MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. To start off our legal update, we'll be talking about the kind of cases that are the bread and butter of right-wing talk shows. Once again, the 9th Circuit Federal Court of Appeals has been asked about the constitutionality of references to God in the Pledge of Allegiance and on the nation's currency. This time the court had some new guidelines from Congress to guide their decision. We'll also hear about a case where some very ugly talk on the internet is turning into some serious legal trouble for a California teenager. I’d like to welcome These Days legal analyst Dan Eaton. Good morning, Dan.
DAN EATON (KPBS Legal Analyst): Good morning, Maureen.
CAVANAUGH: Good to see you.
EATON: Good to see you.
CAVANAUGH: A panel of three judges from the 9th Circuit Court of Appeals here in California looked at the issue of whether the ‘under God’ section of the Pledge of Allegiance was constitutional and they – this time, they came up with a very different answer than they did back in 2002.
EATON: They did. People will remember, of course, Maureen, back in 2002 the huge uproar that was stirred when a different panel of the 9th Circuit Court of Appeals ruled that ‘under God’ in the Pledge of Allegiance was unconstitutional. This time, they reached a very different result. Only one of the three judges that was on that panel—and this was a judge in the majority, Stephen Reinhardt, sat as part of the panel this time. And this time, by a two-to-one majority, the majority upheld the words ‘under God’ in the Pledge of Allegiance.
CAVANAUGH: Well, there was a Judge Carlos Bea…
EATON: Umm-hmm.
CAVANAUGH: …and he wrote the majority opinion.
EATON: Right.
CAVANAUGH: What did he rely on in writing that opinion?
EATON: Primarily on the 2002 Act of Congress enacted after the 9th Circuit earlier decision. Now, just as a point of background, a little trivia you want to impress your friends, we were talking a little bit off air, Maureen, but the fact is that the Pledge of Allegiance is a single sentence of 31 words, all right? Usually one thinks when you’re saying it that ‘and to the Republic’ starts the second sentence. It doesn’t. I mapped it out actually one morning at 4:30 after I woke up, talk about... But in any event, it’s a 2002 Act of Congress enacted after the 9th Circuit’s earlier decision which, in the majority’s view anyway made it absolutely clear, Maureen, that Congress, in passing the law in 1954, which added the ‘under God’ to the Pledge of Allegiance that existed before that, quote, was not trying to impress a religious doctrine upon anyone. Rather, they had two main purposes for keeping the phrase ‘one nation under God’ in the pledge. One, to underscore the political philosophy of the founding fathers that God granted certain rights that government – inalienable rights to the people which the government cannot take away, and then two—again, I’m quoting from the opinion—to add the note of importance which a pledge to our nation ought to have and which in our culture, ceremonial references to God arouse, close quote. So that’s what the court said and that’s why they said it was very different. What Congress did in 2002 was they said, look, 9th Circuit, you sort of got it wrong. This is what Congress institutionally intended when they added ‘under God’ in 1954.
CAVANAUGH: Okay, so I’m wondering, though, since this 9th Circuit Court of Appeals actually ruled on this issue back in 2002, why wasn’t that decision binding on this panel?
EATON: Because, Maureen, in 2004, the United States Supreme Court accepted review of that decision and reversed the 9th Circuit’s decision, holding the pledge unconstitutional not on the merits but because they held that Dr. Michael Newdow, who brought this action on behalf of himself and his daughter the first time, did not have the right to bring it, what we call the law standing to bring it. And because they said that Michael Newdow didn’t have the standing to bring it, they said the 9th Circuit panel never should have reached the merits. That essentially nullified the ruling and required the 9th Circuit this time to start from scratch. Of course, if the United States Supreme Court had reached the merits, this would’ve been a very easy case because lower federal courts are bound by the decisions of the U.S. Supreme Court on matters of federal law.
CAVANAUGH: So you tell us that the Pledge of Allegiance is only one sentence. Tell us a little bit more about the pledge. When was it written? It didn’t always have ‘under God’ in it.
EATON: No. Actually, the Pledge of Allegiance originally dates back to 1892 by a man by the name of Francis Bellamy, who wrote it. And school children actually recited it for many, many years before finally, in 1942, Congress got around to codifying it. It had become very, very popular and they codified it, meaning they enacted it into law as our official Pledge of Allegiance. When Congress originally put it into law in 1942, it did not have the words ‘under God’ in it. It wasn’t until the Cold War and Eisenhower in 1954 that the words ‘under God’ were added to the Pledge of Allegiance.
CAVANAUGH: So what do – what does California law say about this? Is there a school policy at issue in this case about the daily recitation of the Pledge of Allegiance?
EATON: There is, Maureen, and that’s specifically the narrow question that was at issue here in this lawsuit. The California Education Code Section 52770, Maureen, requires public schools to begin the day with, quote, appropriate patriotic exercises. Now the Pledge of Allegiance, the code goes on to say, will satisfy that requirement. The question is whether by allowing them to – allowing schools to have a Pledge of Allegiance in its current form satisfy it whether that violated the Constitution’s prohibition on the establishment of a religion.
CAVANAUGH: Now are school children required to say the pledge?
EATON: They weren’t, not in – certainly not in this policy, and not in any policy across the state, including here in San Diego, I’m sure everyone would agree. But in this particular policy in the particular school district that was sued, the policy specifically said, quote, individuals may choose not to participate in the flag salute for personal reasons, close quote. Indeed, Maureen, in this particular case, the particular individual, the elementary school student who is at issue in this lawsuit, there was no dispute that she had actually never said the Pledge of Allegiance. Either she was quiet or she sometimes walked out of the room. So, no, they are certainly free not to say it. The question is whether, by having it said in a school setting where there’s a unique sort of coercion, at least that’s what the courts have said, there’s a uniquely – a unique pressure to conform, whether having other people say it violated the establishment of religion. In fact, the way the 9th Circuit specifically framed the issue this time was whether the particular individual who sued has, quote, the right to prevent teachers from leading other students…
CAVANAUGH: Ohh…
EATON: …from reciting the Pledge of Allegiance, something we all agree, meaning both the majority and the dissent, is a patriotic exercise because the mention of God in the pledge offends her as an atheist, closed quote.
CAVANAUGH: Now as you mentioned to us, the majority of this three-court panel (sic) on the 9th Circuit said that the ‘under God’ aspect of the Pledge of Allegiance was constitutional but there was a really rigorous dissent in this case.
EATON: Man, Maureen, this was a stemwinder. A hundred and thirty-two page decision. One hundred and nine footnotes, but who’s counting? A decision by Judge Stephen Reinhardt who, of course, was appointed to the court by President Carter, he actually was in the majority in the original decision back in 2002, and he – his opinion begins, quote, only a desire to change the rules regarding the separation of church and state or an unwillingness to place this court on the unpopular side of a highly controversial dispute regarding both patriotism and religion could explain the decision the members of the majority reach here and the lengths to which their muddled and self-contradictory decision goes in order to reach the result they do. To put it bluntly, no judge familiar with the history of the pledge could in good conscience believe, as today’s majority purports to do, that the words ‘under God’ were inserted into the pledge for any purpose other than an explicitly and predominantly religious one. Among other – he identified were, quote, to indoctrinate school children in the belief that God exists, closed quote. He goes on, Maureen, in this opinion to accuse the majority of, quote, abandoning its constitutional responsibilities, closed quote, and dismisses the majority’s contention that the words ‘under God’ were a reference of sorts to eliminate government as, quote, pure poppycock, closed quote. Your eyes were open wide and you should be. This is not the kind of language one normally finds in judicial opinions. But, clearly, this was a very angry judge who simply thought that the majority had gotten it wrong and was making things up.
CAVANAUGH: He even talks about Sarah Palin in his decision.
EATON: He does. He managed to take a dig at all kinds of – he mentioned – he even mentions Jerry Brown’s gubernatorial candidacy and in one of the…
CAVANAUGH: Wow.
EATON: …in one of the footnotes, all of which I unhappily read, but in one of his footnotes, Judge Reinhardt manages to take a swipe at former Alaska governor Sarah Palin. How? Saying that her apparent belief that the pledge in its current form dates back to the founding of the republic, which it does and it dates back to the 19th century, marks her as some – well, in its current form, of course, it dates back to 1954 but it marks Sarah Palin as someone, quote, not familiar with our political history, closed quote. What he was referring to, of course, in the footnote was a questionnaire Sarah Palin filled out when she was a gubernatorial candidate, so clearly this was a man who did an awful lot of research…
CAVANAUGH: Indeed.
EATON: …for this particular dissenting opinion.
CAVANAUGH: Is this the end of this case then?
EATON: Maybe not. Dr. Newdow could seek review by a larger panel of the 9th Circuit, what’s called seeking en banc review, and then, of course, he could try to make a return trip to the United States…
CAVANAUGH: To the Supreme Court.
EATON: …Supreme Court. It’s fascinating, and you asked earlier whether the U.S. Supreme Court had squarely addressed the issue. The answer is, no, they haven’t. But both sides relied on previous statements by former justices and some current justices that suggested how they would rule. In fact, one comment by former Justice Sandra Day O’Connor that specifically said she didn’t think ‘under God’ offended the establishment clause.
CAVANAUGH: Now we have to move on to the internet but…
EATON: Okay.
CAVANAUGH: …but I don’t want to leave this until we – there was another case brought by Dr. Newdow about a challenge to ‘in God we trust’ placed on the nation’s currency. And I believe the 9th Circuit rejected that as well?
EATON: It was. It was in the – actually in the same case where Dr. Newdow was again the plaintiff in that case. And the court just relied on the 1970 decision of the same court and said that the ‘in God we trust’ is, quote, of patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise, closed quote. This was an easy case. Even Judge Reinhardt reluctantly agreed with the majority on this one, saying they were – that he was bound by, if nothing else, the decision in the Pledge of Allegiance case that was decided earlier on the same day.
CAVANAUGH: Okay, so we move on to this case that regards First Amendment and kind of the classroom. The State Court of Appeals in Los Angeles issued an interesting two-to-one ruling last week about what constitutes protected speech as opposed to threats on the internet. The case pits one high school student against another. Tell us about it.
EATON: Sure. This is a decision involving – in which two students at Harvard Westlake, which is a very prestigious private school up in Los Angeles, and what happened – the case – The name of the case, it’s useful to note, is D.C. versus R.R. Well, what does that mean exactly? You’re dealing with minors here and it’s because you’re dealing with minors, courts will generally assign these initials and so forth because they are minors and they are entitled to their anonymity. What happened was, is that one of the minors, D.C. in this case, was pursuing a singing and acting career and he had his own personal website as a lot of people in the entertainment industry do and he invited public comment. Well, some of the public comment, Maureen, came from some fellow classmates of his, including R.R., and they took the opportunity to post some very profane and very inflammatory comments, including comments about D.C.’s perceived sexual orientation on this person’s website, on D.C.’s website. D.C. and his father ultimately sued R.R. and a variety of other students they were able to identify. The posts were done anonymously…
CAVANAUGH: Right.
EATON: …but R.R. came forward. And sued them claiming there was violation of hate speech, defamation, intentional infliction of emotional distress, and they sued. But that was not the end. So the posture of this case was did R.R. really have some sort of First Amendment right to do this and was D.C. a public figure? Those were some of the issues that were involved in this case.
CAVANAUGH: Give us an idea of what’s – what the court saw in terms of this nasty speech that was on the internet. What did R.R. say about D.C.?
EATON: Well, of course, most of it I can’t say on the air, so I’ll have to use a lot of expletives and so forth.
CAVANAUGH: Sure.
EATON: There are 34 postings, six of which, the father, who, by the way, took his child out of Harvard Westlake, moved him to Northern California he was so concerned, but the R.R. student wrote—and I’ll use expletives where appropriate—quote, hey, D.C. (he used the person’s real name), I want to rip out your expletive heart and feed it to you. I heard your song while driving my kid to school (posing as a parent, although he was a student)…
CAVANAUGH: I see.
EATON: …and from that moment on I’ve wanted to kill you. If I ever see you, I’m going to pound you in the head with an ice pick. The post goes on to say that he believed that D.C. was a homosexual, and ends, quote, I hope you burn where people burn in the afterlife.
CAVANAUGH: Right, yes.
EATON: Later R.R. admitted that he, not a parent, had posted the message and identified himself as the writer.
CAVANAUGH: Now, R.R. and his parents wanted this lawsuit dismissed because the web’s posting was protected speech?
EATON: Well…
CAVANAUGH: Is that their…?
EATON: …what they did, Maureen, was that they sought to have it dismissed under a law called the anti-SLAPPs law. SLAPP means Strategic Lawsuit Against Public Participation. And this procedure they were seeking to use was a procedure that allows people who believe they have been sued to try to kill their First Amendment rights to get their cases thrown out right away and get attorneys’ fees on top of that. And they said, no, it was protected free speech and, by the way, D.C. is not likely to prevail on the merits should this case go forward.
CAVANAUGH: And what did the court say?
EATON: The court said, look, we don’t think this is protected speech. R.R. said that he, anyway, intended that he was just trying to participate in this internet graffiti contest that was going on. The students were posting increasingly outrageous messages. R.R. added that his message was, quote, fanciful, hyperbolic, jocular, and taunting and was motivated by D.C.’s pompous, self-aggrandizing and narcissistic website, not a sexual orientation. He continued in his sworn statement that, quote, his only other motivation was, he admitted, a bit more pathological, was to win the one-upsmanship contest that was tacitly taking place between the message posters and so forth. The two-member majority said, look, no, this was either objectively or subjectively a true threat and that is not protected by the First Amendment. Objectively, you heard the words and a reasonable person would view them as a threat. From a subjective standpoint, the fact is that R.R. admitted that he was ashamed of having written and his parents punished him, even sending him to a psychiatrist indicating that maybe even subjectively more than just jocular, fanciful speech was intended.
CAVANAUGH: So this lawsuit now can proceed but what does this decision, if anything, sort of mean for other people? Does it mean that you have to watch what you’re going to be saying on the internet, that your rights to protected speech perhaps on the internet are not as broad as elsewhere?
EATON: It may be. And, certainly, that’s what the dissent thought. The dissent – the dissenting judge said, look, when viewed in the light of the entire context, that is to say the whole string, which he reprinted, by the way, in detail in this lengthy opinion, R.R.’s post appears as just one more link in a chain of vulgar, adolescent rants and no one but D.C.’s parents appears to have any trouble figuring that out, closed quote. He accused the parents of overreacting and that alone did not make this a true threat. He would’ve thrown it out. Interestingly, by the way, in the case that D.C. brought against Harvard Westlake itself, there was an arbitration on it and Harvard Westlake won $521,000 in costs and attorneys’ fees because it was thrown out, not on the merits, Maureen, but on a technicality having to do with the fact that they had immunity from being sued given that they were only providing the internet – the computer facilities that R.R. used to take advantage of this and so forth. R.R. actually posted this from his home computer. But the bottom line is that this is a very interesting lawsuit. Now, the Harvard Westlake thing was not part of this particular lawsuit but I actually looked up the opinion, which was also published.
CAVANAUGH: So we’re all going to have to watch this to what – and in the meantime watch what we say over the internet.
EATON: Definitely watch what you say because the interesting thing the court also talked about the court had a difference of opinion about whether a joke was protected constitutional speech.
CAVANAUGH: Wow.
EATON: And one person – they said, well, look, what the dissent said was, no, I – I – You have to look that not ever joke is in connection with an issue of public concern but that does not mean that every joke is not in connection with an issue of public concern. This is the dissent speaking. The dissent said, look, the fact that this kid put himself out there on the web, was trying to pursue an entertainment career, had had some success broadcasting a song and appearing in a feature film that has not yet been released, shows that he was really a public figure, and a joke about a public figure seems like an issue of public concern for the purposes of this particular law, the anti-SLAPP Statute.
CAVANAUGH: Wow. Okay, we’re going to keep watching that. Dan, thank you so much.
EATON: Sure, thank you very much…
CAVANAUGH: A lot of good information.
EATON: …Maureen, a lot of fun being here.
CAVANAUGH: These Days legal analyst Dan Eaton. If you’d like to comment about what you’ve heard, go online, KPBS.org/thesedays. Now coming up, we’ll hear how rare railroads shaped African-American history. That’s next as These Days continues here on KPBS.
