# The ACLU's new cause: jail time for unapproved speech. **URL:** \ **Category:** Great Debates\ **Created:** [September 7, 2009, 6:16am UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149 "2009-09-07T06:16:30Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [September 7, 2009, 2:15pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/21 "2009-09-07T14:15:16Z")
> [@ITR\_champion](#): > > So nothing in their extends the Constitution as a whole, or the First Amendment in particular, down to the level of the states, much less to a high school principal. In their what? Although I might give a more substantive answer, and say that your interpretation in effect says, “Citizens of the United States have rights. The states may violate them with impunity.” > [@](#): > > The real purpose of the Fourteenth Amendment was to make certain that the prohibition of slavery in the Thirteenth could be enforced. Those who voted the Fourteenth into law would be completely baffled to see it used to censor high school teachers and other local officials on religious issues. “This proves not to be the case.” The Fourteenth was passed precisely because the states, or some of them, specifically the former Confederacy now being reconstructed, were intentionally and willfully denying rights to American citizens. One major focus of that denial was black people, to be sure, but far from the only one. And the amendment was intentionally written with broad language to ensure that no ingenious way of denying those rights would pass muster. Note the differences in the broad language of tje 14th and the very specific language of the 24th. Oh, and by the way, telling a public employee they cannot compel minor children temporarily in their care to practice their, the public employee’s, religion, is not “censorship” or “violating their freedom of religion.” > [@](#): > > Indeed, the Supreme Court did not use that argument until nearly a century after the Fourteenth was ratified. The amendment was put into effect in 1867. The first instance of incorporation of a right by it was in 1897, in an opinion written by that flaming liberal Chief Justice Edard D. White. I assume thirty years is “nearly a century” in ITR speak? > [@](#): > > Hence it’s a case of the court making a law that didn’t exist previously, as opposed to simply enforcing a law that did. Someday take a course in basic civics. Courts “make law” all the time – case law. It’s their **job**. And courts are not in the business of “law enforcement.” There’s a difference between a judge and a cop beyond what outfit they’re wearing on the job. If you want to live in a country where arrest by a cop is an immediate guarantee of guilty status, and a plaintiff wins every lawsuit he files, and any public official can cram his religious beliefs down your or my throat at his leisure, go right ahead. But don’t try to turn my country into your totalitarian theocracy. > [@](#): > > But let me ask you, if as you say state employees only have the right to freedom of religion and freedom of speech “on their own time”, how do you justify chaplains and all the other obvious cases of government employees hired with religious duties? Should they be prosecuted as well? Because servicemen, congressmen, and others (even convicts) have the right to freely exercise their faith, and chaplains are provided to enable them to better do so. Telling a serviceman in Iraq, “Sure you have the right to believe that a priest can pronounce God’s forgiveness of your sins when you confess them to him, and you can visit one back in the States – if you live,” is effectively denying him the free exercise of his faith. Sending a priest as chaplain enables him to exercise it. And nobody else is obliged to make use of said chaplain if his services go against _their_ faith. Besides chaplains, what other government employees are “hired with religious duties”? Provide a detailed list, please. Bottom line, nowhere in the First Amendment or anywhere else does it permit any person whatsoever to use the resources of government to compel or coerce anyone else to practice their faith. In fact, it explicitly says Congress cannot do that, and the courts, backed by every competent legal scholar, have been in agreement that the states and their minor subdivisions have been equally prohibited from doing so for 142 years. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [September 7, 2009, 2:20pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/22 "2009-09-07T14:20:18Z")
The ACLU has consistently advocated for the rights of the religious to proselytize in malls, visit houses, and remain free from state interference. The absurd notion that they are anti-religion, because they sue to enforce the establishment clause, is really unfortunate. But what’s amusing to me is that the OP’s preferred interpretation of the First Amendment is the one that would allow state governments to eliminate the free exercise of religion. If the Amendment only applies to the US Congress, then California can just straight up ban Christianity altogether. ---
**Author:** ![tomndebb](https://avatars.discourse-cdn.com/v4/letter/t/b9e5f3/32.png) [@tomndebb](https://boards.straightdope.com/u/tomndebb)\ **Post date:** [September 7, 2009, 2:40pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/23 "2009-09-07T14:40:24Z")
> [@hotflungwok](#): > > You’ve not only parroted the intentionally misleading headline so many news outlets have gone with, but you’ve managed to push the lie out just that much further. . . In the future, in **Great Debates** , you will be much more careful that any claims of lying are directed toward third parties and not, even inadvertantly, at posters on this board. [/Moderating] ---
**Author:** ![DanBlather](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@DanBlather](https://boards.straightdope.com/u/DanBlather)\ **Post date:** [September 7, 2009, 3:36pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/24 "2009-09-07T15:36:21Z")
> [@FinnAgain](#): > > No, actually it’s not. > It’s correct on a factual level because that’s how the law of the land has been interpreted by our highest judicial body. > It’s also correct on a factual level since the first amendment protects citizens from Congress forcing/advocating a religion upon/at them. As such, individual states can also not “abridge the privileges or immunities of citizens of the United States” by forcing/advocating a religion upon/at them. > > As schools are official organs of individual states, they too are bound by that. > > No, they cannot lead prayers to Allah, or any other religious ceremony. It is a violation of an American’s privileges and immunities to make their own religious choices without the state declaring itself, in one way or another, for one religion or religious view. The idea that individual states can then violate that privilege and immunity but only Congress can’t is neither supported by the facts, nor by the current law of the land which is built on precedent and the rulings of the SCOTUS. You missed my irony. I was restating the OP’s argument. ---
**Author:** ![ITR\_champion](https://avatars.discourse-cdn.com/v4/letter/i/c67d28/32.png) [@ITR\_champion](https://boards.straightdope.com/u/ITR_champion)\ **Post date:** [September 7, 2009, 3:37pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/25 "2009-09-07T15:37:02Z")
> [@Fantome](#): > > Since the ACLU isn’t in charge of interpreting and enforcing laws, shouldn’t your grievance be with another agency? Consider that the ACLU was responsible for both the original lawsuit and the later motion that may lead to jail time, I think it’s fine for my grievance to be with them. ---
**Author:** ![DanBlather](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@DanBlather](https://boards.straightdope.com/u/DanBlather)\ **Post date:** [September 7, 2009, 3:41pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/26 "2009-09-07T15:41:17Z")
Anyone else so tired of the Bible Belt loonies that you want to secede yourself? ---
**Author:** ![ITR\_champion](https://avatars.discourse-cdn.com/v4/letter/i/c67d28/32.png) [@ITR\_champion](https://boards.straightdope.com/u/ITR_champion)\ **Post date:** [September 7, 2009, 3:50pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/27 "2009-09-07T15:50:02Z")
> [@Polycarp](#): > > In their what? Although I might give a more substantive answer, and say that your interpretation in effect says, “Citizens of the United States have rights. The states may violate them with impunity.” My interpretation is that the Constitution means what it says. In the Bill of Rights, most amendments are written so as to limit what all government can do. The Eighth, for example, simply says that there will be no excessive bail or fines or punishment. Period. Hence those things are illegal from any part of the government at any time or place for any reason. The First, on the other hand, goes out of the way to make clear that it applies to Congress exclusively. So it’s unconstitutional for public school officials to torture–[though some do anyway, maybe the ACLU should address that](http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/031909dnmetcagefight.3dfc1c3.html)–but not unconstitutional to pray on school grounds. In fact, one wonders why the ACLU keeps insisting that it’s fighting for the First Amendment, but then defenders have to quickly adjust and insist that they’re fighting for the Fourteenth Amendment, and then adjust again and admit that they’re really just fighting for various court decisions rather than the original intent of the Constitution. > [@](#): > > The amendment was put into effect in 1867. The first instance of incorporation of a right by it was in 1897, in an opinion written by that flaming liberal Chief Justice Edard D. White. I assume thirty years is “nearly a century” in ITR speak? Are you saying that the Supreme Court ruled school prayer illegal in 1897? If so, I’d like to see the case. In my history books, it was legal until the courts outlawed it in the 60’s, and I’m sure some people in this thread have living memories of that. ---
**Author:** ![FinnAgain](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/finnagain/32/12500_2.png) [@FinnAgain](https://boards.straightdope.com/u/FinnAgain)\ **Post date:** [September 7, 2009, 3:52pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/28 "2009-09-07T15:52:17Z")
> [@DanBlather](#): > > You missed my irony. I was restating the OP’s argument. Ahhhh, my bad. Le whooooooosh! ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [September 7, 2009, 3:53pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/29 "2009-09-07T15:53:47Z")
Oh look, it’s time for yet another of **ITR** ’s fact-free anti-atheist rants. ---
**Author:** ![FinnAgain](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/finnagain/32/12500_2.png) [@FinnAgain](https://boards.straightdope.com/u/FinnAgain)\ **Post date:** [September 7, 2009, 4:01pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/30 "2009-09-07T16:01:45Z")
> [@ITR\_champion](#): > > The First, on the other hand, goes out of the way to make clear that it applies to Congress exclusively. Because Congress is the only body that could establish a national religion. Since it’s the legislative branch. > [@ITR\_champion](#): > > So it’s unconstitutional for public school officials to torture–[though some do anyway, maybe the ACLU should address that](http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/031909dnmetcagefight.3dfc1c3.html) What, exactly, do you believe that the ACLU should do to compel the DA to press charges? And how does this have anything to do with the first amendment? You mean if the ACLU isn’t on top of each and every single violation that goes on in schools, you’ve got a gotchaya! ready? > [@ITR\_champion](#): > > In fact, one wonders why the ACLU keeps insisting that it’s fighting for the First Amendment Because it is. > [@ITR\_champion](#): > > but then defenders have to quickly adjust and insist that they’re fighting for the Fourteenth Amendment and then adjust again and admit that they’re really just fighting for various court decisions rather than the original intent of the Constitution. This is, at best, hugely inaccurate and at worst quite deliberately obfuscatory while purposefully missing the point in order to use a bogus rhetorical gambit. People point out that the 1st applies to the states due to the 14th. Nobody, at all, has claimed that that ACLU is championing the 14th in a vacuum. Nor has anybody claimed that the ACLU’s actions are not in accord with what the Constitution actually says. Nor is it at all wrong to point out that the law in the United States is made by several factors, including precedent and SCOTUS decisions. If you do not understand that this is how the law is made then don’t lay that at the feet of the ACLU. ---
**Author:** ![DanBlather](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@DanBlather](https://boards.straightdope.com/u/DanBlather)\ **Post date:** [September 7, 2009, 4:02pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/31 "2009-09-07T16:02:41Z")
I have a question for the OP: have you ever considered that someday you may live in a place where your particular brand of religion is not the majority? What if you lived in parts of NYC that are mostly Jewish, or Boston that are mostly Catholic, or Detroit that are Muslim, or Arkansas that are snake handlers? Would you want your child to be led in prayers by teachers of another faith? Would you want the commencment speaker to ask the audience to please get down on their knees and face Mecca while she thanks Allah for her good grades? ---
**Author:** ![statsman1982](https://avatars.discourse-cdn.com/v4/letter/s/e79b87/32.png) [@statsman1982](https://boards.straightdope.com/u/statsman1982)\ **Post date:** [September 7, 2009, 4:11pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/32 "2009-09-07T16:11:33Z")
> [@Left\_Hand\_of\_Dorkness](#): > > … > You want a real travesty to address, how about this: every morning, North Carolina law requires me to pledge allegiance to a flag (a pledge that I find morally offensive), declare that we are one nation under God (a declaration that I find completely obnoxious), and describe our country as indivisible (a description that, these days, I find laughably incorrect). But let’s just focus on the fact that I’m essentially required to affirm a belief in God in front of my students every day, leading them in the same affirmation. > > NC law makes an exception to the requirement for students who do not wish to make the pledge, but there is no such exception for teachers. > > Now THAT’s a violation of the first amendment. What if the teacher were, say, a Jehovah’s Witness, where pledging allegiance to anything other than God is prohibited? Has this particular issue been adjudicated yet? I’d be surprised if not. What grade do you teach? As far back as I can remember, the teacher never led the pledge. It was always either part of the morning announcements or delegated to the “pledge leader” of the week. I’m curious as to how NC handles these situations. ---
**Author:** ![Digital\_Stimulus](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@Digital\_Stimulus](https://boards.straightdope.com/u/Digital_Stimulus)\ **Post date:** [September 7, 2009, 4:23pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/33 "2009-09-07T16:23:19Z")
> [@ITR\_champion](#): > > …but not unconstitutional to pray on school grounds. No one argues (or is arguing) that it is unconstitutional to pray on school grounds. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [September 7, 2009, 4:23pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/34 "2009-09-07T16:23:30Z")
If one of our Ohio members were to ask **Elendils Heir** to issue a bench warrant requiring that **ITR Champion** , if he ever sets foot in Ohio, should be taken into custody and locked up until he agrees to convert to Episcopalianism, I presume he would have no objection to this being done, since on his interpretation there is no law guaranteeing his freedom of religion as against state action. And Congress would have nothing to do with that action, just as he makes ckear. So I guess that would be OK constitutionally, right? :eek: ---
**Author:** ![raindog](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@raindog](https://boards.straightdope.com/u/raindog)\ **Post date:** [September 7, 2009, 4:57pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/35 "2009-09-07T16:57:11Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Others have pointed out how terribly wrong you are here. I also want to point out that your idea that the first amendment protects them is also factually false. There are plenty of things my principal could say on her own time (“Mr. Smith is an asshole,” “Our president is an Arab Muslim who wants to destroy America, and we should all oppose him,” “Hail Satan,” “Dear Jesus, please bless this food”) that she may not say while on the government’s dime, or while wearing the government’s mantle of authority. > > You want a real travesty to address, how about this: every morning, North Carolina law requires me to pledge allegiance to a flag (a pledge that I find morally offensive), declare that we are one nation under God (a declaration that I find completely obnoxious), and describe our country as indivisible (a description that, these days, I find laughably incorrect). But let’s just focus on the fact that I’m essentially required to affirm a belief in God in front of my students every day, leading them in the same affirmation. > > NC law makes an exception to the requirement for students who do not wish to make the pledge, but there is no such exception for teachers. > > Now THAT’s a violation of the first amendment. _If_ that’s true, the teachers would have little problem defeating this requirement in court. _Very little_ problem. ---
**Author:** ![raindog](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@raindog](https://boards.straightdope.com/u/raindog)\ **Post date:** [September 7, 2009, 5:00pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/36 "2009-09-07T17:00:28Z")
> [@statsman1982](#): > > What if the teacher were, say, a Jehovah’s Witness, where pledging allegiance to anything other than God is prohibited? Has this particular issue been adjudicated yet? I’d be surprised if not. > > What grade do you teach? As far back as I can remember, the teacher never led the pledge. It was always either part of the morning announcements or delegated to the “pledge leader” of the week. > > I’m curious as to how NC handles these situations. IIRC, adjudicated 60 years ago. I’d be exceptionally hard pressed to believe that any school district in the country could force a teacher to lead the class in the Pledge against their wishes. ---
**Author:** ![raindog](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@raindog](https://boards.straightdope.com/u/raindog)\ **Post date:** [September 7, 2009, 5:05pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/37 "2009-09-07T17:05:46Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Others have pointed out how terribly wrong you are here. I also want to point out that your idea that the first amendment protects them is also factually false. There are plenty of things my principal could say on her own time (“Mr. Smith is an asshole,” “Our president is an Arab Muslim who wants to destroy America, and we should all oppose him,” “Hail Satan,” “Dear Jesus, please bless this food”) that she may not say while on the government’s dime, or while wearing the government’s mantle of authority. > > You want a real travesty to address, how about this: every morning, North Carolina law requires me to pledge allegiance to a flag (a pledge that I find morally offensive), declare that we are one nation under God (a declaration that I find completely obnoxious), and describe our country as indivisible (a description that, these days, I find laughably incorrect). But let’s just focus on the fact that I’m essentially required to affirm a belief in God in front of my students every day, leading them in the same affirmation. > > NC law makes an exception to the requirement for students who do not wish to make the pledge, but there is no such exception for teachers. > > Now THAT’s a violation of the first amendment. I don’t disbelieve you. I am sincerely curious. Can you cite this law for me? And why hasn’t the ACLU (et al) or people with your sentiments challenged this law? ---
**Author:** ![DanBlather](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@DanBlather](https://boards.straightdope.com/u/DanBlather)\ **Post date:** [September 7, 2009, 5:16pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/38 "2009-09-07T17:16:05Z")
> [@raindog](#): > > I don’t disbelieve you. I am sincerely curious. Can you cite this law for me? > > And why hasn’t the ACLU (et al) or people with your sentiments challenged this law? Well a teacher may worry about their job and/or their safety. ---
**Author:** ![raindog](https://avatars.discourse-cdn.com/v4/letter/r/2bfe46/32.png) [@raindog](https://boards.straightdope.com/u/raindog)\ **Post date:** [September 7, 2009, 5:21pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/39 "2009-09-07T17:21:56Z")
> [@DanBlather](#): > > Well a teacher may worry about their job and/or their safety. A valid concern to be sure. Still, those same kids who have the exemption that LHoD refers to were ridiculed unmercifully, beaten and abused in their quest to secure their rights. (codified in SCOTUS rulings) ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [September 7, 2009, 6:08pm UTC](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149/40 "2009-09-07T18:08:58Z")
> [@raindog](#): > > I don’t disbelieve you. I am sincerely curious. Can you cite this law for me? > > And why hasn’t the ACLU (et al) or people with your sentiments challenged this law? I’m glad you asked, because [here’s the law](http://www.ncleg.net/sessions/2005/bills/senate/html/s700v5.html). And I was wrong. I swear I looked up the law and read the text before I began teaching, looking for a way out, and I didn’t find one. All these years I’ve remembered this sentence > [@law](#): > > The school shall not compel any person to stand, salute the flag, or recite the Pledge of Allegiance. as saying essentially > [@my misunderstanding](#): > > The school shall not compel any student to stand, salute the flag, or recite the Pledge of Allegiance. Now, you’re right that there are career issues: especially for a teacher in their first few years, the principal can fail to renew your contract without giving cause, until you reach career status, and this isn’t a hill I want to die on. But still, I thought the law was written much more poorly. Instead, it looks like I misunderstood the law every bit as much as **ITR Champion** misunderstood what happened in the OP’s case. My apologies, and again my thanks for asking for the cite! [Previous page](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149.md?page=1) [Next page](https://boards.straightdope.com/t/the-aclus-new-cause-jail-time-for-unapproved-speech/509149.md?page=3)