The First Amendment: A question of limits

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EDITOR’S NOTE:
By Britt johnsen
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| Protesters rights | | Religion and education | | Bias crime | | Recruiting |
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The right to free speech, religion, press, assembly and petition are basic First Amendment rights.

But many arguments still prevail about how far each right should go. Some findings are contradictory, while others indicate the ebb and flow of trends in opinions about the First Amendment.

This year’s State of the First Amendment survey ” which surveys annually how Americans view their First Amendment freedoms ” reveals that 70 percent of Americans would be OK with posting the Ten Commandments in government buildings. Additionally, it says 85 percent of Americans would agree with the commandments being “one document among many historical documents” in public buildings.

Other findings include 63 percent disagreed that the “government should be allowed to access records of materials borrowed by public library patrons.” But 77 percent said those who go to libraries should be notified when the government asks for records of what they borrowed. The House of Representatives voted 238-187 on June 15 to block the part of the Patriot Act applying to library and bookstore records. It does not, however, apply to online searches.

Finally, 23 percent of Americans in the survey said “the First Amendment goes too far in the rights it guarantees.” This contrasts with the 49 percent who responded in 2002 (the first survey after the Sept. 11, 2001, attacks).

No matter where you fit in these categories, you will find some interesting updates and news on the First Amendment. In these stories we explore prayer in the University, the Solomon Amendment and hate speech.

As debates and news continue, we hope you don’t lose sight of your rights. They are yours ” stay informed.

Protesters exercise rights, face limits under the law
BY JP LEIDER

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Riots, protests, civil disobedience.

In recent months and years, the media have covered a fair share of people who, for one reason or another, believe the status quo isn’t enough and decide to do something about it.

Whether it is continued strikes at Northwest Airlines or students protesting the military’s recruiting principles, the University also has been impacted by political activism.

At one point during November’s demonstration on campus, students protesting the war in Iraq closed parts of Washington Avenue Southeast.

The reason protests of that nature occur, said Erika Zurawski of the Anti-War Organizing League, is that the media are “very biased.”

“A lot of people like to call it the liberal media, but in reality the media very much caters to the government,” she said.

In order to get attention, organizers have to mobilize people and energize people to go onto the streets and demand to be heard, Zurawski said.

“The only way the media will show up and listen to us is if we have a mass mobilization of people and talk about the problems going on in Iraq ” and that goes for any kind of protest.”

To Zurawski, there is no clear line when a demonstration goes beyond free speech.

“The line is created based on the conditions of the times,” she said. “Sometimes very drastic measures are within that line.”

University Police Lt. Charles Miner said otherwise.

“Speech is one thing, but (demonstrators) cannot physically block people or vehicles,” he said.

Minnesota law states that those who deny or interfere with the access or use of public property may be sentenced to imprisonment for as much as one year or be fined as much as $3,000.

Miner said demonstrations or protests around campus generally are small and end peacefully.

While the police do train for riots, they don’t necessarily train for situations of civil disobedience, he said.

“Generally, civil disobedience situations come out of nowhere and it’s not as easy to forecast as an athletic championship,” he said.

Civil disobedience, where individuals peacefully violate laws or governmental directives, has been employed often over the past century, most notably in the U.S. civil rights movement and by Mohandas Gandhi.

“The hallmark of civil disobedience is the orderly and conscious disobeying of laws with the willingness to accept consequences,” said University professor Kathryn Sikkink.

“It’s not someone breaking a window and running away, it’s someone who breaks the law consciously knowing they will be arrested.”

Civil disobedience may be a last resort for political activists, she said.

“Most people will start with a peaceful protest. They often are drawn to civil disobedience when they find no one is paying attention to their peaceful protest.”

Sikkink said she doesn’t see the Iraq peace movement using civil disobedience anytime soon, unless a draft is instituted.

“People need to feel very, very deeply to engage in civil disobedience. They have to be ready to spend time in jail,” she said. “How do a large amount of people feel deeply enough? They need to be more personally affected by it.”

Most people, she said, aren’t personally affected by the war in Iraq.

Harry Boyte, a senior fellow at the Humphrey Institute of Public Affairs, said for the Iraq protests, there’s less of a sense of being outside and alienated from American symbols than there was in the anti-war movement in the late 1960s.

He placed political activism movements into two categories.

The first, the “outside critic,” doesn’t view institutions as legitimate and generally views itself as outside the society, he said.

That mentality is the one with which most people in the 1960s peace movements identified themselves, he said.

The second type, the “prophetic tradition,” was employed frequently in the civil rights movement, where activists appealed to the values and symbols in the society.

Today’s peace movement is trying much more to connect with the average American than its counterpart in the 1960s, Boyte said.

Also, he said, there’s more sympathy and connection to American soldiers today on the part of people who are critical of the Bush administration.

A good example is that a lot of Iraqi veterans are running as Democrats in upcoming elections, Boyte said.

Religion and education meet with conflict in some cases
BY jamie vangeest

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The University has a policy for those who need to take work or school off for religious observances.

Actually, it’s not so much a formal policy, but a policy based off a memo written by then-Executive Vice President and Provost Bob Bruininks in 1997, said Julie Sweitzer, director of the University’s Office of Equal Opportunity and Affirmative Action.

In the eight years Sweitzer has been at the office, there have been one or two cases of students having difficulties getting out of class for a religious observance, she said.

Humza Khan, the Muslim Student Association’s public relations officer, said he doesn’t expect the University to provide days off for religious purposes.

“Most of the professors we deal with are understanding,” said Khan, who is also an actuarial mathematics senior.

The only times problems have come up has been when religious observances conflicted with tests or presentations, he said.

Khan said he wishes the University would make the faculty members more aware of upcoming days of observance, so they can be more sensitive of students who might need time off.

Sarah Kramer, vice president of Hillel, the Jewish student center at the University, and a junior in women’s studies and family social science, said she never has had difficulties taking time off for Jewish holidays.

Kramer was excused for Yom Kippur, Rosh Hashanah and Passover without problems. She knows Jewish professors who have canceled class for religious observances.

Rabbi Sharon Stiefel, associate Director of Hillel, said professors have been accommodating to Jewish students on campus, but students need to remember to talk to professors at the beginning of the semester.

“Occasionally there is a professor that might give a student a hard time but there hasn’t been a situation where the student can’t resolve it,” Stiefel said.

Stiefel has had to write notes for professors who want confirmation that a student is missing class for a valid reason. In the note, Stiefel states that the student is active in their Jewish faith.

“Nowhere does (the University) policy say (students) need a letter from their religious leader, yet I have written many letters for students,” she said.

Bring religion to the classroom

There are instances when college students incorporate their faith with their education.

With 11,000 students, the University of St. Thomas in St. Paul is the largest private college in

Minnesota. It is also a place where the separation of church and state takes a seat in the back of the class.

St. Thomas was the first university in the country to create a Catholic Studies program and many students choose to double major in Catholic studies and other disciplines like psychology and pre-medicine, said Don Briel, director of Catholic studies at the University of St. Thomas.

One of the core classes of the Catholic studies program is Spirituality and the Sacraments, which looks at the question of prayer and spiritual life, he said.

Briel said many non-Catholic students go through St. Thomas without many of the religious aspects of the college, but all students are still required to take three theology courses.

Megan McDonnell is a junior at the University of St. Thomas with a double major in Catholic studies and psychology.

“I knew I wanted to go to school where I could get a liberal arts degree and integrate it into my faith,” McDonnell said.

She said she gets the best of both worlds and enjoys being challenged intellectually by her faith.

Briel said the role of church and state in this country has been confused since the creation of the Constitution.

“The principle of the motion was not to protect the state from the church, but the church from the state,” Briel said.

McDonnell is glad the line of separation is a little more blurred at the University of St. Thomas.

Mc Donnell said she chose St. Thomas because she wanted to express her faith without the fear of separation of church and state.

Line between bias crimes and free speech sketchy
BY elizabeth cook
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Bias crimes or hate crimes happen at the University. However, some are protected by the First Amendment while others are not.

“There isn’t a clear line or definition,” said Julie Sweitzer, director for the Office of Equal Opportunity and Affirmative Action.

As recently as Jan. 24, a bias crime was committed at Frontier Hall involving graffiti and homophobic messages.

University Police Lt. Charles Miner said there have been more reported bias crimes in the past couple of years and there probably are a lot more that don’t get reported.

This semester there already has been one and last semester there were eight, said Deputy Police Chief Steve Johnson.

According to Minnesota statute 611A.79, a bias crime means conduct that would constitute a crime and was committed because of the victim’s actual or perceived race, color, religion, sex, sexual orientation, disability or national origin.

In Minnesota, there are no “hate crime laws,” but rather an enhancement to the penalty if hate was the motive behind the crime, said Ramsey County District Judge Edward Cleary.

A criminal cannot be charged with just a “hate crime,” Cleary said. They must first commit a criminal act with hate as the motivating factor. Only then can the bias crime penalty enhancement be applied.

The conduct can be prosecuted, he said, but the greater issue is whether their beliefs can be prosecuted.

When it comes to freedom of speech, the line gets even blurrier.

“Not all speech is protected (by the First Amendment),” said Mark Karon, director of University Student Legal Service.

There are limitations to freedom of speech, such as fighting words, disorderly conduct and disruption of the public.

For example, a person can’t yell their views at 4 a.m., but they could at 4 p.m. This is also why someone can’t yell “fire” in a movie theater, Karon said.

Racist comments could be considered disorderly conduct, Karon said.

But disorderly conduct is a misdemeanor and the maximum penalty in the state of Minnesota is $1,000 or 90 days in jail.

If the criminal’s defense is freedom of speech, then it’s harder to add the enhancement of penalty because it is an expression of one’s beliefs, Karon said.

Sweitzer also gave the example of preachers in the Northrop Mall area. They are protected by the First Amendment, she said, but there are restrictions ” such as noise level and time of day.

Every situation is different, Sweitzer said. It depends on time, place and manner ” whether it is on the mall, during class discussion or in a completely unrelated context

changes whether it is protected by freedom of speech, and what the penalties might be.

Johnson said the police department has had complaints about preachers on campus, but they can’t silence them.

They need to pose a direct threat for police to intervene, Johnson said.

Sarah Feingold, treasurer for the Queer Student Cultural Center, voiced concerns over the Minnesota laws dealing with biased crimes.

“It’s really complex,” she said. “You should be able to express yourself, but at the same time, should you be able to if it negatively affects others?”

Feingold said it depends on whether someone thinks it’s more important to protect First Amendment rights or to protect people.

Feingold said she leans toward the latter and doesn’t use derogatory terms.

“The most we can do is try to educate people about what they’re saying,” she said.

She said she thinks the graffiti like that found in the residence halls happens when people are exposed to different communities than they are used to.

Adeniyi Ayinde, a psychology sophomore, said the First Amendment itself is very vague, which is why people are able to form racist groups.

He also said he experienced forms of bias in high school.

Other students would wear shirts or other articles of clothing with the confederate flag on them. Ayinde said he expected the school administration to say something to them, but nothing was said.

Ayinde said he found the messages offensive.

Senior pre-med student Zoya Gesina said hate cannot always be prevented but said, “There should be strict laws against hate crimes. It should be addressed.”

She also said freedom of speech should be censored when it is putting someone else down.

Thomas Hong, a first-year computer science student, said freedom of speech should be protected as long as it’s not hurting anyone.

Hong said words can hurt a lot more and can “affect you in many more ways.”

Nathan Ng, also a first-year computer science student, said Minnesota should adopt a stricter bias crime law.

Law schools claim federal law violates First Amendment
BY Aidan M. anderson
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Often, when a First Amendment issue goes to court, the judges will weigh the right of the individual against the interest of the government.

In a time of war, military recruiters’ access to students sounds like a weighty argument.

A recent case now before the Supreme Court, Donald Rumsfeld v. Forum for Academic and Institutional Rights, takes to issue the Solomon Amendment, which requires universities receiving federal funding to allow military recruiters the same access to students other employers have.

FAIR, a consortium of law schools and law faculty, contend the Solomon Amendment violates the First Amendment, including the right to associate freely and the right to be free from compelled speech because of a policy barring openly homosexual people from serving in the military.

The concern is whether the law school, in complying with the law, is carrying the government’s message, said Kent Greenfield, a professor at Boston College’s law school and founder of the FAIR consortium.

“We’re not talking about symbolic speech here; we’re talking about real concrete government speech,” he said.

Universities aid recruiters by putting up posters, sending e-mails, posting notices, sharing résumés and setting up interview space, Greenfield said.

“The words we are forced to say are “Uncle Sam wants you, but only if you’re straight,’ and we’d rather not be the carrier of messages that would discriminate against our own students,” he said.

Many times, when a constitutional challenge to a government law arises, one of the key questions is whether the government has sufficient interest to justify speech restriction, said David Hudson, research attorney for the First Amendment Center.

In earlier stages of litigation, the government did not provide evidence to support compelling interest, said Ken Choe, senior staff attorney for the American Civil Liberties Union gay and lesbian rights project.

“I think there is some thought the reason they didn’t is because (the government) couldn’t prove compelling interest; the question is whether the Solomon Amendment is so narrowly tailored to suit the government’s interest,” he said.

There would need to be interest that there aren’t equally or more effective ways of recruiting than by encroaching on First Amendment rights, he said.

“Is forcing your way onto college campuses really the only way you can get there?” Choe asked.

In this case, it’s likely the government has at least a very substantial interest in effective military recruiting and “that’s probably enough,” Hudson said.

Many traditional First Amendment supporters are not confident of the decision of the case, he said.

“What (FAIR is) saying, and they’re right, is that the government doesn’t have unlimited power, but they have more leeway in this situation than a pure speech restriction.”

Hudson likened the Rumsfeld v. FAIR case more closely to similar funding cases, such as the United States v. American Library Association, in which the Supreme Court reversed a lower court decision that the government’s interest in filtering Internet content, such as pornography, in public libraries violated library patrons’ First Amendment rights.

“The government has a non-speech restrictive regulatory interest in military recruiting and the law schools have plenty of opportunity to protest, to advocate their speech,” Hudson said.

“That’s why I think the case is a loser for FAIR, because they have ample alternative means to express their message,” he said.

The wars in Afghanistan and in Iraq have spawned increased attention to the case, Greenfield said.

A challenge lies in fighting discrimination on one hand and supporting our troops on the other, he said.

“This is absolutely not anti- military. We’re not fighting the military; we’re fighting against discrimination. And we’re fighting to win the right for all our students to serve their country equally, regardless of sexual orientation,” Greenfield said. “We don’t want to use our resources to carry (the government’s) message.”

An argument could be made for simply not accepting government funds, typically hundreds of millions of dollars, but that would be flat-out wrong, Greenfield said.

“It can’t be the case that the government can condition benefits on whether the recipient waives their constitutional rights. If it were, we’d all be worse off for it,” he said.

Outcome aside

No matter what way the court decides, FAIR’s message will be clear, Greenfield said.

“What it meant to me was that the law schools were willing to stand up and fight for their students, it’s important to remember the needs of the military, but also to remember there are thousands of students who went to law school under the promise they would not be the victims of discrimination,” he said. “I think it’s important to fight against discrimination even if you don’t win every time.”

The court’s opinion will impact future cases as well.

“We kind of have to wait. It could be very significant because the court could speak to the reach of the government’s speech doctrine, it could talk about compelled speech doctrine and it could talk about the unconstitutional conditions doctrine,” Hudson said.

Institutions like these American law schools that are willing to stand up and defend their rights speak specifically on this topic, Choe said.

“I think regardless of the outcome of the case, it highlights that increasingly there are institutions within our society who find sexual orientation discrimination is intolerable.”