Changes

Free speech is often in the news as the Supreme Court considers the constitutionality of new regulations to limit political contributions and expenditures.  It is also in the news as schools consider whether students may wear T-shirts that protest President Bush.

Free speech is often in the news as the Supreme Court considers the constitutionality of new regulations to limit political contributions and expenditures.  It is also in the news as schools consider whether students may wear T-shirts that protest President Bush.

The rights of criminal defendants has repeatedly been in the news as the Supreme Court surprisingly accepted an appeal by inmates at Guantanamo Bay, who have been held for over two years without a trial and are being denied access to American courts.

The rights of criminal defendants has repeatedly been in the news as the Supreme Court surprisingly accepted an appeal by inmates at Guantanamo Bay, who have been held for over six years without a trial and are being denied access to American courts.

Gender equality is in the news in the fight over Title IX and college sports.  I have written and filed an amicus curiae brief on this matter before the D.C. Circuit.  I will explain further below.

Gender equality is in the news in the fight over [[Title IX]] and college sports.  I have written and filed an [[amicus curiae]] brief on this matter before the [[D.C. Circuit]].  I will explain further below.

There are two other issues that will have to wait until the next lecture: abortion and racial equality.  Both issues have had enormous impact on American politics.  [[Abortion]] has been influential since 1973, when Roe v. Wade invented a constitutional right to abortion.  Many voters decide who to vote based on it, and the pro-abortion media distorts its coverage of candidates based on their views on this single issue.

There are two other issues that will have to wait until the next lecture: abortion and racial equality.  Both issues have had enormous impact on American politics.  [[Abortion]] has been influential since 1973, when Roe v. Wade invented a constitutional right to abortion.  Many voters decide who to vote based on it, and the pro-abortion media distorts its coverage of candidates based on their views on this single issue.

'''II. The Establishment Clause'''

'''II. The Establishment Clause'''

The “Establishment Clause” is the very first clause in the Bill of Rights:  “Congress shall make no law respecting an establishment of religion ....”

The [[Establishment Clause]] is the very first clause in the Bill of Rights:  “[[Congress]] shall make no law respecting an establishment of religion ....”

For most of us, the Bible is the source of knowledge and its moral rules are the source of American law.  The Ten Commandments are the best set of specific, formal rules of conduct ever devised.  Our country was founded on its principles, and our legal system is guided by its wisdom.

For most of us, the Bible is the source of knowledge and its moral rules are the source of American law.  The Ten Commandments are the best set of specific, formal rules of conduct ever devised.  Our country was founded on its principles, and our legal system is guided by its wisdom.

The Supreme Court announced it would apply the Clause against the states, but then appeared reasonable in deferring to the states.  The Supreme Court thereby opened the door but stood outside to make it look friendly.  Only later did it enter and beginning demanding that states end prayer and take down the Ten Commandments.

The Supreme Court announced it would apply the Clause against the states, but then appeared reasonable in deferring to the states.  The Supreme Court thereby opened the door but stood outside to make it look friendly.  Only later did it enter and beginning demanding that states end prayer and take down the Ten Commandments.

55 years ago, students in public high school in New Jersey recited the “Our Father” ever morning.  States were then free to do this, and schools were much better because of it.  But in 1962, in Engel v. Vitale, the Supreme Court applied the Establishment Clause to abolish school prayer.   

55 years ago, students in public high school in [[New Jersey]] recited the “Our Father” ever morning.  States were then free to do this, and schools were much better because of it.  But in 1962, in ''[[Engel v. Vitale]]'', the Supreme Court applied the Establishment Clause to abolish school prayer.   

In 1973, the federal court of appeals for the Tenth Circuit (which includes Colorado and Utah) allowed a permanent 3x5-foot granite monolith inscribed with a version of the Ten Commandments and other religious symbols.  Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir. 1973). More recently, the federal Court of Appeals for the Third Circuit (which includes New Jersey and Pennsylvania) permitted a plaque honoring the Ten Commandments to remain on a courthouse wall.  Freethought Soc'y v. Chester County, 334 F.3d 247 (3d Cir. 2003).

In 1973, the federal court of appeals for the [[Tenth Circuit]] (which includes Colorado and Utah) allowed a permanent 3x5-foot granite monolith inscribed with a version of the Ten Commandments and other religious symbols.  Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir. 1973). More recently, the federal Court of Appeals for the Third Circuit (which includes New Jersey and Pennsylvania) permitted a plaque honoring the Ten Commandments to remain on a courthouse wall.  Freethought Soc'y v. Chester County, 334 F.3d 247 (3d Cir. 2003).

“Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports.  In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men & citizens.”  So wrote President George Washington in his historic Farewell Address, published five years after the passage of the Bill of Rights.  Philadelphia Daily American Advertiser, Sept. 19, 1796.

“Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports.  In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men & citizens.”  So wrote President George Washington in his historic Farewell Address, published five years after the passage of the Bill of Rights.  Philadelphia Daily American Advertiser, Sept. 19, 1796.

Flag burning is now free speech.  So are political expenditures.  Spending by a political candidate of his own money on his own campaign is free speech.

Flag burning is now free speech.  So are political expenditures.  Spending by a political candidate of his own money on his own campaign is free speech.

Commercial speech can be protected now too.  A federal judge invalidated the “do not call” registry because he said it violated free speech of companies wanting to make the calls.

Commercial speech can be protected now too.  Certain types of advertisements, such as ads for legal or medical services, cannot be prohibited.

Free speech can include the right to hear.  It can include a right to publish the laws.  When combined with free press, it can protect newspapers who seeking to publish governmental secrets.

Free speech can include the right to hear.  It can include a right to publish the laws.  When combined with free press, it can protect newspapers who seeking to publish governmental secrets.

The right to free speech can even protect lies about public officials.  Ronald and Nancy Reagan could not sue CBS and expect to win concerning the lies it was going to air in the docu-drama.  If you are a public figure, then others have a free speech right to make outrageous claims about you.  Only if the statements were made with malice, like a deliberate disregard for the truth, is a public figure allowed to recover damages for a lie spread about him or her.

The right to free speech can even protect lies about public officials.  Ronald and Nancy Reagan could not sue CBS and expect to win concerning the lies it was going to air in a docu-drama.  If you are a public figure, then others have a free speech right to make outrageous claims about you.  Only if the statements were made with malice, like a deliberate disregard for the truth, is a public figure allowed to recover damages for a lie spread about him or her.

You may agree with some or all of the expansions of free speech rights above.  In general, conservatives and liberals tend to support broad free speech rights, and for that reason free speech has greatly expanded.  Only pro-government moderates tend to oppose free speech in politics.  Can you think of an example of someone famous who opposed free speech?  (Answer: President John Adams and the Sedition Act; also Justice Oliver Wendell Holmes in Schenck v. United States (1919), p. 346); note that kings tend to oppose free speech as well.)

You may agree with some or all of the expansions of free speech rights above.  In general, conservatives and liberals tend to support broad free speech rights, and for that reason free speech has greatly expanded.  Only pro-government moderates tend to oppose free speech in politics.  Can you think of an example of someone famous who opposed free speech?  (Answer: President John Adams and the Sedition Act; also Justice Oliver Wendell Holmes in Schenck v. United States (1919), p. 346); note that kings tend to oppose free speech as well.)

Conservatives strongly oppose one type of expansion of free speech, however: pornography.  Many liberals oppose it also.  But a lawyer who represented the pornography industry (Abe Fortas) was a friend of President Lyndon Johnson, who appointed him to be a Supreme Court Justice.  Pornography, like gambling, has a devastating effect on the minds of those taken in by it.  And there is an enormous amount of money and profits pushing pornography on the public.

Conservatives strongly oppose one type of expansion of free speech, however: pornography.  Many liberals oppose it also.  But a lawyer who represented the pornography industry (Abe Fortas) was a friend of President Lyndon Johnson, who appointed him to be a Supreme Court Justice.  Pornography, like gambling, has a devastating effect on the minds of those taken in by it.  And there is an enormous amount of money and profits pushing pornography on the public.

Speaking of gambling, is it free speech?  Why not?  (It’s more conduct than speech, and thus does not quality as free speech.)

Speaking of [[gambling]], is it free speech?  Why not?  (It’s more conduct than speech, and thus does not quality as free speech.)

'''IV.  Rights of Criminal Defendants'''

'''IV.  Rights of Criminal Defendants'''

However, Presidents Carter and Clinton did succeed in promoting gender equality in college sports, and the issue is on appeal before the D.C. Circuit right now.  While Carter and then Clinton were presidents, the Department of Education issued and expanded a “proportionality test,” which encourages colleges to reduce the proportion of men on their sports teams to the overall proportion of men enrolled as students.  44 Fed. Reg. 71,418.  This encourages colleges to make sure that “intercollegiate level participation opportunities for male and female athletes [be] provided in numbers substantially proportionate to their respective enrollments.”   

However, Presidents Carter and Clinton did succeed in promoting gender equality in college sports, and the issue is on appeal before the D.C. Circuit right now.  While Carter and then Clinton were presidents, the Department of Education issued and expanded a “proportionality test,” which encourages colleges to reduce the proportion of men on their sports teams to the overall proportion of men enrolled as students.  44 Fed. Reg. 71,418.  This encourages colleges to make sure that “intercollegiate level participation opportunities for male and female athletes [be] provided in numbers substantially proportionate to their respective enrollments.”   

The result is that men are cut from college sports until their percent participation is the same as their percent enrollment.  This is difficult because most colleges are predominantly female.  Howard University recently eliminated both its wrestling and baseball teams to reduce its percentage of male athletes.  Mark Asher, “Howard Drops Baseball, Wrestling,” Washington Post, D1 (May 23, 2002).  

The result is that men are cut from college sports until their percent participation is the same as their percent enrollment.  This is difficult because most colleges are predominantly female.  Howard University eliminated both its wrestling and baseball teams to reduce its percentage of male athletes.  Mark Asher, “Howard Drops Baseball, Wrestling,” Washington Post, D1 (May 23, 2002).  

The media discusses this issue under the name of “Title IX” of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681-1688.  It requires that no one “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance” on account of sex.  But it also says that  “[n]othing contained in . . . this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federal program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area.”  20 U.S.C. § 1681(b).

The media discusses this issue under the name of “Title IX” of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681-1688.  It requires that no one “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance” on account of sex.  But it also says that  “[n]othing contained in . . . this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federal program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area.”  20 U.S.C. § 1681(b).