Q & A
1. Does my constitutional right of free speech depend on the type of venue involved?
Courts have applied what many call a forum analysis when it comes to regulating the exercise of freedom of expression. Traditional public forums such as a public park, sidewalk or courthouse lawn are places where the broadest protection exists for free expression. The government may restrict speech activity in such forums only when the speech rises to the level of a breach of the peace or is combined with violence or the imminent threat of violence.
Limited public forums such as schools, universities or inside public buildings are often referred to as “designated limited forums” and speech activity may be restricted to those activities which the government has specifically allowed to take place. If, for example, a university has designated a student activity such as a student hall or poster board, then it may not discriminate based on the viewpoint being expressed. Student speech may be regulated if it poses a material threat of substantial disruption of educational activities.
Closed forums consist of areas in which the governmental interest involved is at its peak. Military bases, some government workplaces, and police and fire protection agencies depend on an orderly workplace. Courts often apply a balancing test to determine whether the government’s interests in an orderly workplace or in fulfilling its mission outweighs the speech interests involved.
2. What is meant by the term “constitutional crisis”
There doctrine of separation of powers was a unique concept at the time the Constitution was adopted in 1788. It vests in our three branches, legislative, executive and judicial exclusive and independent realms of constitutional authority, and has survived longer than any other written framework of government.
There is much discussion today of what could happen if one branch of government exceeds its constitutional authority by encroaching upon another’s exclusive powers. News commentators typically refer to this threat as a “constitutional crisis”, meaning there would be no mechanism within the Constitution itself for resolving such a conflict were it to occur.
Just prior to the outbreak of the Civil War when President Lincoln ignored an order of Supreme Court Justice Taney who had issued a “writ of habeas corpus”, which means literally to produce the person before the court for a hearing to determine whether they are being lawfully held. Lincoln suspended the writ of habeas corpus citing a national emergency as the basis of his order. Had Justice Taney elected to impose contempt sanctions on the President, and were those to have been ignored, and the nation would have faced its first irresolvable clash between two branches of government. Justice Taney backed down and was able to avert such a conflict between the two branches.
A similar example occurred during the Andrew Jackson administration when the Supreme Court ruled that Native Americans had tribal sovereignty to reside in their territories. In Worcester v. Georgia, Justice Marshall ruled that Native American tribes were separate and sovereign entities, while Jackson, prioritizing westward expansion and states’ rights, largely disregarded Marshall’s rulings and pushed for the forced removal of Native Americans through the Indian Removal Act. Jackson defied the Supreme Court ruling, and is reported to have said: “John Marshall has made his decision. Now let him enforce it.”
3. Does the Constitution expressly contain provide for the “separation of church and state”?
Many may be surprised to learn that the phrase “separation of church and state” nowhere appears in the Constitution. The phrase originated in an 1802 letter from Thomas Jefferson written to the Danbury Baptist Association. Jefferson’s letter, while making the phrase popular, was a response to concerns about religious persecution and a reassurance that the First Amendment prohibited the government from establishing or regulating religion.
The “wall of separation between church and state” was first used by the Supreme Court in the 1947 case of Everson v. Board of Education involving the use of public funds to transport children to private, parochial schools.
Larry L. Crain, www.crainlaw.legal
