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Cursing Congressmen: Student Activism and the First Amendment

A local high school student has captured the media’s attention by claiming his First Amendment rights were violated after the school suspended him for cursing at a congressman.  The student participated in the March 14, 2017 walkout to protest gun laws.  During the protest, he admits that he called his congressman’s office and demanded that politicians get off their “f-ing lazy a – -” and do something about gun law reform.

The student contends that the school violated the student’s First Amendment rights to engage in “political speech.”  The school district argues that the suspension was not in retaliation for participation on the protest, but because the student used profanity.   Who is right?

The First Amendment protects “political speech,” i.e., speech that expresses opinions or views on current political issues or candidates.  McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995); McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1448 (2014).  In fact, political speech has been regarded as the “essence” of the First Amendment.  McIntyre, 514 U.S. at 347.  Courts are required “to err on the side of protecting political speech rather than suppressing it.”  McCutcheon, 134 S. Ct. at 1451.

In contrast, profanity is not always protected under the First Amendment.  Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986).  The United States Supreme Court has consistently held that a school district may prohibit “inappropriate” speech.  Id. at 683.  This includes profanity used during protests that is aimed at “making a political point.” Id. at 682.

According to the United States Supreme Court:

“The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized order.  Consciously or otherwise, teachers – and indeed the older students – demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class.  Inescapably, like parents, they are role models.  The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent or offensive speech and conduct . . .”

Id. at 683.

 

In sum, a school may prohibit the use of profanity, even during a political protest.  Id. at 685.

In this particular case, it is unclear whether the speech will be protected.  The speech occurred during the walk out, which was not a school-sanctioned activity.  It occurred during a political protest, it was aimed at a politician, and it requested political action.  On the other hand, the speech occurred on a school campus.  The other participants were students, and these students likely overheard this speech.  The school has a policy prohibiting inappropriate speech and conduct on school grounds.

To mount a First Amendment challenge, the student will also need to show that the suspension was in direct retaliation for his “political speech.”  The school has been very clear that its punishment was not due to the student’s political views or participation in the walkout, but because he violated a school code of conduct. To win, the student will need to prove that the school’s explanation is false or pretextual, and/or that the administrators in charge of the suspension had expressed opposition to the student’s allegedly protected speech.  Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009).   Keep in mind, however, that schools can prohibit political protests on campus if those protests “undermine the school routine.”  Tate v. Bd. of Ed. Of Jonesboro, Ark., Special Sch. Dist., 453 F.2d 975, 978-79 (8th Cir. 1972).

So, who is right?  I don’t know.  The First Amendment is a gray area of the law, particularly when it comes to schools.

I do know that I am proud of our next generation.  While I do not condone this particular student’s choice of words, I commend him for trying to make a difference on an issue he feels strongly about.  If these students continue to be passionate about the shape of this country’s future, 2020 is going to be a very interesting election year.

The Second Amendment Does Not Constitutionally Guarantee the Right to Possess an Assault Weapon

Following every mass shooting, there is a cry for gun control.  That cry is generally quickly drowned out by feelings of helplessness.  How can we stop a crazy person?  Who are we to think that we can protect our children from the evils of this world?

It’s time to change the conversation.  We are not helpless.  We are empowered. This is an election year, and we have the power to bring gun control to the forefront.  We have the power to demand change.  We have the power to protect our children.

WE HAVE THE CONSTITUTIONAL RIGHT TO DEMAND A BAN ON ASSAULT WEAPONS

I’ve previously discussed the constitutional issues surrounding gun control here.   Unfortunately, that post has become relevant again.

Whether you are for or against gun control, you need to know this one important fact:  The Second Amendment does not constitutionally guarantee anyone the right to possess an assault weapon.

In 2008, the United States Supreme Court struck down a ban on handguns under the Second Amendment but left open the question of whether bans on assault weapons would be constitutionally permissible.  District of Columbia v. Heller, 554 U.S. 570, 628-29 (2008).  In Heller, the United States Supreme Court explained that the primary purpose of the Second Amendment is to allow a citizen to bear arms that are “in common use” and “for lawful purposes like self-defense.”  Id.  Because handguns are the preferred firearm for self-protection, the District of Columbia ban on these weapons violated the Second Amendment.  Id.

In 2010, the United States Supreme Court struck down an ordinance passed by the City of Chicago which banned owning handguns in homes.  McDonald v. City of Chicago, 541 U.S. 742 (2010).  However, the Court did not address the open left by Heller:  Do bans on assault weapons violate the Second Amendment?

Heller would seem to suggest that they do not.  In Heller, the United States Supreme Court cautioned that “the right secured by the Second Amendment is not unlimited,” and is not “right to keep and carry any weapon whatsoever and for whatever purpose.”  Id. at 626.  Furthermore, the Court spoke favorably of the “historical tradition of prohibiting of carrying dangerous and unusual weapons.”  Id. at 627.

BANS ON ASSAULT WEAPONS DO NOT VIOLATE THE SECOND AMENDMENT

Since Heller, courts across the country have rejected Second Amendment challenges to assault weapon bans.  Currently, California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey and New York have enacted legislation banning or limiting ownership of assault rifles.   Local governments in D.C., Illinois, Indiana and Massachusetts have also enacted ordinances prohibiting or limiting ownership of assault rifles.

In People v. James, the California Court of Appeal upheld the constitutionality of California’s ban on assault weapons.  94 Cal. Rptr. 3d 576 (Ct. App. 2009).  The James court found that the Second Amendment, under Heller, does not protect a citizen’s right to own an M-16 rifle because the M-16’s “high rate of fire and capacity for firepower” poses such a risk that it outweighs any “legitimate sports or recreational” use.  Id.  Furthermore, M-16’s are “weapons of war” and not the type of weapon possessed by most law-abiding citizens.  Id.

Four years later, the California Court of Appeal again upheld the constitutionality of California’s ban on assault weapons.  People v. Zondorak, 163 Cal. Rptr. 3d 491 (Ct. App. 2013).  The Zondorak court found that the Second Amendment, under Heller, does not protect a citizen’s right to own AK series rifles.  Id. at 498.  AK series rifles fire almost as rapidly as fully automatic weapons and are not commonly used in self-defense. Id.

In New York State Rifle & Pistol Assoc., Inc. v. Cuomo, firearm owners, sellers and advocates challenged New York’s and Connecticut’s bans on assault weapons as violating the Second Amendment.  804 F.3d 242 (2d Cir. 2015).   The Second Circuit reasoned that a state legislature is in a much better position than a judge to make “sensitive public policy judgments . . . concerning the dangers of carrying firearms and the manner to combat those risks.”  Id. at 261.  It found that both New York and Connecticut were able to demonstrate that they drew reasonable inferences from a substantial evidence on the risks of owning assault weapons when they enacted their laws.  This evidence included the fact that: (1) the federal government bans assault weapons; (2) assault weapons usage tends to produce “more wounds, more serious wounds, and more victims;” and (3) assault weapons are commonly used in crime, mass shootings, and to kill law enforcement officers.  Id. at 262.   Recognizing that bans on weapons may create a black market, the Second Circuit astutely pointed out that “[t]he mere possibility that some subset of people intent on breaking the law will indeed ignore these statutes does not make them unconstitutional.”  Id. at 263.

A BAN ON ASSAULT RIFLES WOULD NOT VIOLATE NEVADA’S CONSTITUTION

A ban on assault weapons may also be constitutionally permissible under Nevada’s Constitution.  Although Nevada constitutionally guarantees its citizens the right to bear arms for hunting, there is no reason to use an assault weapon to hunt.  See Nev. Const., art. 1, § 11.  No hunter is going to mass shoot a herd of deer.

CHANGE REQUIRES VOICES  

Gun control is not an issue I take lightly.  I am a mother, but I am married to a hunter.  I live in fear that my children will someday face a school shooting, yet I live in a home containing multiple guns.  Does this make me a hypocrite?  No.  We do not own assault weapons.

For change to happen, we need to lend our voices to the debate.  The Legislature needs to hear from victims of shooting, victims of mass shootings, victims of domestic violence, those suffering from mental health issues and those who treat mental health issues.  We cannot cure the evil of this world, but we can make it a little less easy to come by.  Will a ban on assault weapons reduce mass shootings?  I honestly do not know.  But I do know that it is an action we can take now, and we need to do something.

To the mothers who have lost their children, to the families who have lost their loved ones, to the victims of gun violence, I promise you this:

I will no longer remain silent.