Eleventh Circuit Partially Rejects Challenge to Florida Pledge of Allegiance Law
In a decision handed down in 2008, the Eleventh Circuit Court of Appeals partially rejected an argument regarding the constitutionality of a Florida law requiring students to recite the pledge of allegiance. In Frazier ex rel. Frazier v. Winn, 535 F. 3d 1279 (11th Cir. 2008), the court determined that requiring a student to obtain parental consent to be excused from reciting the pledge did not violate the student's constitutional rights. However, the court concluded that requiring the student to stand during the recitation of the pledge violated the student's FIRST AMENDMENT rights.
The courts have considered numerous challenges related to shows of respect to the American flag. For instance, in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178 (1943), the U.S. SUPREME COURT held that a state could not constitutionally require students to salute the flag. Later cases have upheld the right of schools to require students to recite the pledge of allegiance. However, most courts have concurred that students should be allowed to refuse to participate in reciting the pledge. Thus, in Goetz v. Ansell, 477 F. 2d 636 (2d Cir. 1973), the Second Circuit Court of Appeals ruled that a school could not require a student to stand in silence when others are reciting the pledge. Instead, the court in Goetz concluded that the student must be allowed to remain seated.
Section 1003.44(1) of the Florida Statutes requires students at elementary, middle, and high schools to recite the pledge of allegiance each day before class. The statute specifies, “When the pledge is given, civilians must show full respect to the flag by standing at attention ….” The statute requires schools to inform students that the students have a right to refuse to participate. However, the statute requires the student to obtain written permission from the student's parent before refusing to participate.
The district board of education at Boynton Beach Community High School in Palm Beach County, Florida adopted a policy requiring students to recite the Pledge of Allegiance each day, consistent with the state statute. The school's administration maintained a form containing the school's policy with a line for the parent's signature showing parental consent for refusal to recite the pledge. However, even when the student's parent signed the consent form, the school's policy required every student to stand while others recite the pledge.
Cameron Frazier was an eleventh grade student at Boynton in December 2005. Ordinarily, students recited the pledge early in the day, and Frazier had always remained seated and refused to recite the pledge. He had not previously received parental permission to refuse to recite the pledge, and other teachers had not punished him for refusing to participate. On December 8, 2005, the school recited the pledge later in the day than normal. Frazier was present in Cynthia Alexandre's math class at that time. When the students stood to recite the pledge, Frazier remained seated. Alexandre ordered Frazier to stand several times, but Frazier continued to refuse.
The altercation between Alexandre and Frazier became more heated. Alexandre showed Frazier a copy of the school policy that recited the provisions of section 1003.44 of the Florida Statutes. When Frazier continued to refuse, Alexandre called the principal's office to have Frazier dismissed from class. Salvatore Camp, the school's assistant principal, escorted Frazier from the class to the principal's office and handed Frazier a copy of the school policy.
Camp informed Frazier that Frazier's mother would have to sign the policy. However, Camp said that Frazier would still have to stand during the reciting of the pledge.
Acting through his mother, Frazier brought suit against the school district, Alexandre, and Camp. Frazier argued that the school and the school employees had violated his First Amendment rights. He sought injunctive relief as well as damages under 42 U. S. C. § 1983. Judge Kenneth L. Ryskamp of the U.S. District Court for the Southern District of Florida agreed with Frazier, holding that the school violated Frazier's constitutional rights both by requiring Frazier to obtain parental consent and by requiring him to stand during the recitation of the pledge. The judge granted Frazier's motion for summary judgment and required the school district to end its practice of enforcing the policy regarding the pledge.
The school district appealed the decision to the Eleventh Circuit Court of Appeals. In a per curiam decision, a three-judge panel reviewed the constitutionality of different aspects of the school's policy. Frazier ex rel. Frazier v. Winn, 535 F. 3d 1279 (11th Cir. 2008). The first aspect related to the school's requirement than any “civilian” stand at attention during the recitation of the pledge. The second aspect related to the provision requiring a student to obtain parental consent before refusing to recite the pledge.
The court resolved the first issue relatively easily because the Eleventh Circuit had previously concluded that students have a clearly established right to remain seated during the pledge of allegiance. In Holloman ex rel. Holloman v. Harland, 370 F. 3d 1252 (11th Cir. 2004), the court concluded that a student not only had the right to remain silent during the pledge, but he also had the right to raise his fist during the recitation of the pledge.
Boynton argued that the court should construe the statute to allow the school to require students to stand, but the court rejected this argument. However, the court concluded that the requirement that civilians stand during the pledge was severable from the rest of the statute. Therefore, the court struck the standing requirement and considered the rest of the statute separately.
The court characterized the parental consent provision of the statute is more focused on parental rights. Since the statute's concern focuses on the rights of parents to interfere with the wishes of their children, the court concluded that the state's interest in protecting the parent's rights is great enough to restrict the student's speech. Therefore, the court concluded that the parental consent requirement was constitutional under the First Amendment.
Frazier requested an en banc review of the panel's decision. However, the court denied the petition. Circuit Judge Rosemary Barkett wrote a dissent from the denial of rehearing, arguing that the court did not properly consider precedents when reaching the decision. Florida Attorney General Bill McCollum was pleased with the result, however, noting, “[We] see it as a significant issue for parents and families.”
Third Circuit Again Strikes Down Child Online Protection Act
In a case that parties litigated for more than a decade, the Third Circuit Court of Appeals in 2008 struck down the Child Online Protection Act. This statute provided civil and criminal penalties for anyone who posted on the Internet material that would have been harmful to minors. However, the statute never went into effect because immediately after its enactment, parties successfully enjoined the statute's application. The Supreme Court declined to review the Third Circuit's decision, meaning that the litigation surrounding the case has probably come to an end.
Concerned with protecting children from harmful content found on the Internet, Congress enacted the Communications Decency Act as part of the Telecommunications Act of 1996, Pub. L. No. 104–104, 108 Stat. 56. The AMERICAN CIVIL LIBERTIES UNION (ACLU) and other parties immediately challenged the statute, arguing that the statute violated FIRST AMENDMENT rights of Internet users. The case reached the Supreme Court, which struck down the CDA. Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997).
Immediately after the Court's decision in Reno, Congress enacted the Child Online Protection Act (COPA), Pub. L. No. 105–277, 112 Stat. 2681–736 as part of an omnibus appropriations statute. The text of COPA provided that:
Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World
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Wide Web, makes any communication for commercial purposes that is available to any minor and that includes material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.
In defining what is “harmful to minors,” Congress borrowed language from the Supreme Court's definition of obscenity as set forth in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).
Opponents of the statute immediately challenged it in federal court. The U.S. District Court for the Eastern District of Pennsylvania enjoined the enforcement of the statute in 1999, and the case was appealed to the Third Circuit. The Third Circuit in 2000 determined that the “community standards” provision of the statute was overly broad, rendering the statute unconstitutional. ACLU v. Reno, 217 F. 3d 163 (3d Cir. 2000). The government appealed the case to the Supreme Court, which disagreed with the Third Circuit and held that the community standards provision was not unconstitutional on its own. Ashcroft v. ACLU, 535 U.S. 564, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002).
The appeals continued. The Third Circuit in 2003 again determined that the statute violated the First Amendment, in part because the statute was not the least restrictive means to prevent minors from being exposed to harmful material on the Internet. ACLU v. Ashcroft, 322 F. 3d 240 (3d Cir. 2003). The Supreme Court affirmed the Third Circuit's decision but also remanded the case to the district court so that the district court could make a factual finding about whether Internet filters were a more effective means of restricting minors from accessing harmful information. In 2007, the district court concluded in a lengthy opinion that COPA violated the First Amendment. Accordingly, the lower court enjoined the government from enforcing the statute. ACLU v. Gonzales, 478 F. Supp. 2d 773 (E. D. Pa. 2007).
In issuing the injunction, U.S. District Judge Lowell A. Reed Jr. noted that he was personally unhappy with the decision he had to reach. He wrote, “Despite my personal regret at having to set aside yet another attempt to protect our children from harmful material.” On the other hand, Reed determined that the provisions in COPA would have more long-term damaging effects on children because the statute would infringe on their free speech rights. “Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection,” Reed wrote.
Sitting for the Third Circuit was a three-judge panel consisting of Judges Morton I. Greenberg, Thomas L. Ambro, and Michael A. Chagares. Before the court, the government argued that the district court had erred in concluding COPA did not satisfy the strict scrutiny standard. This standard required the government to prove that COPA: (1) served a compelling governmental interest, (2) was narrowly tailored to achieve that interest, and (3) was the least restrictive means of advancing that interest. Previous Supreme Court cases had established that protecting the physical and psychological well-being of minors was a compelling governmental interest. Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 109 S. Ct. 2829, 106 L. Ed. 2d 93 (1989). The Third Circuit panel agreed and turned its attention to the other elements of the strict scrutiny standard.
The government argued that the statute was narrowly tailored because the statute allowed web developers to avoid prosecution by using age verification tools. The government also argued that the district court had erred by focusing too much attention on website owners who provided adult content for free, rather than focusing on commercial pornographers. The Third Circuit panel disagreed, noting that the statute placed an undue burden on all of the website owners, whether they were the principal focus of the statute's provisions or not. The court also disagreed that COPA's provisions were no different than so-called “blinder racks,” which hide the covers of adult-themed publications.
The court also concluded that COPA's provisions were not the least restrictive means of advancing the government's interest in protecting minors. The court reviewed the district court's findings of fact, which focused heavily on whether COPA was necessary given the availability of Internet filters. The district court noted that “unlike COPA there are no fines or prison sentences associated with filters which would chill speech. Also unlike COPA, … filters are fully customizable and may be set for different ages and for different categories of speech or may be disabled altogether for adult
use. As a result, filters are less restrictive than COPA.” Gonzales 478 F. Supp. 2d at 813. The government argued that the filters are not less restrictive than COPA because the filters are part of the “status quo.” The court disagreed, however.
The Third Circuit additionally determined that the statute was overly broad and vague. For these reasons, the court affirmed the district court's 2007 order. ACLU v. Mukasey, 534 F.3d 181 (3d Cir. 2008). The Supreme Court denied certiorari on January 21, 2009, meaning that enforcement of COPA will be enjoined permanently.
Pleasant Grove City, Utah v. Summum
The FIRST AMENDMENT includes both the Free Speech Clause and the Establishment Clause. The first guarantees the right of persons to free expression, while the second prohibits government from supporting religious organizations. The two clauses came into conflict in Pleasant Grove City, Utah v. Summum, __U.S.__, 129 S.Ct. 1125, ___ L.Ed.2d ___ (2009), when a small religious organization was denied the right to place a religious monument in a public park that contained a Ten Commandments monument. The Court held that First Amendment free speech protections did not prevent the city from denying the request.
Pioneer Park, a public park in Pleasant Grove City, Utah has 15 permanent displays on its grounds. Eleven of these displays have been privately donated, including a Ten Commandments monument. They include an historic granary, a wishing well, and a September 11 monument. Summum is a religious organization founded in 1975 and based on Gnostic Christianity. Summum's headquarters are located in Salt Lake City, Utah. In 2003, Summum twice wrote the the mayor of Pleasant Grove City requesting that it be permitted to erect a stone monument which would contain the “Seven Aphorisms of Summum.” The proposed monument was to be similar in size and nature to the Ten Commandments monument, which had been donated by the Fraternal Order of Eagles in 1971.
The city denied both of Summum's requests. The city informed the organization that its practice was to limit monuments in the park to those that were either directly related to the history of the city or were donated by groups with longstanding ties to the Pleasant Grove community. In 2004 the city passed resolution that put this policy into writing. Summum renewed its request in 2005 but did not describe the monument's historical significance or the organization's connection to the Pleasant Grove community. The city council rejected this request.
Summum then filed suit in federal district court, claiming that the city had violated the Free Speech Clause of the First Amendment by accepting the Ten Commandments monument but rejecting the Seven Aphorisms monument. It asked the federal court to issue an injunction that would permit Summum to erect its monument in the park. The district court denied this request. Summum then appealed to the Tenth Circuit Court of Appeals on its free speech claim. The appeals court reversed the lower court decision, noting a previous ruling of the circuit that found the Ten Commandments monument in Pioneer Park to be private rather than government speech. Finding that public parks have traditionally been treated as public forums, the appeals court held that the city could not reject the Summum monument unless it had a compelling justification that could not be served by more narrowly tailored means. Concluding that the city was unlikely to meet these requirements, the court ruled that Pleasant Grove City was required to erect the Seven Aphorisms monument. The city then appealed to the U.S. SUPREME COURT.
The U.S. Supreme Court has examined many First Amendment issues involving free speech, yet this was the first time it was called upon to examine whether the Free Speech Clause governed the acceptance of privately donated, permanent monuments for erection in a public park. A long line of cases have dealt with free speech and the use of government property to exercise First Amendment rights. The public forum doctrine recognizes that members of the public may exercise free speech rights on public streets and in public parks. However, the government make impose reasonable time, place, and manner restrictions on the public's use of these public areas. Such restrictions will be subjected to strict scrutiny, a constitutional standard of review that requires the government to show that the restrictions are narrowly tailored to serve a compelling government interest.
In this case the Tenth Circuit had found that the city's reasons for rejecting the monument did not survive strict scrutiny under the Free Speech Clause. The Supreme Court, in a unanimous decision, overturned the appeals court, finding that issue was not the private speech rights of Summum but the free speech rights of government. In a recent line of cases the Court has established a government speech doctrine in which the First Amendment does not apply to government-made expression. Though the decision was unanimous, four justices wrote separately to express their concerns about this new doctrine and the possibility it could be misused. Justice Samuel Alito wrote the lead opinion, joined by seven other justices.
The Court extended a government entity's right to free expression to situations where private sources assist in delivering the government-controlled message. However, it acknowledged that government speech is not totally unregulated. The First Amendment's Establishment Clause places limits on how far the government may go in its support of religion. In addition, government officials may be limited in their public advocacy by law, regulation, practice, and the electorate. Citizens are free to choose different officials who espouse different views.
In this case the city officials were using government speech when they chose which monuments could be installed in the public park. The Court noted that since ancient times, governments have used monuments to speak to the public. Monuments are a means of government expression even if they are privately financed and donated and accepted by the government for erection on public lands. Examples of privately financed federal monuments include the Statue of Liberty, the Marine Corps War Memorial, and the Vietnam Veterans Memorial. States and cities have also received thousands of donated monuments since the beginning of the Republic. Privately donated monuments save tax dollars and provide means of public expression that the government could not have afforded. However, government entities exercise their discretion in accepting privately funded monuments, as to the the design and content. Monuments that are accepted are meant to convey a government message; this constitutes government speech.
Summum had argued that the government speech doctrine could be used as a subterfuge for favoring certain private speakers over others based on viewpoint. It suggested that a government entity that accepted a privately donated monument use a formal process that would require the adoption of a resolution embracing the “message” that the monument conveys. If the government did not adopt the message, then the monument would be considered private speech and subject to a violation of the Establishment Clause. The Court rejected this requirement as unworkable. Government entities would have to retroactively adopt the message of thousands of monuments. Moreover, the “message” of a monument can shift over time and, in fact, each person who views a monument may see a different viewpoint expressed.
Finally, the Court rejected the public forum argument advanced by Summum and adopted by the Tenth Circuit. A park can accommodate a large number of public speakers without defeating the basic function of a park. In contrast, a park can contain only a limited number of permanent monuments. Adopting the Summum position would force government entities to either allow a park to be overwhelmed by monuments or to remove longstanding monuments filled with historical and cultural significance. Therefore, Pleasant Grove City was not subject to the Free Speech Clause.
In a set of concurring opinions, four justices expressed their concerns about the government speech doctrine. Justice DAVID SOUTER, in particular, counseled against moving too quickly in defining the doctrine. In his view the interplay between the government speech doctrine and Establishment Clause principles have not been addressed at all.
Ysursa v. Pocatello Education Association
The FIRST AMENDMENT guarantees freedom of association and freedom of expression. The Supreme Court places heavy burdens on government when it attempts to restrict First Amendment rights. However, the Court has ruled that state government may impose restrictions on the First Amendment rights of state and local government employees if it can demonstrate a rational basis for the regulation. This is in contrast to private citizens, where the Court employs a strict scrutiny test to determine if the government has a compelling interest in imposing the regulation and carries
out the regulation in the least restrictive manner. Government usually prevails when the rational basis test is applied, while it has more difficulty when the strict scrutiny test is used. The difference in outcome is illustrated in Ysursa v. Pocatello Education Association, __U.S.__, 129 S. Ct. 1093, __L.Ed.2d__ (2009), where the Supreme Court upheld a state law that prohibited state and local governments from allowing public employees to have union dues dedicated to political activities deducted from their paychecks. The Court rejected the application of strict scrutiny that the lower federal courts had used and instead applied rational basis.
The state of Idaho has enacted a Right to Work Act, which states that the right to work will not be infringed or restricted based on union membership or a refusal to join a union. Until 2003, employees, both private and public, could authorize both a payroll deduction for general union dues and a payroll deduction for union political activities. In that year the legislature amended the Right to Work Act, prohibiting payroll deductions for political activities. These activities included “electoral activities, independent expenditures, or expenditures made to any candidate, political party, political action committee or in support or against any ballot measure.” Unions in Idaho objected to this change, as it would make the collection of these types of dues very difficult and costly. A group of labor organizations sued state and local government officials, contending that the amendment violated the First Amendment.
The federal district court rejected this argument as to state public employees because the First Amendment does not compel the state to subsidize speech by providing at its own expense payroll deductions. However, the court ruled that the amendment did violate the First Amendment rights of local governments and private employees because the state had failed to identify any subsidy it provided to these employers to administer payroll deductions. Idaho filed an appeal in which neither party challenged the rulings as to private and state-level employees. The only issue on appeal to the Ninth Circuit Court of Appeals was the application of the ban to local government employees. The Ninth Circuit sided with the district court, holding that the relationship between the state and its local government subdivisions was analogous to that between the state and a regulated private utility. This analogy allowed the Ninth Circuit to apply strict scrutiny, which led to the ruling that the law was unconstitutional.
The Supreme Court, in a 6–3 decision, overturned the Ninth Circuit ruling. Chief Justice JOHN ROBERTS, writing for the majority, noted that while government may in some situations accommodate expression, “it is not required to assist others in funding the expression of particular ideas, including political ones.” Idaho was under no obligation to aid the unions in their political activities and the state's decision not to do so was not “an abridgment of the union's speech.” Because the state had not infringed the unions' First Amendment rights the Court did not need to apply strict scrutiny. The state only had to show it had a rational basis to justify the prohibition on political payroll deductions of its employees. In this case Idaho justified the ban to avoid the reality or the appearance of government favoritism or entanglement with partisan politics.
As to the ban on local governments to make payroll deductions, the unions contended strict strict scrutiny did apply because the state was no longer declining to facilitate speech through its payroll system was was obstructing speech in the local governments' payroll systems. The Court found no merit in this argument. Chief Justice Roberts held that rational basis was the appropriate way to review this part of the law. Municipal and county governments are not sovereign entities but subordinate units of government created by the state. Therefore, Idaho could withhold from all public employers “the power to provide payroll deductions for political activities.” The same state interests that justified the ban on state employee deductions applied as well to employees “at whatever level of government.”
Three justices dissented and filed individual opinions. Justice JOHN PAUL STEVENS argued that the was unconstitutional as applied because “it is clear to me that the restriction was intended to make it more difficult for unions to finance political speech.” The avowed purpose in avoiding employer political involvement was inconsistent with the state's failure to restrict deductions for charitable activities. Charitable deductions “will often present a similar risk of
creating an appearance of political involvement as deductions for covered political activities.” The law as meant to target union political activity. Viewed in this way, strict scrutiny would render the statute unconstitutional under the First Amendment.