May 25, 2011

Column 1,552

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 young people.

            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

A 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.”