Constitutional Law Litigation

Two Cases Test Reach of First Amendment – The KKK Wants to Sponsor a Highway and Some Texas Cheerleaders Use Bible Banners at Public School Athletic Games!

Yesterday I had the privilege of judging a Quarter-Final round of the New York Law School Froessel Moot Court Competition. The competition seeks to recreate a Constitutional law argument before the US Supreme Court and this year’s problem focused on the First Amendment’s Free Speech Clause. Specifically it involved whether a school could punish students for comments they made after school on a private Social Media Group. The students did a great job with the issue. But when I was done, I went online and learned about two cases that have just arisen that are really exemplify the scope and purpose of the First Amendment.

A few days ago, the Ku Klux Klan filed a Federal lawsuit in Georgia against the State for rejecting the white supremacist group’s application to “adopt” a stretch of highway. Road signs are typically installed by U.S. states to recognize participating organizations who help off-set the cost of roadway cleanup and maintenance; the Georgia Department of Transportation told the Klan chapter that erecting a sign with the Klan’s name could lead to potential social unrest and distraction of drivers. You think? So the KKK reached out to the ACLU who promptly took up their cause, just as they had done for the Nazis in the landmark case of Skokie v. Illinois, where they won the right for the Nazis to march in the streets of a Chicago suburb. I did a little research and found that in 1997 the Klan won the right to “adopt” a Missouri highway; the Supremes declined to review that case. So it would seem that Georgia would have to find a way to distinguish itself from the Missouri case if it wanted to stop this. While it is comforting to know that the KKK has moved on from lynching Black people and burning crosses and now is keen on highway beautification, I would be very upset if I was driving down the road and saw “This Mile Proudly Sponsored by the Ku Klux Klan!” But unfortunately (really fortunately) I think they have the clear right to do so. I agree with the statement released by the ACLU when they announced the litigation:

“We decided to take this case because it is such a clear violation of the speech rights of the group,” said Debbie Seagraves, executive director of the ACLU of Georgia. “We can’t let that slide.”

Letting it slide would be allowing the government to decide what speech is permissible and what speech could “potentially cause unrest.” The First Amendment is messy but as the US Supreme Court once held in Texas v. Johnson: If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

Then the very next case I read was about cheerleaders at a Texas high school who have won a court order allowing them to continue featuring Biblical quotes on the large paper banners that they hold up for football players to tear through when they take the field at the game opening. The lumber town of Kountze Texas, where the case arose is the County Seat of Hardin County yet boasts only 2,000 or so residents. The banners typically use Biblical passages for messages such as “Thanks be to God which gives us victory through our Lord Jesus Christ,” and are apparently a tradition in Kountze. A Hardin County Judge rejected a challenge that the banners constituted an establishment of religion. Kevin Weldon, the superintendent of schools had this to say: “I applaud the students for what they are standing for, I applaud their convictions. I have the same convictions they do. My relationship with God is very important to me and this community feels the same way.” Curiously Kountze was the first town in America to elect a Muslim mayor when it elected Charles Bilal in 1991.

This case is being appealed and the cheerleaders are being represented by the Texas-based Liberty Institute. I predict it will be reversed. It’s obviously fine to have a relationship with God but a public school cannot support or appear to endorse one God over another. A private prayer circle on the field would be fine, but a large public on-field banner touting Jesus Christ is a school endorsement of Christianity. Who better to quote on the meaning of the First Amendment’s prohibition against establishment of religion than James Madison:

An alliance or coalition between Government and religion cannot be too carefully guarded against……Every new and successful example therefore of a PERFECT SEPARATION between ecclesiastical and civil matters is of importance……..religion and government will exist in greater purity, without (rather) than with the aid of government.

I can already hear what some critics would say about my take on these two stories: It’s a sad day when the Constitution protects the KKK but not Christ. But what the First Amendment protects is the right of the minority voice not to be silenced or impressed upon by the majority voice. These founding principles were so important that the Founding Fathers made them part of the First Amendment to the Constitution. As I told some of the students after the competition yesterday – “It’s First for a reason.” Both of these cases certainly cause some discomfort in how the First Amendment would regulate (or not ) the conduct involved. But we must maintain limits on what the government can and cannot do and that is the whole purpose of the First Amendment.

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