IN RE MARRIAGE CASES
Feminists for Free Expression did not participate in this brief and therefore can't claim credit for it. It was written by Edward Tabash, a long-time member and supporter of FFE, and we feel that it is important and interesting. The brief may be found in its entirety on our Reading List page.
The Council for Secular Humanism and The Center for Inquiry filed a brief in the California Supreme Court in 2007 in the same-sex marriage case. They argued that confining marriage to only heterosexual couples violates the separation of church and state.
The Council for Secular Humanism is a nonprofit educational organization which engages in numerous activities, designed to promote a world view that embodies secular social and legal values and institutions. The Council is deeply involved in defending the rights of nonreligious people and in promoting the separation of church and state. The Council's flagship publication is Free Inquiry Magazine. The Center for Inquiry, is an umbrella organization that includes the Council. The Center is a nonprofit educational organization devoted to the application of reason and evidenced-based inquiry into every area of human endeavor. In addition to the Council, the Center's umbrella also includes the Committee for Skeptical Inquiry, which publishes the scientific/skeptical publication, Skeptical Inquirer. The Center seeks to educate the general public about the importance of discarding supernatural claims of every sort and substituting, instead, an empirical approach to all major questions facing the world The Center is particularly concerned, along with the Council, that no laws restricting the liberties of people be grounded in religious belief systems, but rather be rooted in direct human experience or the best information currently offered by modern science, in the event that any prohibitory laws are deemed necessary in the first place.
In this brief, Amicus Curiae, the Council and the Center seek to support the City and County of San Francisco, in San Francisco's effort to have the same-sex marriage prohibition set forth in California Family Code declared unconstitutional. Amici also support San Francisco in requesting that this Court order the State of California to grant marriage licenses to same-sex couples on the same terms as those provided to opposite-sex couples.
DeJohn v. Temple University
Feminists for Free Expression joined FIRE's amicus brief with a coalition of organizations including the ACLU of Pennsylvania, the Christian Legal Society, Collegefreedom.org, the Individual Rights Foundation, Students for Academic Freedom, and the Student Press Law Center. The coalition was represented in the filing by attorney L. Theodore Hoppe, Jr.
The lawsuit against Temple University was filed in the U.S. District Court for the Eastern District of Pennsylvania in February 2006 by attorneys from the Alliance Defense Fund (ADF) on behalf of Temple student Christian DeJohn. DeJohn's complaint alleged both that Temple had engaged in actions that violated his rights and that Temple was violating the free speech rights of all of its students by maintaining an unconstitutional speech code.
Temple finally revised its speech code more than a year into the lawsuit, but had argued on appeal to the Third Circuit that its original policy was constitutional despite the District Court's holding to the contrary. The Third Circuit held that Temple's speech code was unconstitutional because it restricted speech protected by the First Amendment.
In DeJohn v. Temple University, the District Court had declared Temple University's former speech code unconstitutional. On appeal, Temple argued that the Supreme Court's 2007 ruling in Morse v. Frederick—a decision upholding the narrow right of high school administrators to regulate student speech "reasonably regarded as encouraging illegal drug use"—permitted Temple to place broad and onerous restrictions on the free speech rights of college students. In response, FIRE's brief argued that Temple's policy contradicts both decades of legal precedent and the guidance of the federal Department of Education's Office for Civil Rights, which is responsible for enforcing harassment laws on campus.
In its ruling on August 4th, 2008, the United States Court of Appeals for the Third Circuit unequivocally states that "[d]iscussion by adult students in a college classroom should not be restricted."
MORSE v. FREDERICK
At a school-sanctioned and school-supervised event, Deborah Morse, the high school principal, saw students unfurl a banner stating “BONG HiTS 4 JESUS,” which she regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, Morse directed the students to take down the banner. When one of the students who had brought the banner to the event—respondent Frederick—refused, Morse confiscated the banner and later suspended him. The school superintendent upheld the suspension, explaining that Frederick was disciplined because his banner appeared to advocate illegal drug use in violation of school policy. Petitioner school board also upheld the suspension. Frederick filed suit under alleging that the school board and Morse had violated his First Amendment rights. The District Court granted petitioners summary judgment, ruling that they were entitled to qualified immunity and that they had not infringed Frederick’s speech rights. The Ninth Circuit reversed. Accepting that Frederick acted during a school-authorized activity and that the banner expressed a positive sentiment about marijuana use, the court nonetheless found a First Amendment violation because the school punished Frederick without demonstrating that his speech threatened substantial disruption. It also concluded that Morse was not entitled to qualified immunity because Frederick’s right to display the banner was so clearly established that a reasonable principal in Morse’s position would have understood that her actions were unconstitutional.
The Court ruled in favor of Morse: because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick. Pp. Frederick’s argument that this was not a school speech case wass rejected. The event in question occurred during normal school hours and was sanctioned by Morse as an approved social event at which the district’s student-conduct rules expressly applied. The Court agreed with Morse that those who viewed the banner would interpret it as advocating or promoting illegal drug use, in violation of school policy.
Hosty v. Carter
Hosty v. Carter, filed by The Foundation for Individual Rights in Education (FIRE) on October 19th, 2005 urges the Supreme Court to hear an appeal of a Seventh Circuit decision that poses a grave threat to student press freedom.
FIRE's brief was joined by a remarkable coalition of nonprofit groups including Accuracy in Academia, the American Council of Trustees and Alumni, the Coalition for Student & Academic Rights, Feminists for Free Expression, the First Amendment Project, Ifeminists.net, the Individual Rights Foundation, the Leadership Institute, the National Association of Scholars, and Students for Academic Freedom.
In Hosty v. Carter, the Seventh Circuit Court of Appeals refused to hold liable a college administrator at Governors State University in Illinois who censored a student newspaper that was highly critical of the administration. Most disturbingly, the court chose to apply in the college context a Supreme Court decision that has been used to severely curtail the free speech rights of high school students-despite the fact that the vast majority of college students are adults, while high school students are not. Furthermore, the Seventh Circuit directly contradicted two Supreme Court decisions by holding that a student paper or group could potentially be controlled by the university merely because it received funding from mandatory student fees that are rightfully considered to belong to the student body, not the university.
The controversy began in 2000, when administrator Patricia Carter demanded the right to review the content of a student fee-supported newspaper, The Innovator, before it was published. Student editor Margaret Hosty and others sued, and both the federal district court and a three-judge panel of the Seventh Circuit found in their favor. But on June 20, 2005, the Seventh Circuit en banc reversed its earlier ruling, determining that Hazelwood v. Kuhlmeier, a Supreme Court decision allowing prior review of certain high school newspapers, should apply to student fee-funded college media as well. FIRE has released a statement explaining the case and why it was wrongly decided.
v. Warner Brothers
The California Supreme Court granted
review in a case filed by Amaani Lyle,
a writers' assistant, who had been
dismissed from the comedy show “Friends,” claimed
she was subjected to a hostile work
environment because of vulgar language
and rude behavior by the show's writers.
Ms. Lyle, a black woman, claimed sexual
and racial harassment. She also argued
that she was fired for insisting that
more blacks be featured on the show.
The writers argued that their words
and actions were part of the creative
process, and were justified as “creative
A unanimous panel
of Los Angeles' 2nd District Court
of Appeal ruled that
a jury should decide whether the
actions constituted harassment.
for review, the attorneys for Warner
Brothers Television Productions
argued that such speech falls under
the protections of the First Amendment
and the California Constitution,
and warned that letting jurors
sexual discussions in the development
of scripts were justified could "chill
speech" in many workplaces.
In granting review,
the Supreme Court told attorneys to
argue whether "sexually
coarse and vulgar language in the
harassment under the state's Fair
Employment and Housing Act. The
court also sought
debate about whether FEHA liability
in such cases violates free-speech
In a decision authored by Justice Marvin Baxter the California Supreme Court unanimously ruled that sexually coarse and vulgar language is often a necessary part of the creative process when producing a hit TV show.
The decision held that crass brainstorming -- complete with foul words and lewd sexual simulations -- crosses the line only if it targets a person because of his or her sex or is severe enough to create a hostile work environment. Neither behavior occurred in Lyle v. Warner Brothers Television Productions, 06 C.D.O.S. 3258, Baxter held.
"The record here reflects a workplace where comedy writers were paid to create scripts highlighting adult-themed sexual humor and jokes, and where members of both sexes contributed and were exposed to the creative process," he wrote. "Moreover," he continued, "there was nothing to suggest the defendants engaged in this particular behavior to make plaintiff uncomfortable or self-conscious, or to intimidate, ridicule or insult her."
Los Angeles County Superior Court Judge David Horwitz granted summary judgment for the writers and other defendants, awarding them more than $21,000 in costs and nearly $416,000 in attorney fees.
Ray Counts and Mary Nell Counts vs.
Cedarville School District
FFE joined the American Booksellers'
Foundation for Free Expression and
thirteen other organizations in
an amicus brief
submitted on February 28, 2003 to
the United States District Court
Western District of Arkansas, Fort
Smith Division. The case was brought
the Cedarville School District by
two parents concerned by the school
efforts to censor the Harry Potter
books by removing them from the
shelves and refusing students access
to them without written parental
permission. The plaintiffs argued
that the school
board's decision violated their First
Amendment right to free speech and
to receive information. U.S. District
Judge Jimm L. Henderson ruled in
favor of the parents and said in
that the books must be displayed
where they can be accessed without
other than those administrative restrictions
that apply to all works of fiction
in the district. According to the
Library Association, during the past
four years the Harry Potter books
have been the most frequently challenged
in the country, and this case was
the first legal challenge to restriction
on their use in a public school.
FFE signed on to an amicus brief
submitted on April 6, 2001, to the
Court in the Northern District of
California by the Center for Democracy
the ACLU and 16 other organizations
and one individual, in support of
Provider and search engine Yahoo!.
A French organization, La Ligue Contre
Le Racisme Et L'Antisemitisme (LICRA)
had asked the U.S. court to enforce
order against Yahoo barring it from
allowing its customers to view Nazi
for sale on E-Bay, or access "any
other site or service that may be
construed as constituting an apology
or contesting the reality of Nazi
these could be available in France
and violate French law. Yahoo! had
motion for summary judgment, and
our excellent brief supported this
not only with constitutional arguments
and extensive citation of cases dealing
with First Amendment protections
of the Internet, but with specific
of laws in six of the 59 countries
that limit online freedom of expression,
might be attempted to be enforced
here should LICRA's case be given
On January 12, 2006 a U.S. appeals court declined to intervene on behalf of Yahoo, the Internet search company, saying U.S. courts have no jurisdiction in a case pitting free speech protections against a French law barring the sale of Nazi memorabilia.
In a case that pitted U.S. freedom of speech rights against European anti-hate group statutes, the U.S. 9th Circuit Court of Appeals reversed a lower court ruling that had rejected French plaintiffs attempts to enforce French laws against U.S. companies in U.S. courts.
Tattered Cover v. City
FFE was one of 124 organizations
that joined an amicus brief filed
11, 2001, in a bookstore case
in the Denver District Court. "The
the brief, "is attempting
to determine whether an individual
read a book about
how to make methamphetamines
in order to prove that the individual
committed that crime," by
issuing a broad search warrant
to the police
for all the individual's purchase
records. Although the trial court
found the warrant
too broad, it did allow access
to a particular invoice. The
only cites numerous
decisions dealing with the First
Amendment rights of those who
and libraries, but argues that
the Colorado Constitution has
held to offer
even more free speech protections
than the U.S. Constitution, and
that the court
did not take steps to be sure
that the government had a compelling
in the records in question, as
First Amendment law dictates.
v. Free Speech Coalition
Later in June FFE was one
of the seven amici filing
in the Supreme
Court supporting a constitutional
challenge to the Child Pornography
Act which was passed in 1996.
This law changed
the justification for creating
a special forbidden category
pornography; originally it
was predicated on the damage
to children in
its creation. Now it is the
possibility that it might
lead to future
crimes by inciting
pedophiles or by their using
to entice children into illegal
acts. The new law criminalizes
images of real children but
any image that "appears
to be" or "conveys
the impression of minors
engaged in sexual conduct," whether
this is done by morphing
computer images or by using
to be children. The Ninth
Circuit has found that this
is constitutionally vague.
is no exception in the
law for images created
serious literary, artistic,
(indeed, it "now makes
criminal many of the studies
that could inform
the Court's analysis of
whether the government
the harm it alleges"),
and there is a possibility
that it could be used against
paintings, drawings and
sculpture as well as photo
images. The brief makes
three points: the previous
definition of child pornography
has already been used to
suppress and prosecute
a number of examples of
from parental nude pictures
of their children in the
bath to serious journalistic
and scientific research,
and the CPPA
will now make this situation
worse. The government's
argument that the CPPA
make it easier for it to
obtain convictions because
it will no longer have
that real children have
been victimized is an unconstitutional
reversal of the
burden of proof, and the
law's affirmative defense
(which requires proving
adults were used to create
is not available to those
charged with possession
or distribution with no
to creation, or to those
used neither real adults
nor real children. And
the suppression of speech
it may cause some viewers
to engage in
illegal acts by "whetting
the appetite" or
providing the tools of
incitement has grave implications
other kinds of
speech, including political
speech. Precisely because,
in an age of sound bites,
can be dangerous to be
seen as supporting "child
pornography" (do not
forget that all classes
are still illegal:
it is only nonobscene images
that are in question here),
this is a
case for free speech in
City of Los Angeles
v. Alameda Books
In a second Supreme Court
case, FFE and some members
including the American
for Free Expression and
the Freedom to Read Foundation
brief in support of a
combination adult bookstore/arcade
has fallen victim to
zoning ordinance that
assumes it produces
secondary effects, without
any evidence or study
showing such effects.
The brief details the
of adult business
zoning by which mainstream
businesses are often
Barnes v. Zaccari
An important First Amendment case now before the Eleventh Circuit involving former Valdosta State University (VSU) student Hayden Barnes, expelled for peacefully protesting the construction of parking garages on campus.
Hayden -- represented by Bob Corn-Revere and Cary Wiggins -- filed suit in January 2008. This past September, Hayden won partial victory from the district court, which held that VSU's former president had violated Hayden's right to procedural due process and found the Board of Regents of the University System of Georgia guilty of breach of contract. Most importantly, the court held that VSU's former president could not claim the defense of qualified immunity, having violated clearly established law, and was thus liable for damages. The former president and the Board of Regents have appealed this ruling to the Eleventh Circuit. In turn, Hayden cross-appealed, arguing that the district court incorrectly dismissed his First Amendment and substantive due process claims.
The Eleventh Circuit issued an order denying Hayden Barnes' cross-appeal on jurisdictional grounds. Hayden's First Amendment, substantive due process, and ADA claims will not be considered at this point in the proceedings. Instead, the court will now resolve former Valdosta State University President Ronald Zaccari's appeal of the district court's qualified immunity ruling.
Zaccari has appealed this decision to the United States Court of Appeals for the Eleventh Circuit. The Foundation for Individual Rights in Education (FIRE), which has been fighting for Barnes since 2007, has put together a spectacular coalition of organizations from across the political and ideological spectrum to explain to the Eleventh Circuit why the Barnes case is so important in an amici curiae ("friends of the court") brief.
The coalition includes: the American Booksellers Foundation for Free Expression, the American Civil Liberties Union of Georgia, American Council of Trustees and Alumni, the Cato Institute, the Electronic Frontier Foundation, Feminists for Free Expression, the Individual Rights Foundation, the Libertarian Law Council, the National Association of Scholars, the National Youth Rights Association, the National Coalition Against Censorship, Reason Foundation, Students For Liberty, and the Southeastern Legal Foundation.
If the Eleventh Circuit upholds the district court's finding against President Zaccari, it will send a powerful message to college administrators across the country that they cannot abuse the rights of their students with impunity. Such an appellate level decision could be a powerful force in rebalancing the legal incentives on campus in favor of student free speech and due process. If, however, the Eleventh Circuit decides that this violation of student rights was not sufficient to pierce qualified immunity, it would send the worst possible message to administrators around the country.
A loss in this case would be a loss for student rights and for accountability among campus administrators.