North Carolina’s First Amendment: Provisional Protections for Liberty in a State Constitution

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Photo Credit: Courtesy of Jimmy Emerson, DVM

By Adam Griffin; Staff Member (Vol. 16)

North Carolina’s First Amendment

Before the ratification of the Fourteenth Amendment, and before the Supreme Court doctrine of incorporation was created to impose the protections of the First Amendment against the State Governments, most State Constitutions had sister provisions that protected core First Amendment liberties. The existence of these provisions was a principal reason that the Federalist Framers of the Constitution argued against the need for a Federal Bill of Rights. So long as the States recognized these fundamental freedoms in their constitutions, and the people remained conscious of the natural existence of these rights, they would be protected by the structural limits on government and the censorial check on excesses of power imposed by an active, informed, and alert citizenry.

The North Carolina Constitution and Declaration of Rights provided such First Amendment protections for its citizens in separate clauses of its fundamental charter. The freedom of the press, the freedom of assembly and petition, the freedom of conscience, and the free exercise of religion, and prohibition on an establishment of religion were all rights protected in North Carolina’s original 1776 Constitution. Surprisingly to modern eyes, the original North Carolina State Constitution did not include an express provision protecting the freedom of speech.

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Protecting Protestors’ First Amendment Rights, or Silently Supporting a Government’s View? Charlottesville Under the Government Speech Doctrine

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Photo Credit: Courtesy of Stephen Melkisethian

By Sarah Rozek; Staff Member (Vol. 16)

Charlottesville, a city in West Central Virginia, has a population of more than 200,000. It was not, however, the city’s size, its great selection of wineries, or its world-class university which made it into the headlines this year. Rather, it was the “Unite the Right” torchlight rally, which started on a Saturday night in August, and that “would prove to be the catalyst for a horrific 24 hours in this usually quiet college town that would come to be seen by the nation and world as a day of racial rage, hate, violence and death.

The rally was organized by white supremacists to protest the removal of the statue of Robert E. Lee from Emancipation Park in Charlottesville. The rally proved to be deadly with violent confrontations erupting between the “Unite the Right” protesters and counter-protesters. One person was left dead after a car plowed into a group of counter-protesters, and at least 34 people were wounded in the clashes. However, it was not just the protests or their deadly aftermath that captured the nation that day. News of police inaction and allegations of police’s failure to protect protesters, coupled with President Trump’s condemnation of violence on “many sides” were what left pressing questions and doubts in many people’s minds.

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First Amendment Newsflash 10/30-11/12

Welcome to First Amendment Newsflash, the First Amendment Law Review’s bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.

Photo Credit: Courtesy of Pete Sheffield

Federal Court News

Progressive group One Wisconsin Now has sued Republican lawmakers for blocking the group on Twitter, which the group alleges violates the First Amendment.

Citing the First Amendment, the Ninth Circuit lifted a gag order that had prevented the Salt Lake Comic Con from discussing its ongoing trademark lawsuit.

In the case of the 40-foot cross in Maryland deemed a First Amendment violation by the Fourth Circuit, supporters have asked the Fourth Circuit to rehear the case en banc.

A federal judge issued an injunction, saying the Lehigh County, Pennsylvania, seal featuring a cross violates the establishment clause.

Valencia College in Florida settled a First Amendment lawsuit brought by three former students. The suit alleged that the college retaliated against students when they complained about being subjected to required trans-vaginal ultrasounds.

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Protesting the Flag: The NFL and the First Amendment

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Photo Credit: Courtesy of Max Pixel

By Matt Hinson; Staff Member (Vol. 16)

In August, 2016, Colin Kaepernick, former San Francisco 49ers quarterback, sat down in protest during the playing of the national anthem before a preseason game. When asked why he sat down, Kaepernick responded, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.”

Following Kaepernick’s lead, many other players in the NFL began to kneel during the 2016 season to bring attention to the racial and social injustices still present in America today. While the protests during the 2016 season sparked significant debate, the 2017 season protests have proven to be some of the most divisive controversies the sports world has ever seen. In fact, on September 22, President Donald Trump spoke out on the issue, saying:

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A Political Playground: Trinity, Choices, and the Separation of Church and State

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By Tyra Pearson; Staff Member (Vol. 16)

In light of the recent Supreme Court decision, many Americans are beginning to think that the idea of “separation of church and state” is in jeopardy. In Trinity Lutheran Church v. Comer, the Court ruled a Missouri program denying funding to religious groups as unconstitutional under the First Amendment, even though that funding would not be for religious purposes.  Some are saying that the Supreme Court, in its decision to invalidate this state law, upset the idea of “separation of church and state” and dramatically changed the interpretation of the First Amendment. The question is whether this is a legitimate concern. I argue that it certainly is. The Court’s decision in late July is unprecedented and left many states scratching their heads, wondering when they are allowed to prohibit funding to a religious entity and not violate the First Amendment.

The Missouri Department of Natural Resources (“Department”) offers state grants to help private and public schools, as well as nonprofit entities, purchase rubber playground surfaces. The Trinity Lutheran Church (“Trinity”) applied for this grant in order to resurface the preschool and day care center grounds. However, the Department had a policy of disqualifying religious organizations from receiving this grant. When Trinity applied for the grant, it was ranked “fifth among the 44 applicants,” based on the Department’s proscribed criteria, including population poverty level and the applicant’s plan to promote recycling. However, despite high scores, the Department declared Trinity ineligible under the rationale that Article 1, section 7 of the Missouri Constitution prohibited the Department from offering the grant to Trinity. Before the Supreme Court, Trinity argued that the Department’s failure to approve Trinity’s application violated the Free Exercise Clause of the First Amendment.

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Dear College Campuses: Meet the First Amendment

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By Alexandra Baruch Bachman; Staff Member (Vol. 16)

The General Issue: First Amendment + College Campuses = News

If you actively follow the news, or read the CNN updates that appear on your phone, you know that there has been a nationwide shift toward stifling free speech on college campuses. Ohio, Wisconsin, and North Carolina are all discussing free speech in the context of legislation. For example, the Wisconsin “Campus Free Speech Act,” despite its chipper and enticing name, would mandate that the University of Wisconsin system punish students who interfere with others’ speech or events.

Shifting from proposed legislation to past events, there is a growing trend toward rescinding speakers’ invitations to university campuses in order to avoid potential unrest. From UC Berkeley on the west coast, to Middlebury College on the east coast, speakers have been met with student protest. Although physical protest should never be condoned, consider the opinion of William & Mary professor Barbara King, who celebrates “intellectual turbulence because it is a clear signal to necessary intellectual engagement.”

In an attempt to understand this unrest, I have identified two theories as to the underlying issue spurring this conflict on campuses across the nation. First, we could blame the adults (the administrators and faculty).  Second, we could blame the kids (the students). In my opinion, as I will explain, we should blame both.

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First Amendment Newsflash 10/16-10/29

Welcome to First Amendment Newsflash, the First Amendment Law Review’s bi-weekly roundup of the latest in free expression and religious freedom news and commentary. Check here every other Sunday for a new edition! Need First Amendment news in the meantime? Follow FALR on Twitter and Facebook for regular updates.


Supreme Court News

During its Friday conference, the Supreme Court considered many petitions for certiorari in First Amendment cases: A Woman’s Friend Pregnancy Resource Clinic v. Becerra, Livingwell Medical Clinic, Inc. v. Becerra, Minnesota Voters Alliance v. Mansky, and National Institute of Family and Life Advocates v. Becerra.

Connecticut has filed a petition for writ of certiorari in the case of a woman convicted of breaching the peace for using foul language toward a grocery store manager. The state Supreme Court overturned the woman’s conviction on First Amendment grounds, and the State now asks the U.S. Supreme Court to consider whether the conviction can be reinstated under the fighting words doctrine.
Other Federal Court News

In a former prosecutor’s First Amendment lawsuit against the Baltimore State’s Attorney for firing her for political reasons, the Fourth Circuit ruled that elected prosecutors may legally terminate the employment of assistant prosecutors for political reasons.

A federal judge ruled in a defamation suit that Greenpeace’s statements against a logging company were First Amendment-protected opinion statements, and thus the case was dismissed.

The Fourth Circuit ruled that a 40-foot tall, cross-shaped WWI memorial in Bladensburg, Maryland violates the establishment clause.

The 2009 Christmas underwear bomber has sued the Federal Bureau of Prisons, alleging that his First Amendment right to free exercise has been violated by guards harassing him during prayer time and denying him the ability to engage in congregational prayer. He also argues that his right to freedom of speech has been violated by restrictions placed on his communications.

A federal judge ruled that a Kentucky law restricting sex offenders’ access to the internet violates the First Amendment because it “burdens substantially more speech than necessary” to further the state’s interest. For an analysis of this issue in general, see FALR staff member Joscelyn Solomon’s recent blog post here.

A Pennsylvania woman has sued her township, alleging that ordinances restricting the number of temporary signs–including political signs–allowed in resident yards is unconstitutional. The township has voluntarily temporarily stopped enforcing the ordinance.

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