FIRST AMENDMENT MEANING AT ISSUE

By Gene Policinski

There are two major venues in the past year in which the First Amendment and its values are being argued, tested and challenged. One, that we might expect, is in the U.S. Supreme Court. The other, quite literally, is the world.

The high court considered cases ranging from offensive speech to religious freedom to use of the Confederate battle flag on state license plates.

But larger disputes took place outside the Court’s chambers, as differing world views collided on the meaning of religious liberty, the scope of protection for speech and press, and on limits — if any — on the ability to organize and seek political and social change.

In the Middle East, a new and violent gang of thugs known as ISIS paraded under the banner of Islam, proclaiming a new Muslim state and committing barbaric acts of butchery. Two U.S. freelance journalists — James Foley and Steven Sotloff — were beheaded as were several other hostages.

ISIS demonstrated a chilling ability to seize attention by using YouTube to post video of the murders and accompanying diatribe against the West. When Web entities such as Twitter reacted by taking down ISIS posts, the terrorists issued a threat against the founder and employees of that company.

In Ferguson, Mo., Baltimore, Charleston, S.C., and other locations were African-American men had fatal encounters with police that led to protests, new questions were raised about the power of local authorities to limit activities ranging from public demonstrations to press coverage to citizen photographs of police activity.

In Paris, as the New Year began, a killing spree at the offices of the Charlie Hebdo magazine raised new questions about how free speech is — and will be — defined worldwide, particularly in the context of religious liberty. What limits may societies place on offensive speech? Do governments have an obligation to protect religious faiths, especially those minority faiths in their nations, from criticism? Or does free speech mean people of faith, and of other groups such as the LGBT community, may be targeted with speech that fails the test of being “true threats?”

For the issues being waged in the world court of public opinion, no verdict is expected soon.

But at the U.S. Supreme Court, decisions were made in a number of cases involving First Amendment freedoms:

Free speech and “true threats:” (Elonis v. United States) At issue: Differences among various federal circuits on what constitutes a “true threat,” words that will not be protected as free speech. The Supreme Court ruled that juries must take into account the intent of the person speaking, as well as consider how the speech was perceived by others.

In arguments on Dec. 1, lawyers for Anthony Elonis argued that his conviction and 44-month prison term for transmitting a threat across state line should be overturned because he did not intend to instill fear by multiple postings on Facebook he has said were akin to “rap lyrics.”

Government lawyers argued that Elonis properly was convicted under laws that apply the concept that the determining factor is the so-called “objective standard,” whether a “reasonable person” would perceive the speech as a true threat. Elonis said the legal standard should be proof of a “subjective intent to threaten.”

Elonis claims that the threatening words and violent images he used in the posts were simply “therapeutic” writing that helped him deal with the breakup of his marriage — and as such, protected self-expression. At trial, the court disagreed with that argument and Elonis was convicted of making threats against his ex-wife and others.

Justice Samuel Alito said during the oral arguments that “this sounds like a road map for threatening a spouse and getting away with it. So you put it in a rhyme … then you are free from prosecution.”

But writing for the majority in reversing Elonis’ conviction, Chief Justice Roberts said a criminal conviction requires more than review of how the words would be understood by a “reasonable person.” Prosecutors must show that the speaker intended to threaten a specific individual.

Free speech and the Confederate flag: (Walker v. Sons of Confederate Veterans) The Court held that Texas officials could ban use of the Confederate battle flag on state license plates, which had been requested by the private Sons of Confederate Veterans (SCV) group. SCV had said that state officials violated its First Amendment right of free speech by banning the flag.

The justices agreed with the state’s argument that a license plate, even when carrying the slogan or image sponsored by a private group, is “government speech.” SCV argued that the specialty license plate is more private speech than government speech, and when people see a vehicle with a specialty license plate affixed to the car, people associate the words or image with the driver or owner of the vehicle. Following the decision, opponents of the court ruling warned it may encourage other governmental entities, such as universities, to attempt to ban speech they find offensive or counter to school policies.

The impact of the “outside world” on the “inside the courtroom” was striking, with regard to the flag issue. In its annual State of the First Amendment survey, taken before the Court ruled, a majority of Americans rejected a ban on use of the flag.

But following the court’s ruling, and the mass killing of nine people in a South Carolina Church – with the alleged killer having been photographed with a flag – a new sampling showed that public opinion had reversed: A majority of respondents now supported such a ban on using the flag on auto tags.

Religious freedom and same-sex marriage: (Obergefell v. Hodges) Strictly speaking, the issue before the court was not a “First Amendment” issue, but rather the 14th Amendment and Fifth Amendment’s provision for equal protection and due process under the law. But the battle over same-sex marriage bans and recognition of gay marriages by various states clearly involved religious beliefs and at times the right of association

Four cases from different states — Michigan, Ohio, Kentucky and Tennessee — were consolidated, but the court’s decision declared same-sex marriage legal in all states. Federal circuit courts had been

split on the issue. The Sixth Circuit had upheld state bans in the four states at issue, but such marriages already were legal in 36 states.

In the decision in June, as it had in 2013, in United States v. Windsor, the Supreme Court held banning or not recognizing same-sex marriages was “a deprivation of the liberty of the person protected by the Fifth Amendment.”

In the 2015 State of the First Amendment survey, 54% of Americans didn’t see the court’s same-sex marriage decision having “a lasting impact” on religious liberty, but that 31% did see it as “harmful,” long-term.

Religious liberty and personal expression: (Holt v. Hobbs) The issue on which the court ruled Jan. 20 was the extent to which government security claims could override an inmate’s religious beliefs. The Court — in a 9-0 ruling — upheld the right of Arkansas inmate Gregory Holt, a Muslim, to have a half-inch beard. Holt had cited the Religious Land Use and Institutionalized Persons Act (RLUIPA,) a 2000 federal law that protects the religious liberty rights of prison inmates.

Department of Corrections officials said banning such beards was necessary for prison security, safety and identification needs. But the justices said that reasonable accommodations — having a pair of photos, beard and no-beard photos on file, and using safe search practices — could protect prison guards and inmates’ rights. They noted that beards of the length worn by Holt were permitted for other inmates with skin conditions.

Religious freedom and equal employment: (Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.) In an 8-1 opinion, the court held that clothing retailer Abercrombie & Fitch was not allowed to reject teenager Samantha Elauf for a potential job based on the fact that she wears a headscarf for religious reasons, even though the scarf was against their company dress code. The court cited Title VII of the Civil Rights Act of 1964, which makes it illegal to bar someone from employment based on their religion and their religious practices. The lower court held for the employer in that Elauf did not inform them that she wore a scarf for religious reasons and therefore they could not be held liable. The court reasoned that Elauf only needed to show that her religion was a “motivating factor” of the decision not to hire her, and then Abercrombie had taken away her religious freedom and equal opportunity rights.

Free speech and signs: (Reed v. Town of Gilbert) The court held that the town improperly had placed different kinds of restrictions on political, ideological and religious signs – violating the First Amendment’s requirement that the government approach such laws on a neutral basis, not considering content. In the dispute between the Good News Church and officials of Gilbert, Ariz., the small church had been limited in placing small temporary signs to give directions to its services – held in different locations throughout the year. The Gilbert ordinance gave size-and-duration preference to political signs and even homeowner meeting notices, which were not available to such church signs. The court ruling may impact such laws in towns across the nation.

Judicial free speech in elections: (Williams-Yulee v. The Florida Bar) The court ruled that states may prohibit judicial candidates who must run in elections from personally asking their supporters for money.

Lanell Williams-Yulee was a candidate for a judgeship in Hillsborough County Florida when she signed a letter asking for campaign contributions in 2009. The Florida Bar recommended a reprimand and fine because the letter violated a regulation that bars candidates from personally soliciting contributions for a “judicial office that is filled by public election between competing candidates.”

Williams-Yulee denied that she did anything wrong because there was no other candidate. The Florida Supreme Court had upheld the canon as advancing the state’s compelling interest in preserving an “impartial judiciary.” Appellate courts nationwide were deeply divided on the constitutionality of judicial solicitation bans, which are on the books in 30 states.

While these Supreme Court cases involve important principles around the application of our core freedoms, the larger worldwide debate is over basic issues:

The essential meaning and limits of freedom of expression and religious liberty is being tested in an increasingly multicultural world and because ideas and expressions once confined to nations or regions are now global via the Web.

The presence of technology produces new challenges to old issues of privacy and access to information, and even redefines the nature of protests and defamation.

The Jan. 7 killings at the offices of the Charlie Hebdo were echoes of the ongoing violent reactions by some to a Danish newspaper publication in late 2005 of cartoon parodies of the Prophet Muhammad. The murders — nearly universally condemned — sparked differing views on whether nations may restrict such deliberate insults with the stated intent of safeguarding the rights of religious organizations, particularly those in minority situations in those nations.

Movements supporting so-called “take-down” laws have gained support in nations — particularly in Europe — where the online posting of personal information has long been an “opt-in” option in fee-based Internet operations, rather than as in the advertising-and-marketing approach to a “free internet” where personal search data and some individual information is available unless a person “opts-out.”

Technology, such as cell phone cameras, has allowed us to see protesters in real time — and to experience on-line protests — on streets from Ferguson to New York City to Los Angeles. And images available instantly on the Web from those same cameras are holding police and local authorities accountable in violent, particularly fatal, incidents in ways not possible even a few years ago.

The nation’s founders provided strong protections for public participation in the marketplace of ideas, which even in their era had an international flavor. Clearly, in this last year, the 45 words of the First Amendment have found new vigor, new interpretations and prompted new debate and challenges – here and around the globe.

The author is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. [First Amendment Center Ombudsman David L. Hudson Jr.; and Newseum Institute legal intern Alexa Zavada of the Columbus School of Law, The Catholic University of America, contributed to this article.]