High Court Rules in Favor of Frustrating Free Speech

About a year ago, I reported on the Westboro Baptist Church and their protest of a Drake University forum on campus.  If you'll recall, Westboro is the outfit that protests at military funerals claiming that military deaths are God's response to the US Government sanctioning homosexuality.  At the time of my first entry, the U.S. Supreme Court had agreed to hear a case where a father of a fallen soldier sued Westboro for invasion of privacy, and Westboro argued for protection under the First Amendment

The Supreme Court issued its 8-1 ruling in favor of Westboro, finding that the protestors’ speech “cannot be restricted simply because it is upsetting or arouses contempt.”  Chief Justice Roberts noted that it is the speech that we hate the most that oftentimes requires the greatest protection. 

US Supreme Court: Are Video Games Obscene?

On November 2, 2010, the US Supreme Court heard oral arguments in the case Schwarzenegger v. Entertainment Merchants.  The case tests the constitutionality of a California law that bans the sale or rental of violent video games to minors.  The Court's ruling in this area will likely have a drastic impact on the status of First Amendment law. 

Supporters of the law provide studies that show a correlation between playing these video games and a desensitization to real violence.  They argue that this law gives parents more control over the actions of their children.  In terms of their legal support, supporters argue that these violent video games are akin to obscene sexual material, and the law prohibiting sale of these games to minors should be subject to a rational basis test, as opposed to strict scrutiny.

Opponents of the California law provide their own studies that deny any correlation between playing these games and the player's propensity to commit actual violence.  The law's opponents further argue that if violent video games are subject to this law, what would prevent states from prohibiting sales of books or movies that contain violence.  Further, what level of violence would the game need to contain for it to be regulated under the law.  Opponents argue that the California law restricts protected speech, and the law should accordingly be held to a strict scrutiny standard.

The transcript of the oral argument is linked above.  If you have the time, it provides interesting insight into how the US Supreme Court (and state supreme courts) have to deal with a number of legal precedent standards, statutes, and policy issues in each decision they make. 

Frustrating Functionality of the First Amendment

Last weekend, the Drake Law School Constitutional Law Center hosted a symposium on same-sex marriage on campus.  Members of the ever-famous Westboro Baptist Church from Topeka, Kansas came to the event to protest, displaying incendiary signs and shouting off-color remarks.  See the Des Moines Register piece on the event.  Luckily, the protest (and counter-protest of over 400 Drake students) was peaceful, and no arrests were made or lawsuits filed (yet). 

The Westboro Baptist Church has also protested at military funerals, essentially arguing that these military deaths are God's punishment to the United States for condoning homosexuality.  One father of a slain soldier in Pennsylvania brought a lawsuit against the church, arguing that the church's protest was an invasion of privacy and was an intentional infliction of emotional distress.  The church responded that its speech is protected by the First Amendment to the United States Constitution.  Interestingly, the US Supreme Court has agreed to hear arguments in the case. 

This case represents a classic moral dilemma:  although one can sympathize with the father who likely wanted to mourn his son's death in quiet dignity, it is dangerous to prohibit types of speech that we find repulsive. 

Although this author believes the Court will ultimately side with the church, this case represents one of the truly fascinating aspects of legal theory (and made sitting through law school class bearable).  Stay tuned!!

The Politics of Law School

Today the Des Moines Register reported on a lawsuit filed against the Univeristy of Iowa College of Law.  The Plaintiff is Teresa Wagner, who applied for a writing instructor position with the law school, but was not hired for the job.  Wagner claims that she was not hired due to her conservative political affiliation, since a majority of the faculty at the law school are registered Democrats. 
To make out a prima facie case of First Amendment retaliation, Wagner must present evidence that:
  1. Her political affiliation was constitutionally protected;
  2. She suffered a deprivation likely to deter free speech or her freedom of association; and
  3. Her political affiliation was at least a motivating factor in the College's decision.  A motivating factor does not amount to the only factor, but is rather a factor that motivated the University's actions.

George v. Walker, 535 F.3d 535, 538 (7th Cir. (Ill.) 2008). 

If Wagner can prove that an improper purpose was a motivating factor in the decision, the University will have to show that the same decision would have been made in the absence of the protected speech. 

If the University carries that burden, the Wagner must then demonstrate that the College's proffered reasons for the decision were pretextual and that political affiliation was the real reason for the decision.