You Be The Judge II

The First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances." It looks simple, but many Americans still struggle with what it means. We last conducted this exercise in August 1999. The rules are the same. Consider each of the following cases and cast your vote: free speech or not free speech. Once you vote, we'll tell you what those in power decided.

Go.Team

The NFL's Minnesota Vikings invited students from the New Prague Intermediate School to a pizza party sponsored by the team. Rocky Son-kowsky, nine, wasn't a Vikings fan. He liked the Green Bay Packers and planned to wear his Packers jersey to the party at Vikings headquarters.

Free Speech?

Not Free Speech?

Verdict:Not free speech. After officials at his school refused to allow the fourth grader to attend the party, the Minnesota Civil Liberties Union sued on Rocky's behalf. Administrators claimed they had not barred Rocky because of his jersey but as punishment for disruptive behavior in the past. (His father claims this behavior included Rocky's refusal to cover his jersey for a photo in which students had been told to wear Vikings colors, and coloring a football player green and gold instead of the required purple and gold in an assignment.) A federal judge ruled that there is no constitutional right for a nine-year-old to wear a Packers jersey to school because the anti–Green Bay policy doesn't affect the quality of his education.

Picking A Fight

A month after September 11, William Harvey stood near the World Trade Center ruins wearing military fatigues and carrying a sign with Osama bin Laden's face superimposed over a photo of the towers. He passed out leaflets and allegedly told about 60 On-lookers, "America is getting paid back for what it's doing to Islamic countries." (Members of the crowd responded by threatening Harvey's life.)

Free Speech?

Not Free Speech?

Verdict:Not free speech, according to a Manhattan judge. Police arrested Harvey for disorderly conduct. His lawyer argued that a person can't be punished for expressing ideas simply because others don't want to hear them. The New York Civil Liberties Union suggested that rather than arrest Harvey, the police should have protected him. The judge refused to dismiss the charge, ruling that Harvey knew his words would cause "public inconvenience, annoyance or alarm." (The district attorney later dropped the charge.) Two weeks earlier another Manhattan judge heard a case in which five men had been arrested near Times Square for allegedly yelling: "It's good that the World Trade Center was bombed. More cops and firemen should have died! More bombs should have been dropped and more people should have been killed!" The judge said the rant was not protected speech because it was "plainly intended to incite" passersby. The DA dropped the most serious of the charges.

Tattoo You

Ronald White, who lives in South Carolina, has created tattoos on thousands of people. He specializes in dark imagery, science fiction and folk art. White considers tattooing, which has been practiced for at least 5000 years, to be the equivalent of "painting on living canvas."

Free Speech?

Not Free Speech?

Verdict:Not free speech. South Carolina is one of two states (the other is Oklahoma) that bans anyone but a physician from giving tattoos, and then only during reconstructive or cosmetic surgery. Police arrested White after a TV station aired footage of him inking a tattoo. A judge sentenced the artist to five years' probation and fined him $500. White then appealed to the state supreme court, which ruled against him. It stated that free speech applies only to "nonhuman" canvases and that tattooing "is not sufficiently communicative."

Child Sex

Harris Mirkin, a professor of political science at the University of Missouri, wrote an article called "The Pattern of Sexual Politics: Feminism, Homosexuality and Pedophilia" for the Journal of Homosexuality. He argued that society's reflexive horror over adult-child sex is similar to early public response to female sexuality and homosexuality. He called for less hysteria over the issue. "In sexual politics, definitions are characteristically vague, so that statistics from the mildest activities can be blended with images from the most atrocious," he wrote. "Though Americans consider intergenerational sex to be evil, it has been permissible or obligatory in many cultures and periods of history." He later explained: "There are different degrees of nonconsent, different degrees of a kid going along." He said he resented that many teachers are now afraid to hug students for fear of being accused, or the notion that a teen boy would necessarily suffer if he were seduced by an adult woman.

Free Speech?

Not Free Speech?

Verdict:Free speech, according to the university. Although outraged state legislators voted to withdraw $100,000 in funding, the school defended Mirkin's right to express unorthodox views. "We got out of the Dark Ages when we said we could challenge belief," its chancellor said. The lawmaker who led the charge to punish the school responded that Mirkin "doesn't have a right to espouse his illegal views on the taxpayer dime."

Gang Advice

Jerry McCoy dated a woman whose teenage son belonged to a gang called the Bratz. During a barbecue at his girlfriend's house, McCoy suggested ways in which the Bratz could better organize their group. He also recommended tagging the neighborhood with graffiti and toning down the Bratz initiation to make it easier to recruit female members.

Free Speech?

Not Free Speech?

Verdict:Free speech. When prosecutors charged several Bratz members with felonies, they also indicted McCoy for "promoting, furthering or assisting criminal conduct by a gang." He was convicted, and a judge sentenced him to 15 years. On appeal, McCoy's lawyers argued that it's not against the law to express your opinion about how an organization—even an illegal one—should be run. A federal appeals court reversed the conviction, which it said "strays dangerously close to guilt by association." It also cited a lower court ruling that had noted, "While it may have been incredibly stupid for McCoy to have offered his opinions to a group of teenage gangster wannabes, the Constitution protects even stupid speech."

Abortion Cam

When a van pulled into the parking lot of a Planned Parenthood clinic in Denver, Kenneth Scott began snapping photos. "You'll have nightmares about

this day for the rest of your life!" he screamed at the woman who stepped out. Then he photographed her companion, saying, "Your sin won't be hidden or forgotten!" Scott e-mailed the photos to Neal Horsley, who posted them on a website he runs at Abortion cams.com. In some cases Horsley also posts photos of license plate numbers. He hopes to add names and addresses.

Free Speech?

Not Free Speech?

Verdict:Free speech, for now. Horsley says he's a journalist documenting an important social issue and notes the photos are taken from public sidewalks (often with zoom lenses). He also runs the Nuremberg Files, a site that lists the names, addresses and other personal details of physicians who perform abortions. In May a federal appeals court ruled that the Nuremberg Files and other activities designed to intimidate doctors are not protected speech.

Live Sex

For $100 or more, performers at Angels, a strip club in Roseburg, Oregon, offered private dances to customers. During one show, a stripper masturbated, inserted her fingers into her vagina and anus and penetrated herself with a dildo. In another, two women sat on customers' laps and rubbed their bare breasts against the men's chests. One woman inserted a dildo into her vagina while the other manipulated it. The two women also performed cunnilingus on each other.

Free Speech?

Not Free Speech?

Verdict:Not free speech. Undercover cops arrested the women and the club's owner, who was convicted of promoting unlawful sexual conduct. A state appeals court upheld his conviction. It wrote, "The historical record establishes that theframers of the Oregon Constitution (adopted in 1859) did not understand free expression to provide protection against regulation of public sexual intercourse and masturbation."

God Bless

Twelve-year-old Marissa de la Rosa created artwork for the yearbook of the Ridgewood Elementary School in Rock Island, Illinois. Mindful of the September 11 attacks, she included the words "God Bless America."

Free Speech?

Not Free Speech?

Verdict:Not free speech. Because it is a public school, Ridgewood officials felt the slogan violated the First Amendment's restriction on government endorsement of religion. They told the yearbook staff to use a different design or substitute the words "Proud to Be an American." Marissa and her parents sued, arguing that God Bless America is a neutral sentiment such as One Nation Under God or In God We Trust. A federal judge ruled against them. In a similar case, a federal court in San Francisco sided with an atheist parent who argued that the reference to God in the Pledge of Allegiance is unconstitutional. The original pledge did not contain "under God"; Congress added it in 1954.

Rap Lyrics

Blake Jones and Allison Arnold attended Fayetteville High School in Arkansas. Jones, 15, already had a criminal record, and Arnold says she tried to witness to him about her Christian faith. In turn, he wrote raps, some of them violent, that he shared with her. One day during class, he passed her several notes, which she ignored. Angry, he composed a rap and showed it to her. It read, in part: "You gonna keep being a bitch, and I'm gonna click./You better run, bitch, cuz I can't control what I do./I'll murder you before you can think twice, cut you up and use you for decoration to look nice./I've had it up to here, bitch, there's gonna be a 187 on your whole family, trick./Then you'll be just like me, with no home, no friends, no money./You'll be six feet under, beside your sister, father and mother."

Free Speech?

Not Free Speech?

Verdict:Not free speech. Jones claims he told Arnold, "Don't take this serious." She took the lyrics to the principal, who called police. Jones apologized to Arnold, then explained in a written statement: "I got mad and wrote a letter to express myself. It was pretty gruesome." The state supreme court upheld his conviction for making a terroristic threat.

Kitty Porn

Jonathan Biderman, who runs a website called the Stile Project, posted a video he said had been taped from Korean television. It showed a kitten being killed, decapitated, skinned, cut into pieces and cooked in a wok. Biderman told visitors: "To us it seems like the ultimate taboo. How could those godless Asians do such a thing to such a beautiful creature? Well, I'm sure Indians wonder the same thing about us, but you don't see North Americans shedding a tear every time a cow is slaughtered. When's the last time you cried over a Big Mac? I don't condone animal abuse, but for us to say it's wrong would just make us all hypocrites, since most of us eat meat."

Free Speech?

Not Free Speech?

Verdict:Not free speech, according to People for the Ethical Treatment of Animals, which asked the Justice Department to prosecute Biderman under a law that makes it a felony to distribute depictions of animal cruelty for commercial gain. The feds declined, and the site still archives the video.

Risque Driving

Mary Lewis is a grandmother who still turns heads in Stony Hill, Missouri. That's because her vanity license plates read Aryan-I. "I've been racially proud all my life," says Lewis. She says having Aryan on her plates is no different from having Croatian Or Jewish.

Free Speech?

Not Free Speech?

Verdict:Free speech, according to a federal court. Three years after the DMV gave Lewis the plates, it recalled them. Lewis went to court and won them back. In response, the state banned plates that could be considered "inflammatory or contrary to public policy." Citing the law, the DMV again recalled Lewis'plates. But the federal

court ruled that the statute gave DMV officials too much discretion and that the potential reactions of other drivers wasn't enough to stifle Lewis' right to look like an asshole. Lewis says any plate should be OK "so long as it isn't a four-letter word orKill."

Anarchy Club

Katie Sierra, a sophomore at Sisson-ville High School in Charleston, West Virginia, decided a few weeks after the September 11 attacks to form an anarchy club. She distributed fliers that explained her nonviolent brand of anarchy, which "preaches love to all humans, not just one's country." She also made a T-shirt with handwritten slogans such as "When I saw the dead and dying Afghani children on TV, I felt a newly recovered sense of national security. God bless America" and "I pledge allegiance to the flag of the United States, and the Republicans whom I can't stand, one nation under smog, in-despicable, with liberty and justice for some, not all."

Free Speech?

Not Free Speech?

Verdict:Not free speech. The principal suspended Sierra for three days for bringing the fliers to school. When she returned from the suspension wearing her shirt, he suspended her again. Later, members of the school board lectured the teenager. "This school system will not support a club that promotes overthrowing the government," one said. Added another, "You must not have enough to do." Most students did not support Sierra. One told her, "If you don't love this country, then fucking leave." Others elbowed or shoved her. The principal claimed some students needed counseling after seeing the shirt, and board members said these reactions showed that Sierra's views were disruptive. The state supreme court refused to hear her appeal. Concerned for her safety, she began home schooling.

Violent Games

Rockstar produces video games for adults, including the hit Grand Theft Auto III. The object is to steal cars without being shot dead by police, soldiers or the FBI. You are supplied with about a dozen weapons to defend yourself. Rockstar notes that "melee combat is openly encouraged. You can punch and kick law enforcement and anyone else who happens to stand in your way. Ammu-nation is a shop where you can buy weapons. Money is needed for these purchases. Just punch someone and grab their wallet." You also can pick up a prostitute, have sex with her and when you're done, kill her.

Free Speech?

Not Free Speech?

Verdict:Not free speech, according to a federal judge. Two years ago the St. Louis County Council made it illegal for anyone to "sell, rent, make available or permit the free play of violent video games to minors without a parent or guardian's consent." An industry group challenged the law, citing the First Amendment. The judge reviewed four video games but said he found "no conveyance of ideas, expression or anything else that could possibly amount to speech."

Converting Gays

Religious right groups bought television and newspaper ads that claimed gay people could become straight through prayer and love. The San Francisco Board of Supervisors wrote to the groups, arguing that there is a connection between the message of the ads and discrimination and violence against homosexuals. The board passed a resolution urging local media not to run the ads.

Free Speech?

Not Free Speech?

Verdict:Free speech. Three religious groups sued, alleging the board had violated the First Amendment by officially condemning their beliefs and hampering the groups' ability to speak out against homosexuality. The city's attorney countered that "cities have a right to express their views about human rights just like anyone else." A federal court ruled for the city.

Prisoner Mail

While serving time in Montana State Prison, Pat Tracy was accused of assaulting a guard. Fellow inmate Kevin Murphy, who worked in the prison law library, spoke with many prisoners who complained about the guard. Murphy wrote Tracy a letter that read: "I want to help you with your case. It wasn't your fault, and I know he provoked whatever happened. Don't plead guilty until we can get at least 100 witnesses to testify that he's an overzealous guard who has a personal agenda to punish and harass inmates. He has made homosexual advances toward certain inmates, and that can be brought into the record. Tell your lawyer to get ahold of me on this. Don't take a plea bargain unless it's for no more time."

Free Speech?

Not Free Speech?

Verdict:Not free speech. Prison officials punished Murphy for insolence and interference with due process hearings. He sued, but the U.S. Supreme Court ruled that officials have a right to censor correspondence between inmates even if it contains legal advice. "In the First Amendment context, some rights are simply inconsistent with the status of a prisoner," it said.

Graduation Prayer

In Providence, Rhode Island local clergy were routinely invited by the school board to offer nonsectarian prayers at graduation ceremonies. At the ceremony for graduates of Nathan Bishop Middle School, a rabbi presented an invocation in which he thanked the "God of the free and hope of the brave." He gave thanks for the U.S. political process, its court system and for "the destiny of America." In his benediction, he thanked God for the "capacity to learn" and asked that he bless the teachers and administrators.

Free Speech?

Not Free Speech?

Verdict:Not free speech. After a parent sued, the U.S. Supreme Court ruled that official prayers at public school functions violate the First Amendment restriction on state sponsorship of religion. Many schools responded by dropping prayers from their graduation ceremonies. In Duval County, Florida the board allows seniors to elect a classmate to speak for two minutes with no restrictions. Many students campaign for the spot promising to recite a prayer. A federal court upheld the policy.

Dvd Tech

A 15-year-old in Norway wrote and shared computer code that allows users of the Linux operating system to play and duplicate copy-protected DVDs. He called his program DeCSS. A Long Island-based magazine, 2600: The Hacker Quarterly, posted DeCSS on its website. When a movie industry group sued 2600, citing a violation of trade secrets and the Digital Millennium Copyright Act (which bans software designed to break encryption schemes), a federal judge ordered the magazine to remove the program. The editors complied but added clickable hyperlinks to overseas sites that offered DeCSS.

Free Speech?

Not Free Speech?

Verdict:Not free speech in some cases, free speech in others. The judge ordered 2600 to remove its DeCSS hyperlinks. But because his ruling applied to "active" links, 2600 hod only to make them inactive. Practically, this means visitors can still access 2600's site to find DeCSS but now must cut-and-paste the web address into their browser. A few months after the ruling, a federal court reversed an order that prohibited a San Francisco man from posting DeCSS on his personal website. His lawyers argued that while the movie industry says the issue at hand is not free speech but piracy, "it has never offered any evidence that the defendant stole, illegally copied or sold anything."

Hitler Sign

Frederick and Jean MacFadden, who live near Baltimore, occasionally take in stray dogs. When neighbors complained to the city, Frederick erected a novel response. The former Coppin State College professor put a four-by-three-foot sign in his yard. It showed a dozen German schoolboys saluting Hitler and had captions such as "Tell a lie often enough and it becomes the truth" and "For whatever a man soweth, that shall he also reap."

Free Speech?

Not Free Speech?

Verdict:Too much free speech, according to the city. Officials ticketed the MacFaddens for violating a city ordinance that regulates the size of signs. The MacFaddens sued, saying their religious and political freedoms of expression had been sacrificed. A judge ruled against them. In a similar case in Stillwater, New York, a body shop owner hung a sign that read, "Foreigners Go Home." It drew complaints, but city officials said it didn't violate any laws.

Don't Call Us

The Indiana state legislature passed a law requiring the attorney general to compile and maintain a list of residents who do not want to be contacted by telemarketers. The law mandates that marketers check the list, which includes about 40 percent of the phone numbers in the state, before dialing. Violators can be fined up to $25,000. The law exempts real estate and insurance agents, newspapers using their own employees and charities using their own employees or volunteers.

Free Speech?

Not Free Speech?

Verdict:Not free speech, according to four nonprofits. The National Coalition of Prayer, the Kentucky–Indiana Chapter of the Paralyzed Veterans of America, the Indiana Troopers Association and the Indiana Association of State Police sued to overturn the law, saying it violates their First Amendment right to phone whomever they want. Said Indiana's attorney general: "I don't think the Constitution would require that people be interrupted with the annoying ring of a telephone." In a similar case, the U.S. Supreme Court overturned a law in Stratton, Ohio that required anyone who wanted to go door-to-door (Jehovah's Witnesses, political candidates, Girl Scouts, etc.) to get a permit.

'America is getting paid back for whal it's doing to Islamic countries," the man said. The crowd responded by threatening to kill him.

Does the First Amendment protect a stripper who masturbates, inserts her anus and penetrates herself with a dildo?