Students First Amendment rights in school: Tinker v. Des Moines Independent Community School District

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.

Teacher Salaries Public Information?

The Wyoming Supreme Court ruled yesterday that a Cheyenne school district must disclose their teaches' salaries to the local newspaper.  The case can be found here Laramie County School District 1 v. Cheyenne Newspapers, Inc.

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.

Drug Miners

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.

Be Happy, Not Gay?

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.

Bobby McFerrin wants everyone to happy

 

You guys like sports?

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.

Tim Tebow (the chosen one) in the flesh

 Tim Tebow in the game (if you couldn't tell)

Whatever you do, do not press the red button

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.

Jesse Walstad has a good post this week about the nuts and bolts of what the kill switch is, that can be found here: Freelectrospeech: 1st Amendment in the Digital Age

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.

One nation under ?

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?