Law of the West: Free speech
April 14, 2006
by John Scorsine
The last two weeks of June saw great activity in the appellate courts across the United States. Among the many decisions, there were three cases that dealt with the separation of church and state. Each of these cases discussed the free exercise of religion and the freedom of speech.
The Ninth Circuit Court of Appeals’ decision in Newdow v. U.S. Congress has been the subject of every talk show and news program. That court, which encompasses parts of California, the Pacific Northwest and Northern Rockies, determined that the addition of the phrase “under God” to the Pledge of Allegiance in 1954 was unconstitutional. It was seen as an attempt by the government to establish religion by state action.
Actions by the state that foster one religion over another are improper. Here the words “under God” were seen as promoting a particular religious belief: a belief in a single god. The decision remains subject to appeal to either the entire Ninth Circuit or the Supreme Court. If it goes to the circuit, it would be heard by as a much larger panel of judges. Pending those appeals, the decision has been “stayed.” In any event it is only binding on those states in the Ninth Circuit.
I have always felt that there were significant issues in this country concerning the separation of church and state; but I never considered the Pledge of Allegiance to be one of them. There certainly are others. One issue that I have felt was significant was school vouchers. In simplest terms, a parent in these systems can express their displeasure with a public school by enrolling their child in a private, typically religiously affiliated, school. Of course, it may simply be a matter of personal choice, and not a criticism of a given public school. Likewise, the school of choice may or may not be religiously sponsored. By use of a state-issued voucher the parents can direct their student’s proportionate share of educational tax dollars to the private school. In Zelman v. Simmons-Harris, the United States Supreme Court found a particular voucher system in Cleveland, Ohio, to pass muster.
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But, closer to home was a decision that impacts the more fundamental freedom to profess and practice one’s faith or to solicit political support without governmental interference. The Village of Stratton, Ohio, had adopted a “Green River Ordinance.” And, here is the connection to the Rocky Mountains. The “Green River Ordinance” derives its name from Green River, Wyo. In 1931, the town of Green River decided to remedy by means of an ordinance the “irritating incidents of house-to-house canvassing for sales.”
Basically, it provided that merchants who engaged in door-to-door sales were a nuisance. As a nuisance, the peddlers could be subject to penalties. The ordinance had withstood numerous court challenges in the past.
Predominately, those challenges dealt with “commercial speech”; folks trying to “sell” you something other than salvation or their political candidate. Over the last 50 years whenever towns and villages tried to apply the ordinance to purely religious or political speech the court has invalidated them.
The Jehovah Witnesses brought suit against the village of Stratton. They believed that Stratton’s ordinance requiring them to receive a permit from the village before going door-to-door to profess their faith and hand-out free pamphlets was unconstitutional. The Jehovah Witnesses argued that their faith dictates that they follow the example of Paul, teaching their faith publicly and from house-to-house. The village argued that their ordinance was meant to protect their citizens from frauds and crimes and to ensure their privacy. The court found that the village had been too broad in its reach. By requiring permits for the expression of ideas, by missionaries or by political candidates, the village had chilled the freedom of speech guaranteed all of us in the Constitution.
The court found that there are other less constitutionally offensive ways we can ensure our privacy. Simply posting a sign that states “No Solicitors” on your door or gate, would serve the purpose. A town could, by an ordinance, require canvassers to honor it.
To require a person to register with the government before circulating a petition in their neighborhood or before practicing an integral aspect of their religious belief crosses the Constitutional line.
Since the birth of our nation, our men and women have fought and died to protect that most essential freedom: the freedom to speak out. That single freedom protects us and distinguishes us from the totalitarian regimes of the world. Whether it is on politics or religion, since grade school each of us has pledged allegiance, whether it is read with a big “G” or a little “g” to this ideal. “One Nation, under God, indivisible, with liberty and justice for all.” The liberty to speak freely about religion and politics is part of the foundational bedrock of our nation.
So, in the weeks to come, as the parade of candidates who aspire to political offices knock on your door, hand you their literature and ask for your vote, consider our basic freedoms. As the court in another case has said, the First Amendment does not merely guard against censorship “but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare people for an intelligent exercise of their rights as citizens.” This is a right each of us has a duty to take full advantage of: listen to every candidate, be fully informed on the issues of the day. And then, exercise that other most critical right and obligation of citizenship, cast your ballot on primary and Election Day.
The information provided in this column is based upon general principles of law and should not be relied upon in any manner. It is not the intent of this column, its author, publisher or the Fence Post to provide legal advice to any person. You should address specific legal questions to your family lawyer. In Wyoming, the State Bar can refer you to competent lawyers in your community by calling (307) 634-7823. In Colorado, call the Metropolitan Lawyer Referral Service at (303) 831-8000. Readers in Nebraska can receive referrals from the State Bar Association by calling 1-800-742-3005.