May 25, 2011
A Dangerous Freedom
of Speech Case
By Mike McManus
The “Candy Cane Case” sounds so cute and innocuous, but it
really is a dangerous case that could forever limit freedom of speech of
Jonathan Morgan was 8 years old when he gave some friends at a
Plano, Texas school “Winter Party” (the politically correct name for a
Christmas Party), a candy cane with a message about a candy maker who wanted
“to invent a candy that would be a witness to Christ.
“First of all, he used a hard candy because Christ is the Rock
of Ages. This hard candy was shaped so that it would resemble a “J” for
Jesus, or, turned upside down, a shepherd’s staff. He made it white to
represent the purity of Jesus…” with red stripes for his blood.
A school principal swooped in, and halted his expression of his
faith, just as he had two years earlier confiscated pencils that read,
“Jesus is the reason for the Season.” Another principal told a class of kids
they could not write “Merry Christmas” on cards to U.S. troops in Iraq.
“This case will impact every current and future elementary
student in the nation,” says Kelly Shackelford, President of the Liberty
Institute who took on the case. “Everyone who is a parent or grandparent or
just cares about the future of this country should be concerned. If this
court rules that elementary students have no First Amendment rights, then
neither students nor their parents will have any recourse against religious
discrimination, like occurred in this case. It will be a massive shift of
power away from citizens to the government.”
Shackelford thought he had won the case, when the Fifth Circuit
Court of Appeals ruled 3-0 in his favor. However, the school district
losing the case made an unusual appeal for it to be re-tried by the same
court, but with all 17 judges “en banc” hearing the case.
The court agreed, and every judge was present to hear verbal
arguments as the case was debated this week in New Orleans. Why is it
dangerous? A majority of Fifth Circuit judges clearly disagreed with the
3-0 decision in favor of the students.
With a million dollars being spent by the other side,
Shackelford bravely asked the two most famous lawyers in the country, if
they would argue the case “pro bono,” for free! Both are former U.S.
Solicitors General, the government’s top attorney before the Supreme Court.
Paul Clement was in the news recently as the attorney
representing the U.S. Congress in arguing to uphold the Defense of Marriage
Act, which defines marriage as the union of one man with one woman for
federal purposes. His own law firm withdrew from the case under pressure
from gays, but Clement hung on, and simply switched law firms. Next week
he will be arguing a case for NFL owners, and soon, against Obamacare on
behalf of 28 states.
Ken Starr is best known as the Special Prosecutor of a series of
cases involving Bill Clinton that led to his impeachment. He’s now
President of Baylor University.
Attorneys for the principals argued that it is not clearly
established that the First Amendment grants elementary school children
freedom of speech.
Clement noted that the principals allowed gifts with no
religious message. “One thing is clear: this is viewpoint discrimination
against religious speech which is verboten” (forbidden).
Starr argued, “The idea that little children do not have free
speech rights is obviously, manifestly wrong.” As evidence he cited a 1943
Barnette case in which the U.S. Supreme Court ruled that the
children of Jehovah’s Witnesses did not have to salute the flag, because
their parents’ faith prohibits the worship of a “graven image.”
“This is `cold on the docks’ unconstitutional,” Starr asserted.
“We come in the spirit of Barnette v. West Virginia that
school districts have the responsibility to obey the law. For over
half century the Supreme Court…held that schoolchildren have constitutional
rights, especially the rights of freedom of speech, freedom of conscience,
and that’s what at stake here.”
Interestingly, a personal supporter in court of Jonathan Morgan,
now 16, was Marie Barnett Snodgrass, 80, whose parents filed the
Barnette case when she was a young girl.
The school attorney argued that it was not “unreasonable” for
the principals to follow school board policies.
Shackelford counters “The Nuremburg defense
does not work in this country: ‘I was following orders.’”
Even the ACLU wrote a brief defending the
students’ right to share their faith, saying. If overturned, “students will
undoubtedly view our fundamental constitutional values as “mere platitudes.”