliation by claiming that employees’ criticisms of government operations were made as part of their official duties.”

Indeed, a pattern has emerged in this post-Garcetti world, in which it has become almost impossible to mount a successful First Amendment lawsuit based on speech that relates to the workplace. In other words, a teacher who wishes to claim First Amendment protection for decisions about curricular content must do so knowing that the same protections s/he would be afforded as a private citizen will not apply to anything so directly related to his or her official duties.

Ironically, the 1969 case that is hailed as the high-water mark for student free-speech, Tinker v. Des Moines, features these lines: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.”

No longer.

(Postscript: If you’re a junkie for First Amendment law, check out my three books on the subject, including answers to all of the most frequently asked questions as they pertain to First Amendment issues in schools.)

Why We Celebrate — the (Religious) Origins of the Separation of Church & State

Posted on | by Sam

(In honor of the 4th, here’s a short excerpt from my 2005 book with Charles Haynes, First Freedoms: A Documentary History of First Amendment Rights in America –– about the origins of our commitment to religious liberty. It may surprise you . . .)

When New Amsterdam refused entry to a shipload of Quakers in 1657, the clergy of the Dutch Reformed Church were happy to be rid of them. In a letter to Holland, two church leaders speculated the Quakers had sailed to Rhode Island — “for that is the receptacle of all sorts of riff-raff people, and is nothing less than the sewer of New England. All the cranks of New England retire thither. They are not tolerated in any other place.”

Roger Williams, the founder of Rhode Island would probably have taken that as a compliment. He envisioned Rhode Island as a haven for the cause of conscience, and the colony was the first place in America with no established faith, where every person had full religious liberty. It came as no surprise to him that dissenters, non-conformists, and “cranks” ended up in his colony. Where else could they go?

Williams himself needed a haven. He was one of the “riff-raff people,” banished from Massachusetts Bay Colony in 1635 as a heretic and troublemaker. Why couldn’t Massachusetts Bay Colony tolerate Roger Williams? Ask John Winthrop, the first governor of Massachusetts Bay.

Before reaching the shores of New England in 1630, Winthrop was reputed to have stood on the deck of the ship Arbella to remind his fellow Puritans of their God-given mission in the New World. In his much-quoted sermon “A Model of Christian Charity,” he preached that they had left England prepared to endure many hardships in order to establish “a city upon a hill,” an ideal Christian community for all the world to see.

Most of the passengers listening to Winthrop on the Arbella were reformers who despaired of ever “purifying” the Church of England of what they considered corruptions of Christ’s teachings. Unwelcome and often persecuted in their native land, they traveled to a New World seeking freedom to live and worship as they believed God intended.

But the liberty America’s Puritan forebears sought was religious freedom for themselves–not for others. And dissent from this vision of a “holy commonwealth” was not long in coming. In 1631, only a year after the arrival of the Arbella, a young clergyman named Roger Williams arrived in Massachusetts Bay. Williams’s fundamental objection to the colony was religious in nature. More Puritan than the Puritans, he called for the purification of the colony’s churches. This meant, among other things, complete separation from the Church of England.

Williams expressed his separatist ideas without concern for the political consequences or for his personal loss of position or money. His only abiding interest was to build what he called “a wall or hedge of separation” between the “Garden of the Church” and the “Wilderness of the World.” His concept of an uncorrupted church required a complete separation of church and state. For the church to remain pure, he argued, the government must not be involved in religious matters and churches should not be involved with affairs of state.

Williams also argued that every person must be given the freedom to accept or reject God’s call to salvation. Reason and scripture may be used to convince sinners, he believed, but force must never be used–especially by the state. He reminded his fellow Puritans of Europe’s long history of religious wars and divisions. Imposition of religion by the state, he argued, only leads to persecution and bloodshed.

“It is the will and command of God,” wrote Williams, “that a permission of the most paganish, Jewish, Turkish, or anti-Christian consciences and worships, be granted to all men in all nations and countries; and they are only to be fought against with that sword which is only (in soul matters) able to conquer, to wit, the sword of God’s spirit, the Word of God.”

In other words, Williams was convinced that God required “soul liberty,” because God had created every person with freedom of conscience–the freedom to choose in matters of faith. This vision of religious liberty was in direct opposition to the vision of a new Israel proclaimed by Winthrop on the Arbella.

Given this radical departure from Puritan teachings, it is not surprising that Massachusetts Bay, struggling to survive the harsh conditions of New England and fearful that a hostile king would revoke their charter, banished Roger Williams in 1635. Once forced to leave Massachusetts, Williams founded the new colony of Rhode Island. In an extraordinary break with the precedents of history, the new colony had no established religion. Religious liberty was guaranteed to people of all faiths or no faith. Soon Jews, Quakers, and others not welcome elsewhere made their home there.

Few people in the seventeenth century imagined that this unprecedented experiment in Rhode Island could succeed. A society without divine sanction, especially one that allowed dissent, appeared to most observers to have written its own death warrant. But Rhode Island survived and soon became a haven for dissenters not welcome in Massachusetts Bay.

Roger Williams believed that many of the dissenters who flocked to Rhode Island were wrong in their religious ideas. But Williams’s views about other faiths, even his personal hostility to some, did not affect his wholehearted commitment to “soul liberty” for all who settled in the colony he founded.

God, Williams believed, had given people the right to be wrong.