Category Archives: First Amendment

Donald Trump calls the press 'the enemy.' If that's the case, there's a lot more people on that list, says columnist E.J. Montini.

Criticisms of Ducey and Trump are rooted in muddled thinking about the First Amendment's free speech protections.(Photo: Photo: Getty Images)

Gov. Doug Ducey was right to veto the legislation (Senate Bill 1384) limiting the ability of school administrators to regulate the content of student newspapers. Much of the criticism of the veto was rooted in muddled thinking about the First Amendments free speech protections.

The First Amendment is a negative injunction: Congress shall pass no law abridging the freedom of speech, or of the press ...

That gives Americans the right to write or say what they want. But it doesnt guarantee an audience. Or a publisher.

At the high school level, the publisher of a student newspaper is clearly the school. The vetoed bill would have sharply curtailed the authority a publisher usually has over content. Administrators could only exercise oversight over material that is defamatory, violates privacy or law, or creates an imminent danger of inciting disorder or unlawful conduct.

Those are all nebulous standards, subject to judgment, disagreement and litigation. The bill stated that the school isnt liable for content published in the student media, but thats a doubtful immunity.

The Arizona Constitution is highly protective of the right to sue. Courts are likely to look askance at letting the adults in the equation, and the only deep pockets in the picture, off the hook.

Schools exercising the usual authority of a publisher isnt an infringement on the First Amendment rights of student journalists. If the publisher of this newspaper took the advice of some of you and discontinued this column, my First Amendment rights wouldnt have been violated.

MONTINI: Ducey praises 'free speech' law that could put you in jail

A school punishing a student for content published on a private blog or Facebook might implicate First Amendment rights. But not publishing something in a publication paid for by the school doesnt. Thats exercising the prerogatives of a publisher.

This is a minor point, but not an irrelevant one. One of the challenges our schools face is maintaining an orderly learning environment. Schools arent helped by the Legislature concocting another legal thicket for them to negotiate.

Its unfair to Ducey to bring Donald Trump into the conversation at this point. Ducey behaved responsibly with his veto. Trump is behaving irresponsibly in his war with certain media. Nevertheless, much of the commentary regarding Trumps war with the media is also rooted in muddled thinking about the First Amendment.

The New York Times has a First Amendment right to write what it wants about Trump. And Trump has a First Amendment right to say what he thinks about what The Times writes about him.

Trump exercising his First Amendment rights doesnt curtail or threaten The Times First Amendment rights.

Some commentators make a more subtle point. By attacking certain media, they assert, Trump is undermining the role of the press that the First Amendment was intended to protect.

This is a historical miscue. At the time the First Amendment was adopted, the press, mostly newspapers and pamphleteers, were fiercely and transparently partisan.

The notion of the media as neutral and objective transmitters of information is a modern-era pretense. And the American people have never bought it.

In 2013, Gallup asked how much trust and confidence do you have in the mass media such as newspapers, TV, and radio when it comes to reporting the news fully, accurately, and fairly a great deal, a fair amount, not very much, or none at all? Well before Trump twitter storms became an important element of public discourse, 55 percent of respondents answered not very much or none at all.

There have been reports that the Trump administration was mulling abandoning the daily White House briefing or even booting reporters out of the White House, and this has been decried as an attack on the First Amendment. This has been the most muddled thinking of all.

Nothing in the First Amendment guarantees self-selected media office space in the White House or an administration spokesman to play gotcha with on a daily basis. Getting rid of both might reduce the herd mentality and emphasis on gotcha journalism and produce more diverse and substantive reporting.

Trump is frequently reckless and irresponsible in his attacks on the media. But so long as we are free to write and say that, the First Amendment is not under siege.

Reach Robb at robert.robb@arizonarepublic.com.

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Robb: No, your First Amendment rights aren't being attacked - AZCentral.com

Ted Wheeler, mayor of Portland, Ore., denounced the fatal stabbings of two men by a suspect accused of going on an anti-Muslim rant on May 27. Wheeler said the "current political climate" allows too much room for "bigotry." (Reuters)

As his city mourns two men who were killed after confronting a man screaming anti-Muslim slurs, Mayor Ted Wheeler is calling on federal officials to block what he called alt-right demonstrations from happening indowntown Portland, Ore.

His concern is that the two rallies, both scheduled in June, will escalatean already volatile situation in Portland by peddling a message of hatred and of bigotry. Although the organizers of the rallies have a constitutional right to speak, hate speech is not protected by the First Amendment, Wheeler told reporters.

But history and precedentare not on Wheeler's side.

The Supreme Court has repeatedly ruled that hate speech, no matter how bigoted or offensive, is free speech.

The high court did so in 1969, when it found that a state law banningpublic speech that advocates for illegal activities violated the constitutional rights of a Ku Klux Klan leader.

It did so again in 1992, when the justices found that a city ordinance prohibiting the display of symbols that arouse anger toward someone based on race, religion and other factors is unconstitutional.

And again in 2011, when the court ruled in favor ofchurch members who picketed and carried signs with homophobic slurs at a soldier's funeral.

[Portland mayor asks feds to bar free-speech and anti-sharia rallies after stabbings]

Although certain forms of speech are not protected by the First Amendment,hate speech isn't one of them, Eugene Volokh, a law professor and free speech expert, wrote last month. For it to be banned, experts say, it must rise to the level of threat or harassment.

Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas, Volokh said. One is as free to condemn, for instance, Islam or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens as one is to condemn capitalism or socialism or Democrats or Republicans.

The American Civil Liberties Union agrees.

Following Wheeler's announcement, the nonprofit's Oregon chapter criticized the mayor, saying banning a group from holding a rally merely because of what it seeks to express steps into dangerous territory of government overreach.

The government cannot revoke or deny a permit based on the viewpoint of the demonstrators. Period, the ACLU of Oregon said in a Facebook post Monday. It may be tempting to shut down free speech we disagree with, but once we allow the government to decide what we can say, see, or hear, or who we can gather with, history shows us that the most marginalized will be disproportionately censored and punished for unpopular speech.

In alengthy Facebook post Monday,Wheeler called on federal officials torevoke a permit authorizing a June 4 Trump Free Speech Rally at a federal plaza in downtown Portland. Another event by the same organizers, March Against Sharia, is scheduled for June 10 but has not received permits. He also asked the organizers of the rallies to cancel the events.

I urge them to ask their supporters to stay away from Portland, Wheeler wrote. There is never a place for bigotry or hatred in our community, and especially now.

[Brave and selfless Oregon stabbing victims hailed as heroes for standing up to racist rants]

Wheeler's announcement came three daysafterTaliesin Myrddin Namkai-Meche, 23, and Ricky John Best, 53,were killed after they tried to protect two young women from a man who was screaming anti-Muslim slurs at them. A third man who also intervened was injured.

Destinee Mangum and her 17-year-old friend, who is Muslim and was wearing hijab, were harassed on Portland light-rail train on May 26. The man, Joseph Christian, fatally stabbed two other passengers on board and seriously injured another after they tried to stop him from harassing the women, according to police. (Reuters)

Jeremy Joseph Christian, 35, whom the Southern Poverty Law Centerhad described as someone who holds racist and extremist beliefs, is facing aggravated murder and other charges in connection to the killings. According to the hate watch group, Christian was seen at an earlier free-speech rally held by the same organizers.A photo shows him giving the Nazi salute.

Joey Gibson, lead organizer of the rallies, tried to distance himself from Christian and said he preaches limited government and free speech, not hate.

What I say, the things that I say, the things that I preach goes against everything that Jeremy Christian would've said,he said in a Facebook Live video in response to Wheeler's statement.

Gibson also criticized Wheeler for trying to silence him and those who plan toparticipate in the rallies. He saidhis June 4 event, which would feature live music and speakers, is not a platform for racism and bigotry.

If they pull our permits, we cannot kick out the white supremacists. We cannot kick out the Nazis. Do you get that? Gibson said. If anyone has a sign, a racist sign or anything, they will be gone. If anyone screams anything racist, they will be gone. But if they pull our permit, we will not have that right.

Wheeler is not the first to argue that hate speech is not protected by the First Amendment.

Former Vermont governor Howard Dean did soin atweet last month.

Dean, who sought the Democratic presidential nomination in 2004, was responding to a tweet from a former New York Times reporter who referenced a 15-year-old Ann Coulter statementsaying she regretsthat convicted Oklahoma City bomber Timothy McVeighdidn't go inside the Times building.

[No, Gov. Dean, there is no hate speech exception to the First Amendment]

In an article criticizing Dean's tweet, Volokh, the free speechexpert, argued that the First Amendment does not protect legitimate threats or face-to-face insults that incite a fight. But most forms of free speech don't fall into this narrow category.

Even if Coulter was speaking seriously (which I doubt), such speech isn't unprotected incitement, because it isn't intended to promote imminent illegal conduct, Volokh wrote.

The First Amendment, he said, provides a strong protection to ordinary citizens, even in cases that involve the most bigoted and racist of speeches.

In the 1992 case, which was spurred after several teenagers allegedly burned a cross on a black family's lawn in Minnesota, the Supreme Court ruled that a local ordinance under which the teens were charged isfacially unconstitutional because it bans otherwise permitted speechbased solely on the recipient.

The government, according to the opinion written by Justice Antonin Scalia, has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.

In the 2011 case, which was prompted after Westboro Baptist Church members traveled to Maryland to picket the funeral of Marine Lance Cpl. Matthew Snyder, who was killed in Iraq, the Supreme Court ruled in favor of the picketers who held signs thatsaid, Thank you for dead soldiers, Fags Doom Nations, America is Doomed, Priests Rape Boys and You're Going to Hell.

Justice John G. Roberts Jr. wrote in the opinion: Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and as it did here inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Derek Hawkins contributed to this story.

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In tweet, Trump recognizes Portland victims for standing up to hate and intolerance

Suspected attacker Jeremy Joseph Christian stood out amid rising tensions in Portland

The white flight of Derek Black

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'Hate speech is not protected by the First Amendment,' Portland mayor says. He's wrong. - Washington Post

Keith Wood, was arrested and charged with jury tampering and obstruction of justice for handing out 50 FIJA fliers. These fliers are not meant to sway nor influence the jurys decision, as would be required under the charges levied, but are meant to educate anyone who may take the flier, about the power of the jury to nullify the charges being brought by the state. Jury Nullification

A jurys knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jurys sense of justice, morality, or fairness.

Jury nullification is a discretionary act, and is not a legally sanctioned function of the jury. It is considered to be inconsistent with the jurys duty to return a verdict based solely on the law and the facts of the case. The jury does not have a right to nullification, and counsel is not permitted to present the concept of jury nullification to the jury. However, jury verdicts of acquittal are unassailable even where the verdict is inconsistent with the weight of the evidence and instruction of the law.

See U.S. v. Thomas, 116 F.3d 606 (2d Cir. 1997).

Almost two years later Mr. Woods case is going to trial, not for the felony charges, those were dropped, but for the misdemeanor charge of jury tampering.

Mr. Woods Attorney gave these comments to FOX 17, Its not enough to hand out a general information pamphlet with somebodys perspective, right or wrong, on what juror rights are, said Kallman.

Do we have the right to speak freely and express our opinions when its not directed at a specific case? Thats what this is about.

The villain in this is Mecosta County District Judge Peter Jaklevic, former long-time Mecosta County prosecutor, he said he was very concerned when he saw some of his jury pool carrying the pamphlets into the courtroom.

My concerns had to do with extra-judicial information, information being brought from outside the courtroom, said Judge Jaklevic.

It appeared to me to be an effort to bring information to the jurys attention that wasnt from the court.

The reality is that the courts and those who carrying the influence with the courts, do not want the citizens making the decisions, as if that is not exactly who should be making the decision based upon the Constitution and the Bill of Rights. As these powers and authority granted to these officials is done so only by the consent of the governed, and when the people no longer give consent to be governed, then the people will be governed by force.

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First Amendment Protected Activity On Trial in Michigan - PINAC News - PINAC News

Portland Mayor Ted Wheeler wants to cancel two rallies planned for his city in June because he believes hate speech is not a constitutional right. Spencer Platt / Getty Images

Portland is understandably tense after of the killing of two people who tried to stop a man's anti-Muslim tirade on public transit. But is Portland Mayor Ted Wheeler correct when he argues that two upcoming "alt right" protests in the city should be shut down because, in Wheeler's words, "hate speech is not protected by the First Amendment"?

The Washington Post says Wheeler is flat-out wrong to claim that "hate speech is not protected by the First Amendment." And Stranger reporter Ana Sofia Knauf wound up at the same answer as the Post when she explored this question back in May.

"It's a hard pill for progressives to swallow," a University of Washington law professor told Knauf, "but hate speech is protected."

As poorly timed and inflammatory as the upcoming protests may be, when it comes to trying to stifle them because of concerns about hate speech, "history and precedent are not on Wheeler's side," as the Post put it.

For what it's worth, Wheeler has simultaneously taken a different tack. In the same Facebook message in which he called on the federal government to deny permits for the upcoming rallies, he wrote:

I am appealing to the organizers of the alt-right demonstrations to CANCEL the events they have scheduled on June 4th and June 10th. I urge them to ask their supporters to stay away from Portland. There is never a place for bigotry or hatred in our community, and especially not now.

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Portland Mayor Claims "Hate Speech Is Not Protected by the First ... - TheStranger.com

John Rudoff/Polaris/NewscomThe mayor of Portland, Oregon, has strong words for those who would sow fear in his city and attempt to shut down citizens' rights to free expression: "I surrender."

On Friday, two men were stabbed to death on a train in Portland while confronting and trying to calm down a man who was allegedly loudly harassing two young women with anti-Muslim comments.

Mayor Ted Wheeler's response to this brutal attack was to essentially tell the world that violence can successfully be used to convince the government to shut down civil liberties. In a rather self-absorbed speech Monday that treats this horrible but isolated event as though it were some sort of mass slaughter deserving of a permanent monument and some sort of "leadership" by politicians, Wheeler is demanding that the federal government cancel the permits for a couple of upcoming "alt-right" rallies in Terry Schrunk Plaza.

He flat out said in his comments that the city would refuse to grant rally permits to alt-right groups based on their views. However, the plaza right by Portland City Hall is actually federal property, and Wheeler is trying to get federal authorities to revoke the permits for the groups involved in a pair of June events.

And while there's some gesturing toward the idea that he wants the city to have time to grieve, he wouldn't be making such demands if the stabber had been yelling just incoherent nonsense and not an anti-Muslim rant. That's because Wheeler makes it very abundantly clear that he believes the people organizing these rallies are bigots and he doesn't want them around. He's using this violence as a way of curtailing the First Amendment right to both peacefully assemble and engage in free speech.

In response to those who point out that the alt=right has the same First Amendment protections as the rest of us, Wheeler actually says, "Hate speech is not protected by the First Amendment of the Constitution." (It's at about 6:54 in this clip of his comments.)

There is no "hate speech" exemption to the First Amendment, and it's bad enough when poorly educated college students believe that there is. We don't need politicians who run cities reinforcing the idea that such speech is not protected, because it feeds the idea that violent protests against certain speakers is therefore some form of heroic rebellion. He reinforces the mentality that threats, and even just fears, of violent responses are acceptable reasons to prohibit public protests.

This excuse is used by authoritarian regimes everywhere as a mechanism of suppressing speech. Once you send the message that violence will be used as a pretext to shut down the expression of certain opinions, violence is exactly what you'll get. Turkish authoritarian President Recep Erdogan claims that anybody speaking out against him is part of a violent plot to remove him in order to justify using government violence back against the critics.

At this point we should be less inclined to think that the "hate speech exemption" refrain reflects a person's ignorance of the First Amendment and more inclined to see it as a deliberate effort to will an idea into reality and to change everybody's perception of where speech's legal limits actually are.

Fortunately the American Civil Liberties Union's chapter in Oregon is tweeting back at the mayor, warning him that attempting to shut down rallies on the basis of disagreeing with the content is literally what the First Amendment is meant to prevent:

Protecting these rallies is one of the reasons taxpayers are asked to fund the police. Making sure violence cannot be used to suppress our rights to speak freely and to practice our various religions is one of the reasons we have a government police force. Maybe Wheeler should spend more time dealing with those responsibilities and less trying to take the lazy way out.

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After Violent Attack, Portland Mayor Calls for Abandoning First Amendment - Reason (blog)

USA Today Editorial Board 3:38 p.m. CT May 29, 2017

Protesters against Turkish President Recep Tayyip Erdogan in Washington on May 16, 2017.(Photo: Shawn Thew, epa)

The contrast between despotism and liberty was on stark display earlier this monthin the nation's capital, when bodyguards of President Recep Tayyip Erdogan set upon protesters exercising free-speech rights in front of the Turkish ambassador's residence.

Video captured images of the Turkish strongman emerging from a car to watch his beefy sentinels pummel and kick dissidents until the violence was quelled by baton-wielding D.C. police. Eleven people were injured, including a police officer.

The May 16 melee, largely overshadowed by last week's bombshell news involving President Trump and the Russians, was behavior that might have passed for state-sanctioned oppression in Ankara. But this took place along Washington's Embassy Row, and demonstrators acted with the First Amendment's blessing to peaceably assemble.

Imagine the outcry if Israeli protesters gathering outside the King David Hotel in Jerusalem during President Trump's visit this week had been suddenly attacked by members of the U.S. Secret Service. Nor was this the first time Erdogan's security team fought with demonstrators in downtown Washington. A clash broke out in front of the Brookings Institution last year.

Such brutality is sadly what Americans have come to expect from a leader who once held promise as a much needed reformer for a leading democracy in the Islamic world, only to turn increasing autocratic. Last year, Erdogan barely won a referendum, marred by allegations of fraud, that substantially increased the powers of his presidency. After a coup attempt in July, he launched a widespread purge, jailing thousands of opponents, journalists and educators.

When the United States and other Western nations called for restraint, Erdogan dismissed them. That's why it was so galling to see his imperiousness on display in the U.S. capital. One video of the event last week shows a henchman leaning inside Erdogan's car, as if seeking direction. The man then turns and signals another, who plunges into the demonstrators with his fists swinging. Some protesters also threw punches.

Two Erdogan guards were detained by police but later released; all have since left the country. An investigation continues, but diplomatic immunity would make it tough to bring Erdogan's guards to justice.

Secretary of State Rex Tillerson called the Turkish conduct "outrageous," and his department issued a condemnation, summoning Turkey's ambassador to the U.S., Serdar Kl, for a dressing down. Days later, the Turkish Foreign Ministry in Ankara playing tit for tat similarly called in the U.S. ambassador to complain of how police treated those guards.

But the White House has remained silent on the violence that occurred shortly after Trump heaped praised on Erdogan during a meeting between the pair. Increasingly and disturbingly, the president has been drawn to strongmen who trample on human rights, among them Egyptian President Abdel Fattah al-Sisi, Philippine President Eduardo Duterte and Russian President Vladimir Putin.

Doesn't Trump care about Erdogan's thugs beating up protesters just blocks from the White House? The president has, after all, sworn to protect and defend the Constitution and its First Amendment.

Instead, it's left to others like Sen. John McCain, R-Ariz., to exorcise the bitter taste this episode has left. "That's not America," McCain said. No, it is not.

USA TODAY's editorial opinions are decided by its Editorial Board, separate from the news staff.

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Turkey henchmen kick First Amendment - Springfield News-Leader

The First Amendment Foundation is weighing in on a wide-sweeping education bill, asking Gov. Rick Scott to veto the measure when it gets to his desk.

In a letter to Scott on Tuesday, Barbara Petersen, the president of the First Amendment Foundation, said the organizations concerns relate only to the lack of transparency in the process by which major policy decisions regarding Floridas education system were decided.

Lawmakers narrowly approved the bill (HB 7069) on the final day of the 2017 Legislative Session. The proposal, which is tied to the state budget, was a top priority for House Speaker Richard Corcoran, and, among other things, steers more money to privately run charter schools, requires recess in elementary schools and tinkers with the states standardized testing system.

While the measure includes several education changes legislators had been considering, the final bill was negotiated largely in private and wasnt seen by the public until the final days of the session.

The secretive process precluded any opportunity for public oversight or input on major changes to Floridas education policy, said Petersen in her letter to Scott. Alarmingly, local school officials were also shut out of the process, as were many legislators who were ultimately asked to approve this voluminous and complicated legislation decided in a manner closed even to them.

Petersen said Floridians deserve the respect and the commitment of our elected leaders to uphold our Florida Sunshine laws, a 33 years old tradition and benchmark of good government.

One of the major provisions of the bill creates the Schools of Hope program, which would offer financial incentive to charter school operators who would agree to take students attending chronically failing schools, many in poor areas and urban neighborhoods.

The bill has been criticized by states teacher unions, parent groups, and superintendents of some of the states largest school districts.

The First Amendment Foundation has also called on Scott to veto the entire fiscal 2017-18 budget once it reaches his desk. Much like the organizations request to veto the education bill, the group said its concerns relate only to the lack of transparency in the process and it wasnt objecting to any of the substantive programs and issues.

Neither the budget nor the education bill have been sent to Scott.

The Associated Press contributed to this report, reprinted with permission.

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First Amendment Foundation calls on Rick Scott to veto education bill - Florida Politics (blog)

Wheeler this morning announced that he has asked the federal government to revoke permits for a June 4 "free speech" rally in downtown Portland, saying the city was raw and angry in the wake of two slayings on a MAX train Friday.

Wheeler's announcement today drew immediate criticism from civil-liberties advocates. Shortly before 2 pm this afternoon, the ACLU of Oregon released its statement, in a series of tweets.

"The government cannot revoke or deny a permit based on the viewpoint of the demonstrators," The ACLU said. "Period.

"It may be tempting to shut down speech we disagree with," the statement continued, "but once we allow the government to decide what we can say, see, or hear, or who we can gather with, history shows us that the most marginalized will be disproportionately censored and punished for unpopular speech.

"We are all free to reject and protest ideas we don't agree with. That is a core, fundamental freedom of the United States. If we allow the government to shut down speech for some, we all will pay the price down the line."

The mayor's spokesman, Michael Cox, said Wheeler was not trying to muzzle far-right speechbut to break up a scheduled altercation between the "alt-right" and antifascist groups. Those groups had been regularly confronting each other, even before the Friday slaying of two men who confronted hate speech on a Portland MAX train.

"The mayor is not seeking to limit the content of speech," Cox said on Twitter. "He is seeking to prevent violence."

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ACLU of Oregon Says Mayor Ted Wheeler's Attempt to Quash Alt-Right Rallies Violates the First Amendment - Willamette Week

During a heated exchange on Thursday, Fox News Tucker Carlson of Tucker Carlson Tonight calledco-president of the Freedom From Religion Foundation (FFRF) Dan Barkera bully who runs a highly aggressive interest group, after Barkers group shut down a before-school Bible study group for first- and second-graders.

The Altruria Bible Club met at Altruria Elementary School in Bartlett, Tennessee, before classes in the morning, with dozens of students attending the meetings, according to WMC-TV. The groupsent a letter tothe schooland told them to investigate the club to see to it that teachers or staff were not taking part in it, citing the Establishment Clause in the First Amendment.

The school shut down the club, causing outrage among parents. The FFRF said ina statement to WATN-TV in Memphis that this development is a victory not only for reason and the law but for the inviolable right of a captive audience of first- and second-grade students to be free from indoctrination in a public school setting.

Carlson and Barker exchanged opinions over the matter of the club being shut down. Carlson asked Barker if he felt good about shutting down a Bible study for children.Barker told Carlson that his group did feel good about it, and that the school did the right thing by shutting down the illegal Bible club.

Well, you bullied them into it, Carlson said. Bullied them into canceling a club for first graders.

Carlson then asked Barker what the Constitutional problem was with what the club was doing, stating that school district employeeshave their right to free speech. Barker disagreed, saying that the teachers are the government.

Theres a difference between free speech and governmentspeech, he said. When those teachers are at the school, they are the government.

There are families who wish to protect their children from the depravity and the violence thats in the Bible, Barker said.

Carlson and Barker arguedover First Amendment rights. Barker refuted Carlsons statement that teachers do not give up their First Amendment rights just because they are teachers.

You dont forfeit your First Amendment rights, or any of your Constitutional rights, just because you work for the government. You know that, Carlson said.

Yes, you do, Barker replied.

Carlson finished the segment by calling Barker a zealot who flexes his muscles because children reading the Bible bugs him, and said Barkers pride in shutting down the Bible study group weird.

The Supreme Court ruled that schools are required to allow religious groups to meet after hours on campus, if they allow similarly situated non-religious groups to do soin a 6-3 decision in the The Good News Club v. Milford Central Schools case in 2001. The Milford School in upstate New York claimed that allowing the private Christian group for children, The Good News Club, to hold meetings on school grounds after school was the equivalent of religious worship.

The Good News club claimed that the school was discriminating against the club due to their religious beliefs, while allowing other groups to teach their definition of morality, such as the Boy Scouts of America, and the 4-H club. The Supreme Court found that the school allowing other groups to meet on school grounds, but not the Good News Club, was indeed discrimination on the basis of religion, and made their ruling allowing religious groups tomeet on school grounds after hours.

When Milford denied the Good News Club access to the schools limited public forum on the ground that the club was religious in nature, it discriminated against the club because of its religious viewpoint in violation of the free-speech clause of the First Amendment, Justice Clarence Thomas wrote for the majority.

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Watch: Tucker Carlson verbally pummels atheist activist with the ... - TheBlaze.com

President-elect Donald Trump's recent comments about prosecuting flag-burning protesters hasstarted yet another debate about the issue. But in the end, the only Justice left on the Supreme Court from the 1980s could have the final say on the matter.

Since Election Night, there has been a renewed interest in the constitutional subject after several anti-Trump protesters burned flags in public to protest his win over Hillary Clinton. On Tuesday, Trump added fuel to the debate with a provoking message on Twitter: Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!

Flag burning, as weve discussed in detail on this blog and at the National Constitution, is a legal debate that goes back decades, and in the minds of the Supreme Court, has been settled since 1990.

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In our Interactive Constitution project, scholars Geoffrey R. Stone and Eugene Volokh explained back in September 2015the basic concept of symbolic speech in the First Amendment, which reads that Congress cant make laws that abridging the freedom of speech or of the press.

The Supreme Court has interpreted speech and press broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like, said Stone and Volokh.

The Supreme Court has held that restrictions on speech because of its contentthat is, when the government targets the speakers messagegenerally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information the people should be allowed to hear.

Stone and Volokh also noted that hasnt always been the case. Courts have not always been this protective of free expression. In the nineteenth century, for example, courts allowed punishment of blasphemy, and during and shortly after World War I the Supreme Court held that speech tending to promote crimesuch as speech condemning the military draft or praising anarchismcould be punished. But since the 1920s, the Supreme Court began to read the First Amendment more broadly, and this trend accelerated in the 1960s, they concluded.

Two landmark Supreme Court decisions ruled on the burning of American flags at protests. In 1989, the Court first established flag burning as a protected First Amendment act inTexas v. Johnson.Back in 1984, Gregory Lee Johnson burned a flag at the Republican National Convention in Dallas in a protest about presidential candidates Ronald Reagan and Walter Mondale. Officials there arrested Johnson and convicted him of breaking a state law; he was sentenced to one year in prison and ordered to pay a $2,000 fine.

In June 1989, a deeply divided Court voted 5-4 in favor of Johnson, and against the state of Texas. Johnsons actions, the majority argued, were symbolic speech political in nature and could be expressed even if it upset those who disagreed with him.

The Courts Johnson decision only applied to the law in the state of Texas. In response, Congress passed a national anti-flag burning law called the Flag Protection Act of 1989 sponsored by a House member from Texas. The final bill approved by the Senate in October 1989 made it unlawful to maintain a U.S. flag on the floor or ground or to physically defile such flag. The bill, however, asked for an expedited Supreme Court review to consider constitutional issues arising under this Act.

There were flag-burning protests the day the federal law went into effect in late October 1989. Arrests were made at protests in Seattle and Washington, D.C., but federal judges dismissed the charges based on the Johnson decision. Government lawyers appealed directly to the Supreme Court, and the same Justices who heard the Johnson case considered United States v. Eichman in May 1990 with the same outcome.

In the majority were Justices William Brennan (who wrote both majority decisions), Anthony Kennedy, Thurgood Marshall, Harry Blackmun and Antonin Scalia. The dissenters were Chief Justice William Rehnquist, John Paul Stevens, Byron White and Sandra Day OConnor.

The decisions remain controversial to the present day, and Congress in 2006 attempted to pass a joint resolution to propose an amendment to the Constitution to prohibit flag desecration, which failed by just one vote in the Senate.

For the incoming President Trump, the only likely option short of a constitutional amendment would be a change of heart at the Supreme Court. But even with a new member joining the Court next year, there are four members of its liberal bloc still in place, as is Justice Anthony Kennedy, the only member of the 1989/1990 Rehnquist court on the current bench.

It was Kennedy who wrote the concurring opinion for the majority in the Johnson decision, where he agreed with the other four Justices (including Scalia) that Johnsons acts were speech, in both the technical and the fundamental meaning of the Constitution."

The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result, Kennedy wrote in 1989.

I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit, Kennedy added. It is poignant but fundamental that the flag protects those who hold it in contempt.

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