The most recent Supreme Court decision on student speech was decided in June of 2007. In Morse a senior at Juneau-Douglas High School, Joseph Frederick, was suspended for holding a banner as the Olympic Torch Relay passed through Juneau, Alaska. The banner read “BONG HiTS 4 JESUS.”The school had allowed students to leave class early that day to watch the relay. After Frederick had revealed the banner the principal confiscated it and suspended Frederick for ten days. Frederick sued the school for violating his First Amendment.
The Supreme Court reversed a decision by the Ninth Circuit Court of Appeals' holding that school officials have the authority to "restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use." The Supreme Court created another new standard that allowed for more authority for schools to punish student speech. The new standard that was created in Morse made it that “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use." The Court held that Fredericks constitutional rights had not been violated.
The Supreme Court created a second distinction from Tinker in Hazelwood School District v. Kuhlmeier. In Kuhlmeier, the principal of Hazelwood East High School removed two articles written by students from the school newspaper. One of the stories described three unidentified Hazelwood East students' experiences with pregnancy; the other discussed the impact of divorce on named students at the school. The principal was concerned over the content of two stories, one that described the experiences of three pregnant Hazelwood high school students and another that discussed the impact of divorce on students at the school. The students sued claiming a violation of their First Amendment rights.
The Supreme Court acknowledged both Tinker and Fraser in their analysis finding that the school was not a public forum and the school had a right to control the paper as part of the schools’ curriculum. The Court ruled in favor of the school district stating "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."
In 1983 in Pierce County, Washington a high school senior Matthew Fraser, gave a speech nominating his classmate Jeff Kuhlman for student body vice president. The speech went as follows:
"I know a man who is firm - he's firm in his pants, he's firm in his shirt, his character is firm - but most [of] all, his belief in you the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts - he drives hard, pushing and pushing until finally - he succeeds. Jeff is a man who will go to the very end - even the climax, for each and every one of you. So please vote for Jeff Kuhlman, as he'll never come between us and the best our school can be. He is firm enough to give it everything." [Long pause after the word "come" on oral delivery, but no comma in the written version, according to Matthew N Fraser]
Fraser appealed through the grievance procedures of his school, but was found to be in violation of a school policy against disruptive behavior. Fraser was suspended for two days from his school and wasn't allowed to speak at his graduation ceremony and his name was taken off the ballot used to elect graduation speakers. Fraser was still elected by a write-in vote but Bethel High School administrators refused to accept it and they denied Fraser the opportunity to speak at graduation. Fraser responded by filing a lawsuit against the school claiming a violation of his First Amendment right and the U.S. District Court ruled in his favor.
The school district then appealed the decision to the US Ninth Circuit Court of Appeals which also ruled for Fraser. The school district asked the United States Supreme Court to consider the case and it agreed to do so. In a 7 -2 decision the Supreme Court reversed the decision of the Appeals Court and upheld the suspension. The Court distinguished this case from Tinker v. Des Moines, which upheld the right for students to express themselves where their words are nondisruptive and could not be seen as connected with the school, the ruling in Fraser can be seen as a limitation on the scope of that ruling, prohibiting certain styles of expression that are sexually vulgar.
In December 1965 in Des Moines, Iowa three teenagers, John F. Tinker his younger sister Mary Beth Tinker and their friend Christopher Eckhardt decided to wear black armbands to their schools in protest of the Vietname War. The principals of the Des Moines schools banned the wearing of armbands to school. Violating students would be suspended and allowed to return to school after agreeing to comply with the policy. These three students chose to violate this policy. All three were suspended from school. A suit was not filed until after the Iowa Civil Liberties Union approached their family, and the ACLU agreed to help the family with the lawsuit. Their parents, in turn, filed suit in U.S. District Court, which upheld the decision of the Des Moines school board. A tie vote in the U.S. Court of Appeals for the 8th Circuit meant that the U.S. District Court's decision continued to stand, and forced the Tinkers and Eckhardts to appeal to the Supreme Court directly. The case was argued before the court on November 12, 1968.
The court decided 7 to 2 that the First Amendment applied to public schools, and that administrators would have to demonstrate constitutionally valid reasons for any specific regulation of speech in the classroom. The court famously stated, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The Court held that in order for school officials to justify censoring speech, they "must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," allowing schools to forbid conduct that would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.The Court found that the actions of the Tinkers in wearing armbands did not cause disruption and held that their activity represented constitutionally protected symbolic speech.
The Executive Editor of the paper said "There was never a doubt in our minds that the salaries and the names are public information."The newspaper thinks that this information will be useful information that the public can use to see how much teachers are being paid and what it takes to raise their pay levels.
The school district is going to comply with the ruling but they don't agree with it. The district had already given out information on how much teachers and employees made but without releasing names. The superintendent said ""The request to produce all of our employees by name, with their current salaries, and so on, is a request that we felt could put some of our employees in jeopardy."
Justice Michale Golden said in his decision that "the public has a right to know how a governmental entity expends public funds." This case I do not understand. If Justice Golden thinks the public has a right to know how money is being spent, why can't they know without names being released? What is the difference if employee 3473 is making $35,000 or if old Miss. Johnson the English teacher is? The School district did put up a weak defense saying that releasing the information could be dangerous for employees who may have a stalker (seriously that was their defense). I think there cold be an easy argument for privacy protection for these employees, and how the same information would be useful without names being attached.
In light of the reading assignment for this week I did a little more research into the topic and found there to be a very recent case on the matter. As we have learned pharmacies sell prescription information to data mining companies who make sense of the information an then sell it on to drug companies and the drug companies in turn use it to sell the public drugs.
Vermont passed a law in 2007 that forbids companies from mining drug prescription records for marketing purposes. The First Circuit Court of Appeals held this law to be constitutional. Vermont won at the Federal Court, but lost at the Appellate level, the court said it violated the First Amendment. The Supreme Court accepted the appeal to this case on January 7 of this year.
The SCOTUS blog put this issue into plain english:
Plain English Issue: Pharmacies collect data regarding what drugs doctors prescribe to their patients, and make that data publicly available (with patient identifying information redacted) for various uses. Does the First Amendment permit a state to prohibit drug manufacturers from using that data to market drugs to doctors? ( http://www.scotusblog.com/case-files/cases/sorrell-v-ims-health-inc/)
Prescription records typically list the name of the doctor and the medications prescribed, these records also include other identifiers such as date of birth, gender and zip code which can be used to re-identify patients. This means that companies can easily search within patients records and obtain deeply private and sensitive information without their consent. Data mining companies argue that putting limits on the use of drug prescriber information infringes on their rights of commercial free speech.
The way this case is decided will have an enormous effect on drug companies and data miners. The physicians side is hoping that this information is kept private and arguing that this is a case of medical privacy. The drug companies are arguing that this is a case of commercial speech. The way this case turns out will be really interesting. If the Court views that prescription information is much like medical records and could be protected by HIPAA as medical records are. But if this is public information then it should be allowed to be collected by data mining companies and sold to drug companies.
I feel that a middle of the line solution would be best where some of this information could still be accessed by data miners and sold to drug companies but it would not be so identifiable that information could be used to track an individual. This case will be heard by the Supreme Court on April 26, 2011 and however this case is decided it will have a huge impact on one of our country's biggest industries.
The 7th Circuit Court of Appeals upheld a ruling about two high school students in Chicago wearing controversial shirts at their high school. One student, Heidi Zamecnik, wore a shirt that said "Be Happy, Not Gay." She also chose to wear it one day after a "Day of Silence," a day designed to bring attention to the harassment of homosexual students.
A three-judge panel decided in the case that a school that "permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality." The judges went on to say the school hadn't proved that the shirt caused a substantial disruption and that the words on the shirt weren't "fighting words."
I thought the ruling on this case was ridiculous. I think schools, especially public high schools, should be held to a different standard. I know from my experience that my schools would always tell me what was appropriate to wear or not to wear and that's what I went along with. I would often wear "Dr. McGillicuddy's", the schnapps maker, attire because it was my last name and its delicious and I would get told to turn it inside out. Now that is just a shirt with an alcohol brand on it, these students are going out of their way to make a statement. Outside of school they can wear whatever shirt they like but inside of a high school, especially with the problems we have with violence in schools, there should be rules.
I also don't see how the school couldn't point to their rules of conduct or the student handbook to make the wearing of offensive attire against the rules. I have a feeling the school would act differently if a student wore a "Be White, Not Black" shirt the day after Martin Luther King day. Would the ruling be the same since its not "fighting words" and a school that "permits advocacy of the rights of black students cannot be allowed to stifle criticism of black students."I might be going a little to far with that example but I think it makes my point. I just feel what should be allowed in school should be different then what is allowed outside of school. If you have a differing opinion please let me know.
EA Sports has been making sport video games since I was playing them on a Sega Genesis. Some of their most popular games are based on college sports; NCAA Baseball, NCAA basketball, and NCAA Football (I'm still waiting for Hockey). The NCAA football game is very popular and a big money maker, 100s of millions in sales. To use the colleges, universities, uniforms and team names EA shares undisclosed royalties with the NCAA. Because the athletes in the games are amateur athletes they are not allowed to make anything off the games. In the games everything about the athletes is used except their name; height, weight, likeness, hometown, and jersey number.
Well now certain former college athletes are bringing suit against EA sports for using their likeness and images in their video games. If the suit is successful EA could owe thousands of current and former players millions of dollars. The trial court ruled in favor of the athletes and EA has appealed to the 9th U.S. Circuit Court.
This lawsuit, which was started by one disgruntled player, has turned into a big First Amendment issue. Hollywood movie studios and lots of other entities have gotten involved. EA's argument is that they use the player images to make works of art in the same way as author's, filmmakers and songwriters who also put real people in their novels, movies and songs. In 2010 a judge ruled against EA when they attempted to be granted free-speech protection and dismiss this lawsuit. The judge said that EA had failed to "transform" the players enough to qualify for protection. Even though the names were removed it wasn't enough because it was still obvious who each player was.
The big concern for EA, and especially Hollywood studios and even the Comic Book Defense Fund, who are also involved, is that a ruling against EA will severely stifle artistic expression. One example the lawyers for EA used was the movie Forest Gump would not be allowed to be made because a lot of celebrity images and likenesses were used. I am guessing Southpark would be in a little trouble too.
The lawyers for the athletes argue that EA's games are based on reality and that realism is the opposite of creative expression. This is also a case that a lot of people feel will make it to the Supreme Court.
I found this case really interesting, and not just cause I am a video game nerd. I work for the Compliance Department and UND and we deal with a lot of issues of what our student-athletes can and cannot do and what will violate NCAA rules. I have been playing the college football game in question for a number of years and it is obvious who the athletes are even if the names are removed. But I can not decide where I fall on this issue because I know how important it is for the college athletic system that we do not start paying college athletes, but on the other hand shouldn't they be rewarded if another company is making this much money off of their likeness? Also, is it artistic expression? Does EA have a protected 1st Amendment right to use these likeness and if they are ruled against how will it affect other industries like the movie business. I am very interested to see how this case works out but I ultimately think EA will win but may have to do a better job "transforming" player images in the future.
With the recent events overseas and our discussion in class last week I have been thinking a lot about the possilbity of an Internet "Kill Switch" here in the United States. As with all good arguments there are two sides that both make sense to me. As we discussed in class that shutting down the internet in a time of crisis can easily be seen as a violation of our first admentment rights. The more I thought of it the more I went back and forth. Can't the government already take over the radio and television broadcasts when there is an emergency? Is the internet really that different. I know that the internet is more of an outlet tool and an open forum for expression for people. It is much more of a personal voice then TV or the radio, but is also much more then that, a marketplace, a newstation, a workplace to name a few.
My big question with this debate comes with the line between our safety and our rights and freedoms (Heather Harris is still looking for the line, should be found by class on Thursday). In my opinion we elect people to make the tough choices for us and to make the decisions that keep us best protected. I personally do not have a problem with there being a "big red button" that cuts off the internet if it means protecting our country from an internet based attack. If the choice lies between having the internet cut off for a matter of days or leaving us open to an online attack that could set us back months or years I think I would feel safer knowing that someone could protect us from that.
I understand that this could open up a "slippery slope" argument and that if internet access can be controlled then whats next. I am interested to hear more about why people would be strongly opposed to the "kill switch" idea. On a side note I know that it would much more difficult to have a "kill switch" in the US then it was in Egypt because of the complexity of the system but the idea I think will be more of reality in the future.
I am going to deviate away from music for this week. I read this article about a case against a judge in Ohio http://www.firstamendmentcenter.org/news.aspx?id=23850. The case is about judge who displayed a poster of the Ten Commandments in his court room. The poster was titled "Philosophies of Law in Conflict" and it showed the Ten Commandments in a column listed as "moral absolutes" and secular humanist principles in another column listed as "moral relatives."
The Judge argued that he sees a conflict of legal philosophies in the United States between moral absolutism and moral relativism and that he believes legal philosophy must be based on fixed moral standards. At the bottom of the poster frame, readers are invited to obtain a pamphlet further explaining the Judge's philosophy.
The panel of judges ultimately decided that "replacing the word religion with the word philosophy does not mask the religious nature" and ordered the removal of the poster.
Reading this article brought to mind a number of things. I completely understand the ruling here and the separation of Church and State is an important part of our country's makeup. But it made me wonder if there was a way to have both. The judge in this situation was trying to pass of his religious beliefs as philosophy, and maybe would of been more believable if he hadn't hung a different Ten Commandments poster in 2000, but is there an argument that would allow the display of religious items? Cases and situations seem much more prevalent in the past decade or two with people speaking out against open religious displays especially when it is tied to the government at all. It feels to me, and I am not a very religious person, that if we keep moving in this direction where any form of religious displays or acts are not allowed that we will eventually not make anyone happy by trying to make everyone happy.
This has always been a really difficult argument as I see both sides. People want to display their beliefs and other people don't want to feel like someone else's beliefs are being shoved in their face. But my personal feeling is the more the merrier. I have always seen the freedom of religion in this country as that, freedom to worship in the way you see fit. If you don't want to say "under God" in the pledge of allegiance don't say it, or fill in any name you want for God but don't get rid of it all together. If you don't want to say "Merry Christmas" then don't, say Happy Holidays or Hanukkah or whatever but lets not hide from the fact that people have different beliefs. I think it should be celebrated.
I agree with the outcome in the case about the Ohio Judge as I don't think it has a place in the courtroom. This case just got me to thinking that more we chip away at what is allowed and what is politically correct and socially acceptable are we taking away from people's first amendment right of freedom of religion?
The blushing bride she looks divine
The bridegroom he is doing fine
I'd rather have his job than mine
When I'm cleaning windows
These are the lyrics from GeorgeFormby's "When I'm cleaning Windows." This song was banned in 1940 from BBC radio for these "smutty" lyrics as they were called. If "When I'm cleaning Windows" was on XL93 today, well it would be hilarious, but there is no wayIt would be seen as vulgar if anything it would be incredibly tame compared to what is on the radio now. Radio stations today still censor songs, they mute curse words and have radio friendly versions (see Cee Lo's recent hit "Forget You," the non-radio version has some different lyrics). Today's standards in what makes the radio has changed a lot from George Formby's day, and song's still get edited, and beeped, and banned, but the standard has changed. We still get to hear Lil Jon say "skeet skeet" and Britney Spears asking us "If U seek Amy" and pretty much every song by Eminem. What I am wondering is it even necessary anymore. Do the radio stations need to censor the music we hear? I understand that you should be able to turn on the radio and not have to worry about your young ones hearing curse words or adult themes in their music. But that same kid can find and download that song unedited in a matter of seconds. If anything listening to a song on the radio that has a bunch of lyrics muted would make me want to hear the original version. Is there going to come a point when we are so neutralized to what would be called "vulgar" music that it just won't matter anymore? Will the bar ever get low enough that anything will fly on the radio? I don't even think I would notice if they stopped censoring music on radio stations, and after a while I really don't think many other people would either.
(Cause I know you were curious here is George Formby's "When I'm cleaning windows")
In 1985 a committee was formed to increase parental control over what music was available to children. The Committee was formed by Tipper Gore, Al Gore’s wife, Susan Baker, wife of then Treasury Secretary James Baker, Pam Howar and Sally Nevius, wives of a Washington realtor and a Washington City Councilman respectively. This group was known as the Washington Wives, the committee was called the Parents Music Resource Center (PMRC).
The artist to blame for the creation of this group is none other than Minneapolis’ own Prince. Tipper bought the album Purple Rain, great album by the way, for her daughter. When she heard the song “Darling Nikki” about a girl who liked herself a little too much, she was outraged. She started watching more videos and listening to more music and then set the group into action.
The PMRC wanted to create a rating system and offered various other alternatives including; that song lyrics be printed on the album covers, records with obscene covers be placed under the counters of record stores, record companies should reconsider their contracts with performers who displayed sex or violence during shows or on records, radio stations be furnished with lyric sheets, backward masking be banned from all songs, and music videos be rated according to both lyrics and performances.
The Recording Industry refused to give in to the PMRC and refused to be censored a letter was sent stating: "Explicit is explicit... There are just no ‘right/wrong’ characterizations, and the music industry refuses to take the first step toward a censorship mode to create a master bank of ‘good/bad’ words or phrases or thoughts or concepts" (U.S. Senate 1985:103; cf. Kaufman 1986:230). This eventually led to a Senate Hearing on September 19, 1985.
Tipper Gore took the stand and said that the PMRC wanted record companies to voluntarily label their products stating that voluntary labeling is not censorship. The PMRC attempted to point out all the negative influences explicit music had on children.
The musicians were represented by an odd trio, Frank Zappa, Dee Snider of Twisted Sister, and John Denver. I would write out all of their arguments against censorship but I think the videos do a better job.
The PMRC came out with a victory as after the hearing the record Industry agreed on a voluntary labeling system, but I have always thought of this as a great representation of artists fighting back against censorship. Frank Zappa's reads the 1st Amendment in his testimony, and anything that can bring Zappa, Dee Snider and John Denver together on the same stage bench can't be right.
