Are some state laws unintentionally silencing dissent on college campuses?

by Dan | Jul 10, 2019 | Uncategorized

We’ve written countless blog posts about free speech in higher education and on high school campuses, but a new troubling trend seems to be emerging nowadays: state laws designed to protect free speech that, due to their vaguely worded mandates, may actually silence and/or punish those expressing dissent and other forms of counter-speech.

Clearly this is not the intent of these pieces of legislation, but they nevertheless demonstrate the difficulty of navigating free speech laws and college policies while balancing individuals’ rights, regardless of their political beliefs or affiliations. Here are just some of the many examples of potentially problematic free speech protection laws that are either newly in effect or going into effect soon:

“Disciplinary Sanctions”

Alabama recently passed HB498, which effectively bans the existence of designated “free speech zones” on college campuses in the state. On the surface, this seems like a great victory for free speech advocates, but there’s a troubling flip side: the “disciplinary sanctions” that could be imposed against those who interrupt/disrupt someone else’s free speech are incredibly vague.

In other words, we have little idea of what the consequences would be if a counter-protester gets involved. Could they be sued? Kicked out of the college? Arrested? There are few clear consequences outlined in the bill, which could force the college administration, law enforcement officials and/or the state to prioritize one person’s freedom of expression over another’s.

Does the person who began speaking/protesting first get priority? What if they’re both shouting over each other, which arguably fits under this law’s definition of “substantially” disrupting another person’s free expression?

Until these questions are resolved, this law could pose a serious threat to counter-protesters’ First Amendment rights due to the sheer ambiguity of the law itself.

“Interfering” with Others’ Free Speech

In addition to Alabama, Texas recently passed SB18, which substantially increased protections for free speech rights on college campuses throughout the state of Texas. However, the bill poses the same problems as Alabama’s new bill: the consequences of “interfering” with someone else’s freedom of expression are not clearly outlined in the bill.

Specifically, the bill says there could be “disciplinary sanctions for students, student organizations, or faculty who unduly interfere with the expressive activities of others on campus.” While this sounds like a strong protection in favor of free speech, what exactly constitutes “unduly interferes”? Would a counter-protester be considered “unduly” interfering with the original protester’s free expression?

These are just two of the many examples of free speech controversies going on around the country’s college campuses nowadays, but they still serve as important reminders that even well intentioned legislation in favor of free speech can have damaging consequences.

What is reporter’s privilege and how does the First Amendment protect it?

by Dan | Jun 26, 2019 | Uncategorized

Some of the most groundbreaking reports that have been investigated and published by journalists over the past several decades were only possible thanks to a free press concept known as “reporter’s privilege.” According to the First Amendment Encyclopedia, reporter’s privilege refers to the idea that journalists should not and cannot be compelled to reveal their anonymous sources or other confidential information in a court of law.

Although reporter’s privilege is not absolute — and the extent of its protections under the First Amendment remain somewhat murky after the 1972 Branzburg v. Hayes Supreme Court decision — many states have their own constitutional statutes for protecting reporters’ sources and confidential information obtained in the course of their standard reporting duties.

Shield Laws

The concept of a shield law is related to reporter’s privilege because these are legal mechanisms that “shield” reporters against the threat of forcibly publishing or revealing their sources’ identities and other confidential matters. As of 2019, there remains no federal-level shield law protecting journalists, although 49 states and the District of Columbia have enacted their own versions of shield laws to ensure the free flow of information without legally compromising journalists who are simply doing their jobs.

In cases where shield laws did not apply or were not sufficient enough to protect the journalists, some reporters have invoked the 5th Amendment as a means for protecting their sources.

When Are Sources Not Protected?

Reporters’ sources may not be protected in instances where the shield laws are not clearly applicable, such as the recent case of an online journalist in Nevada, who a judge said must reveal his source because he was not previously a member of the Nevada Press Association (note: the Nevada state shield law does not explicitly specify that it only applies to NPA members).

In other cases, a journalist may feel ethically obligated to reveal her source or confidential information. It’s never an easy decision for reporters to withhold information about their interview subjects and other stakeholders involved in news stories, since transparency is another goal of every journalist. But this “privilege” is integral to ensuring a free press in the United States so perhaps it’s time for the federal government to enact its own shield law in line with the First Amendment’s guarantee to a free and independent press.

Should public school dress codes ban political expression?

by Dan | Jun 12, 2019 | Uncategorized

There has been quite a bit of controversy surrounding students’ political expression on public school campuses in recent years.

From the self-proclaimed, Trump-supporting teacher who said she was simply following orders when censoring a student’s “Make America Great Again” T-shirt in a school yearbook photo to the teen who complained against the school after his “MAGA” hat was blurred in his school yearbook, there are multiple debates happening around the country about what public schools should do about their students’ political expression – without risking a violation of their First Amendment freedoms of self-expression.

Unsurprisingly, these are just some of the many school dress code controversies we’ve seen in the news over the past several years, and it’s not isolated to the United States, either. France has had its own share of controversy over so-called “burqa bans” and Austria recently banned Muslim headscarfs in primary schools.

Whether it’s political attire, religious garb, or other contentious forms of students’ expression through fashion, should public schools be doing more or less to regulate what their pupils are wearing while on campus? Let’s examine both sides of the issue as it’s happening in the United States:

Arguments in Favor of Dress Code Bans

Dress code bans in the United States typically revolve around gendered fashion expressions, such as short shorts/skirts and visible bra straps for girls or sagging pants for boys. However, the upswing in political interest among minors has led to these dress code controversies involving political expression (most frequently involving Trump/MAGA, though this trend is unlikely to end when Trump leaves office, regardless of the next president’s political affiliation).

By banning political expression on public school grounds, educators and administrators (as public employees) risk violating students’ First Amendment rights. However, those in favor of these dress code prohibitions on political attire have argued that the existence of any kind of dress code could constitute a violation of a student’s freedom of expression and yet, multiple court cases have upheld the validity of school dress code regulations in other areas.

Additionally, those in favor of the bans argue that politicized attire can detract from learning and/or create a hostile learning environment for some students whose identities are inextricably linked with certain forms of political attire (e.g., Hispanic students or children of immigrants in class with another student wearing a “Build the Wall” t-shirt).

Arguments Against Dress Code Bans

Those who are against schools banning forms of political speech/expression frequently cite the Tinker v. Des Moines Supreme Court case, in which the Supreme Court sided with students who were suspended for wearing black armbands to protest the war in Vietnam. Upon reaching a decision the majority argued, “students don’t shed their constitutional rights at the school house gates.”

Thus, opponents of dress code bans believe there should be few (if any) restrictions on what students can and cannot wear to school when it comes to political attire. This debate will likely go on for many more years without a clear decision covering every case that comes up. But in the meantime: What do you think? Should students be able to wear whatever political clothing they want on public school campuses or should this form of self-expression be banned?

May 2019 Newsletter

by Dan | May 30, 2019 | Uncategorized

Dear Friends,

I spent some time reflecting on a combat deployment yearbook last weekend as I worked on the 4^th draft of a book manuscript. It was appropriate on Memorial Day, not only to consider those who made the ultimate sacrifice, but also to renew my own vigor in response to service. It reminds me of the message I gave troops on Memorial Day in combat. Do we want to truly honor those who laid down their lives? Then we should not only remember them, but we should live our lives in a way to honor their sacrifice. We should not only serve great causes but also contribute to the public discourse as conscientious citizens, whether at the school board meeting, the local VFW, Rotary Club, or faith group. We should model citizenship for our children as a means to demonstrate why democracy requires vibrant citizens. That is a way to really show our appreciation. After all, we like to say that the men and women who gave the fullest measure did so for our freedom. If we believe that, we should exercise that freedom. 

For example, a teacher named Amy recently taught her third grade class about environmental awareness. After explaining some of the hazards that scientists and advocates have pointed out, she challenged the kids to look for ways to make a difference in their own lives. They worked in groups and considered different ideas that might reduce waste in their school, at home, or by helping make adults more environmentally conscious. One of the groups proposed eliminating the plastic milk containers in the cafeteria that use straws and are not made of recyclable material. They asked why the school did not use the traditional recyclable milk cartons that required no straw? Struck by the common sense of the idea, Amy encouraged her students further. They gathered a list of over 400 names on a petition. They sent a letter to the principal, and Amy reached out to the district level official in charge of managing the school’s cafeteria program.

What struck me about this example was how uncommon it seemed. Amy could have simply commended the students for the great idea. She might have mentioned it to her teacher colleagues in the faculty lounge, and that could have been it. Instead, she modeled to the students how civic-minded individuals affect change in their community. The students “learned by doing” after receiving their environmental lesson. And so, the lesson continues throughout the school year. The district level leader addressed the students in class last week. She explained the process of making changes to the procurement system for the cafeteria. She also approved the students to test a pilot program to assess the impact of their idea. The students are also learning that good ideas are only the start of impacting their environment (or affecting any change). Thomas Edison stated that genius was 1% inspiration and 99% perspiration. That’s a good life lesson for citizens. Amy’s students are learning that as well.

While Memorial Day Weekend is a time for reflection, a time to be inspired by examples of tremendous sacrifice, the rest of the year is a time for participation at all levels of community and family. In that way, you will both remember those who have sacrificed as well as honor their memories through your service to the community. Serving something greater than yourself tends to bring happiness in life.

Citizenship is not a spectator sport! If you like our newsletter, please share with a friend!

Steve

2019 National Symposium

#FindYourVoice at this year’s National Symposium where we will explore polarization, its current impact on society, and the role each of us plays.  

Mark your calendars for September in Washington, D.C. As soon as FAV confirms a venue and date, (either September 14^th or 21^st) we will notify all.

Spotlight on our Partners

First Amendment Voice is a community partner for the Global LA Summit held on May 10, 2019, which featured two panel discussions on press freedom. They also hosted a Difficult Conversations workshop featuring Kern Bear the following day. FAV is grateful for the Pacific Council’s partnership and support to raising awareness and inspiring civic action amongst their members. >>LEARN MORE

In the News

This Religion News Service reports on findings of this year’s American Muslim Poll, the fourth annual survey of U.S. faith communities conducted by the Institute for Social Policy and Understanding in Washington, D.C. READ MORE

You may have heard about the controversy over a police raid of a journalist in San Francisco that continues to make national headlines. The following Columbia Journalism Review piece provides an overview. READ MORE

3 important free speech issues in higher education in 2019

by Dan | May 22, 2019 | Uncategorized

The number of headlines about the First Amendment — particularly about free speech issues — are seemingly endless nowadays, but what’s happening on college campuses, specifically, in 2019? Here are three major free speech issues to be aware of this year:

President Trump’s Comments on Free Speech in Higher Education

In a recent speech before the Conservative Political Action Committee, President Trump suggested he might sign an executive order to guarantee free speech protections on college and university campuses — and revoke funding for those institutions if they did not adequately protect every students’ freedoms, regardless of political affiliation.

An issue with this proposed order, a First Amendment rights lawyer explained, is that it could potentially allow the executive branch to unilaterally determine which campuses are pro or anti-free speech. In other words, this executive order could allow the president to pick and choose which colleges and universities should lose funding over free speech issues on their campuses, while others may fly under the radar if the president doesn’t deem their offenses serious enough to warrant a review and possible revocation of federal funds.

Pledge of Allegiance

In the past few years, there have been plenty of controversies surrounding the national anthem. In 2019, the Pledge of Allegiance is back in the news, after a California community college’s Board of Trustees removed the Pledge from its regular proceedings due to what the board’s president described as “reasons relating to its history and symbolism.”

The school was inundated with calls, mail and electronic messages allegedly threatening the Board and the school for its removal of the Pledge of Allegiance. In a late January Board of Trustees meeting, one of the members recited the pledge while holding a small American flag, only to be drowned out by vocal protesters. In another Board meeting just two weeks later, the Board voted to reinstate the Pledge of Allegiance for its regular meetings once again.

Limited Academic Freedom for Adjunct Faculty

A final (ongoing) issue affecting higher educational institutions in 2019 is the adjunct faculty crisis. Adjunct faculty members are paid less (with no benefits) and have substantially less job security than their tenured counterparts (adjuncts can teach multiple classes one semester then find out there are no available classes for them the following semester). Due to this lack of job security, adjuncts are constantly on edge about what they can and cannot say in the classroom, to colleagues, and/or in committee and departmental meetings.

This is arguably an implicit violation of adjunct instructors’ First Amendment rights, as nobody is outwardly telling them what they can and cannot say. Rather, they can be penalized for any unwelcome speech by not having their teaching contracts renewed for another semester. This means that job security is an essential issue for non-tenured faculty in 2019 because it is key to protecting their free speech rights in the classroom and on campus.