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Inside the First Amendment - A ‘flash’ of insight on just how free is our free speech

  • Written by Gene Policinski’

  If you associate the First Amendment more with the rarified air of constitutional debate, or powdered wigs and colonial days, try thinking in more modern terms — say speed traps and blinking headlights.
  For most of us, much of the Bill of Rights comes into play infrequently, if ever. A few examples: According to a 2013 survey, only one in three U.S. households are home to a firearm (Second Amendment). And thankfully, protection in our lifetimes against illegal search and seizure (Fourth) or self-incrimination (Fifth) will be more legal theory rather than active tool.
  But the First Amendment — the nation’s “blue collar” amendment — goes to work every day alongside us. We regularly, if not daily, use the freedoms of religion, speech, press, assembly and petition to worship as we will, to speak our minds freely, and to ask our elected leaders to make changes on matters of public interest.
  There are disputes over the way we apply those core freedoms, sometimes reaching the U.S. Supreme Court. But at other times, the legal collision and decision are more down-to-earth and closer to home. Case in point, Michael J. Elli challenged a city ordinance in his hometown, Ellisville, Mo., that permitted police to ticket drivers who flashed headlights to warn oncoming motorists approaching a speed trap.
  About 2:50 p.m. on Nov. 17, 2012, Elli flashed his headlights after passing police. He was stopped and ticketed. Elli faced a $1,000 fine, and later was warned by a municipal judge about a charge of “obstruction of justice.”
  The city dropped the prosecution after Elli pled not guilty, and later said it ordered police not to enforce the law. Nonetheless, Elli proceeded with a federal lawsuit. In early February, U.S. District Judge Henry Autrey issued an order to make certain he stopped the “chilling effect” on citizens exercising their First Amendment right of free speech.
  Judge Henry’s ruling makes the important point that Missouri law forbids someone from warning of “impending discovery or apprehension,” but specifically excludes telling someone to comply with the law. In other words, communicating “slow down” is protected speech because it encourages safer driving.
  An attorney for Elli from the American Civil Liberties Union, Tony Rothert, told The Wall Street Journal’s Law Blog that there was a higher principle involved, too: With rare exception, the police shouldn’t be stopping or prosecuting people because of the content of their speech.
  As it happens, along with headlight warnings, other courts have protected a range of “speech,” from the spoken word to expressive conduct, where government may not prosecute.
  While it may be rude to do so, and may well mean a risk of arrest before later exoneration, courts have said people can confront police officers using insulting words, hand and finger gestures to a degree more than they could similarly challenge other “civilians.” In City of Houston v. Hill, in 1999, the U.S. Supreme Court noted “a properly trained officer may reasonably be expected to exercise a greater degree of restraint than the average citizen” to such expressive conduct.
  The point is not that courts are encouraging us to be insulting or disrespectful to police or other authorities — rather that government, from the lowest to highest official in the land, cannot override our right to speak freely without presenting good reason rooted in law.
  In Houston, Justice William J. Brennan wrote that “the right of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state. ... The First Amendment recognizes, wisely we think, that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive.”
  We traditionally celebrate freedom with fireworks on July 4, Independence Day. Maybe an occasional flick or two of the high-beams is in order, too.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .

Gunplay the Charles Bronson way is not the wisest answer

Bobs Column - The B SideMy cell phone rang; I answered and heard my son say, “I think there’s someone at the back door.” He was in his bedroom, I was in mine—it was after midnight.
I hung up and immediately called the Oak Lawn police, who arrived at the house in about one minute. They walked through the backyard, checked for footprints in the snow, went into the garage but saw no signs of a burglar or intruder. As they left, they assured us they would drive through the alley and patrol adjacent streets.
Did my son truly hear someone trying to open the back door? It’s very possible. Our dog was distracted that night, which is unusual for her. And there has been a rash of burglaries and attempted burglaries in the village over the past several weeks.
It’s concerning. It’s upsetting. And it’s serves as a reminder that we all need to take every precaution possible when it comes to securing our homes. For me, however, purchasing a gun will not be one of those safeguards.
Gun proponents are quick to argue that they have a right to own firearms to protect their families and property. They’re fed up with criminals having the upper hand over law-abiding citizens.
So am I.
I see police reports from Oak Lawn and several other communities on a weekly basis, and understand why residents and business owners are alarmed. But you won’t convince me that having a weapon in your home is a wise idea. You have the right. I’m not out to change any laws or debate the Second Amendment. I just don’t think having a handgun or a shotgun in the house is a smart.
I recently saw some reader comments in another publication following a story about burglaries in the area. Many of the remarks reinforced my thinking that ordinary folks have no business with weapons in their homes or concealed on their person as the new law allows.
One poster commented that if someone breaks into his house, he’d have the opportunity “break in (his) recently purchased S&W Shield.” That’s just the kind of bravado that concerns me. “Go ahead, break into my house, I’m packing.”
The S&W Shield is a handgun sold by Smith and Wesson that is inexpensive and easy to conceal, according to gun advocates. But not all the posters believed it was the best choice for home protection. They wanted to step up their game to bigger artillery.
One recommended a particular pump action rifle used in hunting, sport shooting as well as by law enforcement and military organizations. Just the kind of thing you want in the house on the night you hear footsteps. I’m sure the gun proponents are convinced they could calmly grab their loaded rifle, walk down the stairs and point it at an intruder.
If they needed to pull the trigger, no problem.
I’m not so sure.
I know many gun owners have received some training. They know the basics about safety and security. But all the training in the world can’t prepare you for the night when you wake up and hear someone breaking into your house. There are too many variables—nerves, adrenaline, is the intruder armed or big or strong enough to overpower you and take the gun?
Additionally, gun ownership has been linked to higher risks of homicide, suicide and accidental death by gun. And far too many homes with guns also are occupied by children who might find the weapon and pull the trigger.
Indeed, there are other options to protect your home and family without introducing the risks associated with guns and rifles.
Motion-sensing lights, better locks, door reinforcement plates, a dog—even a security system if you want to shell out the extra bucks—are better alternatives to guns. As an Oak Lawn official told me recently, “most criminals are lazy.” If they encounter motion-sensor lights or other barriers designed to keep them away, they’ll likely move on.
Unfortunately, there’s an element of society that wants to flex its muscle and act like Charles Bronson in “Death Wish.”
They want to take the law into their own hands, defend what’s theirs at all costs, including arming themselves with weapons that are more danger than deterrent.

Inside the First Amendment - Vladimir Putin’s Potemkin village

  • Written by Charles C. Haynes

     Russian President Vladimir Putin has spent more than $50 billion — more than all previous Winter Games combined — to unveil a “new Russia” at the Sochi Olympics.
   But Sochi’s shiny new infrastructure is little more than a Potemkin village, an extravagant ruse designed to deceive the world about the true nature of Putin’s police state.
  Much to Putin’s dismay, media coverage leading up to the Games has focused on the corruption, repression and security concerns that threaten to make the most costly Games the most unsavory since the Berlin Olympics in 1936.
  Putin’s “new Russia,” it turns out, looks very much like the old Russia that denied freedom of expression, religious liberty and other human rights under both the Tsars and Soviets.
   Consider, for example, two repressive measures Putin signed into law on the same day last June.
  The better known of the two is the so-called “gay propaganda” law that has been widely condemned as a violation of free speech and freedom of assembly. Under the guise of protecting children from information about homosexuality, the law stigmatizes and silences LGBT Russians by preventing free speech, public gatherings and distribution of literature.
  Since the bill’s enactment, harassment and violence directed at LGBT people has escalated in cities across Russia.
  The second bill got fewer headlines, but it also raises alarms about the deterioration of freedom in Putin’s Russia.
  Prompted by the punk band Pussy Riot’s protest in Moscow’s main cathedral in 2012, the Duma passed a law criminalizing insulting people’s “religious feelings” in public. As a result, anyone who dares offend the sensibilities of the faithful (and this usually means Russian Orthodox believers) could face 3 years imprisonment and a stiff fine.
   The “gay propaganda” and “blasphemy” bills are the latest in a series of Russian laws passed in recent years limiting freedom of expression and belief while protecting the power and privilege of the Russian Orthodox Church.
  According to a 2012 report issued by the U.S. Commission on International Religious Freedom, a law banning unauthorized public gatherings has been used against minority religious communities, including a Protestant pastor fined for holding a religious service. Another law intended to counter “extremism” has been used to ban religious texts and treat as criminals people who prepare, store or distribute banned texts.
  Evangelicals, Mormons, Jehovah’s Witnesses, Muslims and other groups in Russia have suffered discrimination and harassment under these and similar laws.
  On paper, the 1993 Russian Constitution bars establishment of religion, recognizes all religions as equal before the law, and guarantees freedom of speech and religion. In practice, however, Putin’s government has an unholy alliance with the Russian Orthodox Church, an entanglement of church and state that contributes to repression of LGBT people and minority faiths.
   Over the next few weeks, Putin will get his $50-billion moment in the sun. But we shouldn’t let the Olympic hype obscure the ugly truth about Putin’s rule.
  At the Sochi Games, all that glitters is not gold.
  Charles C. Haynes is director of the Religious Freedom Center of the Newseum Institute, 555 Pennsylvania Ave., N.W., Washington, DC 20001. Web: religiousfreedomeducation.org Email: This email address is being protected from spambots. You need JavaScript enabled to view it. .

Inside the First Amendment - A time for more speech in the face of bias, bigotry

  • Written by Gene Policinski

  One of the most difficult times for the public image of the First Amendment is when its protection for freedom of expression means sheltering speech that most people find offensive, degrading or vile.

  Arizona State University just cut ties with a fraternity, Tau Kappa Epsilon, over a party that the local chapter hosted on Martin Luther King Day. At that party, based on photos later posted on social web sites, frat members and others dressed in what’s been described as “gang clothing,” flashed gang hand signals and drank from watermelon cups.
  The university also was considering requests to expel students who participated in the offensive behavior, though some community activists properly are having second thoughts about that demand.
  Racist conduct and offensive images, particularly on a day memorializing a man who fought and died in the service of racial equality are, without doubt, worthy of condemnation. And ASU likely is within its rights to dismiss the TKE from its list of affiliated fraternities.
  But there’s also little doubt that the students’ “speech” — as repugnant as it is — is protected by the First Amendment. Better that the university community and the community-at-large use their own First Amendment rights to loudly condemn racist stereotypes and thoughtless insults.
  Government may restrict what we say only in very narrow circumstances: public safety, true threats and speech that could incite immediate violence are among the limited reasons. In most cases, it should be the court of public opinion rather than the court of law that passes judgment and reacts to our speech and ideas.
  Only a generation ago, some universities expelled students who offended many in their communities by speaking out on what campus officials thought was an inappropriate topic, racial equality, including some courageous young people who participated in the historic Freedom Rides a half-century ago.
  There’s no such positive message in the antics at Arizona State. But we demand that government to be viewpoint and content-neutral when it comes to freedom of expression. The First Amendment doesn’t allow for a government agency that decides “this speech is ok, this is not.”
  Here’s another approach to fixing what’s broken at ASU: Just a few days before the party, a colleague and I welcomed to the Newseum the attendees to the National Association of Black Journalists annual Hall of Fame event. Among the inductees this year: a soft spoken photographer, Moses Newson, whose iconic images documented the high points of the civil rights movement 50 years ago. Newson was riding on one of the first Freedom Ride buses when, on May 14, 1961, it was attacked outside Anniston, Ala., by a gang of racist thugs who broke out windows, beat the Freedom Riders and torched the bus.
  Newson stayed on the bus as long as possible, documenting the violence, but finally had to tuck his camera, for safety, under a seat before fleeing for his life. As the Freedom Riders left the bus, they were attacked and beaten. Months later, the bus company mailed him the camera — a burned and melted hulk. That camera is on display among the civil rights exhibit upstairs from where Newson was honored for his courage in documenting the great moments of the civil rights movement.
  More effective than expulsion of the misguided and uninformed would be a program in which TKE members and their party guests learned about the Newson and the Freedom Riders, studied the meaning of the work of the Rev. Martin Luther King Jr., and examined the history of the civil rights movement, and its use of all five freedoms of the First Amendment to change a nation.
  Gaining an understanding of how freedom of religion, speech, press, assembly and petition can and did bring positive change to our society may not entirely erase the sting of a night’s thoughtless antics and insults. But it would be a good start.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .

Inside the First Amendment Do corporations have religious freedom?

  • Written by Charles C. Haynes

 

  If you thought Citizens United — the 2010 Supreme Court decision upholding free speech rights for corporations — was controversial, you haven’t seen anything yet.
  In March, the high court will hear arguments in two linked cases — Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius — that will require the justices to determine whether corporations have religious freedom rights under the First Amendment.
  At first blush, corporate religious freedom may strike many people as absurd. After all, as one judge put it, corporations “don’t pray, worship or observe sacraments.”
  But like most First Amendment conundrums, the questions raised by religious freedom claims from private businesses are complicated and contentious — and the answers will have profound implications for defining the future of religious liberty in America.
  Both cases before the Supreme Court involve challenges to a provision of the Affordable Care Act requiring for-profit businesses to provide coverage for contraception in health insurance plans.
  Hobby Lobby and Conestoga Wood are private companies owned by deeply religious families — evangelical and Mennonite respectively — who believe that life begins at conception. On grounds of religious conscience, they cannot offer employees insurance plans that cover certain types of birth control (e.g., the “morning after” pill). Refusal to do so, however, subjects them to millions of dollars in fines.
  Both corporations sued on the grounds that the contraception mandate violates their free exercise of religion under the First Amendment and the Religious Freedom Restoration Act (a law passed by Congress in 1993 to “restore” free exercise protections that many believed the Supreme Court had unduly restricted in a 1990 decision, Employment Division v. Smith).
  The threshold question for the justices is whether these businesses have standing to make a religious freedom claim.
  Does the First Amendment’s Free Exercise clause apply to for-profit corporations, and, if so, are such corporations “persons” for purposes of the Religious Freedom Restoration Act (RFRA)?
  Appellate courts have given conflicting answers. According to the U.S. Court of Appeals for the 10th Circuit, companies like Hobby Lobby may assert free exercise claims. But the U.S. Court of Appeals for the 3rd Circuit reached the opposite conclusion, ruling, “a for-profit, secular corporation cannot engage in the exercise of religion.”
  Corporations, of course, are often treated as “persons” for legal purposes. And non-profit religious corporations — congregations, parishes, charities and the like — have long been able to assert religious freedom claims under the First Amendment. But until now, the Supreme Court has never considered whether for-profit corporations have religious freedom rights.
  The answer, I would argue, should not turn on the “profit” versus “non-profit” distinction, but rather on the principles and policies that guide the operation of the business.
  Hobby Lobby, for example, commits to “honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.” And Conestoga Wood is operated entirely by a family of devout Mennonites who “integrate their faith into their daily lives, including their work,” according to court documents.
  It should not be difficult to determine when corporations have policies that articulate a commitment to religious principles and practices that seek to apply those principles. Few corporations would qualify, but those that do should have corporate free-exercise rights.

  Making money, in and of itself, shouldn’t define a business as “secular.” Religious people should be free to enter the world of business without giving up their right to religious freedom — as long as the business they run is clearly committed to their religious principles and objectives.

  Recognition of free-exercise rights for these and similar companies would not, however, settle the question of whether these corporations are entitled to an exemption from the contraception mandate. But it would require the government to apply RFRA by demonstrating a compelling state interest — and no less restrictive way of achieving that interest — before denying the exemption.
  With all the complications corporate religious freedom may bring — finding alternative ways to provide contraception coverage, for example, if Hobby Lobby and Conestoga win an exemption under RFRA — the benefits to a free society far outweigh the costs.

  When people of faith chose to live out that faith in the world of business, they should not be put to what the Supreme Court once called “the cruel choice” between following their God and making a profit.

Charles C. Haynes is director of the Religious Freedom Center of the Newseum Institute, 555 Pennsylvania Ave., N.W., Washington, DC 20001. Web: religiousfreedomeducation.org Email: This email address is being protected from spambots. You need JavaScript enabled to view it.