Frustrating Functionality of the First Amendment

Posted on April 13, 2010 by Benjamin Clark

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!!

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The Politics of Law School

Posted on January 23, 2009 by Benjamin Clark
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.

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