Even a strict constructionist would find fault with the original statement. >===== Original Message From Museum discussion list <[log in to unmask]> ===== >In a message dated 01-09-25 10:31:18 EDT, Eugene Dillenburg wrote: > ><< The First Amendment to the Constitution of the United States applies only >to the > federal government, and not to private citizens, organizations, or >institutions. >> > >I waited to see if someone else would respond to this, but since it hasn't >appeared, I'll risk it--and risk any annoyance at my reviving this issue. At >first I was confused about the point being made. What? The federal >government has had its freedom of expression infringed? :-) But probably >what was intended was the observation that the First Amendment clearly states >that "Congress shall make no law.." abridging free speech, etc., and says >nothing about other entities abridging free speech. If that's what was >meant--a strict constructionist reading--fair enough. However, a quick >perusal of a few Web sites reveals plenty of case law, precedent, and court >interpretation of the First Amendment which assumes that the prohibition >against Congress passing laws restricting free speech and expression also >extends to other governing bodies, administrators, and employers. >(Technically, I guess it's the First Amendment combined with the Fourteenth >Amendment, which seems to be broadly interpreted as suggesting that no one >can suppress free speech.) Nevertheless, many disputes over freedom of >expression are characterized, rightly or wrongly, as First Amendment cases, >even though the federal government is not directly involved. > >And plaintiffs do win such cases. I'm sure you've read about situations in >which employees have won the right to retain special garments or hair styles >for religious reasons, against employer's directives, for example. There are >many censorship cases, such as a plethora of actions in the 1970s and 1980s >brought by college newspapers against administrators' attempts to control >editorial content, in which courts held that First Amendment rights were >violated. > >Matthew White is right that employers can enforce certain codes of conduct, >dress, etc., for the sake of uniformity, professionalism, or to produce a >corporate image. But courts have opposed, as First Amendment violations, >rules which were deemed to interfere with an employee's reasonable right of >self-expression. Perhaps in a somewhat rigid workplace atmosphere, such as >one in which staff wear prescribed uniforms, the employer can decree that >religious, political, or patriotic symbols cannot be worn in conjunction with >the uniform, etc. Government employees know they can't display partisan >political buttons and statements because of the Hatch Act, and (usually) >don't consider that a violation of their rights. But I doubt that in a >typical office situation an employer could succeed in prohibiting small flags >on desks, if challenged in court. (These would be civil suits, of course, >not criminal cases.) In fact, I've noticed that already a number of >post-Sept. 11 flag cases, similar to the dispute which started this thread, >have been filed as First Amendment cases. > >Even though the amendment technically just prohibits Congress from passing >laws restricting freedom of expression, jurists have interpreted the >amendment (in combination with the Fourteenth) as creating a spirit of rights >which other organizations are not permitted to violate either, unless they >can demonstrate a compelling reason that their needs supersede the >individual's rights. Offhand, I don't recall a case in which the federal >government itself was purported to be in violation of the First Amendment (no >doubt someone will remind me): it was usually some other entity. Of course, >there is always debate about what kinds of actions constitute "speech", and >the written or spoken word is easier to defend as protected "expression" than >non-standard dress, adornment, office decor, etc. In this particular case, I >don't see why the staff of the institution couldn't bring a "First Amendment" >suit against their over-zealous director. The arguments, I would expect, >would concern whether the display of the flags constituted protected "speech" >in the first place, whether the director had a right to regulate the display >of flags as a normal exercise of management, whether she was right that the >display could be interpreted as threatening to ethnic minorities (the >equivalent of the proverbial yelling "Fire" in a crowded theater), and >whether there is any essential difference between staff displaying personal >flags and organizations showing them on their outdoor flagpoles. > >Having said that, I still think prohibitions by employers and administrators >against patriotic expression by displaying your country's flag verge on >silliness, if not actual First Amendment violations. I can't imagine living >in another country as an immigrant, guest worker, or tourist and being >frightened or offended by patriotic displays of that country's flag, even if >I thought most of the natives were hostile to my own country. If I thought >people were hiding their flags from me out of consideration for my tender >feelings, I'd be laughing out loud. Despite the very real racial violence >which occurred after Sept. 11, and the fact that some minorities are >justifiably fearful and on their guard, I think it's not justified to assume >that all flag-waving in itself constitutes a threat. Does anyone know of any >follow-up to the particular incident that started the "patriotic?" discussion? > >David Haberstich > >========================================================= >Important Subscriber Information: > >The Museum-L FAQ file is located at http://www.finalchapter.com/museum-l-faq/ . You may obtain detailed information about the listserv commands by sending a one line e-mail message to [log in to unmask] . The body of the message should read "help" (without the quotes). > >If you decide to leave Museum-L, please send a one line e-mail message to [log in to unmask] . The body of the message should read "Signoff Museum-L" (without the quotes). ========================================================= Important Subscriber Information: The Museum-L FAQ file is located at http://www.finalchapter.com/museum-l-faq/ . You may obtain detailed information about the listserv commands by sending a one line e-mail message to [log in to unmask] . The body of the message should read "help" (without the quotes). If you decide to leave Museum-L, please send a one line e-mail message to [log in to unmask] . The body of the message should read "Signoff Museum-L" (without the quotes).