Bikini Clad Appearance On Howard Stern's Show Gets a Teacher Sacked

From Overlawyerd:

Second grade teacher Marie Jarry called in sick one day to her job at the Southington, Ct. public schools, which perhaps was not strictly accurate, since the next day she and her husband won first prize in a “Hottest Wife, Ugliest Husband” contest on the Howard Stern show. Now she’s suing over being pressured to resign from her job; school authorities invoked a school “morality clause” and were really mean about the little sick day fib (The Smoking Gun, Jun. 27, with copy of complaint).

Look, as I have said before, the wisdom of doing these type of things by teachers is debatable. But to invoke a morality clause and force a resignation is not a bright idea by the school district.

Jarry is not the first, nor will she be the last, person to take a sick day and do something else while not being actually sick. Let's assume for a moment that the school district fired her for taking a sick day without being sick. Should her punishment be losing her job? What if she had taken a vacation day and done this? What if she had taken a sick day and gone to the beach in this bikini?

What Jarry did was neither illegal or immoral but simply unwise. She did not take off her clothes, she probably wears the bikini to the pool, the lake or the beach. The bikini is neither too small or too vulgar, indeed, based on the pictures at the Smoking Gun, it is relatively modest as bikinis go. What what is the immorality that is being invoked here? Is it the fact that she appeared on the Howard Stern show, where Stern was no doubt into his usual on-air crass self?

This to me illustrates the danger of "morality clauses." It is one thing to invoke a morality clause as the reason for termination if their is a conviction for an illegal act. But Jarry cannot be charged or convicted of appearing on a radio or TV show that has bad taste. But the larger question is whether teachers should be held to such a "higher standard" that they give up some of their otherwise normal rights. Jarry has a right to wear this bikini. She has the right to appear on Howard Stern's show. So the question really is, what is the standard of morality that we are trying to uphold? More importantly, who gets to determine that standard?

In the end, Jarry will no doubt get a settlement since I don't think that there is much legal ground for the school district's actions.

Supreme Court Invalidates Millionaire's Amendment

In an 5-4 opinion written by Justice Alito, the Supreme Court has invalidated the Millionaire's amendment to the McCain-Feingold law, also known as BCRA.

First, the Justices had to determine if the Court had juristiction to hear the case, which it determined it did, largely on the grounds that the issue was one capable of repitition but evading review. Davis had suffered a concrete enough injury to have standing, the arguments of the FEC notwithstanding.

Second, the Court ruled that the Millionaire's Amendment violated the First Amendment. Justice Alito notes that because the increased limits for candidates facing self-financed opponents were the only one permitted increase limits, there is a rather clear equal protection argument and that it impermissibly burdens Davis' right to spend his own money on his campaign. The Millionaires Amendment "requires a candidate to choose between the First Amendment right to engage in unfettered political speech and sujection to discriminatory fundraising limitations." Slip Op. at 12. Justice Alito notes that this is very different from the public funds limitations imposed by the FECA and discussed in Buckley v. Valeo. In Buckley, a candidate who decided to forgo the public funding retained the complete right to spend of his own pocket freely. Under teh Millionaire's amendment, the right to spend freely is abridged by the discriminatory contribution limits imposed on the different candidates. Slip. Op. at 13.

Justice Alito notes that there is not compelling reason for limiting the self-funding of candidate personal funds. There is no corruptive influence. Furthermore, the asserted grounds, that the asymmetrical contribution limits serve to level the playing field is not a legitimate governmental interest.

The Court also rejected the disclosure requirements of the Millionaire's Amendment, which basically stated that because the asymmetrial contribution limits are unconstitutional because there is not legitimate govenrmental interest to support them, it follows that since the dislcosure requirements were imposed only to support the imposition of the asymmetrical limits, the disclosure requirements are also unconstitutional.

The full opinion can be found here.

All in all, I think this is the right opinion. There are a couple of points where I think the Court is a shakier ground. I think that the equal protection arguement is sound reasoning, but the comparison to limits on spending by taking public funding is a little suspect. Clearly, candidates operating under different limits focuses a spotlight on different rules for similarly situated persons--that is equal protection. The different contribution limits is a distincition in kind that simply cannot stand. However, if the law treated all wealth, personal and political wealth (that is treating massive campaign warchests like someone's personal bank account) then you might be on better grounds, although based on the reasoning presented here, I am not sure of that any more.

A number of commentators wondered if the Court would simply reject the case for lack of standing, i.e. that Davis had lost both elections and therefore the issue was moot. I had always thought that the Court was going to have to use the "capable of repetition but evading review" standard to even take a look at this case. I am glad they did.

I have long oppose the Millionaire's Amendment, believing its effect to be nothing more than blatant incumbent protection. To say that I am glad to see it go is a solid victory for the First Amendment.

Off-Campus Blogging Can Lead to On-Campus Sanctions

The School Law Blog linked to a story out of Connecticut in which a student's off-campus speech led to on campus sanctions, namely being disqualified to run for student govenrment office. A suit filed by the girl's parents on her behalf resulted in the lower court ruling that her comments carried a "forseeable risk of substantial disruption" at her high school and thus she was not entitled to a court order reversing her punishment.

Last week, the Second Circuit Court of Appeals upheld the lower court ruling.

In a controversy over the scheduling of a social event at Lewis S. Mills High School in Burlington, Conn., Doninger wrote in an entry in her public blog at the site livejournal.com that "jamfest is cancelled due to douchebags in central office" and that readers should contact the superintendent "to piss her off more."

In reading through the opinion of the Second circuit, I am struck that the judges seized upon the language the Donniger used in her blog posting, noting that schools have a right to control the language used in the schools (which they do) and expanding that scope to language used off-campus or in otherwise public spaces.

The standard that was used, whether the off-campus langauge would come to the attention of the school authorities and carried a risk of disruption of the school, seems misapplied. To be direct, the whole purpose of the blog posting was designed to garner some attention to what appears to be a legitimate greivance and hope to obtain some advantageous resolution. In short, Donniger was lobbying--albeit in a rather crude way.

The problem with the standard that was applied is that it comes from a case, Wisiewski v. Board of Education, which dealt with a case of graphic depictions and possibly exhortations to kill a teacher. The is a massive difference between a violence oriented message and a "lobbying message." Sure, Donniger's intent may have been to irritate the adults, but that is hardly a new state of affairs for adults dealing with teenagers.

Indeed, I wonder if the Court of Appeals were swayed more by the langauge used in the message than the message itself. There may have been some false and misleading information, but is that enough to justify the broad scope given to school administrators to regulate the behavior of their students?

I fear this case will be misread, as it is often said that bad cases make for bad law, coming to stand for the proposition that if an off campus comment, no matter what its intent, will be deemed within the purview of school administrators to discipline the student if it can be construed as affecting school operations. In effect, if the administrators don't like the message, they can claim the right to censor and/or censure the speaker by claiming a disruption.

Let me posit a relatively plausible scenario. A student is bullied on campus--not physical violence, but simply verbal harrassment to the point that the student feels threatened. The student makes a plea to the administration who does nothing, for whatever reason. Then the student posts the events and the school's response on his/her Facebook page and then begs the public and her peers to contact the school and ask them to do something about the bullying. Arguably this is a valid public plea and within the purview of the school to protect this student. however, because the school is inundated with calls and emails, the school sanctions the student by denying her the ability to hold office in her student organization. Assume further that the student does not use offensive language, but is proper and respectful in her pleas.

What is the result? As you can see, the Donniger case could be found to stand for the propostion that the speech of our bullied student could cause a disruption in the school and the school would be within their rights to sanction the student.

There is a broader question of where is the line between sufficiently off-campus activity and more clearly regulated on-campus activity? In the age of modern, efficient and easily discoverable electronic communication, can the line be drawn?

In general, I will always come down on the side of more speech is better speech. I can see the regulation of campus newspapers (I don't like it but I can see it) and/or on campus extracurricular activities or school sanctioned off-campus events (see the Bong Hits 4 Jesus case). But as you can see, there is an increasingly fuzzy line that is extended further and further afield. As you move further from the school campus, the measure of control over student speech becomes less tenuous. We have moved from a school sanctioned event to speech that, if uttered by an adult in a similar situation, would have been clearly protected speech, discusses school decisions. Is the determinative factor the less than polite language (you can hear worse on prime-time TV) and the age of the speaker?

Yes, Donniger could have used better language, but assuming she was completely clean, the message would have been to call teh school and voice your displeasure and that is the disruption.

What kind of message are we sending about the censorship of ideas and speech of young people just because we don't like their tone?

New Mexico Fines Photographer For Not Photographing Same-Sex Ceremony

When I saw this post, I simply don't get what the premise of this ruling is.

Assuming that this is a case solely about commerce (it isn't really since there is an issue of art in commerce). Why can't the photographer simply refuse to take that business and not offer any grounds for it?

I have to assume that the photographer said that she won't photograph a same-sex commitment ceremony and that reason led to the complaint to the state. If that is not correct, then this post is going to be off a bit.

the first question is why not simply decline to take the business. Cite no reason or if pushed say that the time is previously booked. Why cite the same-sex issue?

Second, when did photography become a "public accomodation?" Hotels, restaurants, etc. are accomodations, but not photography.

Third and finally, when did it become the norm for the state to say that a businessman or businesswoman is incapable of determining who will be their clients and who will not. Business owners routinely turn down business for all sorts of reasons. Who is the state to say that a business can or cannot refuse service to someone.

Lots of good stuff at Volokh Conspiracy on this one.

Blogger Protection Act of 2008

Rep. Jeb Hensarling (R-TX) plans to introduce the Blogger Protection Act of 2008 this Thursday, April 3rd.

The bill protects bloggers from dangerous campaign finance regulations. Under the proposed law, bloggers will never be considered to have made a contribution or expenditure on behalf of (or in opposition to) a candidate simply because they link to campaign websites or write about the positions of federal candidates. Additionally, blogs are treated as any other publication under the general media exemption from most campaign finance restrictions. Without such protections, bloggers could be subject to various limitations and reporting requirements under campaign finance law.

The Federal Election Commission (FEC) issued regulations two years ago protecting bloggers from being hampered by these campaign finance laws. But these blogger protections are just regulatory—they are not in statute. As you know, regulations can be changed without congressional action, and there's no telling what a future FEC might decide to do. Furthermore, the FEC is currently defunct because of vacancies and a lack of quorum. Therefore, we shouldn't put the freedom of bloggers in the regulatory hands of the FEC. Congress should protect them in law.

Hensarling will introduce the bill on Thursday. Keep an eye on the Center for Competitive Politics for more.

'Text-Only' Web Obscenity Case Attracts National Attention

Intersting free speech/free press issue and obscenity. The question seems to be whether or not text only websites can be obscene.

The two motions to dismiss presented a strict scrutiny argument and said obscenity laws should not be applied to text where no pictures were involved. Walters said there hasn't been a case that has applied obscenity laws to text since the U.S. Supreme Court refined the test for obscenity in its 1973 case Miller v. California.

The three-pronged Miller test requires that an average person using contemporary community standards would find that the work only appeals to prurient interests, that it depicts sexual conduct as defined by state law and that it lacks "serious literary, artistic, political or scientific value," according to court documents.

Walters said Conti denied his motions to dismiss based on a 2005 ruling by the 3rd U.S. Circuit Court of Appeals in U.S. v. Extreme Associates Inc.

The legal standards in Miller are more than a little squishy (as most Supreme Court tests are). I am not sure if obscenity has been defined as visual media only, i.e. pictures, video, etc., exempting text. I don't think the bar for literary value is very high, but there is a problem.

Apparently these stories by teh defendant depict in words the kidnap and rape of under age characters. But what makes that different from any other work for fiction that depicts the kidnap and rape of characters--the mere fact that one character is underage. We are talking about fictional characters here not real live persons. Posting of pictures or video would probably not pass muster, but have we really gone so far down the high horse morality that we are now offended by mere words?

Odd Response by YouDiligence Owners

a couple of weeks ago, I posted this piece about YouDiligence as monitoring tool that would allow colleges and universities to monitor what their student-athletes post on the web about anything.

I have receive three comments to the post that quite frankly, I didn't expect. One was trying to correct my understanding of how the software operates and made this statement:

Second, let me ask you a question. If a student goes running though the halls screaming "Let's kill all the kikes and niggers", is it censorship to take this student aside and have a discussion with them? I believe it is educators' duty to confront this student.

Now let's consider that the student is screaming these words in Chinese. It should not change the need to have a discussion with this student. All YD does is give educators the power to understand within the public forum, the world of the web. In the case of Chinese student, opaqueness comes from the language. With the web, it is the sheer amount of data out there that creates the opaqueness.

Well, actually pulling a student aside for racial slurs and talking to him is not censorship. But mandating that he talk to someone about his speech is. Monitoring his speech is not censorship per se, but you are one step closer. but it goes futher. The only speech that the university could monitor is public speech, but that speech is protected--even it is racist, uneducated and otherwise offensive. That is the point of free speech.

Then there is this:

Lastly, it is the University's interests that are being served. Over time, a University's reputation and endowment will be much better served by good respectful citizens than by inappropriate, rascist assholes. If users are revealing themselves as such within public spaces, why shouldn't a University have the right to say "we do not want to be associated with a person who behaves as such"?

Yes, the university's interests are being served, possibly at the expense of their free speech rights. A public university may not take any action against any student for the content of that student's speech absent a clear contractual obligation by the student otherwise (and no a student Handbook doesn't count). Something like an athletic scholarship that was clear in its langauge would suffice. But since an athletic scholarship, even if it has a morals and behavior clause, is not likely to be specfic enough, but I am willing to concede it is possible.

Sure, a public university can choose not to associate with a student (and most readers of a Facebook page would never impart a student's words with the stamp of university authority). But the university cannot, absent something significantly more, dismiss a student for racist or stupid language. Nor can they punish a student.

As a tool, I would suspect that YouDiligence is rather neutral in its approach. My guess is that it works like a web search tool, looking for specific combinations of schools names, mascots, players, students and other terms it is programmed to seek and if present notify the designated person. In and of itself, the tool is probably not much more than specific type of search engine. Harmless enough. But is is not the tool that is the problem, but the application of the tool. Univesities of late have not exactly proven themselves as defenders of the freedom of speech and thought. Just take a look at FIRE's Website.

The second comment said this:

We would like to clarify that the person who wrote this post is not part of the company that built, owns and operates YouDiligence(TM) . The opinions of the person expressed while in spirit do match an important part of the mission ( efficient reputation management) -the tone and words used in no way reflect the opinions of GlobalNI Inc. The fact is that people who conduct themselves in certain ways in public are with or without YouDiligence(TM) risking personal and professional consequences- the technology is neutral and defensive not invasive. Additionally there is much false information posted about high exposure individuals and Youdiligence(TM) is also designed to give people situational awareness and empower them to manage exposure that may harm their personal or professional interests. Athletes are not the only people who are exposed.

First, no where on the post or my blog do I indicate that I am in anyway associated with the program or its designers/owners. Similarly, I am not sure if the second comment was referring to the first comment or not. (so if someone from GlobalNI Inc. wishes to clarify I will post those comments in their entirety).

By freedom of speech, as I have said, I do not mean to indicate that the speaker is free of the consequences of their speech to either their personal or professional reputation. A person must be associated with their words and deeds. But the problem I have with this kind of service and its application is the potential for a student-athlete to be punished by the university for their speech. The university cannot (again absent a contractual clause otherwise) punish a student for his/her speech. that does not mean the student can't otherwise be held accountable.

Finally, MVP Sports Media Training posted this comment:

We at MVP Sports Media Training, have the exclusive rights to market YouDiligence(TM) to the collegiate and education markets would also like to get on the record that the person who made the initial post is not part of MVP. Additionally, the initial post includes tone and words that do not reflect the opinion or mission of MVP. We are about helping student-athletes proactively protect their reputations and athletic departments project a positive image. YouDiligence(TM) can be an effective tool to assist with both in the new media era. We welcome further open discussion and debate about this topic.

Again, I don't know if MVP is referring to my original post or the first commenter. As with GlobalNI, I am willing to post verbatim anything MVP sends to me.

I know that image management is an important part of any athlete or athletic department's mission. However, having said that, the Athletic Department is still part of the university community and a public university cannot discipline a student or student athlete for the content of that student's personal Facebook account. As for managing the reputation of a student-athlete-certainly, I will grant that YouDiligence will enable a school to monitor what others might be saying about their student-athletes to manage the reputation. But it is the monitoring of the student-athelte themselves by the school that is troubling. This is from the YouDiligence materials:

YOUDiligence, searches MySpace and Facebook for any potentially damaging material. YOUDiligence automatically notifies you by email should it find questionable written material posted by one of your
student-athletes. What you decide to do with that information is entirely up to you.

It is the last statement is what is troubling?

Perhaps MVP could clarify how it intends the product to be used? What does it envision the University doing with the infromation they receive? Managing reputation is one thing, policing the online thoughts of a student-athlete is a far different thing.

Again, I will be happy to post verbatim anything MVP sends my way.

Dumb Moves by Canada

Note to the Canadian Human Rights Commission, if you want to intimidate someone, don't pick a like Mark Steyn, who has a world-wide audience--it only makes you look stupid.

Back to School for Outspoken Student :: Inside Higher Ed :: Jobs, News and Views for All of Higher Education

T. Hayden Barnes, the Valdosta (Georgia) State University student who was "administratively withdrawn" from the school has been reinstated. Here is the Inside Higher Ed article:

Months after first reviewing the expulsion of a student activist from Valdosta State University, the Georgia Board of Regents agreed to allow T. Hayden Barnes — once dubbed a “clear and present danger” to the campus by its president, Ronald Zaccari — to return to his studies, reversing the university’s May decision to “administratively withdraw” him.

Barnes initially attracted Zaccari’s ire when he publicly criticized the president’s plan to build two parking garages on campus using $30 million of students’ mandatory fees. Besides writing letters to administrators and sending mass e-mail messages, Barnes had posted a collage of images to his Facebook profile that Zaccari took to be a direct threat to his safety. (Other links posted to his Facebook profile included a video contest whose slogan, including the words “Shoot it,” was [mis]interpreted by the administration as a literal call to arms.)

After first appealing to the board, Barnes contacted the Foundation for Individual Rights in Education, which directed him to a lawyer and publicized the case. Just last week, FIRE announced Barnes’s lawsuit against Valdosta State, alleging that it had violated his First Amendment rights.

Here is FIRE's Press Release.Here is more of FIRE's coverage of the case.

Accommodations for Female Muslim Athletes:

Prof. Eugene Volokh has this post regarding female Muslim athletes and accomodations in dress for their religious beliefs. The most troubling item for me in this description is the disparate treatment between one event and other events.

Look, so long as the accomodation is not an distratction and not a competitive advantage, what is the problem?

Hazelwood Case at Age 20

For those of you who don't know, the Hazelwood Supreme Court case gave K-12 school administrators much greater control over the publication of school newspapers produced as part of a co-curricular program, that is not independently produced by the students themselves. The School Law Blog has a round-up and a good collection of links about the anniversary.

I have posted from time to time here about school censorship issues. While I can understand the argument about co-curricular work, I am always troubled when someone, anyone in government, has prior approval rights over anything that would get published. This applies to high school newspapers as well.

Let's assume something objectionable to a principal comes out, well then let the principal make a case and the student journalists defend it. That is a valuable part of the journalistic profession. Similarly, if the student journalists must also learn the lessons of responsible journalism and what better way than if they will face the music for false reporting.

Colleges Have Access to Tool to Monitor Athlete's Web Presence

The Foundation for Individual Rights in Education (FIRE) brings the story of a newFacebook monitoring program , called YouDiligence, that can scan college athletes' Facebook or other social networking sites for objectionable content, including profanity, slang alluding to drug use or sexual content and send an automated report to a relevant school administrator at the college. Sounds positively 1984-ish, right?

As FIRE noted, athletes on an athletic scholarship may have contractual terms that include being held to a higher standard. Now whether that higher standard can include censorship is a legal question that would have to be examined. But FIRE raises a more important question?

Even if increased online scrutiny for student-athletes passes constitutional muster, which is by no means clear,ethical questions about the use of a product like YouDiligence remain: Does the online student speech monitored by YouDiligence really fall under the purview of collegiate athletic departments? What degree of privacy can a student-athlete expect to enjoy? Further, if schools feel comfortable monitoring online speech for athletes, what is to stop them from extending their observations to the general student population?

Now, to be perfectly fair, FIRE often raises the slippery slope argument, but in this case they are right to do so here as well.

Technolocially, YouDiligence may not be able to monitor the Facebook or MySpace pages of the entire student body of a major public university, but that does mean that it would be capable in the future. While the University may have a duty to protect the physical security of its student body, does that duty extend to protecting the public from the words of a student? I think not, but in essence that it what the colleges who consider this progrma are doing? If someone is offended by what a student-athlete or any student says in a Facebook site, what duty does the university owed to the offended person? The university would argue none-and they would be right. So, if you look at the situation from another point of view, if the offended person is defamed by the student, who is liable? It won't be the university. So what is the university really doing here? Not protecting its interests, it is censoring students--plain and simple.

Teen Wins Fight for Antiabortion Club at School - washingtonpost.com

From the Washington Post, a Virginia teenager dropped a lawsuit after school officials reversed their initial decision to not allow an anti-abortion club.

School administrators initially turned down Hoffmeier's request to start the club at Colonial Forge High School on the grounds that it was not tied to the school curriculum. She filed suit in federal court in Alexandria, contending that her proposal could not be denied when other clubs are allowed to form on campus. The suit put a spotlight on an often-misunderstood legal arena involving religion in public schools. Even some advocates of strict separation of church and state say religious speech by students at public school is protected under the Constitution and federal law.

One probably doesn't have to look hard to find clubs that aren't tied to the cirriculum. For example, I don't recall seeing chess on my high school curriculum, but there was a chess club. The list could go on and on.

We are a nation of associations and to deny an voluntary association of students seems a little ham handed. At least someone got a common sense knock on the head and allowed the group to go forward.

Freedome of Speech Does Not Speech Free of Consequences.

I think one of the more interesting items to come out of my views on the Maryland funeral case was the realization that although people claim to believe in free speech, there are a number of people who don't really get it.

I believe that what the Westboro Church was doind was free speech, as dispicable and deplorable as it was. But the fact of the matter is, they have a right to their views and their speech. And, like it or not, this is a case that is likely to end up on the Supreme Court docket and there is a chance that a lot of people are not going to like the result, including the Snyder family. I got two comments on my original post and a couple of nasty emails and I thought it worth addressing a few points.

First, Darren, a blog friend who is also a former military officer noted that reasonable time, place and manner restrictions are permitted on speech and he is absolutely correct. But here is the thing that is missing from all this discussion. The protesters were some 1,000 feet from the funeral on public land. A number of states have laws on the books (Maryland does not from what I have found in an admittedly cursory search), that prohibit any protesting of any type within a certain distace of a funeral for a period of time before or after a funeral. Such laws will essentially be challenged by this case. And as Michael Dorf writes, the laws are likely to be upheld. But a court is going to have to decide how far is reasonable. Thus the crux of the matter.

The Ridger, FCD said that this is not a free speech issue, noting "Your right to free speech doesn't come with a right to go anywhere you want in order to talk." Again, this is like the matter Darren brings up. There are reasonable restrictions on time, place and manner. But the line is fuzzy and hard to discern, especially when it comes to political speech (and like it or not Westboro's speech is political in nature). But inherent in teh freedom of speech is the right to do it where you choose. While the government can impose certain restrictions on the time, place and manner of your speech, it cannot ban it. And if the time, place and manner restrictions are so onerous as to effectively silence your chosen speech or the restrictions so take away your intended audience, then those restrictions are likely to be unconstitutional. So, if a state said groups cannot protest a military funeral like the Snyder's funeral for two days before and two days after the event--that would be too onerous. Freedom of speech implies a certain freedom to be heard. That doesn't mean I have to listen, but I have to allow you to be heard and the government has the same duty.

One emailer clearly has not read this blog to get even a feeling for my views on freedom of speech. This right, above all others, I hold most dear. Sometimes, believing in an ideal makes it really hard to accept that some practitinoers of that right still deserve protection. This emailer, who shall remain anonymous, likened my protection of Westboro as an endorsement of their views. This could not be further from the truth. I don't like the KKK, but I will protect their right to speak. I don't protect their right to harm, threaten or intimidate people. Similarly with Westboro, I don't like their politics and I think their views on the Bible and American policy are narrow-minded and bigoted, but they have a right to their opinions and a right to express them.

But lost on this emailer was an important point and one that I think too many free speech advocates on both sides of the political spectrum forget. Free speech means that you have a right to say what you think, and it is a right that I will defend wtih every fiber in my being. However, free speech does not mean speech free of consequences. Speech can and often does carry consequences, which is why I think that the Snyder case on appeal will actually be a split decision. The Appeals Court will probably say that the damage award for intentional infliction of emotional distress will likely be affirmed, but that shall be the only basis for the award. Westboro will be vindicated in their right to speak their message, but they will not be allowed to speak without consquences.

This important point is lost on many Americans when it comes to our rights. Rights and responsibilities are two sides of the same coin. One cannot expect to exercise a right and then shuck the responsibility that comes with those words. Westboro has a bigoted message, a message that they can speak and have a right to speak, but with that right comes responsibilities and you cannot escape the consequences of your speech by wrapping yourself in the cloak of the First Amendment.

Funeral Award Violates Free Speech

My first reaction to this news about a huge jury award against a church that had protested at the funeral of a fallen soldier, was "Good." But my second reaction was more measured.

Sure, what the Westboro Baptist Church did at the funeral of Matthew Snyder, a Marine killed in Iraq. Westboro believes that the deaths of soldiers are the direct consequence of America's tolerance of homosexuality and gays in the military. The churc is known for protesting a funerals of fallen soldiers carrying placards that read "Thank God for Dead Soldiers" and other messages along the same lines.

The jury had found the Westboro Baptist Church liable for invading the expectation of privacy of the soldier's family and intentional infliction of emotional distress. I am not sure whether the full verdict will hold up on appeal because I am not sure that the family had an expectation of privacy in a public place, but they may still prevail on the intentional infliction of emotional distress.

This is why I am so torn about this case. The church and church members have a legitimate right to free speech and I will defend their right to be idiots, zealots and bigots despite my belief that they are wrong. However, while I don't think the family had a legitimate reasonable expectation of privacy at a funeral occuring in a public place, I tend to think that we can't just give people a free pass on free speech grounds for the consequences that their speech may cause. But by the same token, free speech isn't free if we hold people accountable for words that are not libelous or slanderous.

While as a military man, I don't think Westboro should be exonerated, as a ardent believer in the First Amendment, I think they are entitled to a reversal on appeal.

Sometimes free speech hurts, but as I have said before, freedom of speech is not about the speech we all like, it is about the speech that makes our blood boil and you can't abandon the ideal when it suits your world view.

Crossposted at Red Maryland.

More on U. of Delaware

Mike Adams of Townhall discusses the U. of Delaware concentration camps masquerading as residence halls.

Those who read this blog can see that my alma mater, the University of Maryland has a red light speech warning from FIRE, but the policies that got U.Md. their red light, while egregious enough, certainly don't rise, or rather, sink, to the level of of its neighbor, the U. of Delaware.

While Adams doesn't particularly add anything new to the mix, Adams is a professor in North Carolina and it does make me sad that he didn't add anything from his personal viewpoint on the matter. Certainly, any publicity on this front is good--if for no other reason than to keep the pressure on Delaware's president Patrick Harker to completely dismantle the program.

Diveristy, while it may be a noble goal, is hardly a foundation for indoctrination. During my time at Maryland, "diversity" was shoved down our throats rather frequently. However, the context was far different in that diversity was founded in having to take courses in non-western culture, which I suppose was harmless enough. And while professors were often decidedly liberal in many cases, the student life bureaucracies did not shove liberal drivel down our throats. Of course, my experience may have been different than those of my classmates since I lived off campus (as a former Navy enlisted man I couldn't stomach living in a dorm with 18 year olds living away from home for the first time).

Of course, the oppression that Delaware seeks to make its residents aware of doesn't apply to U. of Delaware itself. Ironic.

More on U of Delaware Thought Police

Should have finished reading, but got to sick to my stomach FIRE - University of Delaware Requires Students to Undergo Ideological Reeducation:

"According to the program’s materials, the goal of the residence life education program is for students in the university’s residence halls to achieve certain “competencies” that the university has decreed its students must develop in order to achieve the overall educational goal of “citizenship.” These competencies include: “Students will recognize that systemic oppression exists in our society,” “Students will recognize the benefits of dismantling systems of oppression,” and “Students will be able to utilize their knowledge of sustainability to change their daily habits and consumer mentality.”"

But apparently University of Delaware cannot spell IRONY. Their system of oppresion does not apply.

University of Delaware's Thought Police

As usual, FIRE is on the case:

The University of Delaware subjects students in its residence halls to a shocking program of ideological reeducation that is referred to in the university’s own materials as a “treatment” for students’ incorrect attitudes and beliefs. The Orwellian program requires the approximately 7,000 students in Delaware’s residence halls to adopt highly specific university-approved views on issues ranging from politics to race, sexuality, sociology, moral philosophy, and environmentalism. The Foundation for Individual Rights in Education (FIRE) is calling for the total dismantling of the program, which is a flagrant violation of students’ rights to freedom of conscience and freedom from compelled speech.


“The University of Delaware’s residence life education program is a grave intrusion into students’ private beliefs,” FIRE President Greg Lukianoff said. “The university has decided that it is not enough to expose its students to the values it considers important; instead, it must coerce its students into accepting those values as their own. At a public university like Delaware, this is both unconscionable and unconstitutional.”


The university’s views are forced on students through a comprehensive manipulation of the residence hall environment, from mandatory training sessions to “sustainability” door decorations. Students living in the university’s eight housing complexes are required to attend training sessions, floor meetings, and one-on-one meetings with their Resident Assistants (RAs). The RAs who facilitate these meetings have received their own intensive training from the university, including a “diversity facilitation training” session at which RAs were taught, among other things, that “[a] racist is one who is both privileged and socialized on the basis of race by a white supremacist (racist) system. The term applies to all white people (i.e., people of European descent) living in the United States, regardless of class, gender, religion, culture or sexuality.”

FIRE has more links and more of the story.

Um, free speech on campuses is becoming more and more an oxymoron of staggering proportions.

Valdosta State Expulsion

FIRE has the story and of all the stories of censorship and violations of freedom of speech on college campuses, this one is by far the worst I have ever read. A student who was protesting the construction to two parking garages using student fees. T. Hayden Barnes had his mental health questioned, was followed around campus by plain clothes policemen and uniformed police.

Barnes was expelled all for peaceful protests. Raise you head and open your mouth and get slapped down.

Hopefully heads are going to roll at Valdosta State, starting with President Ronald Zaccari.

Comments on William & Mary's Speech Code

From Eugene Volokh.

On reflection, I think I should have faulted William & Mary more for what sounds like an unconstitutional speech code (quite independently of whether it is to be enforced using confidential complaints). ...

Thus, for instance, condemning a particular student's or professor's religious or political views in any way that is "hostile" — even if it isn't threatening or "fighting words" — would seemingly be punishable, if it's "aimed at" or "directed at" the person. This might be limited to statements said to a particular person; but it might also be read as covering statements said to the public at large in a newspaper or a Web post about a particular person (depending on how "directed at" and "aimed at" is read). The Statement of Rights and Responsibilities seems considerably more speech-protective, and the "Bias Reporting" page restricts its statement about unprotected speech to speech that violates the Statement of Rights and Responsibilities. But the Statement is not crystal clear about what is protected, and the "Bias Reporting" page may be seen as an elaboration on the Statement that makes certain speech punishable.

So William & Mary should, I think, be faulted for seemingly instituting a speech code that potentially forbids a wide range of protected and important speech — or, at best, leaving students unclear about what speech is allowed. I continue to think that the William & Mary initiative's solicitation of confidential complaints is sound, and I'll try to elaborate a little more on this shortly; investigating properly punishable conduct (such as physical attacks, vandalism, and threats) often requires considering confidential complaints. But constitutionally protected speech ought not be punished whether based on confidential complaints or otherwise.

The irony of the William & Mary speech code is just rich. If one visits Williamsburg, VA and the old colonial section, you will see dozens of William & Mary students running down the main street toward the Old Statehouse, the birth place of many of the ideas and ideals behind the founding of our nation.