Scott Southworth is at it again

Scott Southworth, the district attorney of Juneau County, Wisconsin, is threatening to prosecute teachers who comply with a new state law that requires sex education courses to include “medically accurate, age-appropriate” information, including information on contraceptives. Southworth claims the law “promotes the sexual assault of children,” “[u]ndermines parental authority,” “requires school districts to condone controversial sexual behavior,” and “provides access to our children by the contraceptive industry.”

This is the same Scott Southworth who, as a student, sued the University of Wisconsin in 1996 over student activity fees that might be used to advance “political and ideological expression offensive to [his] personal beliefs.” He was apparently happy to accept the benefit of a state-supported education, but not the fact that the university serves students with a wide variety of views. The US Supreme Court ultimately rejected Southworth’s claims, holding that there was no constitutional violation because the university did not favor some views and beliefs over others in allocating funding for student activities.

Southworth apparently didn’t learn from his defeat in the Supreme Court, because he’s at it again, trying to impose his view of sex education on all. He thinks age-appropriate teaching about sex “encourages our children to engage in sexual behavior.” Southworth makes a number of other outrageous, unsupported claims. He says that sex education undermines “high moral standards,” that it “sexualizes our children as early as kindergarten,” and that it “will lead to more child sexual assaults.”

Not only do these claims lack any factual support, they obscure the more important fact that sex education — including information about contraception as well as abstinence — has been repeatedly shown to be the most effective way to prevent teen pregnancy and sexually transmitted infections. The state legislators who enacted the statute understands this — and so do most of their constituents who are parents. Polls consistently show that parents favor sex education that is not limited to abstinence because they think it helps students make better, more informed decisions. If we’re concerned about the welfare of our kids and helping them learn to make responsible choices as they become young adults, we need to provide them with more accurate information, not less. This is precisely what the Wisconsin law is trying to accomplish.

To ban or not to ban: Selling violent video games to minors

Does the First Amendment bar a state from restricting the sale of violent video games to minors? That’s the question now before the Supreme Court in a case that will be argued next fall.

In Schwarzenegger v. Video Software Dealers Association, the Court of Appeals for the 9th Circuit overturned a California statute that would impose fines for selling violent video games to minors. Just last week the Supreme Court ruled that the First Amendment protects violent images depicting cruelty to animals. What’s different in this case? The main difference is that California defends the law on the grounds that it protects minors. The Court of Appeals, like many other courts before it, held that there is no evidence that playing such games causes any actual harms to minors.

This is a familiar debate. In 1948, the Supreme Court rejected the claim that graphic crime stories and reports corrupt minors and contribute to juvenile crime and anti-social behavior. The Court reasoned that the First Amendment doesn’t only apply to “worthy” material or to “the exposition of ideas,” because the “line between the informing and the entertaining is too elusive for the protection of that basic right.”

This hasn’t stopped states from repeatedly trying to restrict video game sales to minors – providing numerous opportunities for NCAC to argue that video games are entitled to full First Amendment protection. So far, that argument has carried the day. Let’s hope it prevails, again, in the Supreme Court.

Court to rehear online student speech cases in PA

The 3rd Circuit has agreed to rehear two seemingly contradictory online student speech cases decided in February (see here for more about the cases). It has vacated the previous opinions and all members of the court will hear arguments in both cases on June 3.

The cases were decided based on the criterion of whether the speech was likely to cause disruption in school. In one of the cases, Layshock v. Hermitage School District, the school district conceded that there was no disruption to the school environment. They argued instead that the student’s online speech was lewd and offensive, had entered the school, and was therefore subject to school authority. The Court, rejected this argument and admonished the school for reaching outside its bounds and into a student’s home.

In the other case, J.S. v. Blue Mountain School District, the school and subsequently the court took a different angle. It said that even though there was no actual disruption, one was reasonably possible if the school had not taken action.

It is important to note that the decision concerns speech off campus, at a student’s home. The Court held that “off campus speech that causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographical technicality in order to be regulated pursuant to Tinker.”

First Amendment upheld in US v Stevens

In a much anticipated decision, the Supreme Court yesterday struck down a federal statute making it a crime to create, sell or possess “a depiction of animal cruelty.” In the 8 – 1 opinion, the Court characterized the law as “a criminal prohibition of alarming breadth,” because of its potential to criminalize a vast array of legally protected expression, including hunting videos and pictures of animals being slaughtered. Justice Alito dissented.

The majority rejected the Government’s argument that free speech rights should be judged by a “balancing of the value of the speech against its societal costs,” calling the proposition “startling and dangerous.” Chief Justice Roberts, writing for the Court, held that “the First Amendment itself reflects a judgment … that the benefits of its restrictions on the Government outweigh the costs.”

The Government “has no power to restrict expression because of its message, its ideas, its subject matter or its content.” The Court sharply rebuffed the government’s suggestion that “prosecutorial discretion” would save hunters, photographers, magazine publishers and others from prison, saying, “the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the government promised to use it responsibly.”

Although adopted with good intentions, the law ignored long-standing First Amendment principles. As we’ve said before, in this country we punish conduct, not expression. Animal cruelty is already a crime in all 50 states, and nothing in this opinion will help the Michael Vicks of the world.

Virginia Attempts to Address Underage Drinking by Impinging Upon Free Speech

Last week, a panel of the 4^th Circuit Court of Appeals upheld a ban on the advertising of alcohol in college newspapers.  The case involved a challenge to the Virginia Alcoholic Beverages Control Commission’s expansive ban on the advertising of beer, wine and mixed drinks in student-run publications throughout the state of Virginia.

Beyond the obvious economic implications (the newspapers challenging the regulations estimated that the advertising ban would cost them approximately $30,000 per year), the ban directly infringes upon both the newspapers’ and alcohol vendors’ right to free speech.

Because the regulations are targeted towards speech involving economic activity, the court analyzed the ban under First Amendment doctrine pertaining to commercial speech and in doing so found that the ban was sufficiently narrowly tailored to the governmental interest in combating underage drinking.

Setback for net neutrality

On Tuesday, a federal appeals court dealt a legal setback to supporters of “net neutrality.”  The court ruled (Comcast v. FCC) that the FCC does not presently have the authority to control an ISP’s network management practices and therefore cannot require Comcast (one of a small number of powerful corporations whose networks comprise the Internet) to treat all internet content equally.

Net Neutrality advocates (NCAC among them) favor government regulation in the interest of insuring the free flow of information and in support of equal Internet access for all. The lack of net neutrality legislation opens the possibility for the establishment of a two- (or more) tiered system based on levels of payment, or – worse – the political judgments of the private companies who own the networks.  In opposing government regulation opponents of the net neutrality effectively support corporate control of the Internet.

In September, Chair Julius Genachowski of the FCC announced his commission’s support of the net neutrality principle, which it reiterated in its promulgation of the U.S. National Broadband Plan last month.  But Tuesday’s ruling cast doubt on the legal basis of the FCC’s approach  and thus of its ability to promote net neutrality.

The End of Gene Patents? (Part 2)

Last summer, we reported that the ACLU and the Public Patent Foundation (PUBPAT) were mounting a creative challenge to the constitutionality of gene patents, a questionable practice which till now was supported by U.S. Government policy.  The US Patent and Trademark Office has regularly granted property interests in certain types of living organisms and their constituent parts, including genes, the building blocks of human life.

The First Amendment issue in this case, Association for Molecular Pathology, et al. v. U.S. Patent and Trademark Office, et al., isn’t immediately obvious; it arises from claims that the patents granted to the private companies (which gave them exclusive control over testing for mutations in the BRCA1 and BRCA2 genes) suppress scientific research and information. The plaintiffs include patients denied access to information about their own genetic make-up (because they couldn’t afford the stiff test fees charged by the patent owners), and scientists precluded from doing their own independent testing on the genes.

NY Southern District Judge Richard Sweet ruled in the plaintiffs’ favor on the basis of patent law; his ruling didn’t reach the First Amendment arguments. But because the ACLU’s lawsuit challenges the whole notion of gene patenting, its outcome could have far-reaching effects beyond the patents on these genes. Approximately 20 percent of all human genes are patented, including genes associated with Alzheimer’s disease, muscular dystrophy, colon cancer, asthma and many other illnesses.

The March 29 decision can be found here.