"German Homeschoolers Seek Political Asylum In U.S."

From the Religion Clause Blog:

In Germany, children are required to attend public school and home schooling is banned. Uwe and Hannelore Romeike who homeschool their children recently left Germany for the United States in order to avoid fines, jail and possible loss of custody of their children. HSLDA reported yesterday that a petition for political asylum has been filed by the Romeikes who refuse for religious reasons to send their children to Germany's secular public schools. The Romeike family currently lives in Tennessee where they are free to homeschool. Asylum is available where individuals in the U.S. have a well-founded fear of actual persecution because of their race, religion, nationality, membership in a particular social group or political opinion if they return to their home country. Homeschool Legal Defense Association is supporting the unusual asylum application.

Seven Aphorisms Case

Here is an analysis of the case from the First Amendment Center.

Here is a link to the transcript of today's oral argument.

Here is a NYT article on this Term's religious display case. Here is an excerpt:

Across the street from City Hall here sits a small park with about a dozen donated buildings and objects — a wishing well, a millstone from the city’s first flour mill and an imposing red granite monument inscribed with the Ten Commandments.

Thirty miles to the north, in Salt Lake City, adherents of a religion called Summum gather in a wood and metal pyramid hard by Interstate 15 to meditate on their Seven Aphorisms, fortified by an alcoholic sacramental nectar they produce and surrounded by mummified animals.

In 2003, the president of the Summum church wrote to the mayor here with a proposal: the church wanted to erect a monument inscribed with the Seven Aphorisms in the city park, “similar in size and nature” to the one devoted to the Ten Commandments.

The city declined, a lawsuit followed and a federal appeals court ruled that the First Amendment required the city to display the Summum monument. The Supreme Court on Wednesday will hear arguments in the case, which could produce the most important free speech decision of the term.

The justices will consider whether a public park open to some donations must accept others as well. In cases involving speeches and leaflets, the courts have generally said that public parks are public forums where the government cannot discriminate among speakers on the basis of what they propose to say. The question of how donated objects should be treated is, however, an open one.

Inside the pyramid, sitting on a comfortable white couch near a mummified Doberman named Butch, Ron Temu, a Summum counselor, said the two monuments would complement each other.

“They’ve put a basically Judeo-Christian religious text in the park, which we think is great, because people should be exposed to it,” Mr. Temu said. “But our principles should be exposed as well.”

Su Menu, the church’s president, agreed. “If you look at them side by side,” Ms. Menu said of the two monuments, “they really are saying similar things.”

The Third Commandment: “Thou shalt not take the name of the Lord thy God in vain.”

The Third Aphorism: “Nothing rests; everything moves; everything vibrates.”

Michael W. Daniels, the mayor here, is not the vibrating sort.

Sitting with the city attorney in a conference room in City Hall, Mr. Daniels deftly drew several fine lines in explaining why the city could treat the two monuments differently.

Only donations concerning the city’s history are eligible for display in the park as a matter of longstanding policy, he said, and only when donated by groups with a long association with the city. The Fraternal Order of Eagles, a national civic organization, donated the Ten Commandments monument in 1971.

The donations, Mr. Daniels went on, are transformed when the city accepts them. “Monuments on government property become government speech,” he said.

Under the First Amendment, the government can generally say what it likes without giving equal time to opposing views; it has much less latitude to choose among private speakers.

Asked what the government is saying when it displays the Ten Commandments, Mr. Daniels talked about law and history. He did not mention religion.

Pressed a little, he retreated.

“The fact that we own the monument doesn’t mean that what is on the monument is something we are espousing, promoting, establishing, embracing,” Mr. Daniels said. “We’re looking at, Does it fit with the heritage of the people of this area?”

Brian M. Barnard, a lawyer for the Summum church, said the city’s distinctions were cooked up after the fact as a way to reject his client’s monument. The local chapter of the Eagles, Mr. Barnard added, had only been in town two years when it donated the Ten Commandments monument.

“We have a city that will allow one organization to put up its religious ideals and principles,” Mr. Barnard said. “When the next group comes along, they won’t allow it to put up its religious ideals and principles.”

Last year, the federal appeals court in Denver sided with the Summum church and ordered Pleasant Grove City to erect its monument.

Although the case appears to present questions under the First Amendment’s ban on government establishment of religion, the appeals court said the case was properly analyzed under the amendment’s free-speech protections. That distinguishes it from most cases concerning the display of nativity scenes and the like on government property.

Here is another NYT piece, this one an editorial:

Displays of the Ten Commandments have long been a lightning rod in constitutional law, and so they are again today. The Supreme Court is hearing arguments in a challenge to a city’s decision to allow the Ten Commandments to be placed in a public park, while refusing to allow a different religion’s display. The court should rule that that city’s decision violates the First Amendment prohibition on the establishment of religion.

Pleasant Grove City, Utah, has a city park, known as Pioneer Park, that includes various unattended displays. These include historical artifacts from the town, a Sept. 11 memorial, and a Ten Commandments monument that was given to the city by the Fraternal Order of Eagles, a national civic group.

A religious organization called Summum, which was founded in 1975 and is based in Salt Lake City, applied to install its own monument in the park. The monument it proposed would include the group’s Seven Principles of Creation (also called the Seven Aphorisms), which it believes were inscribed on tablets handed down from God to Moses on Mount Sinai.

Pleasant Grove City rejected Summum’s application. It told the group that it had a decades-old practice of only accepting displays that directly related to the city’s history, or that were donated by groups with longstanding ties to the community. But this was not a firm policy at the time. It was only later that the city adopted a written policy enshrining these criteria.

Summum sued, arguing that the rejection of its monument violated its right to free speech under the First Amendment. The United States Court of Appeals for the Tenth Circuit in Denver agreed. In allowing monuments in its park, the court ruled, Pleasant Grove City had no right to discriminate on the basis of the content of those monuments. The city was free to ban all unattended displays if it wanted to. But once it decided to allow such displays, the court ruled, it had no right to permit the Ten Commandments but bar the Seven Principles of Creation.

The federal appeals court reached the right result, but regrettably, it ducked the issue at the heart of the case, which turns on the Establishment Clause of the First Amendment. The real problem is that Pleasant Grove City elevated one religion, traditional Christianity, over another, Summum. The founders regarded this sort of religious preference as so odious that they included a specific provision in the First Amendment prohibiting it. The United States Court of Appeals for the Tenth Circuit has a bad record on Establishment Clause cases, which made it easier for all of the parties to treat the case as a simple speech case.

But as the American Jewish Committee, Americans United for Separation of Church and State and other groups argue in a friend-of-the-court brief, the Supreme Court should not make this mistake. It should squarely confront the religious discrimination underlying Pleasant Grove City’s rejection of Summum’s monument and make clear that the city violated the Establishment Clause.

There is no shortage of churches, synagogues and private parcels of land where the Ten Commandments could be displayed without the need to include the credos of alternative faiths. Public property like Pioneer Park must be open to all religions on an equal basis — or open to none at all.

What do you think? Suppose the Park accepts a donated display praising civil rights from the NAACP. Must it also accept a display denouncing racial equality from the KKK? Must all community groups have access to the park or "none at all?"

Prof. Amar on the R.A.V. Decision

Prof. Amar says R.A.V. is important for many reasons. He says the Court “reaffirmed at least five basic First Amendment principles.”

Let’s look at these principles:

First, symbolic expression – burning a flag, displaying a swastika – is fully embraced by the First Amendment. We will discuss this later when we get to Texas v. Johnson, the flag burning case. But some have argued that symbolic speech, such as burning a flag, can be regulated as “conduct.”

Second, government may not regulate the physical medium with the purpose of suppressing the ideological message. So you can ban public burning for environmental reasons, but not disrespectful burning of the American flag.

Third, political expression – especially expression critical of government – lies at the core of the First Amendment.

Four, courts must guard against attempts by government to suppress disfavored viewpoints

Five, exceptions to these principles must not be “ad hoc” – i.e. “Flag burning is different.” or “Hate speech” is different. [“seditious libel” is different” or “dirty words are different” or “sexual expression is different”]

Child Pornography

Ashcroft v. Free Speech Coalition (P. 108)

Distinguish child pornography that depicts actual children in sexually explicit images with pornography produced without using actual children.

For example, a movie called “Sex In Junior High” is produced using 18 year old actors who appear to be 13 or 14 or by using computer generated imaging.

Now assume same movie is produced using actual 13 year old actors in sexually explicit scenes.

Under New York v. Ferber child pornography is not protected by the First Amendment - - even if not obscene under Miller - - because the state has an interest in protecting “children exploited by the production process.” (P. 108)

Imagine a very artistic version of the movie Lolita using a 12 year old girl appearing nude in sexually explicit scenes. Obscenity under Miller? No. Artistic and literary value protected.

Probably not protected under Ferber because it exploits a young child actor.

Now same movie, but it stars an 18 year old girl who looks about 12 (she is small, her hair is done in pig tails, she wears youthful clothing, carries a Barbie doll, etc.). No actual child is harmed, so the reasoning of Ferber (protecting child actors from sexual abuse by the production process) does not apply. This movie is neither obscene under Miller nor child pornography under Ferber.

Miller v. California

Justice Stewart once wrote a concurring opinion in an obscenity case in which he explained the difficulty of defining obscenity. He said:

“I have reached the conclusion . . . [that obscenity is] limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” Jacobellis v. Ohio 378 U.S. at 197.

If it makes me blush, you can ban it! That’s the best Justice Stewart could come up with. Is this test just a wee bit vague?

Did the Court do any better in Miller v. California? (p. 105)

Miller comes up with a three-part test for non-protected obscenity:

1) whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest.

Whoa! Let’s stop here?

What does “prurient interest” mean?

The Court has defined prurience as material appealing to a shameful or lascivious or lustful interest in sex. It does not include a normal interest in sex.

What does that mean?

In one case, the Court held that an erotic magazine was “prurient” because the “leer of the sensualist” had permeated the manner in which the publication had been distributed.

The magazine had been mailed from the towns of Intercourse and Blue Ball, Pennsylvania and the publisher boasted of the explicit nature of the publication. The publisher’s clear intent was to appeal to the prurient interest of potential readers.

O.K. Now which community are we looking at – the local community (say in Idaho, Utah or Alabama) or a national standard?

Take a look at the beginning of Roman Numeral III on page 106 – the Court says that “First Amendment limitations . . . do not vary from community to community, but this does not mean that there are, or should or can be, fixed uniform national standards of precisely what appeals to the ‘prurient interest’ or is ‘patently offensive.’”

Same test, but different standards (a movie that is not obscene in New York may be obscene in Mississippi). Really a question addressed to the common sense of the jury. An average jury pool in New York may have a different sense than an average jury in Mississippi.

O.K. Part two of the Miller test.

Material is obscene if it “depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.” (p. 105)

What does that mean? Again, this standard is supposed to be based upon contemporary community standards as understood by average jurors. (p.106)

Page 105: “[N]o one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct...”

So what happens in Jenkins v. Georgia (p.106) when a Georgia jury applies local community standards and concludes that the movie "Carnal Knowledge" is prurient and patently offensive?

The Supreme Court buys some popcorn and malted milk balls, goes to the movies, and says “as a matter of constitutional law” Carnal Knowledge is not “patently offensive.” (p.108)

Why not?

It’s not “hard core”? P. 107

What is “hard core”?

Justice Stewart knew it when he saw it and so, apparently, does the Court.

Five thumbs up for Carnal Knowledge – it’s a “must see”! The Court takes upon itself the task of distinguishing community standards of prurience and offensiveness from mere “community prejudice.” [Nowak at 1137.] Or is this simply an elitist standard of what is offensive? If it’s a movie someone I know from the yacht club might go to, then it’s not obscene.

O.K. Third part of the test.

A work is not obscene, even if it is prurient and patently offensive, unless in addition it lacks “serious literary, artistic, political, or scientific value.” (p. 105) “Taken as a whole.”

This was the stumbling block a few years ago in the Mapplethorpe trial – pictures of one man urinating into the mouth of another man, one man inserting his fist into the anus of another man might very well be considered prurient and patently offensive in Cincinnati. Pete Rose was offering 2-1 odds on that issue.

The third part of the test is not judged by local community standards. Rather, it supposedly is to be decided on an objective basis (i.e. whether a reasonable person would find serious literary, artistic, political, or scientific value in the material, taken as a whole).

The Mapplethorpe photos were being exhibited in a major art museum and numerous art professionals testified as to the artistic value of the photographs.

What about Playboy and Penthouse magazine? Apply Miller to these publications?

Do they appeal to the prurient interest (judged by Nebraska community standards)?

Do they depict patently offensive sexual conduct or lewd exhibition of the genitals?

Do they have “serious literary, artistic, political, or scientific value?”

[Remember the famous Playboy interview with Jimmy Carter discussing his personal struggle with the Sermon on the Mount]

The Miller test is very protective of pornography. Is it overprotective, underprotective, or just about right?

What about an extremely violent movie? The test only covers patently offensive displays of sexual conduct.

Suppose a law professor screened an otherwise obscene film in class in order to conduct a discussion of First Amendment law. Could he be charged with a violation of the state’s obscenity law? Would the screening have serious “scientific” value (i.e. educational value)?

[See Prof. Smolla at 325:]

“The reality is that “obscenity” is currently limited to genuinely “hard core” pornographic expression and that relatively little falls within the category as it is presently defined.”


What about child pornography? New York v. Ferber (p. 108)

Obscenity and the "Green" First Amendment

Should consenting adults have the right to view or read whatever movies or books they wish?

Or does society have a strong interest in abating cultural pollution by regulating distribution of obscene and pornographic films and books? What good are clean rivers and air if we live in a disgustingly polluted culture?

Consider Chief Justice Burger's observation in Paris Adult Theatre (p. 100): "If we accept the...well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior?"

Or as Leon Kass likes to say, even if there is no empirical data to support the notion that obscenity is socially debasing, much of what is freely available today in our society is certainly repugnant and "repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it." See prior post here.

But who decides which expression is obscene or repugnant and which is not? Do you trust government officials to decide which is which?

This Week

Thursday Nov. 6

We will finish up our discussion of libel and then move on to discuss the 1A and obscenity/pornography. We will not spend a lot of class time on obscenity--we will focus primarily on Miller v. California (p.103) and American Booksellers v. Hudnut (p. 117).

Don't worry too much about Ashcroft (p. 108), Playboy Entertainment (p. 122) and Ashcroft v. ACLU (p. 129).

Friday Nov. 7

Assignment 6 p. 139-160.