So allege the plaintiffs in Freedom From Religious Foundation v. Orange County School Board (M.D. Fla.), filed last week, and the letter from the school board — Exhibit A — bears this out.
First, a bit of background. Some public schools have allowed religious groups to distribute Bibles at the school. This led to Establishment Clause lawsuits, on the theory that schools’ allowing such distribution (and not other distribution of other works) involved favoritism for religion. So a Florida school board in Collier County tried to deal with the objections — and with the requests from religious groups to continue the distribution — by setting up a “limited public forum” program in which any group is allowed to periodically bring material that students may pick up, except for material that
(i) promotes the use of alcohol, tobacco or illegal drugs; (ii) advertises products or services for sale; (iii) is not appropriate for the age and maturity of high school students; (iv) is pornographic, obscene or libelous; (v) violates intellectual property or privacy rights; (vi) advocates or is likely to incite imminent lawless action; or (vii) is likely to cause substantial disruption at the school despite the application of available discipline rules and procedures.
The material is supposed to be placed on tables, so that students can pick it up if they want to; the representatives of the donor organizations aren’t allowed to urge students to take the material, or to discuss the material with students. The defendant school board in this new case, Orange County School Board, has apparently implemented in a similar policy for high schools.
Now when the government opens up a “limited public forum” on its own property for speech, it may of course exclude (1) generally constitutionally unprotected material (such as the “obscene or libelous”) and (2) material that is unprotected given the context in which it’s distributed, such as material in K-12 schools that “is likely to cause substantial disruption at the school,” see Tinker v. Des Moines Indep. School Dist. likely the alcohol/tobacco/drug-promoting material, see Morse v. Frederick, and material that is seen as vulgar or inappropriately sexual, see Bethel School Dist. No. 403 v. Fraser. (More on all that here.) The government as operator of a limited public forum may also implement (3) content-based but viewpoint-neutral restrictions, which generally wouldn’t be allowed in a traditional public forum such as on a sidewalk or in a park (or on private property used with the property owner’s permission). So even if the policy quoted above does indeed satisfy the limited public forum requirements — I’ll assume for this post that it does — it has to be implemented in a viewpoint-neutral way.
FFRF applied to participate in the “limited public forum,” and the school board allowed some of its literature; but it also rejected other material, on various grounds. In particular, it claims that certain material may cause “substantial disruption,” invariably because it may offend high school students who hold certain beliefs.
2. Letter to a Christian Nation by Sam Harris: This book may not be distributed for the following reasons:
B. On page 30, the book speaks about human blastocysts which are utilized for embryonic stem cell research. The author posits that killing a fly “should present one with greater moral difficulty than killing a human blastocyst.” This argument could lead to a substantial disruption at school by those students who believe life begins at conception.
D. On page 38, when describing the natural process of miscarriage, the author described God as the “most prolific abortionist of all.” This material is not appropriate for the age and maturity of high school students and calling God an abortionist is likely to cause a substantial disruption at the school, especially if read by those students who believe that God condemns abortion.
3. Jesus is Dead by Robert Price: This book may not be distributed. The District has determined this book will cause a substantial disruption. The District’s administration will not permit the distribution of materials which insult the leaders of other religions. The claim that Jesus was not crucified or resurrected is age inappropriate for the maturity levels of many of the students in high school.
4. What on Earth is an Atheist by Madalyn Murray OHair: This book may not be distributed. The District has determined this book will cause a substantial disruption. The Book discusses what it views to be the shortcomings of the Mormon Church and the Roman Catholic Church. The atheist materials may support the reasons why atheists feel atheism or free thought is proper, but the District’s administration will not permit the distribution of materials insulting religions….
5. Why I am Not a Muslim by Ibn Warraq: This book may not be distributed for the following reasons:
A. Page 92: When describing the Prophet Muhammad’s treatment of Jewish people, the author described raiding parties and stated “Muhammad began sending out raiding parties; in effect; he was no more than the head of a robber community, unwilling to earn an honest living.” This will cause a substantial disruption to those students who practice the Islamic faith.
Miniature Brochures …
2. Dear Believer: This brochure will not be allowed to be distributed as it will cause a substantial disruption. This brochure asserts that God is hateful, arrogant, sexist and cruel….
7. Why Jesus?: This brochure may not be distributed. This brochure will cause a substantial disruption because it argues that Jesus did not promote equality and social justice, was not compassionate, was not reliable and was not a good example.
8. What Does the Bible Say About Abortion?: This brochure may not be distributed. The discussion of what the Bible does or does not say about abortion will cause a substantial disruption in school and is not age appropriate for high school students.
These rejections strike me as pretty clearly unsound. The Tinker test can’t be satisfied simply by the possibility that some students will be offended and therefore “a substantial disruption” would result — after all, in Tinker itself the wearing of black armbands might have theoretically caused some disruption, and in practice did cause some modest disruption. If viewpoints could be suppressed in a K-12 school simply because of the possibility that some people may disagree with them, then Tinker would have to be reversed.
What’s more, recall the context of this distribution: Literature is being placed on tables, for students to pick up and read, likely at their own leisure. No-one is supposed to be talking directly to the students. This should diminish the risk that even controversial literature will lead to a substantial disruption — not eliminate it to be sure, but diminish it to the point that the risk of disruption should be considerably less than that in Tinker.
And of course the Bible itself could in theory lead to disruption. Non-Christians (there must be some in the school, whether they belong to other religions or are irreligious) may disapprove of much the Bible says. High school students with gay or lesbian relatives or friends may be as upset by distribution of the Bible as “students who believe life begins at conception” are by the claim that “killing a fly ‘should present one with greater moral difficulty than killing a human blastocyst.'” If “disruption” means massive fights, then such disruption may be unlikely from people who are offended by the Bible (partly because it seems pretty clear that they would lose such fights); but it also seems unlikely from the distribution of books that oppose the view that life begins at conception, or even books that deny that Jesus was resurrected. But if disruption means simply upset or arguments, that could happen as to pretty much any book that makes broad moral, ideological, or theological assertions, including the Bible.
It thus becomes hard to see the school board’s actions here as a faithful and evenhanded application of Tinker, and makes it much likelier that the school board is simply discriminating against viewpoints that it thinks are wrong or offensive, whether because they “insult the leaders of other religions,” oppose the view that life begins at conception, express the view that God (if he exists) “is hateful, arrogant, sexist and cruel,” or argue that “Jesus did not promote equality and social justice, was not compassionate, was not reliable and was not a good example.” Even in a limited public forum — government property or a government program that the government needn’t set up in the first place, but does set up as a means of promoting private speech — such viewpoint discrimination is forbidden. If one group is entitled to promote a viewpoint (Christianity or religiosity generally is right and good), others are entitled to use the same forum to promote opposing viewpoints (such as that Christianity or religiosity is wrong and evil), unless the speech falls within some exception or (in K-12 schools) fits the Tinker standard.
The school board also objects to some material being “age inappropriate,” which in principle could be a permissible viewpoint-neutral standard. But most of the board’s objections seem hard to justify, especially when it comes to books distributed in a high school, and when using as a benchmark the Bible itself, which contains many references to violence and to sex, such as prostitution, incest, homosexuality, and rape. (I’m not claiming that the Bible is age inappropriate; rather, I’m claiming that many of the age inappropriateness objections to the Foundation’s books are unsound, using the Bible as a benchmark.) Here are the objections:
2. Letter to a Christian Nation ….
A. On page 26, the book described how those students who pledge to abstain from sex by taking “virginity pledges” are “more likely than their peers to engage in oral and anal sex.” This material is not appropriate for the age and maturity of high school students.
C. On page 37, the book describes back-alley abortions in El Salvador with perforated uteruses. This material is not appropriate for the age and maturity of high school students.
E. On page 94, when describing the religious rituals of many ancient societies, the book described the sacrifice of virgins, killing and eating of children in order to ensure the future fertility of mothers, feeding infants to sharks, and the burning of widows so they can follow their husbands to the next world. These concepts are not appropriate for the age and maturity of high school students.
4. What on Earth is an Atheist…. On page 178 the author describes what she refers to as “ritual prostitution” of nuns who then become the brides of Jesus Christ when they enter heaven. This material is not age appropriate for high school students.
5. Why I am Not a Muslim ….
B. Page 93: The author recites a poem written by an opponent of Muhammad which utilizes the phrase “fucked men” twice. This material is not age appropriate.
C. Page 145: When speaking about Jesus in the Koran, the author recites a virgin birth legend of the Greco-Roman civilization and describes how the virgin in the Greco-Roman legend “was impregnated by a shower of gold.” This material is not age appropriate.
D. Page 290: The author describes how Muslims believe that sexuality flows from the vagina and how “Satan makes the juices flow from [a woman's] vagina.” This material is not age appropriate.
E. Page 291: The author discusses the “Islamic fantasies of the ‘infinite orgasm’ and ‘the perpetual erection.” This material is not age appropriate.
F. Page 298: The author discusses how a wife “should never refuse herself to her husband even if it is on the saddle of a camel.” This material is not age appropriate.
G. Page 304: When discussing issues of sodomy, the author argues that Muhammad’s entourage “enjoyed their women from front and from behind.” The author also argued that Muslim theologians concluded “that a man could take his wife when he wanted and how he wanted, from the front or from the back, as long as he ejaculated in the woman’s vagina.” This material is not age appropriate.
H. Page 305 has a graphic description of female circumcision and speaks of “clitoris cutters.” This material is not age appropriate.
I. Page 308 describes how “major impurity results from sexual contact” and described how this occurs as a result of sexual intercourse, anal intercourse, bestiality, and menstruation. This material is not age appropriate.
9. An X-Rated Book. This brochure will may not be distributed. This brochure will cause substantial disruption and is age inappropriate. There is a picture on the cover of a Bible book given human features sticking its hand up the dress of a woman….
Here too it seems likely that the board was treating material with an atheist viewpoint less favorably than it treats the Bible. In any event, it will be interesting to see how the litigation comes out.