DAVID McHAM'S
COMMUNICATION LAW CENTER

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Section 4

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Section 4: Other Issues
On Privacy, the Backgroundf
Griswold v. Connecticut
Time v. Hill
Saluting the Flag
Flag Burning
Cross Burning
School Issues
Prayer in School
Prayer in School, A Summary
Jefferson and the Wall of Separation
On Test, A Footnote

On Privacy, the Background
The concept of privacy was born in an article that appeared in the Harvard Law Review in 1890. The article was written by two Boston lawyers - Samuel D. Warren and Louis D. Brandeis. Brandeis was to become a member of the United States Supreme Court.

The title of the article was "The Right to Privacy."

This was theory, but as Don R. Pember says in Mass Media Law, the article was "the fountain from which the modern law of privacy has flowed."

Warren and Brandeis were concerned about the direction newspapers were taking, especially in printing gossip about personal matters.

They proposed that the courts recognize that a right of privacy exists so that individuals might take on people in court when they felt that their privacy had been invaded.

No mention of privacy appears in the Constitution.

Privacy, A Definition
Intrusion upon one's seclusion or solitude or into his or her private affairs.

Public disclosure of embarrassing private facts about a person.

Publicity that places a person in a false light in the public eye.

Appropriation of a person's name or likeness for the advantage of another.

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Griswold v. Connecticut
The United States Supreme Court first recognized a right of privacy in 1965 in Griswold v. Connecticut. In this case, the court overturned a Connecticut law forbidding the use of contraceptives or advising the use of contraceptives.

Estelle Griswold was executive director of the Planned Parenthood League of Connecticut. She and a physician, Lee Buxton, were involved with the Planned Parenthood Center in New Haven. They were arrested for giving information, instruction and medical advice to married couples as a means of preventing conception. They were convicted and appealed.

The statute under which they were convicted said:

Another part of the statute said:

This decision was the basis for Roe v. Wade in 1973.

The case is 381 U.S. 479, 1965

See the opinion at www.findlaw.com.

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Time v. Hill, A Case of Intrusion
This was a landmark privacy case that still holds today. It involves the first of the four aspects of privacy: intrusion.

The Hill family while living in Pennsylvania in 1952 had been held hostage by escaped prisoners. The incident became the basis for a novel, a play and two movies - all under the same title, Desperate Hours.

As the play was about to open in 1955 Life magazine published a story with photographs of the house where James Hill and his family had lived at the time. By then the Hills had moved to Connecticut.

They sued Life in the state courts in New York, claiming invasion of privacy. The case reached the Supreme Court in 1966. Richard Nixon represented the Hills before the court. The case was argued twice, on April 27 1966, and on October 18-19, 1966. The decision of the court was returned on January 9, 1967.

The Supreme Court ruled in favor of Time, Inc. The ruling said that the New York Times v. Sullivan standard of malice must apply if anyone is to be successful in a suit for invasion of privacy.

The vote by the court was 5 to 4. Justice William Brennan wrote the majority opinion.

One of the Issues
One of the issues was the New York Right to Privacy statute that, as interpreted, made truth a complete defense to actions based on "newsworthy people or events" but gave a right of action to one whose name or picture was the subject of an article containing "material and substantial falsification."

The best account of the case before the Supreme Court is an article entitled Annals of Law in The New Yorker, April 17, 1989.

Time, Inc. v. Hill, 385 U.S. 374, 1967

See the opinion at www.findlaw.com.

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Saluting the Flag
Minersville School District v. Gobitis, 319 U.S. 586, 1940.

The Supreme Court upheld a flag-salute requirement in 1940 in a case originating in Minersville, Pennsylvania.

Lillian and William Gobitis, who were Jehovah's Witnesses, refused to take part in the flag salute and pledge of allegiance at their school. The Supreme Court, 8 to 1, in an opinion by Justice Felix Frankfurter said that "the flag is the symbol of our nation's unity" and that the flag must be revered by all its citizens, regardless of personal or religious beliefs.

The Supreme Court reversed itself three years later in...

West Virginia Board of Education v. Barnette, 319 U.S. 624, 1943.
In Barnette, the Supreme Court struck down the flag-salute requirement, reversing the decision it had made in the Minersville case. After the Minersville decision, attacks on Jehovah's Witnesses increased as the United States entered World War II.

The decision in Barnette was returned during the World War II and on June 14, 1943 -- Flag Day.

The people who brought the suit were Jehovah's Witnesses. The decision was 6 to 3.

Justice Robert H. Jackson, writing for the court, said:

This is one of the great statements of constitutional principle.

See the opinion at www.findlaw.com.

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Flag Burning
Texas v. Johnson
Gregory Lee Johnson burned an American flag at the 1984 Republican National Convention in Dallas. He was arrested and charged under a state law that forbade the burning of the American flag.

His conviction was appealed to the U.S. Supreme Court. By a 5 to 4 vote the court overturned the Texas statute in 1989.

Justice William J. Brennan, Jr. wrote the majority opinion. In it he said:

The case is at 491 U.S. 397, 1989

The very next year the court was presented with the issue again. Congress had passed the Flag Protection Act after the decision in Texas v. Johnson.

Once again, the vote was 5 to 4 and the opinion was written by Justice Brennan.

The cases: United States v. Eichman and United States v. Haggerty, 496 U.S. 310, 1990.

See the opinion at www.findlaw.com.

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Cross Burning
R.A.V. v. St. Paul
In a case arising out of St. Paul, Minnesota, the Supreme Court ruled in 1992 that a municipal ordinance prohibiting cross burning was unconstitutional. The case was R.A.V. v. St. Paul.

A group of juveniles tried to burn a crude, homemade cross in the front yard of an African-American family. The case took its name from one of the young men, Robert A. Viktora.

The Supreme Court said that such laws as the one in St. Paul could be held to be constitutional only when the act involved created a "clear and present danger" for the victim.

R.A.V. v. St. Paul, 505 U.S. 377, 1991

Virginia v. Black et al
The Supreme Court ruled on April 7, 2003, that a state may outlaw cross burning when the intent is to intimidate. The opinion was written by Justice Sandra Day O'Connor. The vote in the case was 6 to 3.

Justice O'Connor said at the outset that this opinion was not inconsistent with the court's ruling in R.A.V. v. St. Paul. She wrote:

This case involves two separate incidents.

The first involved Barry Black, who in 1998 led a Ku Klux Klan rally at which a cross was burned. The rally and cross burning occurred on private property with the permission of the owner. At Black's trial, the court instructed the jury that "the burning of a cross by itself is sufficient evidence from which you may infer the required intent."

The Supreme Court overturned the conviction of Black.

The second case involved two men, Richard Elliott and Jonathan O'Mara, who with a third unnamed person in 1998 attempted to burn a cross on the yard of an African-American family who lived next door to Elliott in Virginia Beach.

The court ruled that with proper jury instructions, convictions of Elliott and O'Mara could stand.

Justice O'Connor wrote: "The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution."

She said that the First Amendment also limits states from presuming that every act of cross burning is illicit. As a result, she said, states may ban only those acts that carry "a true threat... with the intent of placing the victim in fear of bodily harm or death."

Virginia v. Black et al, 538 U.S. 343, 2003

See the opinion at www.findlaw.com.

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School Issues
The Hazelwood Case
The case had its origin at Hazelwood East High School in St. Louis, Missouri.

In May 1983, the staff of the school newspaper, The Spectrum, was getting ready to have the last issue of the year printed. The adviser, as was the policy, showed the page proofs to the principal. The principal objected to two stories on a two-page section of the paper and refused to give his approval.

One of the stories described the experiences three students had had when they got pregnant and had children while in school. Pseudonyms of the students were used. The other story discussed the impact of divorced parents on students.

The principal said that the reference to sexual activity and birth control in the first story were inappropriate. He said that the divorce article was unfair because the parents had not been given an opportunity to respond.

During the summer, the student editors filed suit in federal court, seeking an order requiring the principal to permit publication of the articles and money damages.

A federal judge ruled in May 1985 that no First Amendment violation had occurred. The judge concluded that school officials may impose reasonable restraints on students' speech in activities that are "an integral part of the school's educational function."

In July 1986, the 8th U.S. Circuit Court of Appeals in St. Louis reversed, saying that the newspaper was part of a public forum because it was operated as a "conduit for student viewpoint."

The United States Supreme Court on January 13, 1988, reversed the Court of Appeals in a 5-3 ruling. Justice Byron White wrote the majority opinion. He found that the newspaper was not a public forum, but rather a supervised learning experience for journalism students.

Since the newspaper adviser had exercised a great deal of control over the newspaper, the school officials had not intended to open the paper to "indiscriminate use" by students, the opinion said.

Cathy Kuhlmeier was a student editor involved in the case.

After the ruling, legislatures in several states have taken action to guarantee that students' rights are not arbitrarily limited.

Hazelwood School District v. Kuhlmier, 484 U.S. 260, 1988

The Tinker Case
The ruling in the Hazelwood case called into question an earlier and significant case involving students' rights.

That case, Tinker v. Des Moines Independent Community School District, declared that students in public schools do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

In the Tinker case, students were suspended for wearing black armbands to class to protest the Vietnam war.

The court ruled that students may engage in free speech unless the speech "materially disrupts classwork or involves substantial disorder of invasion of the rights of others."

Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 1969

See the opinion at www.findlaw.com.

Morse v. Frederick

In 2007 in Morse v. Frederick the Supreme Court established a further exception to the Tinker decision.

A high school student, Joseph Frederick, held up a sign that said Bong Hits 4 Jesus as the Olympic torch passed through Juneau, Alaska, before the Winter Olympic Games in 2002.

Students had been dismissed from classes to attend the event.  Frederick held up his sign on a city stress across from the high school.  The principal, Deborah Morse, suspended Frederick for 10 days.

The Supreme Court upheld Morse's action in a 5 to 4 vote.  The decision came on June 25, 2007.

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Prayer in School
Over the years, one of the most litigious areas of the First Amendment has been religion. The United States Supreme Court has ruled in more than 20 cases regarding prayer, religion in the schools, public access for religious purposes, the observance of religious holidays in public places, etc.

We will examine representative cases.

Engel v. Vitale
This is the case that gave rise to the concern over prayer in the schools.

Steven Engel, a parent whose child was in school in New York State, brought suit against William Vitale and other members of the board of education of Union Free School District. The school was in New Hyde Park on Long Island.

Engel contended that the requirement under state law that his child must recite a prayer in school was unconstitutional.

The Supreme Court held with Engel and ruled that the state could not require the recitation of a formal prayer in public schools.

The vote was 8 to 1. Justice Hugo Black delivered the opinion. Justice Potter Stewart dissented.

Justice Black said that the government should never use its power "to control, support, or influence the kinds of prayers the American people can say." Anticipating critical response, Justice Black said that decision wasn't anti-religion. Instead, he said, it demonstrated respect for the diversity of religious beliefs in America.

At issue was a 22-word prayer drafted by the New York State Board of Regents. The prayer was recommended but not required for reading aloud by teachers and students.

The prayer:

Engel v. Vitale, 370 U.S. 421, 1962

School Dist. of Abington Township v. Schempp and Murray v. Curlett
In these cases the Supreme Court struck down laws requiring Bible reading and/or the recitation of the Lord's Prayer at the start of school every day.

The court extended its earlier decision in Engel to overturn the state-required daily public school reading of 10 verses from the Bible in Pennsylvania and the daily Bible reading and Lord's Prayer in Maryland.

The plaintiffs in the Maryland case were Madalyn E. Murray and her son, William J. Murray III. The case originated in Baltimore.

Justice Tom C. Clark wrote the opinion in this case. Clark was from Dallas and had been a member of Highland Park Presbyterian Church.

School Dist. of Abington Township v. Schempp and Murray v. Curlett, 374 U.S. 203, 1963

Wallace v. Jaffree
In 1985, the Supreme Court struck down an Alabama statute that required silent prayer in schools. The law required observance of a moment of silence in classrooms for "meditation or voluntary prayer."

Alabama had strengthened a previous law to say the purpose of the period of silence was to pray. The court ruled 6 to 3 that the "sole purpose" of the law was to foster prayer.

The case originated in Mobile. The plaintiff was Ishmael Jaffree. Justice John Paul Stevens wrote the opinion. The dissenters in the case were Chief Justice Warren Burger and Justices Byron White and William H. Rehnquist.

At least five justices -- that is, a majority -- said that the state could require periods of silence or quiet, which students could use in any way they wanted, including praying.

The statements by these justices have over time developed into the policy of allowing moments of silence in schools. No specific Supreme Court decision has been handed down regarding that.

Wallace v. Jaffree, 472 U.S.. 38, 1985

Prayer at Graduation
Lee v. Weisman, 505 U.S. 577, 1992.
Before a graduation ceremony in Providence, Rhode Island, Daniel Weisman, the father of one of the students, Deborah Weisman, challenged the school's policy of having a prayer at graduation.

The middle school principal, Robert E. Lee, invited a rabbi, Leslie Gutterman, to offer an invocation and a benediction at graduation. The principal gave the rabbi a pamphlet containing guidelines for the composition of public prayers at civic ceremonies and advised him that the prayers should be nonsectarian.

Daniel Weisman's attempt to have the prayer omitted from the ceremony failed, but he pressed the issue in court afterwards. The U.S. Supreme Court held that a prayer at public school graduation violates the establishment clause of the First Amendment. The decision came on a 5 to 4 vote. Justice Anthony Kennedy wrote the opinion.

"The First Amendment's religion clauses," Justice Kennedy said, "mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the state."

Lee v. Weisman, 505 U.S. 577, 1992

The Clear Creek Case
On June 7, 1993, the Supreme Court let stand a ruling that approved student-led prayer at graduation. The 5th U.S. Circuit Court of Appeals had ruled that the Supreme Court decision in Lee v. Weisman did not apply to prayers that were initiated and led by students at graduation. The case originated at the Clear Creek School District near Houston.

No further decisions on that point have been made by the Supreme Court.

Prayer at Athletic Events
Santa Fe Independent School District v. Jane Doe
This case originated in the Santa Fe School District near Galveston. Students, parents and alumni of the school who were Mormon or Catholic brought a suit challenging the school district's policy regarding prayer at athletic events. Santa Fe had a policy of electing students to lead the prayers.

Justice John Paul Stevens wrote the opinion in the case in which the vote was 6 to 3 with Chief Justice William Rehnquist, Antonin Scalia and Clarence Thomas in the minority. The opinion is an excellent summary of Supreme Court rulings in school prayer cases.

Stevens began his opinion by reviewing the court's decision in Lee v. Weisman: "There," the opinion said, "in concluding that a prayer delivered by a rabbi at a graduation ceremony violated the Establishment Clause, the Court held that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way that establishes a state religion or religious faith, or tends to do so."

After reviewing the policy of the Santa Fe School District, the opinion said:

Santa Fe ISD v. Jane Doe, 530 U.S. 290, 2000

All these cases may be readily accessed on the Internet at www.findlaw.com.

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Prayer in School, A Summary
Proscribed prayers were ruled unconstitutional in 1962 in Engel v. Vitale. Bible reading and the recitation of the Lord's Prayer were ruled unconstitutional in School Dist. Of Abington Township v. Schempp and Murray v. Curlett in 1963.

In Wallace v. Jaffree in 1985 five justices said that states could require periods of silence or quiet, which students could use in any way they wanted, including prayer.

In 2001 the United States Supreme Court declined to hear a challenge to a Virginia law that requires students to observe a minute of silence. The law was enacted in 2000. It requires schools to set aside a minute each day to allow students to pray, meditate or engage in any other silent activity. The 4th U.S. Circuit Court of Appeals upheld the Virginia law. The appeals court said the inclusion of prayer as an option was a "nonintrusive accommodation of religion."

ln Texas, the legislature in 2003 mandated a minute of silence and a requirement that students recite pledges to the United States and Texas flags. The requirement went into effect in September 2003. Until then, school districts had been given the option to do that. Students who do not wish to participate must bring a written statement from parents. However, the bill provides no penalties for students who fail to participate.

The pledge to the Texas flag is: "Honor the Texas flag; I pledge allegiance to thee, Texas, State under God, one and indivisible."

In summary: Until the U.S. Supreme Court rules differently, what is acceptable regarding this issue is an unspecified moment of silence.

Other Prayers
Lee v. Weisman, decided in 1992, forbids prayers at graduation.

But, the 5th U.S. Circuit Court of Appeals allowed student-led prayers at graduation in the Clear Creek case and in 1993 the Supreme Court refused to review the decision. In 2001 the court refused to hear a challenge to a Florida school board rule that allows students to deliver "messages" at graduation.

Prayers before athletic events were ruled unconstitutional by the U.S. Supreme Court in the Santa Fe School District case in 2000.

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Jefferson and the Wall of Separation
Jefferson's Letter to Baptists in Danbury
Thomas Jefferson was widely criticized during the election of 1800 as being nonreligious or anti-religion. This was in spite of the fact that he had written the Virginia statute for religious freedom.

Upon election, Jefferson ended the practice of setting aside national days for religious observances. That further alienated many people.

The greatest criticism of Jefferson came from New England and from a segment of society that did not see anything wrong with mingling church and governmental affairs.

Jefferson received unsolicited support from the Baptist association in Danbury, Connecticut. At the time, taxes in Connecticut were used to support various religious endeavors, including paying ministers. Baptists opposed that. Jefferson had worked toward ending such practices in Virginia. Connecticut did end them, but not until 1819.

It was in this context that the Danbury Baptist Association approved a message of support to Jefferson on October 7, 1801.

The message said in part: "Our Sentiments are uniformly on the side of Religious Liberty - That Religion is at all times and places a Matter between God and Individuals - That no man ought to suffer in Name, person or effects on account of his religious Opinions - That the legitimate Power of civil Government extends no further than to punish the man who works ill to his neighbour."

Jefferson's answer, dated January 1, 1802, is the foundation upon which the concept of the separation of church and state is based. In his reply to the Baptists, Jefferson said:

A great deal of information about this may be found on the Internet.

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On Test, A Footnote
The question may ask what the significance of a case was. Take these questions for example. Each of these relates to an important turning point in the law and therefore the question of significance is important.

When the question asks what the ruling was, this means what was important about the case in terms of the language in the majority opinion. This does not mean which side won or what the vote by the court was in the case. The reason we are studying these cases is to see how the law was affected by these rulings.

When the question asks what concept in law was decided, this means what precedent or otherwise important and lasting aspect of the law.

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