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: Email: This email address is being protected from spambots. You need JavaScript enabled to view it.


‘Hear no evil, see no evil’ was the wrong approach for Catholic Church

  • Written by Bob Rakow

Bobs Column - The B Side I knew Vince McCaffery.
  He was an associate pastor at Our Lady of Loretto in Hometown around the same time my family joined the parish.
  We moved in 1979 from St. Thomas More parish on Chicago’s Southwest Side to Evergreen Park and joined Our Lady of Loretto in neighboring Hometown.
  My old and new and neighborhoods were only a few miles apart, but to a 15-year- old they seemed a world apart. To meet new people, I joined the parish teen group and teen choir at Our Lady of Loretto.
  McCaffery arrived at the parish in 1979 as well. I did not know him well, as the teen group was run by another priest at the parish, the Rev. Tom McNeff, one of the finest priests I’ve ever known. Sadly, he passed away a few years ago. McNeff understood youth ministry and played a big part in my development as a Catholic.
  Sadly, the same cannot be said for McCaffery, who was defrocked in 2010 and is serving time in prison after being convicted of child porn charges in 2002.
  The kicker is that Cardinals Joseph Bernardin and John Cody allowed him to remain in ministry and move from one parish to the next as allegations of abuse surfaced. McCaffrey ultimately admitted to molesting more than a dozen victims.
  I’ve thought about McCaffery after the Archdiocese of Chicago released more than 6,000 pages of information that details allegations of abuse against 30 priests that occurred over the past several decades.
  I don’t recall hearing any rumors about McCaffery and pornography or sex abuse when I was at Our Lady of Loretto. I do remember talk that he had a drinking problem and that was the reason he was transferred two years after he arrived.
  I read several pages of the testimony offered by McCaffery’s victims, which was given more than 10 years ago. The details are sickening. The boys who testified were adolescents at the time of the abuse, and I couldn’t help but wonder if knew them or their families.
  Hometown is a small community and Our Lady of Loretto is a close-knit parish. I can’t imagine what it was like for a young boy to carry the shameful secret that the associate pastor molested him.
  McCaffery, who I recall as friendly and outgoing, gained his victims trust and got to know their families by spending time at their homes. One victim said McCaffery never used physical force when molesting him. Rather, “he was Father Vince and no one questioned him. It was, as stated before, the power of mental manipulation,” the victim said.
  Another victim testified, “I had an experience with this man who, the way I was raised, they were next to God. For a person of that caliber and stature to do what he had done to me was beyond my belief.”
  That makes perfect sense to me.
  Catholics hold priests in high regard. When I was at St. Thomas More, we revered the Rev. Francis Hayes. He founded the parish and watched a neighborhood grow around it. The Rev. James Donolan followed Hayes. He, too, was a priest we all admired. My uncle was a priest and an Air Force chaplain. The family was very proud of him. His visits home were a big deal.
  I’m sure priest abuse occurred in those days, but we knew nothing about it because it just wasn’t discussed or was concealed by diocesan leaders who should have known better. Sadly, they employed a “hear no evil, see no evil” stance.
  When allegations arose, it was easier to move a priest to another parish and assure complaining families that the problem was rectified. Law enforcement was not brought in; the priests were not immediately suspended or permanently removed from the church. That, I suppose, would be too embarrassing.
  Records show the Rev. James O’Connor, pastor of Our Lady of Loretto, told McCaffrey in a letter that he had done his best to hide his pedophilia from suspicious parishioners. McCaffery moved again and again, and, not surprisingly, allegations of abuse occurred at every stop.
  Meanwhile, the victims talk about dealing with physical ailments and anxiety, leaving the Church and being unable to trust anyone. Some could not discuss the ugly episodes of abuse for years, others repressed the memories.
  This is a shameful episode in the history of the Catholic Church. Hopefully, it compels Church leaders to understand that it must never happen again.

Inside the First Amendment - Protests over the protests at clinics that perform abortions

  • Written by Gene Policinski

  Few topics in modern life have produced as much rancorous and visible public debate as abortion — and one hot point of contention today is simply how close that debate may take place to the clinics that perform them.
  The U.S. Supreme Court heard arguments Wednesday over a challenge to a Massachusetts state law, in McCullen v. Coakley, that creates a fixed, 35-foot “buffer zone” around the entrance or driveways of such clinics, forbidding protesters and others from entering the zone, with the exception of women seeking medical services, workers at the clinic, police and those merely walking to somewhere else.
  The law at issue is rooted, its advocates say, in years of conflicts around such clinics in which protesters battle — verbally and sometimes more — and where women are harassed or even blocked as they attempt to enter. They argue that both pro- and anti-abortion demonstrators still can state their views, just not in proximity that’s likely to intimidate anyone.
  On Wednesday, Justice Elena Kagan questioned the size of the Massachusetts zone, saying she was “a little hung up on why you need so much space.” Justice Antonin Scalia remarked that rather than bar all speech in the 35-foot zone, perhaps just a ban on swearing and screaming could be used.
  But those in opposition to the law being challenged say that, as applied, it illegally targets only the speech of anti-abortion forces, and creates a constitutional conundrum in which listeners’ rights are favored over those of speakers, while offering no reasonable alternative for anti-abortion groups to effectively deliver their message. On Wednesday, justices also noted that not all those at clinics to oppose abortion are protesting: Many are there to offer a calm presentation of their views.
  Similar arguments were raised over a Colorado buffer zone law upheld by the Court in 2000, in Hill v. Colorado — its last major ruling on the issue. The Colorado statute set out a 100-foot area around health care facilities, and forbade anti-abortion protesters inside such areas from coming closer than eight feet to anyone for the purpose of counseling or protesting — a so-called “floating buffer zone.”
  A 1994 federal law forbids violent actions, obstruction, interference and intimidation outside abortion clinics — in other words, it governs conduct, not the message. Challengers to both the Colorado and Massachusetts laws say those more-restrictive state statutes have it the wrong way around, targeting just anti-abortion speech, while those supporting abortion rights are free to move within the zones and to speak to women as they enter and leave clinics.
  Generally, the First Amendment precludes government from considering “content” or “viewpoint” when regulating speech. Massachusetts officials say a history at such clinics of confrontation and violence justifies overriding that general limitation, in the name of public safety.
  There are other significant First Amendment issues raised in this case and in the earlier Hill decision, including a proper balancing of what some call “a right to be let alone” vs. free speech rights of speakers on sensitive or even offensive matters.
  The essential point of laws banning protests near such clinics is to shelter women seeking information or abortions from the emotional distress produced by often-graphic language, signs, handouts and “in-your-face” tactics used by anti-abortion forces, who see such actions as the final opportunity to reverse a decision to end a pregnancy.
  And the equally basic First Amendment question raised is whether protection of “vigorous public debate” over significant issues in our society can be muzzled because of the undeniable distress it causes some women who hear — or are challenged by — that debate.
  A clue as to how the Court may view McCullen may be found in a 2011 ruling in which emotional distress to the listener also was a core issue, involving protesters at a funeral service for a U.S. Marine killed in the line of duty. In that case, Snyder v. Phelps, the father of the fallen Marine sued a group known as the Westboro Baptist Church over its virulently anti-gay signs and visible picketing at his son’s funeral.
  In an 8-1 decision, the court upheld the Westboro group’s right to protest and to use the most-effective place and manner of free speech, as long as it did not physically disrupt the services, and even if it caused pain to the Snyder family.
  “The principle (is) that debate on public issues should be uninhibited, robust, and wide-open,” Chief Justice John Roberts said in the majority opinion. “The First Amendment protects our right to express ourselves, and the depths of our opinions and emotions, in the most strident terms,” he wrote. “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 ... (but) 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.”
  Nothing about the national debate over abortion is simple — and that applies at times to even the words and manner we use in talking about it.

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. .

Guest View - It’s sad a former friend goes on attack

  • Written by Steve Radice

  The following is a commentary in response to former Oak Lawn Mayor Dave Heilmann’s Guest View from last Thursday.

  It’s clear to me our former mayor is still having trouble dealing with his defeat in last April’s election, and after I read his (commentary), I first decided to ignore it and concentrate on more important things like my family and my job. But after my 15-year old son read it and asked “How can someone be allowed to write lies like this?” I realized I needed to respond.

  To begin, I have lived in Oak Lawn’s 3rd District for more than 20 years. I raised my family here and have been active in our community for the majority of that time, because I love Oak Lawn and I want our Village to thrive.
  In 2007 my trustee, Bob Streit, asked me to serve on the Village’s Planning & Development Committee which I happily agreed to do. I served for six years, the last two as Chairman, in October 2012 the Village posted a help-wanted notice for part-time property maintenance inspector position. This was something I thought I could do and be good at given my experience on the P&DC. I submitted my resume, interviewed, and was offered the part-time position, which pays $18 hour, provides no insurance benefits, and doesn’t qualify for a pension.
  Prior to taking the job I asked if there might be a conflict of interest if I remained on the P&D Commission, and the attorneys thought it might, so on October 15, 2012, before my term was up, I submitted my resignation letter from the P&D Commission to the Village Manager and Board — including then-Mayor Dave Heilmann.
  Afterward, Trustee Streit called me to say he was unhappy with my decision but understood and respected it. He thanked me for my six years of service and said he was proud of the work I did, and so did several other board members, the village manager, and my fellow commission members. In fact, the village manager asked me to help train the new commissioner replacing me, which I was happy to do.
  Compare those facts to the slanderous lie Dave Heilmann wrote about me…that I was “not re-appointed to the P&D Committee because Heilmann received complaints about my independence.” He provides no proof or documentation, because none exists, and neither he nor any other Village official ever told me about any complaints, not while I was on the P&D Committee, and not any time after.
  In fact, the only real disagreement I ever had with Dave Heilmann was over Christ Hospital’s $500 million expansion. Heilmann thought the hospital should get a free pass on construction fees, permit fees, and other payments that could have amounted to almost $7 million for Oak Lawn residents. These are fees that every other business and resident in Oak Lawn pays, and that Advocate Christ routinely pays and expects to pay in ALL the other towns where they have hospitals.
  For some reason Heilmann thought Oak Lawn should be different, that we shouldn’t “penalize” the hospital, regardless of how their half-billion-dollar project might affect our Village. Maybe it had something to do with Mr. Heilmann’s law firm (from their website) representing some of Chicago-areas biggest hospitals and hospital groups? Or maybe because Christ Hospital honored Heilmann as their “2012 Man of the Year,” complete with a black-tie event at a museum in downtown Chicago?
  Whatever his reasons, I disagreed with Heilmann, and so did the majority of our other P&D Commissioners. And Heilmann made it very clear to me that he was very unhappy with my position, so apparently if you disagree with Dave Heilmann, you are not “acting independently.” Which is backwards and hypocritical. Especially when the majority of the village trustees, the village manager, the village clerk, and the village attorney also disagreed with Heilmann, and so did the vast majority of Oak Lawn residents as we saw in last April’s election, where the issue of Christ Hospital paying their “fair share” was the No. 1 issue. Dave Heilmann and his entire slate of candidates lost decidedly, and within weeks Christ Hospital also said they disagreed with Heilmann, when they agreed to pay the Village more than $3 million for their expansion.
  That was the biggest and most obvious lie but it wasn’t the only one.
  I can’t deny that after reading Dave Heilmann’s (commentary) I became very angry and frustrated, but as I began writing my response, that anger and frustration turned to sadness.
  Sadness for a person who, a person who I thought held so much promise for Oak Lawn. We are fellow parishioners at St. Linus parish. I supported Dave when he first ran for Mayor in 2005, and worked on his re-election campaign in 2009. I attended his father’s wake, and sent his wife a get-well card during her illness. And I did all of this not because of politics, but because I considered Dave a friend, which makes his attack on me that much more hurtful.
  It’s one thing to disagree with someone, or even to dislike someone, but it’s something altogether different when you purposely lie about someone and malign their reputation and character to get revenge on your political enemies. And it’s not acceptable. Period.
  Heilmann finished by saying “Sometimes silence screams the truth,” and since he appears to believe that, consider my response the answer to that silence.
  But also consider something else. There is definitely one thing that “screams the truth”, and not just sometimes but always. It’s called the truth.

Radice is the former Oak Lawn Planning & Development commissioner.