The Hatch Act (1939) limits rights of government employees (for their own protection).

 

I.   First Amendment Rights of Students
 

a.       Tinker v Des Moines, 1969 – The high-water mark of student rights.  SCOTUS ruled that:

                                                               i.      Students have 1^st amendment rights that authorities cannot abrogate without good reason.

                                                             ii.      Speech that materially disrupts class work, causes disorder, or invades the rights of others is not protected

b.       Bethel v Fraser, 1986 SCOTUS ruled that schools could punish students for “offensive lewd or indecent speech” and that school students do not enjoy rights equal to those of adults in other settings.

c.       Hazelwood v Kuhlmeier, 1988. SCOTUS allowed prior restraint of a H.S. newspaper by school officials.  Key issue: 

            A school paper connected to a Journalism program is not a public forum since it is a teaching forum under curricular control and, thus allowing substantial administrative editorial control so long as the actions have a legitimate pedagogical basis

d.    In a recent Illinois case, Hosty v Carter 2005, an Appellate Court muddied the waters on whether the Hazelwood case applies to college newspapers and ambiguities remain without a Supreme Court review.

 

e.       Healy v James, 1972 established the rights of students at state schools to create their own associations (equal access).  Widmar v Vincent, 1981 established that this includes religious associations as long as they are student created and led.  Lamb’s Chapel v CMUFS, 1993 and Rosenberger v Rector, 1995 extended equal access protections to include equal access to funding for religious groups as long as the threshold of “compelled speech is not crossed.  GoodNews Club v Milford Central School , 2001 extends equal access to use of facilities 9after hours).

 

II.          First Amendment Rights of Teachers

 

a.       Teacher Communication Rights

                                                               i.      Academic – job-related

                                                             ii.      Extramural – non-school activities

b.       Academic Freedom/Expression includes

                                                               i.      Rights of teachers to teach/rights of students to learn

                                                             ii.      Not exactly same as freedom of speech in society at large

                                                            iii.      Public school teachers are government employees

1.       They operate under institutional restraint (i.e., state approved curriculum)

2.       College professors discussing controversial issues is more protected than high school teachers’ speech

                                                            iv.      Supreme Court has never directly ruled on the topic of the First Amendment rights of teachers to teach or publish.

 

c.       Intramural Expression

                                                               i.      Keyishian v. Board of Regents – 1967

1.       NY teachers were asked to take a loyalty oath that they were not Communist, did not support violent overthrow of government, etc.

2.       SCOTUS ruled the oath unconstitutional on grounds of vagueness and overbreadth

3.       ruling was a rejection of the position that teachers and other public employees may have to give up Constitutional rights in order to remain public employees

4.       “Our nation is deeply committed to safeguarding academic freedom…”

                                                             ii.      SCOTUS has several rulings that the Constitution prohibits states from controlling public schools’ science content in order to protect/advance religious doctrine

1.       Epperson v. Arkansas – 1968 – invalidated statute prohibiting teaching evolutionary science

2.       Edwards v. Aguillard – 1987 – declared LA law unconstitutional that required teaching of biblical creationism in evolution-based courses

                                                            iii.      Lower courts must generally decide teachers rights since SCOTUS rarely takes such cases

1.       balancing of teachers 1A rights vs. government right to control speech of employees

2.       Court of Appeals for the Seventh Circuit ruled “there are limits on what a school board can do…” citing Tinker

                                                            iv.      Reason for worry – recent lower case decisions (such as Hazelwood) may show that lower courts will not always rule in favor of academic freedom.

 

d.       Extramural Expression - SCOTUS has ruled at least 4 times on the issue

                                                               i.      Connick v. Myers, 1983 – “the 1A’s primary aim is the full protection of speech upon issues of a public concern” and should not be confused with “the attempt to constitutionalize the employee grievance…”

                                                             ii.      Pinkering v Board, 1968 – “public employees can participate in public debate about public issues without facing termination, while not violating the Hatch Act

                                                            iii.      It seems that those teachers who spoke about public issues have strong 1A protection, while those who spoke on job-related issues had little 1A protection.

                                                            iv.      Waters v. Churchill, 1994 – a plurality interpreted by Justice O’Connor established --

1.       4 steps in interpretation of public employee speech limits

a.       “the speech of a public employee earns the highest degree of constitutional protection when it concerns a public issue;”

b.       “However, government employers have a substantial interest in maintaining job efficiency and avoiding workplace disruption;”

c.       before reprimanding, the government has burden of proof to show “that the speech interferes with government operations…and outweighs any 1A protection the speech might otherwise have”

d.       if burden is met, employee “can be punished or dismissed, even though no actual disruption has taken place”

2.       Jeffries v Harleston, 1995 limited the effect of Waters.

a.       Waters was a plurality, therefore not definitive

b.      Waters applied to this case – “potential disruptiveness to the college could be “enough to outweigh the value of the speech”

 

e.      First Amendment and the School Library
 

                                   Island Trees Union Free School District v. Pico – 1982.   Schools cannot arbitrarily remove books. Officials must show constitutionally sound reasons for removing  books.

III.              First Amendment Rights in Prisons 

• Before the 1960s, the Supreme Court usually refused to grant review appeals from prisoners in civil liberty cases
• Mid 1970s, Federal Courts became more involved.  In cases concerning prisoner rights…5 issues addressed:

1.       Censorship of Prison Mail

2.       Media Access to Prisons

3.       Prisoner Rights of Association

4.       Censorship of Prison Newspapers

5.       Criminals’ Profit From Writing About Crime

A.  Censorship of Prison Mail

1. Procunier vs. Martinez, 1974

                                                               i.      SCOTUS declared mail censorship regulations too vague  (California rules allowed censorship of correspondence)

                                                             ii.      Justice Powell established 2 standards for measuring the constitutionality of prison mail regulations:

1.       They “must further an important or substantial governmental interest unrelated to the suppression of expression.”

2.       The limitation of 1^st Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.”

                                                            iii.      1980s Supreme Court retreated

 

2. Turner vs Safley, 1987

1.       Prison officials can prohibit mail between prisoners in different penal institutions

2.       1989 Supreme Court decided that Turner decision weakened 2 part test of Procunier vs Martinez

a.       Outgoing mail may still be analyzed

b.       Incoming Mail is not subject to Turner test
 

B.      Media Access to Prisons

Three Questions:

                                                               i.      Does 1^st Amendment give prisoners a right to individual, face-to-face interviews with reporters?  Pell v Procunier, 1974 -- NO

                                                             ii.      Does 1^st Amendment give reporters the right to have face-to-face interviews with inmates selected by reporters? Saxbe v Washington Post, 1974 -- NO

                                                            iii.      Does 1^st Amendment five media representatives the right to enter prisons on demand for the purpose of inspecting, photographing, and reporting on conditions in the prisons? Houchins v KQED, 1978 - NO

                                                            iv.      Answer to all these questions is that the SCOTUS says no.  There exist no constitutional rights of media to access prisons
 

 C.      Prisoner Rights of Association - Jones v NC Prisoners’ Labor Union, 1977

1. North Carolina Department of Correction had adopted regulations prohibited inmates from soliciting other inmates
2. Justice Rehnquist for SCOTUS said that forming and promoting an organization of prison inmates is not protected by the constitution.
    

The magazine FYSK (Facts You Should Know) could be censored due to prison authorities needs to manage the facility. Lower Courts have disagreed about prison papers censorship rules.

E.  “Son of Sam” Law  Denies criminals the profits they might receive from writing about their illegal activities.

In Simon and Schuster v NY State Crime Victims Board, 1991 declared this law unconstitutional asserting 2 reasons:

• The statute in question penalized expression based on its content, violating the 1^st Amendment
• The law was overbroad

Bottom Line:  Courts decided Prisoners have SOME 1^st Amendment Rights, but not many!