Monday, October 11, 2010

First Amendment

It's been so long since I've last blogged. This was mostly intentional since I really just didn't have anything to say. Like I wrote in my previous post, I began this American Government course with a very elementary level understanding of the basic roots our government. I've been spending the last month just soaking up and pondering ideas from in-class discussions and the textbook. I know that textbooks are always biased to some degree and that classroom comments can often be fueled by emotional heat rather than reason, but I needed some ground to start on. However, I feel like there is just not enough time in the day (or too much to do rather) for me to study the United States government and Constitution as thoroughly as I would like. But I guess that's what life-long learning is for.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment protects We the People. It protects We the People's right to religious expression by prohibiting the government from establishing a national religion and allowing We the People to practice any form of religion we so desire. The First Amendment also protects verbal, written, and other forms of expression (i.e., artistic, audio, digital). The First Amendment also protects We the People's right to assemble in any way they so choose and protest the government in peace. In regard to the freedom of speech, there have been many controversial cases in which the freedom of expression collides with other rights of We the People.  

I can't quite remember, but I think the first time I heard of some of the First Amendment's ideas was in elementary school. I grew up in a Baptist church, but I've always been in the public school system. I remember knowing that teachers were not allowed to lead us in prayer, but not fully understanding why. It probably wasn't until school middle school when I was formally introduced to the concept of "separation of church and state." I also don't think I was formally introduced to the concept of "freedom of speech" until middle school either. But I still did not fully understand these concepts, moreover their implications.

I have always been a very faith-oriented person. I often draw parallels between my faith and other aspects of life. It may seem ironic and inappropriate for me to be drawing parallels between Christianity and the establishment and free exercise clause, but I think they are very relative regardless of one's religious beliefs. Many of our Founding Fathers were religious, but they also knew that forcing religion upon a nation would only cause great turmoil. This is often noted in a surprising manner, but I don't think it should be at all. After all, the Christian faith is rooted in free will.

I know for sure that it wasn't until my high school government class when I was formally introduced to the freedom of the press, assembly, and petition. I have too often taken these freedoms for granted.

The following article talks about the issues surrounding the Snyder v. Phelps case that was recently heard by the U.S. Supreme Court on October 5. Snyder v. Phelps is a case about the First Amendment proctections versus the right to privacy. I feel that their should be a line drawn between First Amendment protections and the right to privacy. It will be interesting to see what the Supreme Court decides.

Lawsuit against Fred Phelps poses First Amendment test
The Kansas City Star

Under our First Amendment, there seem few — very few — social lines that cannot be crossed in this country.
Flags can be burned, Nazis can march, profanity be displayed, according to the U.S. Supreme Court. Like legal Spandex, free speech is stretched and stretched to cover some ugly things, making many of us uncomfortable in the process.
Waving signs that proclaim “God Hates America” and “God Hates Fags” and “Thank God for Dead Soldiers” outside a funeral for a fallen serviceman?
Will this fit, too? Lower courts have disagreed.
So today, the nine U.S. Supreme Court justices will hear Snyder v. Phelps.
“We’re going to court saying there’s a line somewhere,” said Craig Trebilcock, one of the attorneys for the father of Marine Lance Cpl. Matthew Snyder, who died four years ago in Iraq. “A group trying to use a claim of religion, or a claim of some sort of free speech, cannot use it as a club to harass, demean and crush a family.”
Rising from the other table will be the daughter of one of the most controversial — and some argue notorious — men in Kansas history, the Rev. Fred Phelps, pastor of Topeka’s Westboro Baptist Church.
“It’s not a First Amendment case, it is the First Amendment case,” Margie Phelps, attorney for Westboro Baptist, said last week. “It’s the ultimate test on whether this republic is real. The point of a republic is to protect from mob rule the dissenting view.”
The church’s dissenting view is that God reviles America for its tolerance of homosexuality and that deaths of military personnel are divine retribution.
And like it or not, she said, her family and their tiny church have the right to say whatever they want on public property.
The case, which has wound its way from a Maryland courtroom through the U.S. 4th Circuit Court of Appeals, pits free speech against privacy in a society that some would argue has too little of the latter.
“I had one chance to bury Matt and they took it away from me,” said the Marine’s father, Albert Snyder. “For them to say they didn’t disrupt the funeral, they are crazy.”
One of his other attorneys, Sean Summers, will tell the court that the church launched targeted abuse against the father and the family before, during and after the services.
Margie Phelps: “All this jabber about captive audience and private rights; it doesn’t fit the principal of law.”
Dan Winter, executive director of the American Civil Liberties Union of Kansas and Western Missouri, sees the case as a test of the amendment’s strength.
“It’s really a question of if the government is going to cut down this public speech because it’s vile, then what’s next?” he asked. “The Methodists? Is it newspapers? The blogs? The Republicans?”
The case will continue to elicit raw emotions and ethical and legal dilemmas.
The 20-year-old Snyder had only been in Iraq five weeks when he died in 2006. A day after two Marines showed up at his doorstep to give him the news, Albert Snyder learned that the Phelps clan would protest the funeral in Westminster, Md. He had seen members on TV, protesting other soldier funerals, and thought, “Oh, that’s great, that’s just what we need.”
The day of the funeral, seven members of the Topeka church showed up.
Shirley Phelps-Roper said the group stood the required 1,000 feet away.
“The church told us where to stand,” she said. “They put us in the corn field where the crickets chirp.”
Regardless, everything was disruptive, Snyder said. Swarms of media showed up. A SWAT team. State and county police. A Winnebago that served as command central for authorities.
Snyder said the stress from the protest and rhetoric from the church in the days after complicated his diabetes and caused depression.
A federal district court jury in Baltimore awarded nearly $11 million in damages to Snyder in 2007, saying the Phelps group intentionally inflicted distress on the family.
The award later was reduced to $5 million and eventually was overturned on appeal. In part, the three appellate judges said the protesters’ signs “clearly contain imaginative and hyperbolic rhetoric intended to spark debate” and thus were protected by the First Amendment.
The protest was not aimed specifically at the Snyder family, Phelps-Roper said.
“We didn’t know those people; we’re talking to a nation,” she said. “There was not one hitch in that funeral, nothing disruptive. …You just don’t like these words because they strike right at your heart.”
Snyder did not decide to sue until later, after he saw another family on the evening news going through a similar ordeal.
“What kind of society are we if we can’t bury our dead in peace?” Snyder asked. “It’s easy for people to say it’s free speech. You come back and tell me it’s free speech after they do it to your kid.”
Carl Tobias, University of Richmond (Va.) law professor, admitted being “conflicted personally. I am concerned about the First Amendment. But there’s a lot of sympathy, I think, and justifiably so, for the plaintiff, and I feel that, too.
“The thought is these are private people in a private moment, why should they be subjected to this behavior?”
The 48 states and District of Columbia supporting Snyder’s appeal say many legislatures have enacted laws limiting funeral protests that could be undermined if the church wins.
Led by Kansas Attorney General Steve Six, the states also contend that funerals are special circumstances protected from “unwanted emotional terrorism.”
“It’s not so much about the content of the speech, but when they do it, how they do it and to whom they do it,” said Steve McAllister, Kansas solicitor general. “They’re targeting private families.”
The ACLU submitted its own brief in favor of Westboro.
At the University of Kansas, law professor Richard Levy said, “If I had to go to Vegas and lay odds … I would be betting on the Phelpses. But it’s not a sure thing.”
Twenty-six members of the Topeka church have traveled to Washington, D.C. During arguments, three will be at the table with Margie, among them Phelps-Roper and another sister, Elizabeth Phelps.
Fourteen will be in the gallery watching, and eight more will be outside protesting with signs similar to the ones waved outside Matthew Snyder’s funeral.
“That First Amendment has weathered a lot of things — burning flags, pornography, all kinds of indecency,” Margie Phelps said. “Can the First Amendment survive a little humble church in the middle of the country talking to this nation about its sins that have gotten them in trouble with God?
“Can our First Amendment weather that?”

Some Supreme Court free speech rulings

Chaplinsky v. New Hampshire
“Damned Facist” deemed “fighting words” leading to breach of peace

National Socialist Party of America v. Village of Skokie
Nazis allowed to march in Illinois community whose population included Holocaust survivors. the U.S. Supreme Court’s role in 1977 was to decline review, leaving in place a lower-case ruling in favor of the Nazis.

Texas v. Johnson
Forty-eight state laws that banned U.S. flag burning invalidated

Hill v. Colorado
State allowed to order abortion protestors to stay 8 feet from clinic patrons

To reach Laura Bauer, call 816-234-4944 or send e-mail to
Posted on Tue, Oct. 05, 2010 11:00 PM
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This article talks about the phrase and idea "separation of church and state" in relation to the Constitution. The article catalogs a debate between O'Donnell and Chris Coons. O'Donnell states that nowhere in the Constitution is the phrase "separation of  church and state" found. I agree with the idea that the First Amendment does not ban all involvement between church and state, but simply prohibits the government from establishing a religion and offers protection to We the People to practice whatever religion we so choose.

O'Donnell questions separation of church, state
Associated Press Writer

O'Donnell left her law school audience buzzing when she challenged her Democratic opponent to show where the Constitution requires separation of church and state, and a day later, the two Senate candidates are set for more face-to-face forums.

"Where in the Constitution is separation of church and state?" O'Donnell asked Chris Coons Tuesday, drawing swift criticism from him, laughter from the crowd and a quick defense from prominent conservatives.

Coons, an attorney, responded that O'Donnell's question "reveals her fundamental misunderstanding of what our Constitution is. ... The First Amendment establishes a separation."

She interrupted to say, "The First Amendment does? ... So you're telling me that the separation of church and state, the phrase 'separation of church and state,' is in the First Amendment?"

Her campaign issued a statement later saying O'Donnell "was not questioning the concept of separation of church and state as subsequently established by the courts. She simply made the point that the phrase appears nowhere in the Constitution."

Conservative commentator Rush Limbaugh made the same point in his radio program soon after the debate, saying, "There's nothing in the Constitution about separation of church and state."

The controversy was the latest to befall O'Donnell in a race where she trails badly in the polls against Coons. They meet again twice on Wednesday.

Coons is executive of New Castle County, the state's most populous county. O'Donnell, with strong tea party support, burst into the national spotlight by winning the Republican primary over a longtime GOP congressman.

The subject of religion and the law came up during their debate at Widener University Law School as O'Donnell criticized Coons for saying that teaching creationism in public school would violate the Constitution.

Coons said private and parochial schools are free to teach creationism - O'Donnell used the term "intelligent design" - but that under the "indispensable principle" of separation of church and state "religious doctrine doesn't belong in our public schools."

He said the separation of church and state was one of a number of "settled pieces of constitutional law" worked out through years of legal development including Supreme Court decisions. He said a woman's right to abortion was another.

He noted again the First Amendment's ban on establishment of religion.

"That's in the First Amendment?" she said, smiling.

Both candidates suggested that the exchange showed the other didn't understand the Constitution.

The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The phrase "separation of church and state" is usually traced to President Thomas Jefferson. In a letter in 1802, he referred to the First Amendment and said that it built "a wall of separation between Church & State."

The relationship of government and religion continues to be debated in American law. Many argue that the First Amendment's reference to religion involves the establishment of any particular religion, an important concern to the American colonists, not a ban on all involvement between religion and government.
O'Donnell's comments, in a debate aired on radio station WDEL, stirred the audience.
"You actually audibly heard the crowd gasp," Widener University political scientist Wesley Leckrone said after the debate.
Posted on Tue, Oct. 19, 2010 08:16 AM
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