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James Madison. Courtesy: Library of Congress

James Madison

Born into a prosperous slave-owning family in Virginia in 1751, James Madison was baptized in the Anglican Church.

Madison was outraged to discover that a number of Baptist ministers had been thrown into a Virginia jail for preaching without licenses. He committed himself to fighting for liberty of conscience, which he equated with religious liberty.

Madison became a delegate to the Virginia Convention, which gathered in May 1776 to declare independence from Great Britain and to write a Constitution for Virginia. Madison objected to the use of the phrase "fullest toleration," because he believed that toleration of religious dissidents was more limited than a guarantee of full and complete religious freedom. Madison urged the Legislature to amend the declaration to recognize "free exercise" of religion rather than toleration. He lost the battle for disestablishment, but his suggested phrase, "all men are equally entitled to the free exercise of religion," eventually became part of Virginia's Constitution.

When the Founding Fathers met in Philadelphia in 1787, Madison served as the architect of the Constitution. Following Virginia, the Constitution gave the federal government no authority over religion, creating a free marketplace for religion.

The original draft of the Constitution did not contain any written guarantee of religious liberty; Madison thought it was unnecessary and unwise. But Jefferson disagreed, and he encouraged Madison to change his mind. Unwilling to let the anti-Federalists undo the Constitution and eager to get himself elected to Congress, Madison supported an amendment.

Madison's talent for negotiation helped to secure the passage of the Bill of Rights, including the guarantees of religious liberty contained in the First Amendment.

Thomas Jefferson

Keenly attuned to the intellectual currents of the day, Jefferson eagerly embraced the Enlightenment with its emphasis on reason over revelation and absorbed the tenets of Whig political theory that stressed the dangers of concentrated power and the importance of restraints on government.

Convinced that the state had no business coercing religious conformity, Jefferson made defense of liberty the hallmark of his career. In 1776, he wrote the Declaration of Independence. The following year, he introduced a Bill Concerning Religious Freedom to the Virginia Legislature. In 1787, he urged his friend and colleague James Madison to amend the Constitution to include a written guarantee of religious liberty.

Jefferson's campaign to end state support of religion fueled doubts about his personal religious beliefs. These doubts, which had swirled around him for years, emerged as a critical issue in the bitter presidential campaign of 1800. His Federalist opponents vilified him as an atheist and libertine. Jefferson fumed at the harassment coming from what he referred to as an "irritable tribe of priests" and even compared his persecution at the hands of the New England clergy to the crucifixion of Christ.

Jefferson won the election, beating his friend and rival John Adams. On New Year's Day 1802, he welcomed to the White House the dissident Baptist preacher John Leland. That same day, Jefferson replied to a letter sent by Baptists in Danbury, Conn., who chafed under the authority of the established Congregational Church. In his reply Jefferson invoked the famous metaphor of a "wall of separation" between church and state.

Like other Founding Fathers, Jefferson was considered a Deist, subscribing to the liberal religious strand of Deism that values reason over revelation and rejects traditional Christian doctrines, including the Virgin Birth, original sin and the resurrection of Jesus. While he rejected orthodoxy, Jefferson was nevertheless a religious man.

Influenced by the British Unitarian Joseph Priestley, Jefferson set his prodigious intellect and energy on the historical figure at the center of the Christian faith: Jesus of Nazareth. Jefferson became convinced that Jesus' message had been obscured and corrupted by the apostle Paul, the Gospel writers and Protestant reformers. While president, Jefferson took a razor to the Bible, cutting out portions of the Gospels that involved miracles and retaining his parables and ethical teachings. The resulting volume, The Philosophy of Jesus of Nazareth, affirmed his conviction that Jesus was not divine, but "a Teacher of Common Sense," primarily concerned with morality and ethical conduct.

Years later, Jefferson drew from the New Testaments in Greek, Latin, French and English to create The Life and Morals of Jesus, commonly known as the "Jefferson Bible." For Jefferson, it was the moral message of Jesus, not claims of his birth, death and resurrection, that lay at the center of the Christian faith.

God and the Constitution

In 1787, 55 delegates to the Constitutional Convention gathered in the city of Philadelphia to debate the foundational document for the newly formed United States. Despite individual differences, these men professed a belief in God as the Creator of the universe and believed that religion encouraged a moral citizenry, which they deemed essential to the success of the new republic. Yet they were keenly aware that European history demonstrated the power of religion to spawn sectarian strife and violence.

By time of the convention, the Founding Fathers and "ordinary" Americans subscribed to the idea of religious liberty. This was not an abstract principle but a vital, living concept influenced by multiple sources, including Whig political theory that rejected the concentration of political power; the experience of religious dissenters, British and American, who resisted the authority of established churches; and the religious revival known as the Great Awakening that stressed individual experience over orthodoxy. The concept of religious liberty was coupled with a corollary principle: The state must have no power to establish a church or to impose religious conformity.

With James Madison's guidance, the First Congress approved the First Amendment to the Constitution that begins: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." The amendment applied only to the federal government, not to the states.

Wall of Separation

The "wall of separation" is the famous and contentious metaphor invoked by President Thomas Jefferson in his reply to a letter from the Baptists of Danbury, Conn, who were a minority in a state dominated by the Congregational Church. In their letter, the Baptists sought to congratulate the president on his electoral victory, chastise his critics and celebrate his commitment to religious liberty.

Jefferson saw an opportunity to achieve three goals: to articulate important principles and influence public opinion; to justify his refusal to declare national days of fasting and thanksgiving; and to reassure his political supporters and his opponents that he was a friend, not a foe, of religion.

The final letter, sent to the Baptists on Jan. 1, 1802, quoted the language of the First Amendment and included the famous metaphor:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State.

Jefferson's metaphor lay largely ignored until 1947, when Supreme Court Justice Hugo Black invoked the phrase in Everson v. Board of Education and argued that the "wall of separation" must be kept "high and impregnable." Since then, no phrase has exerted a more profound influence on debates about the proper relation between church and state in America.

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People and Ideas: Early America's Formation | American Experience | PBS

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Born into a prosperous slave-owning family in Virginia in 1751, James Madison was baptized in the Anglican Church. Madison was outraged to discover that a number of Baptist ministers had been thrown into a Virginia jail for preaching without licenses. He committed himself to fighting for liberty of conscience, which he equated with religious liberty.

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PRO (yes)

Pro

The American Civil Liberties Union (ACLU) stated in a July 2003 report titled "Unpatriotic Acts" that:

"National Security Letters (NSLs) allow the FBI to obtain certain kinds of sensitive personal records without obtaining any kind of court order... The absence of judicial oversight means that, when it comes to the use of NSLs, the FBI has a free hand...

Before the PATRIOT Act became law in October 2001, the FBI could issue an NSL against you only if it had reason to believe that you were a foreign spy. Now, however, the FBI can issue an NSL against you even if it knows you are completely innocent of any such activity. The only requirement is that the NSL be 'sought for' an ongoing investigation...

Does it really serve national security to allow the FBI to engage in such aggressive surveillance - including surveillance of ordinary, law-abiding Americans - without any judicial oversight whatsoever?"
July 2003

Pro

The ACLU wrote a press release on Aug. 7, 2006 titled "Reauthorized Patriot Act Still Unconstitutional, ACLU Says," that pertained to the case Doe v. Gonzales:

"The secrecy surrounding the FBI's use of national security letters is excessive and dangerous... By permitting the FBI to operate without meaningful public or judicial oversight, Congress has undermined important safeguards against abuse... The Patriot Act dramatically expanded the FBI's authority to monitor the communications and activities of people living in the United States... Yet by permitting the FBI to silence those with direct experience of the new laws, Congress has denied the public any means of ensuring that the new surveillance authorities are being used lawfully and responsibly."
Aug. 7, 2006

Pro

Barton Gellman wrote in a Nov. 6, 2005 article titled "The FBI's Secret Scrutiny," published in the Washington Post, that:

"[National Security] letters - one of which can be used to sweep up the records of many people - are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans... National security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress...

Criticized for failure to detect the Sept. 11 plot, the bureau now casts a much wider net, using national security letters to generate leads as well as to pursue them. Casual or unwitting contact with a suspect - a single telephone call, for example - may attract the attention of investigators and subject a person to scrutiny about which he never learns. A national security letter cannot be used to authorize eavesdropping or to read the contents of e-mail. But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen."
Nov. 6, 2005

CON (no)

Con

Rachel Brand, JD, Assistant Attorney General for the Office of Legal Policy at the Department of Justice, and John Pistole, JD, Deputy Director of the Federal Bureau of Investigation, wrote in their Nov. 8, 2005 op-ed titled "Safeguards Are in Place," published by USA Today:

"The Justice Department cannot secure our nation against terrorist attack unless investigators are equipped with tools that allow them to disrupt plots before they can be carried out. These same tools must protect civil liberties. National Security Letters (NSLs) satisfy both requirements...

An NSL is simply a request for information. It does not authorize the FBI to conduct a search or make a seizure...

The NSL statutes do prohibit an NSL recipient from disclosing the fact that he received it. In international terrorism and espionage investigations, there are obvious reasons for this. If a terrorist were tipped off to the fact that the FBI was asking for his billing records, he might flee, destroy evidence, or even accelerate plans for an attack.

The Department of Justice is committed to protecting the USA against terrorist attack while using its authorities carefully, lawfully and consistent with civil liberties. The NSL authorities facilitate this mission."
Nov. 8, 2005

Con

Jeff Sessions, JD, Senator of Alabama, stated in a Dec. 13, 2005 interview during a "USA PATRIOT Act Debate" on NewsHour that:

"Electronic surveillance, the issue of subpoenas, the national security letters are all well within the traditions of law enforcement in America. They are absolutely crucial, however, to investigating terrorist cells where you need some secrecy here, some ability which you can do today really by asking a court to do so but in national security cases you go to the FISA court or to the national security letter and you can obtain this information without the entity notifying the terrorist group that you're investigating them. This can be a life-and-death matter."
Dec. 13, 2005

Con

Michael Mason, Assistant FBI Director in the Washington Field Office, supported the use of National Security Letters in a Nov. 6, 2006 article titled "The FBI's Secret Scrutiny," published in the Washington Post:

"I have 675 terrorism cases... Every one of these is a potential threat. And anything I can do to get to the bottom of any one of them more quickly gets me closer to neutralizing a potential threat...

I don't necessarily want somebody knowing what videos I rent or the fact that I like cartoons... But if those records are never used against a person, if they're never used to put him in jail, or deprive him of a vote, et cetera, then what is the argument?"
Nov. 6, 2006

More Civil Liberties Debates

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Do National Security Letters Give Excessive Surveillance Power to the Government? | ACLU | ProCon.org

# data[].attributes.attachment_link.description
The American Civil Liberties Union (ACLU) stated in a July 2003 report titled "Unpatriotic Acts" that: "National Security Letters (NSLs) allow the FBI to obtain certain kinds of sensitive personal records without obtaining any kind of court order... The absence of judicial oversight means that, when it comes to the use of NSLs, the FBI has a free hand...

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The first major Supreme Court decision protecting the First Amendment rights of children in a public elementary school was West Virginia State Board of Education v. Barnette (1943). A group of Jehovah's Witnesses challenged the state's law requiring all public school students to salute the flag and recite the Pledge of Allegiance. The Supreme Court overturned the law, 6-3.In this photo a sixth grade class in P.S. 116 in Manhattan, salutes the flag, Oct. 11, 1957. (AP Photo, used with permission from the Associated Press)

Public school students enjoy First Amendment protection depending on the type of expression and their age. The Supreme Court clarified in Tinker v. Des Moines Independent Community School District (1969) that public students do not "shed" their First Amendment rights "at the schoolhouse gate."

Constitutional provisions safeguarding individual rights place limits on the government and its agents, but not on private institutions or individuals. Thus, to speak of the First Amendment rights of students is to speak of students in public elementary, secondary, and higher education institutions. Private schools are not government actors and thus there is no state action trigger.

Another important distinction that has emerged from Supreme Court decisions is the difference between students in public elementary and secondary schools and those in public colleges and universities. The latter group of students, presumably more mature, do not present the kind of disciplinary problems that educators encounter in grade school and high school, so the courts have deemed it reasonable to treat the two groups differently.

The court has protected K-12 students

The first major Supreme Court decision protecting the First Amendment rights of children in a public elementary school wasWest Virginia State Board of Education v. Barnette (1943). A group of Jehovah's Witnesses challenged the state's law requiring all public school students to salute the flag and recite the Pledge of Allegiance. Students who did not participate faced expulsion.

The Jehovah's Witnesses argued that saluting the flag was incompatible with their religious beliefs barring the worship of idols or graven images and thus constituted a violation of their free exercise of religion and freedom of speech rights. The Supreme Court agreed, 6-3. Its decision overturned an earlier case, Minersville School District v. Gobitis (1940), in which the Court had rejected a challenge by Jehovah's Witnesses to a similar Pennsylvania law.

In Barnette, the Court relied primarily on the free speech clause rather than the free exercise clause. Justice Robert H. Jackson wrote the Court's opinion, widely considered one of the most eloquent expressions by any American jurist on the importance of freedom of speech in the U.S. system of government. Treating the flag salute as a form of speech, Jackson argued that the government cannot compel citizens to express belief without violating the First Amendment. "If there is any fixed star in our constitutional constellation," Jackson concluded, "it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

Biology teacher Susan Epperson, who challenged Arkansas' ban on the teaching of the theory of evolution, is shown at her desk at Little Rock Central High School, Little Rock, Arkansas, Aug. 13, 1966. Mrs. Epperson has become the vanguard of the Arkansas Education Association's legal assault on the state's banning of the teaching of evolution in public schools. The Supreme Court in Epperson v. Arkansas (1968) found an Arkansas law banning the teaching of evolution in public schools to be an unconstitutional violation of the establishment clause. (AP Photo, used with permission from the Associated Press)

In the early 1960s, the Court in several cases-most notably Engel v. Vitale (1962) and Abington School District v. Schempp (1963)-overturned state laws mandating prayer or Bible reading in public schools. Later in that same decade, the Court in Epperson v. Arkansas (1968) found an Arkansas law banning the teaching of evolution in public schools to be an unconstitutional violation of the establishment clause.

In Tinker, resulting in the Court's most important student speech decision, authorities had banned students from wearing black armbands after learning that some of them planned to do so as a means of protesting the deaths caused by the Vietnam War. Other symbols, including the Iron Cross, were allowed. In a 7-2 vote, the Court found a violation of the First Amendment speech rights of students and teachers because school officials had failed to show that the student expression caused a substantial disruption of school activities or invaded the rights of others.

In later cases-Bethel School District No. 403 v. Fraser (1986) and Hazelwood School District v. Kuhlmeier (1988) and Morse v. Frederick (2007)-the Court rejected student claims by stressing the important role of public schools in inculcating values and promoting civic virtues. The Court instead gave school officials considerable leeway to regulate with respect to curricular matters or where student expression takes place in a school-sponsored setting, such as a school newspaper ( Kuhlmeier) or an assembly ( Fraser). Years later, in Morse v. Frederick (2007), the Court created another exception to Tinker, ruling that public school officials can prohibit student speech that officials reasonably believe promotes illegal drug use.

The different level of protection accorded to students in institutions of higher education, who are generally eighteen years or older and thus legally adults, is evident from several cases. Students on college and university campuses enjoy more academic freedom than secondary school students. The Court has said that, "the mere dissemination of ideas-no matter how offensive to good taste-on a state university campus may not be shut off in the name alone of 'conventions of decency.'" In this photo, Karilyn Barker, editor of the campus newspaper at the Berkeley campus of the University of California, is seated, with editorial page editor Susan Werbe at Berkeley, Calif., Feb. 13, 1968. (AP Photo/Robert W. Klein, used with permission from the Associated Press)

College and university level students receive different levels of protection

The different level of protection accorded to students in institutions of higher education, who are generally eighteen years or older and thus legally adults, is evident from several cases.Students on college and university campuses enjoy more academic freedom than secondary school students.

In Healy v. James (1972), the Court found a First Amendment violation when a Connecticut public college refused to recognize a radical student group as an official student organization, commenting that "[t]he college classroom with its surrounding environs is peculiarly the ' marketplace of ideas.'"

In Papish v. Board of Curators of the University of Missouri (1973), a graduate journalism student was expelled for distributing on campus an "underground" newspaper containing material that the university considered "indecent." The Court relied on Healy for its conclusion that "the mere dissemination of ideas-no matter how offensive to good taste-on a state university campus may not be shut off in the name alone of 'conventions of decency.' "

In this photo taken Tuesday, Aug. 27, 2013, Mary Beth Tinker, 61, shows one of her collection of arm bands during an interview with the Associated Press in Washington. Tinker was 13 years old in 1965 when she wore a black armband to school to protest the Vietnam War. School officials suspended her, leading to a lawsuit that went to the U.S. Supreme Court. Now, almost 50 years later, Tinker has resigned her job as a nurse to spend six months traveling around the country to colleges and high schools to talk about free speech. (AP Photo/Manuel Balce Ceneta, used with permission from The Associated Press.)

However, in recent years, courts have applied principles and standards from K-12 cases to college and university students.For example, in U.S. Circuit Court of Appeals ruled that college officials did not violate the First Amendment and applied reasoning from the high school Hosty v. Carter (7 Cir. 2005), the 7 Hazelwood decision. More recent lower court decisions also have applied the Hazelwood standard in cases involving curricular disputes, professionalism concerns, and even the online speech of college and university students.

Students in private universities-which are not subject to the requirements of the First Amendment-may rely on state laws to ensure certain basic freedoms. For example, many state cases have established that school policies, student handbooks, and other relevant documents represent a contract between the college or university and the student. Schools that promise to respect and foster academic freedom, open expression, and freedom of conscience on their campus must deliver the rights they promise.

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The first major Supreme Court decision protecting the First Amendment rights of children in a public elementary school was West Virginia State Board of Education v. Barnette (1943). A group of Jehovah's Witnesses challenged the state's law requiring all public school students to salute the flag and recite the Pledge of Allegiance.

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Washington Post Government Social Media Regulation

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The U.S. Supreme Court has again ruled that a state will be required to fund religious schooling if, but only if, it provides funding for private schooling.

Speaking for the court's Republican supermajority in Carson v. Makin , Chief Justice John Roberts put it this way: "A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious." The words may seem familiar because Roberts previously stated them to be the law of the land in a case from Montana in 2020.

It is a given that there will be a concerted effort in the Idaho Legislature next year to enact legislation, such as a school voucher program, that would allow state funds to be used for private schooling. If such legislation were to be approved, SCOTUS has just made it clear that Idaho taxpayer money will have to also go to support religious schooling. And, the fact is that the state will have little oversight on the use of those funds or what theology the taxpayers will be required to finance.

The Idaho Constitution strictly prohibits the use of public funds for any form of religious education. For the past 132 years, the separation of public money from religious instruction has been rigidly upheld in Idaho. SCOTUS has unfortunately provided a workaround. Those who want to pay taxpayer money to religious schools can simply pass a voucher program to evade the prohibition in our Constitution.

Idaho voters need to let legislators know that the diversion of taxpayer money to private schooling will further degrade public education for Idaho kids. Legislators are mandated by the Idaho Constitution to "establish and maintain a general, uniform and thorough system of public, free common schools." The Legislature has chronically failed to honor that mandate.

The Idaho Supreme Court ruled in 2005 that Idaho's funding of educational facilities was wholly inadequate to meet the constitutional requirement. The situation is growing worse each year. A recent study disclosed that it would take about $850 billion to bring public school facilities up to good condition. Supplemental school levies against taxpayers have increased from $140 million in the 2011-12 school year to $218 million in 2021-22. Idaho has ranked last in the nation for per-pupil spending during each of the last two school years. The state is obviously vulnerable to legal action for its constitutional failure to support its school system.

If legislators take money that should be used for public schools and divert it to private schooling, they will surely invite a lawsuit. The state has no business supporting private schools, while the public school system is suffering from insufficient funding.

The so-called Idaho Freedom Foundation and its supporters in the Legislature are doing their level best to sabotage the public school system. They have worked hard to underfund the school system, endangering its effectiveness. They then point to the lack of student achievement as grounds for supporting school choice alternatives. A voucher program would be a disaster for public schools, particularly in rural areas where the local school is the heart and soul of the community. Local taxpayers would remain on the hook for all of the bonds they had to float because of the Legislature's failure to meet its constitutional funding responsibility.

The IFF will claim that the recent SCOTUS decision makes Idaho's prohibition against financing religious schools inoperable. That simply is not the case. So long as the Legislature does not approve some sort of scheme to subsidize private school education, the constitutional prohibition remains effective. We need to improve our public education system by ensuring it has sufficient funding to properly educate our kids, not to consign it to the trash heap.

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The U.S. Supreme Court warns against state funding of private schools - Idaho Capital Sun

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The U.S. Supreme Court has again ruled that a state will be required to fund religious schooling if, but only if, it provides funding for private schooling. Speaking for the court's Republican supermajority in Carson v. Makin , Chief Justice John Roberts put it this way: "A State need not subsidize private education.

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(Reuters) - The U.S. government may collect information about U.S. citizens without obtaining a warrant if the information is gathered inadvertently while legally carrying out surveillance of non-nationals abroad, a U.S. appeals court ruled on Wednesday.

The 2nd U.S. Circuit Court of Appeals in New York ruled in an appeal by Agron Hasbajrami, a U.S. resident arrested in 2011 and who later pleaded guilty to a charge of attempting to provide material support to a terrorist organization.

Hasbajrami challenged the charges, questioning whether the U.S. National Security Agency (NSA) had legally obtained information about him without a warrant.

The "incidental collection" of Americans' communications by NSA electronic dragnet that explicitly targets people abroad and without U.S. ties was permissible under the U.S. Constitution, the court ruled. It also said, however, that examining the content of databases of stored NSA information could violate the Constitution's Fourth Amendment protections against unreasonable searches and seizures.

The court said the "vast majority" of evidence prosecutors had used against Hasbajrami was "lawfully collected," but prosecutors did not provide information to the trial court about whether investigators had "queried" NSA databases.

The NSA surveillance program is sometimes called PRISM, which gathers data from tech and telecom companies under court supervision and under the authority of section 702 of the Foreign Intelligence Surveillance Act (FISA) but without individual warrants.

"We are gratified by the Court's remand to resolve a critical factual and constitutional question in this case, as well as its recognition of the important constitutional issues that FISA section 702 raises for everyone. We look forward to the next stage of the litigation," Hasbajrami's lawyer Joshua Dratel said in a statement.

A spokesman for federal prosecutors in Brooklyn declined to comment.

The case of Hasbajrami, arrested at New York's John F. Kennedy International Airport as he attempted to board a flight to Turkey, was returned to the trial court for a determination about whether evidence against him was lawfully collected and admissible under the Fourth Amendment. Prosecutors said Hasbajrami communicated by email with a non-American overseas, who he believed was associated with a terrorist organization.

Documents detailing NSA telephone and internet surveillance were leaked by former agency contractor Edward Snowden in 2013. Although he is viewed by some as a hero who upheld the U.S. Constitution, authorities want him to stand trial over his disclosures of classified information.

"While we disagree with the court's ruling that the NSA can collect Americans' international communications without a warrant ... the court rightly finds that the Fourth Amendment applies when the government searches for that sensitive information in intelligence databases," said American Civil Liberties Union lawyer Patrick Toomey, who filed a brief in the case.

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judicial process / court cases / court decisions

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Warrant not always needed for 'inadvertent' NSA surveillance of Americans: U.S. court

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(Reuters) - The U.S. government may collect information about U.S. citizens without obtaining a warrant if the information is gathered inadvertently while legally carrying out surveillance of non-nationals abroad, a U.S. appeals court ruled on Wednesday. The 2nd U.S. Circuit Court of Appeals in New York ruled in an appeal by Agron Hasbajrami, a U.S.

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PRO (yes)

Pro

The American Civil Liberties Union (ACLU) stated in a July 2003 report titled "Unpatriotic Acts" that:

"National Security Letters (NSLs) allow the FBI to obtain certain kinds of sensitive personal records without obtaining any kind of court order... The absence of judicial oversight means that, when it comes to the use of NSLs, the FBI has a free hand...

Before the PATRIOT Act became law in October 2001, the FBI could issue an NSL against you only if it had reason to believe that you were a foreign spy. Now, however, the FBI can issue an NSL against you even if it knows you are completely innocent of any such activity. The only requirement is that the NSL be 'sought for' an ongoing investigation...

Does it really serve national security to allow the FBI to engage in such aggressive surveillance - including surveillance of ordinary, law-abiding Americans - without any judicial oversight whatsoever?"
July 2003

Pro

The ACLU wrote a press release on Aug. 7, 2006 titled "Reauthorized Patriot Act Still Unconstitutional, ACLU Says," that pertained to the case Doe v. Gonzales:

"The secrecy surrounding the FBI's use of national security letters is excessive and dangerous... By permitting the FBI to operate without meaningful public or judicial oversight, Congress has undermined important safeguards against abuse... The Patriot Act dramatically expanded the FBI's authority to monitor the communications and activities of people living in the United States... Yet by permitting the FBI to silence those with direct experience of the new laws, Congress has denied the public any means of ensuring that the new surveillance authorities are being used lawfully and responsibly."
Aug. 7, 2006

Pro

Barton Gellman wrote in a Nov. 6, 2005 article titled "The FBI's Secret Scrutiny," published in the Washington Post, that:

"[National Security] letters - one of which can be used to sweep up the records of many people - are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans... National security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress...

Criticized for failure to detect the Sept. 11 plot, the bureau now casts a much wider net, using national security letters to generate leads as well as to pursue them. Casual or unwitting contact with a suspect - a single telephone call, for example - may attract the attention of investigators and subject a person to scrutiny about which he never learns. A national security letter cannot be used to authorize eavesdropping or to read the contents of e-mail. But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen."
Nov. 6, 2005

CON (no)

Con

Rachel Brand, JD, Assistant Attorney General for the Office of Legal Policy at the Department of Justice, and John Pistole, JD, Deputy Director of the Federal Bureau of Investigation, wrote in their Nov. 8, 2005 op-ed titled "Safeguards Are in Place," published by USA Today:

"The Justice Department cannot secure our nation against terrorist attack unless investigators are equipped with tools that allow them to disrupt plots before they can be carried out. These same tools must protect civil liberties. National Security Letters (NSLs) satisfy both requirements...

An NSL is simply a request for information. It does not authorize the FBI to conduct a search or make a seizure...

The NSL statutes do prohibit an NSL recipient from disclosing the fact that he received it. In international terrorism and espionage investigations, there are obvious reasons for this. If a terrorist were tipped off to the fact that the FBI was asking for his billing records, he might flee, destroy evidence, or even accelerate plans for an attack.

The Department of Justice is committed to protecting the USA against terrorist attack while using its authorities carefully, lawfully and consistent with civil liberties. The NSL authorities facilitate this mission."
Nov. 8, 2005

Con

Jeff Sessions, JD, Senator of Alabama, stated in a Dec. 13, 2005 interview during a "USA PATRIOT Act Debate" on NewsHour that:

"Electronic surveillance, the issue of subpoenas, the national security letters are all well within the traditions of law enforcement in America. They are absolutely crucial, however, to investigating terrorist cells where you need some secrecy here, some ability which you can do today really by asking a court to do so but in national security cases you go to the FISA court or to the national security letter and you can obtain this information without the entity notifying the terrorist group that you're investigating them. This can be a life-and-death matter."
Dec. 13, 2005

Con

Michael Mason, Assistant FBI Director in the Washington Field Office, supported the use of National Security Letters in a Nov. 6, 2006 article titled "The FBI's Secret Scrutiny," published in the Washington Post:

"I have 675 terrorism cases... Every one of these is a potential threat. And anything I can do to get to the bottom of any one of them more quickly gets me closer to neutralizing a potential threat...

I don't necessarily want somebody knowing what videos I rent or the fact that I like cartoons... But if those records are never used against a person, if they're never used to put him in jail, or deprive him of a vote, et cetera, then what is the argument?"
Nov. 6, 2006

More Civil Liberties Debates

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Do National Security Letters Give Excessive Surveillance Power to the Government? | ACLU | ProCon.org

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The American Civil Liberties Union (ACLU) stated in a July 2003 report titled "Unpatriotic Acts" that: "National Security Letters (NSLs) allow the FBI to obtain certain kinds of sensitive personal records without obtaining any kind of court order... The absence of judicial oversight means that, when it comes to the use of NSLs, the FBI has a free hand...

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https://www.reuters.com/article/us-usa-nsa-spying/u-s-court-mass-surveillance-program-exposed-by-snowden-was-illegal-idUSKBN25T3CK

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(Reuters) - Seven years after former National Security Agency contractor Edward Snowden blew the whistle on the mass surveillance of Americans' telephone records, an appeals court has found the program was unlawful - and that the U.S. intelligence leaders who publicly defended it were not telling the truth.

In a ruling handed down on Wednesday, the U.S. Court of Appeals for the Ninth Circuit said the warrantless telephone dragnet that secretly collected millions of Americans' telephone records violated the Foreign Intelligence Surveillance Act and may well have been unconstitutional.

Snowden, who fled to Russia in the aftermath of the 2013 disclosures and still faces U.S. espionage charges, said on Twitter that the ruling was a vindication of his decision to go public with evidence of the National Security Agency's domestic eavesdropping operation.

"I never imagined that I would live to see our courts condemn the NSA's activities as unlawful and in the same ruling credit me for exposing them," Snowden said in a message posted to Twitter.

Evidence that the NSA was secretly building a vast database of U.S. telephone records - the who, the how, the when, and the where of millions of mobile calls - was the first and arguably the most explosive of the Snowden revelations published by the Guardian newspaper in 2013.

Up until that moment, top intelligence officials publicly insisted the NSA never knowingly collected information on Americans at all. After the program's exposure, U.S. officials fell back on the argument that the spying had played a crucial role in fighting domestic extremism, citing in particular the case of four San Diego residents who were accused of providing aid to religious fanatics in Somalia.

U.S. officials insisted that the four - Basaaly Saeed Moalin, Ahmed Nasir Taalil Mohamud, Mohamed Mohamud, and Issa Doreh - were convicted in 2013 thanks to the NSA's telephone record spying, but the Ninth Circuit ruled Wednesday that those claims were "inconsistent with the contents of the classified record."

The ruling will not affect the convictions of Moalin and his fellow defendants; the court ruled the illegal surveillance did not taint the evidence introduced at their trial. Nevertheless, watchdog groups including the American Civil Liberties Union, which helped bring the case to appeal, welcomed the judges' verdict on the NSA's spy program.

"Today's ruling is a victory for our privacy rights," the ACLU said in a statement, saying it "makes plain that the NSA's bulk collection of Americans' phone records violated the Constitution."

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judicial process / court cases / court decisions

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U.S. court: Mass surveillance program exposed by Snowden was illegal

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Seven years after former National Security Agency contractor Edward Snowden blew the whistle on the mass surveillance of Americans' telephone records, an appeals court has found the program was unlawful - and that the U.S. intelligence leaders who publicly defended it were...

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Privatization Groups Target Maine's Funding Program

Free and Open to All, Without Discrimination

The Carson decision, along with the Supreme Court's recent 6-3 ruling in Kennedy v. Bremerton School District-which opens the door to coercive prayer in public schools-represents a concerted attack on public schools as a safe haven for all students regardless of their religious beliefs.

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Supreme Court Decision Paves Way for Public Funds to Flow to Religious Schools | NEA

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The Carson decision, along with the Supreme Court's recent 6-3 ruling in Kennedy v. Bremerton School District -which opens the door to coercive prayer in public schools-represents a concerted attack on public schools as a safe haven for all students regardless of their religious beliefs.

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Zach Smith

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The world witnessed the worst example of the impact digital platforms can have on society with the debacle at the U.S. Capitol on January 6, 2021. Not only did supporters of Donald Trump try to disrupt the certification of the Electoral College votes, but this deplorable incident was, in large part, fomented over social media.

In the past, Twitter and Facebook have been reluctant to censor posts about conspiracy theories and fake news. Digital platforms also have benefitted from a 1996 law, Section 230 of the Communications Decency Act, that grants them immunity from liabilities related to third-party hosted content. Nevertheless, prompted by false accusations of rigged elections and other fake news, the leading digital platforms in social media recently began tagging some posts as unreliable or untrue and removing some videos. Following the January 6th insurrection attempt, Twitter and Facebook also banned Trump from using their platforms because promotion of violence and criminal acts violates their terms of service. For similar reasons, Apple and Google removed the alternative Parler social media platform from their app stores, and Amazon stopped hosting the service.

How did we get into this mess?

Digital platforms can be highly profitable businesses that connect users and other market actors in ways not possible before the internet. When they are successful, they generate powerful feedback loops called network effects and then monetize them by selling advertisements. But what happened at the U.S. Capitol illustrates how digital platforms can be double-edged swords. Yes, they have generated trillions of dollars in wealth. But they have also enabled the distribution of fake news and fake products, manipulation of digital content for political purposes, and promotion of dangerous misinformation on elections, vaccines, and other public health matters.

The social dilemma is clear: Digital platforms can be used for evil as well as good.

What's the solution? Should platform companies wait for governments to impose potentially intrusive controls and respond defensively? Or should they act pre-emptively?

Governments will inevitably get more engaged in oversight. However, we believe that platforms should become more aggressive at self-regulation now. To explore the feasibility of self-regulation, we researched the history of self-regulation before and after the widespread adoption of the internet. We found that companies have often risked creating a "tragedy of the commons" when they put their short-term, individual self-interests ahead of the good of the consuming public or the industry overall, and, in the long term, destroy the environment that made them successful in the first place.

Before the internet era, several industries, such as movies, video games, broadcasting content, television advertising, and computerized airline reservation systems, faced similar issues and managed to self-regulate with some success. At the same time, these historical examples suggest that self-regulation worked best when there were credible threats of government regulation. The bottom line: Self-regulation may be the key to avoiding a potential tragedy of the commons scenario for digital platforms.

What is "self-regulation"? This refers to the steps companies or industry associations take to preempt or supplement governmental rules and guidelines. For an individual company, self-regulation ranges from self-monitoring for regulatory violations to proactive "corporate social responsibility" (CSR) initiatives. Leaving it up to companies to monitor and restrain themselves can sometimes devolve into a self-regulatory or regulatory "charade." But that doesn't need to be the case.

For many decades, companies in the business of producing movies, video games, and television shows and commercials all have faced issues around the appropriateness of "content" in a way that resembles today's social media platforms. To keep regulators at bay, the movie and video games industries resorted to a self-imposed and self-monitored rating system, still in operation today. The broadcasting and advertisement sectors in the 1950s and 1960s faced pushback on the appropriateness of advertisements, with issues resembling what we see today in online advertising. Launched in 1960, the airline reservation industry, led by American Airlines' Sabre system, introduced self-preferencing in search results, similar to complaints made against Google and Amazon. Self-regulation in these cases often delivered effective and inexpensive guidelines for company operations as well as forestalled more intrusive government intervention.

History provides several lessons for today's digital platforms.

First, our leading technology companies need to anticipate when government regulation is likely to become a key factor in their businesses. In movies, radio and television broadcasting, airline reservations via computers, and other new industries, there often occurs a vacuum in regulation in the early years. Then, after a kind of "wild west" environment, governments step in to regulate or pressure firms to curb abuses. To avoid problematic government regulation, platform companies need to introduce their own controls on behavior and usage before the government revokes all Section 230 protections, which is currently under debate in Congress. Technology that exploits big data, artificial intelligence, and machine learning, with some human editing, will increasingly give digital platforms the ability to curate what happens on their platforms. The issue is really to what extent the big platforms have the will to self-regulate. The decisions by Facebook, Twitter, Amazon, Apple, and Google during the first week in January 2021 were steps in the right direction.

Second, we find that firms in new industries tend to eschew self-regulation when the perceived costs imply a significant reduction in revenues or profits. Managers rarely like industry regulations that appear "bad for business." However, this strategy can be self-defeating. If bad behavior undermines consumer trust, then digital platforms will not continue to thrive. Look closely at Section 230. It states that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This act gave online intermediaries broad immunity from liability for user-generated content posted on their sites. Executives and company lawyers should have felt comfortable making reasonable curation decisions under Section 230. However, they generally resisted and argued that their legal and political positions would be more secure if they avoided potentially controversial curation. Internal debates ranging from free speech versus censorship to how much curation can the firm perform before it crosses the line from platform to "publisher" led most social media companies to resist aggressive curation until very recently. However, Section 230 also included a "good Samaritan" exception. This allowed platforms to remove or moderate content deemed obscene or offensive, as long as it was done in good faith. There have been growing calls from both Democrats and Republicans to repeal Section 230 because of accusations of bias (i.e., not acting in good faith) and very little curation over the prior decade by Twitter, Facebook/Instagram, and other platforms. More explicit and transparent self-regulation, like we observed after the U.S. Capitol debacle, might well produce a better outcome for social media platforms, at least compared to leaving their fate up to Congress.

Third, proactive self-regulation was often more successful when coalitions of firms in the same sector worked together. We saw this coalition-type of activity in movie and video-game rating systems limiting violent, profane, or sexual content; television advertisements rules curbing unhealthy products like alcohol and tobacco; and computerized online airline reservations giving equal treatment to airlines, without favoring the system owners. Similarly, social media companies implemented codes of conduct on terrorist activity. Since individual firms may hesitate to enact self-regulation if they incur added costs that their competitors do not, industry coalitions have the benefit of reducing free-riding. Now is the ideal time for more "coopetition," where platforms compete as well as cooperate with rivals.

Fourth, we found that firms or industry coalitions get serious about self-regulation primarily when they see a credible threat of government regulation, even if it may hurt short-term sales and profits. This pattern occurred with tobacco and cigarette ads, airline reservations, social media ads for terrorist group recruitment, and pornographic material. That threat should be clear and obvious to digital platforms in 2021.

In sum, history suggests that modern digital platforms should not wait for governments to impose controls; they should act decisively and pro-actively now. While the costs of government action in the internet era have been modest so far, the regulatory environment is changing fast. Given the increasing likelihood of government action, the goal of self-regulation should be to avoid a tragedy of the commons, where a lack of trust destroys the environment that has allowed digital platforms to thrive. Going forward, governments and digital platforms will also need to work together more closely. Since more government oversight over Twitter, Facebook, Google, Amazon, and other platforms seems inevitable, new institutional mechanisms for more participative forms of regulation may be critical to their long-term survival and success.

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Social Media Companies Should Self-Regulate. Now.

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Tech companies face the real threat of government regulation in reaction to socially harmful content they are publishing. To avoid this, tech companies should form an industry coalition and take proactive steps to self-regulate now. Our research into industries including television, movies, and video games suggests effective self-regulation can benefit both society and companies, and keep government regulators at bay.

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SAN ANSELMO, CALIFORNIA - JANUARY 08: The suspended Twitter account of U.S. President Donald Trump ... [+]
Getty Images

Last week, Twitter permanently suspended President Donald Trump's account - and over the weekend quickly shut down the President's attempts to jump to alternate accounts including the official POTUS account. The president also faced a ban from social media giant Facebook.

And it wasn't just President Trump who was in essence silenced, as over the weekend, Amazon shut down the web servers to Parler, the Twitter alternative that had attracted a large conservative following.

On Monday, it was reported that Parler has sued Amazon Web Services and in a statement the company claimed, "AWS's decision to effectively terminate Parler's account is apparently motivated by political animus. AWS is violating Section 1 of the Sherman Antitrust Act in combination with Defendant Twitter. AWS is also breaching it[s] contract with Parler, which requires AWS to provide Parler with a thirty-day notice before terminating service, rather than the less than thirty-hour notice AWS actually provided. Finally, AWS is committing intentional interference with prospective economic advantage given the millions of users expected to sign up in the near future."

While it is unclear what will happen next, it seems that at this point President Trump and his supporters have largely been silenced.
Divisive Topic
Twitter's suspension of Trump, and the shuttering of Parler are just the latest issues that highlight the very deep divide plaguing our country and it is unlikely to change soon.

"Internet censorship is an incredibly divisive topic right now," said Claire Cole, creative partner at Gamblers Pick, which recently conducted a study that found that a significant number of Americans felt that social media companies may have a moral obligation to censor content.

"Our study found that more than one in four people believe there should be more censorship on the Internet, while nearly one in three believe there should be less censorship," added Cole. "But despite varying opinions, a majority of people are in agreement that social media platforms should have the right to censor content within their platform(s)."

At issue is what type of content is being discussed, as posts encouraging or inciting violence was the second biggest concern among respondents, with 60% believing it should be censored from the Internet.

"Similarly, 59% of people believe certain content should be banned in order to stop the spread of misinformation," added Cole.
Anti-Social Media
One significant issue is that social media is still very much an evolving platform. Twitter began really as a tool that allowed those in social circles to essentially "shout out" to one another, but it has increasingly become a broadcast platform to reach the masses.

In the case of President Trump it has been used at times as his primary way to reach his supporters. While there is no denying that the President has posted information that is far from truthful, the issue is whether that actually warrants his being silenced.

"The original Internet was based on the premise that, if you don't like, don't look," explained technology industry consultant Lon Safko, author of The Social Media Bible. "For the 25 years the Internet has been available, all us early adopters to the Internet have always been chocked and pleased. That for one-quarter of a century, our government has not got involved, hasn't interfered with, and hasn't imposed regulations on the Internet. The only time we saw our government make a historical intervention was charging tax on Internet purchases. Few remember when anything you purchased on the Internet did not include state sales tax."
Silencing The Government
As most experts agree, this isn't exactly a censorship issue because the government isn't trying to silence a news organization or otherwise stifle any First Amendment rights, but it could be argued that this is the first time the government has been essentially silenced by the media.

"(The social media platforms) have overwhelmingly censored Trump and his administration," added Safko. "Any form of censorship, any form, is unacceptable. Social platform such as Facebook, whose primary business is open communication between its over 2.7 billion members, have a moral and legal responsibility to allow those conversations to transpire, organically. All conversations, all sides of that conversation. And, if the viewer disagrees or is offended by that conversation, then it is their right to simply close the window and walk away."

What is remarkable added Safko is that this has been widely supported - whereas if the government (on either side of the aisle) to shut down such forms of communication it would be a major issue.

"For Facebook, Google, Apple, Twitter and others to deliberately censor, manipulate, and influence an entire U.S. Election to attain their own personal political objectives is not only criminal, but a form of treason. It is clearly stated in the U.S. Constitution. They should be held accountable," he added.

"Once again, as a purveyor of information that reaches billions of people on a global scale, those social platforms have a moral and legal responsibility to deliver that information clearly, organically, and without political censorship," noted Safko. "Whatever administration is inaugurated on January 20th, this must become a top national priority. If it doesn't become a priority, then we the people must demand the answer as to why that administration is choosing to ignore treason within our borders."

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Do Social Media Companies Have The Right To Silence The Masses - And Is This Censoring The Government?

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Last week, Twitter permanently suspended President Donald Trump's account - and over the weekend quickly shut down the President's attempts to jump to alternate accounts including the official POTUS account. The president also faced a ban from social media giant Facebook.

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- Lindsey miller

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Recent court cases have established that elected representatives violate the First Amendment when they block individuals or delete their comments for expressing critical opinions on sites like Twitter and Facebook.

If you have been blocked from posting or commenting on an official social media page operated by an elected representative or government organization, your critical comments have been deleted, or you've otherwise been restricted from fully accessing official social media pages, this toolkit, " So You've Been Censored by a Government Official," can help you challenge that censorship. Our toolkit below includes a:
** Please note that the toolkit is for education purposes only and using the checklist or flow chart does not imply that the ACLU of Southern California is pursuing or would pursue legal action on your behalf or in any case. ** Download the toolkit in pdf
Why does social media censorship violate the First Amendment?

The ACLU of Southern California believes that official social media pages for elected representatives and government organizations, when they allow the public to make comments on the page, are public forums. Censoring individuals from these pages through blocking accounts or deleting comments can be an unconstitutional restriction on their right to free speech under the First Amendment.

This applies to official social media pages operated by the individual, or offices of elected representatives, or government boards, organizations, agencies, commissions, associations, or any other officially constituted group of a public entity where matters of public policy or governing are discussed. This standard does not apply to personal or campaign social media pages, nor to fake or parody pages not managed by the representative or organization.

Why does the First Amendment apply to social media pages?

After all, Ben Franklin and the other authors of the U.S. Constitution didn't use Twitter (if only they did!)

We believe - and the courts agree - that the Constitution's limits on government control of speech apply online as much as they do in newspapers, at marches, and in townhall meetings. In fact, the discussion at an old-fashioned townhall is similar to the discourse found on a social media page. Because it is unconstitutional for an elected representative to block critics from entering a public townhall simply because of their views, it's also not allowable for that representative to create a social media page and then restrict people with critical viewpoints from posting or viewing content.

These restrictions only apply to official social media pages where the elected representative or organization is considered a "government actor." A mayor's personal Facebook page, where she posts photos of her kids and reviews of her favorite books or movies, does not qualify as an official government page. Neither does a campaign page primarily focused on her reelection where she discusses her political accomplishments. A mayor can limit access to her personal pages to anyone she wants. But if the mayor's Facebook page includes references to her official position, links to government phone numbers, email addresses or websites, or allows individuals to either seek government services or access and discuss government information, then the page becomes a space for public speech and First Amendment protections apply.

Because the format of every social media page is different, each instance of social media censorship must be evaluated based on its specific facts.

In the several prominent court cases addressing social media blocking, judges have reviewed when and why the social media page was created, the content posted on the page, and the reasons given for why an individual was blocked. This is why taking photos or screenshots of the social media page and any blocked posts or comments is important to proving a civil liberties violation.

Lastly, if elected representatives and government agencies develop standards for communication on their social media pages and platforms, these standards must be posted publicly on the page and accessible to all viewers (e.g., posted in the "Notes" or "About" section of a Facebook page). These standards must also be applied consistently and must not block speech that is critical, unpopular, or negative to the elected official or is considered protected speech under the First Amendment.

CENSORSHIP CHECKLIST

1. Take photos or screenshots of the social media page that blocked you or deleted your comments, including your comments if they are still visible or archived. If you can, also take some photos or screenshots of posts by others that stay up on the page (especially comments on the post you commented on.)

2. Use the Censorship Flowchart to determine if your constitutional rights were violated.

3. If the flowchart shows your rights were violated, contact the elected official via phone or email and ask to be unblocked (or for the official to stop deleting your comments). This low-key approach resolves many complaints.

4. If you receive no response to the above request (or if you remain blocked and/or your comments continue to be deleted), download and personalize the ACLU SoCal's do-it-yourself Sample Demand Letter and send it to the elected official.

5. If you receive no response after 30 days, or if the government official refuses to unblock you or stop deleting your comments, contact the ACLU SoCal.

CENSORSHIP FLOWCHART

So you've been censored on social media by a government official. Use this flowchart to determine if your rights were violated.

SAMPLE DEMAND LETTER

1. Fill out this form letter (.doc) based on your individual situation. Delete any unnecessary sentences, including sentences that do not reflect what happened to you.

2. After filling it out, read it through carefully, making sure that everything in the letter is true to your situation.

3. Paste any screenshots you have that prove what happened into the blank pages after the letter.

4. If mailing the letter, print it out, sign it, and send it to your government official.

5. If emailing the letter, digitally sign it (if you can), save it as a PDF file (if you can), and email it to your government official.

6. Wait for a response. If you don't hear back within 30 days or if the government official refuses to unblock you or stop deleting your comments, contact the ACLU SoCal.
Note: Our sample demand letter isn't designed for situations where your post includes certain kinds of speech -- threats, inciting language, factual statements you know to be false, or an attempt to sell something -- and the post is only deleted without your account being blocked. This is because, in these situations, we believe officials are allowed to delete such comments. However, if you're blocked after posting these kinds of speech, you are entitled to take action but should adjust our sample demand letter to address only blocking (so you should remove any references to deleting comments).

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Social media censorship by a government official

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Recent court cases have established that elected representatives violate the First Amendment when they block individuals or delete their comments for expressing critical opinions on sites like Twitter and Facebook.

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(eden warren)

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Is Including “Under God” in The Pledge of Allegiance Lawful?: An Impeccably Correct Ruling

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On June 26, 2002, in Newdow v. U.S. Congress, a divided panel of the United States Court of Appeals for the Ninth Circuit held that the 1954 Congressional amendment adding the words “under God” to the Pledge of Allegiance violated the First Amendment’s proscription that, “Congress shall make not la…

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Lucy Solberg

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WASHINGTON (Reuters) - The U.S. Supreme Court narrowed the separation of church and state in a major ruling on Tuesday by endorsing Montana tax credits that helped pay for students to attend religious schools, a decision paving the way for more public funding of faith-based institutions.

The 5-4 decision, with the conservative justices in the majority and the liberal justices dissenting, was a boost to conservative Christian activists who have fought for years to make state taxpayer funds available for children to attend religious schools in the form of contentious voucher programs.

The ruling, written by Chief Justice John Roberts, represented the court's latest expansion of religious liberties. The court backed a Montana program that gave tax incentives for people to donate to a scholarship fund that provided money to Christian schools for student tuition expenses.

President Donald Trump's administration supported the Montana parents. His education secretary, Betsy DeVos, is a prominent supporter of such "school choice" plans benefiting private and religious schools rather than secular public schools. Christian conservatives are an important voter bloc for Trump, seeking re-election on Nov. 3.

"This decision represents a turning point in the sad and static history of American education, and it will spark a new beginning of education that focuses first on students and their needs," DeVos said.

The court sided with three mothers of Christian school students who appealed after Montana's top court invalidated the tax credit for violating the state constitution's ban on public aid to churches and religious entities.

The justices faulted the Montana Supreme Court for voiding a taxpayer program merely because it can be used to fund religious entities, saying such action violates the U.S. Constitution's First Amendment protection for the free exercise of religion.

"A state need not subsidize private education," Roberts wrote. "But once a state decides to do so, it cannot disqualify some private schools solely because they are religious."

In the case, free exercise of religion was pitted against another element of the First Amendment - the separation of church and state that prohibits governmental establishment of an official religion or favoring one religion over another.

STATE CONSTITUTIONS

Thirty-eight states have constitutional provisions like Montana's. The ruling paves the way for some of those states including Missouri, Idaho and South Dakota to lift restrictions on funding for religious schools and could affect separate bans in Maine and Vermont, said Tim Keller, a lawyer at the Institute for Justice, which represented the Montana mothers.

"Today's victory means that their state legislatures are now free to enact educational choice programs that permit families to choose both religious and nonreligious educational options," Keller added.

The National Education Association, a union representing public school teachers, said the ruling could undermine public schools because vital education funding could be siphoned to religious schools.

Lily Eskelsen Garcia, the association's president, said "an extreme Supreme Court just joined the far-right effort to undermine one of our country's most cherished democratic institutions: public education."

Liberal Justice Stephen Breyer said in dissent that the ruling risks "entanglement and conflict" over where to draw the line between allowing free exercise of religion while protecting against government endorsement of religion.

The decision followed the Supreme Court's 2017 ruling that churches and other religious entities cannot be flatly denied public money even in states with constitutions explicitly banning such funding.

The Montana tax credit program, created in 2015, provided up to $150 as an incentive for donations to groups that fund scholarships for tuition to private schools including religious schools. In practice, most of the money went to Christian schools. The one such scholarship organization currently operating provides $500 payments to schools, primarily to help lower-income students attend.

The dispute began when Montana tax officials limited the program to non-religious schools to comport with the state constitution's prohibition on "direct or indirect" public aid to any church religious educational entity.

Lead plaintiff Kendra Espinoza and two other mothers of students at Stillwater Christian School in Kalispell, Montana sued, saying the exclusion violated their religious rights. The top state court struck down the program in 2018.

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advocacy groups / pressure groups / lobbies

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judicial process / court cases / court decisions

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U.S. Supreme Court endorses taxpayer funds for religious schools

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The U.S. Supreme Court narrowed the separation of church and state in a major ruling on Tuesday by endorsing Montana tax credits that helped pay for students to attend religious schools, a decision paving the way for more public funding of faith-based institutions.

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https://constitutioncenter.org/media/files/undergod.pdf

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A federal court will be scrutinizing one of the National Security Agency's worst spying programs on Monday. The case has the potential to restore crucial privacy protections for the millions of Americans who use the internet to communicate with family, friends, and others overseas.

The unconstitutional surveillance program at issue is called PRISM, under which the NSA, FBI, and CIA gather and search through Americans' international emails, internet calls, and chats without obtaining a warrant. When Edward Snowden blew the whistle on PRISM in 2013, the program included at least nine major internet companies, including Facebook, Google, Apple, and Skype. Today, it very likely includes an even broader set of companies.

The government insists that it uses this program to target foreigners, but that's only half the picture: In reality, it uses PRISM as a backdoor into Americans' private communications, violating the Fourth Amendment on a massive scale. We don't know the total number of Americans affected, even today, because the government has refused to provide any estimate.

This type of unjustifiable secrecy has also helped the program evade public judicial review of its legality because the government almost never tells people that it spied on them without a warrant. Indeed, the government has a track record of failing to tell Americans about this spying even when the person is charged with a crime based on the surveillance. That's one reason why this case is so important - this time, the government has admitted to the spying.

In this case, the government accused a Brooklyn man, Agron Hasbajrami, of attempting to provide material support to a designated terrorist organization in Pakistan. After he pleaded guilty to one of the charges, the government belatedly admitted that it had read through his emails without a warrant.

Now Mr. Hasbajrami has challenged the government's warrantless surveillance and is asking the Second Circuit Court of Appeals to throw out the resulting evidence. The American Civil Liberties Union and the Electronic Frontier Foundation are supporting him as friends-of-the-court, arguing that the surveillance was unconstitutional (the brief we filed is here). At the hearing on Monday, we'll explain to a three-judge panel why the Fourth Amendment requires the government to get a warrant when it wants to exploit the communications of Americans who are swept up in PRISM.

This large-scale internet surveillance grew out of the Bush administration's post-9/11 warrantless wiretapping program. It is conducted under a controversial law known as Section 702 of the Foreign Intelligence Surveillance Act. Relying on Section 702, the government intercepts billions of international communications - including many sent or received by Americans - and it hunts through them in investigations that have nothing to do with national security.

The government attempts to defend this spying by pointing out that its "targets" are foreigners located abroad. But this is no defense at all. Americans regularly communicate with individuals overseas, and the government uses PRISM surveillance to collect and sift through many of these private communications. The government has even admitted that one of the purposes of Section 702 is to spy on Americans' international communications without a warrant.

The government casts a wide net, making it easy for innocent Americans who communicate with family, friends, and others overseas to be swept up. Relying on a single court order, the NSA uses Section 702 to put more than 125,000 targets under surveillance each year. These individuals need not be spies, terrorists, or accused of any wrongdoing - they can be journalists, business people, university researchers, or anyone else who may have information bearing remotely on "foreign affairs."

PRISM is a warrantless wiretapping program that operates around the clock, vacuuming up emails, Facebook messages, Google chats, Skype calls, and the like. Government agents do not review all of the information in real-time - there's simply too much of it. Instead, the communications are pooled together and stored in massive NSA, FBI, and CIA databases that can be searched through for years to come, using querying tools that allow the government to extract and examine huge amounts of private information.

One of the most problematic elements of this surveillance is the government's use of "backdoor searches" to investigate individual Americans. Although the government says PRISM is targeted at foreigners who lack Fourth Amendment privacy rights, it systematically combs through its PRISM databases for the emails and messages of Americans. Indeed, FBI agents around the country routinely search for the communications of specific Americans using their names or email addresses - including at the earliest stages of domestic criminal investigations.

The result is an end-run around the Fourth Amendment. Investigators have easy access to a trove of Americans' private emails, calls, and messages, without ever seeking individualized approval from any judge, as the Constitution requires.

This surveillance leaves far too much unchecked power in the hands of executive branch officials. Today, that includes President Trump, who as a candidate called for expanded spying on Americans. The ACLU is taking on this threat to Americans' privacy rights, just as we challenged the government's warrantless wiretapping across both the Bush and Obama administrations. Now the courts must do their part to ensure that Americans' online communications receive the full protection of the Fourth Amendment.

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The NSA Continues to Violate Americans' Internet Privacy Rights | News & Commentary | American Civil Liberties Union

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A federal court will be scrutinizing one of the National Security Agency's worst spying programs on Monday. The case has the potential to restore crucial privacy protections for the millions of Americans who use the internet to communicate with family, friends, and others overseas.

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A PDF of the Patriot Act

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https://yjolt.org/constitution-and-nsa-warrantless-wiretapping-program-fourth-amendment-violation

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The Constitution and the NSA Warrantless Wiretapping Program: A Fourth Amendment Violation | Yale Journal of Law & Technology

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The tragic event of the Sept. 11 terrorist attack persuaded President George W. Bush to authorize the National Security Agency (NSA) to engage in a warrantless wiretapping program aimed at monitoring international phone conversations between persons residing in the United States and persons believed to be affiliated with terrorist organizations.

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zach

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The National Security Agency at Fort Meade, Md. (Patrick Semansky/AP)

Correction

An extensive surveillance program first revealed by former National Security Agency contractor Edward Snowden in 2013 continues to operate with no judicial and limited congressional oversight despite its potential to capture Americans' communications, a member of a privacy watchdog agency said in a statement released Tuesday.

The National Security Agency's XKeyscore program was the subject of a five-year investigation by the Privacy and Civil Liberties Oversight Board (PCLOB), an independent government privacy watchdog, that wrapped up in December.

According to documents leaked by Snowden, the program has existed for more than a decade. It allows analysts to use a Google-like search function across vast databases of Internet traffic captured from sites worldwide to pluck out the emails, Web browsing histories and social media activity of specific people.

The program relies heavily on the "autonomous collection of massive data sets," and analysis driven by artificial intelligence, Travis LeBlanc, a Democratic board member appointed by President Donald Trump, said in a statement. His partly redacted statement was released after it went through a declassification process.

LeBlanc was alone among the board's five members to vote against approving the panel's classified report on XKeyscore in December, saying that the board "failed to adequately investigate or evaluate" the NSA's collection activities.

"What most concerned me was that we have a very powerful surveillance program that eight years or so after exposure, still has no judicial oversight, and what I consider to be inadequate legal analysis and serious compliance infractions," LeBlanc said in an interview.

Privacy watchdog's next target: The least-known but largest and most complex NSA surveillance regime

The board sent copies of the report to Congress, the White House and the Office of the Director of National Intelligence in March.

NSA officials pushed back against LeBlanc's assertions, saying the agency conducted appropriate legal reviews of the use of XKeyscore. They also said the agency has protections to safeguard Americans' privacy. They pointed to a document issued in January that outlines the rules.

Former board chairman Adam Klein, an appointee of Trump who stepped down from the board this month, defended its work. "The board produced a detailed, comprehensive report and recommendations on a very complex program," he said. "The clarity of description will enable Congress and other appropriate actors in the executive branch to ask hard questions as needed about this program."

The program operates under a broad framework laid out by a presidential directive known as Executive Order 12333, which governs most surveillance taking place outside the United States and some surveillance taking place inside the United States. When collection activities take place under 12333, they are not subject to oversight by the Foreign Intelligence Surveillance Court.

According to a 2009 slide released by Snowden and published in the Intercept in 2015, many of the sites that XKeyscore relies on for data were either in the United States or linked to sites in the United States. LeBlanc, in his statement, suggested as much. "It is beyond obvious that NSA must gather or collect that signals intelligence from somewhere - in the United States or abroad."

The NSA declined to discuss the location of the collection.

"I continue to be concerned that Americans still know far too little about the government's surveillance activities under EO 12333 and how it threatens their privacy," said Sen. Ron Wyden (D-Ore.), a member of the Intelligence Committee, in a statement to The Washington Post. "I've been pressing for multiple PCLOB reports about EO 12333 to be declassified, which will shed light on these secret authorities that govern the collection and use of Americans' personal information."

Privacy and civil liberties board will review surveillance law that has vexed Trump

The program also resulted in hundreds of compliance incidents in 2019, a majority of which were considered "questionable intelligence activities" - a category that means the action may have involved improper surveillance of Americans' communications, according to U.S. officials, who spoke on the condition of anonymity because details are classified.

"Obviously violations of U.S. law and the known collection or processing of U.S. person information are serious compliance issues," LeBlanc said in his statement.

Rebecca Richards, NSA's civil liberties and privacy officer, said: "When we looked at the [questionable intelligence activities] associated with this, we didn't find any of them to identify systemic issues or any particular concerns. We found them to be standard intelligence practices."

The incidents could include making a typo in a query or making too broad a query, she said.

Richards noted that the NSA has adopted the board's recommendation that it provide training for analysts specifically on XKeyscore. Analysts, she said, already receive general compliance training.

LeBlanc devoted some of his strongest criticism to the NSA's legal analysis, which he said "lacks any consideration of recent relevant" privacy case law, including Supreme Court decisions that have imposed stricter limits on cellphone and geolocation surveillance.

Agency spokesman Charlie Stadtlander said "NSA's Office of General Counsel regularly reviews NSA intelligence programs and capabilities to ensure compliance with the Constitution, laws, and other applicable regulations and policies."

But some privacy advocates say the technical capabilities have outpaced the law. For instance, according to slides disclosed by Snowden, the program enabled an analyst to review communications indiscriminately as long as they were not tagged as belonging to an American, meaning that the analyst could inadvertently be viewing an American's information without penalty, said Ashkan Soltani, a senior fellow at Georgetown University's Institute for Technology Law and Policy.

And much of the indexing work on the data is done by machines, before a human even sets eyes on it, Soltani said. "The realities of the Internet today means the likelihood that the NSA might accidentally be processing an American's communications is quite high," he said.

In NSA-intercepted data, those not targeted far outnumber the foreigners who are

LeBlanc said the board did not analyze the extent to which XKeyscore's use of machine analysis - as opposed to human review - of Americans' information triggers Fourth Amendment scrutiny.

The board, he said, ultimately "failed the public" by not using its investigation to "delve into important technological and modern electronic surveillance issues" raised by XKeyscore.

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NSA surveillance program still raises privacy concerns years after exposure, member of privacy watchdog says

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Correction An extensive surveillance program first revealed by former National Security Agency contractor Edward Snowden in 2013 continues to operate with no judicial and limited congressional oversight despite its potential to capture Americans' communications, a member of a privacy watchdog agency said in a statement released Tuesday.

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Pew Research Center's Religion & Public Life Project

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10:00 - 11:30 a.m.
National Press Club
Washington, D.C.

Speakers:
Doug Laycock, Counsel of Record for 32 Christian and Jewish clergy, urging the Court to affirm the 9th Circuit's ruling
Jay Alan Sekulow, Chief Counsel, American Center for Law and Justice; Counsel of Record for United States Senators and Congressmen and the Committee to Protect the Pledge, urging the Court to reverse the 9th Circuit's ruling

Moderator:
E.J. Dionne, Jr., Co-Chair, Pew Forum; Senior Fellow, The Brookings Institution

LUIS LUGO: Good morning and thank you all for coming. My name is Luis Lugo. I am the director of the Pew Forum on Religion and Public Life. The Forum is a non-partisan organization, and we do not take positionS on policy debates, pending legislation or court cases.

It is my pleasure to welcome you this morning to the timely discussion of the important issues involved in Elk Grove Unified School District v. Newdow, the Pledge of Allegiance case that will be heard by the Supreme Court on Wednesday [March 24th, 2004].

I've been assured by all the legal scholars that the constitutionally significant question in this case is whether or not the recitation in public schools of the Pledge of Allegiance, with the phrase "under God" in it, violates the Establishment Clause of the First Amendment. They further assure me that a broad decision in the case, whether yea or nay, could have significant implications for the role of what is called ceremonial deism in the American public square.

However, the Court could choose to avoid the whole issue by ruling that Michael Newdow, who is with us here this morning - welcome to Washington, Mr. Newdow; delighted to have you - lacks standing to bring suit because of custody issues involving his daughter, who attends school in the Elk Grove Unified District. If the Court does that, of course, the constitutional issues will await another day. Since this is not the Pew Forum on Religion and Parental Rights, however, we are going to be focusing our discussion on the constitutional issues at hand, although we are all very much aware that the Court could take that "out" and punt the case.

Today, in addition to bringing before you two highly respected legal experts who are deeply involved in the litigation of this case and who will debate the merits of this case before you this morning, we also have produced what we trust is a helpful briefing paper, a backgrounder that discusses the history of the Pledge, the constitutional issues involved, and the possible decisions that the Court could render, broad and narrow. So we hope that you'll pick up a copy of this on your way out if you didn't get one on the way in.

I'll now hand things over to my good colleague, E.J. Dionne, who is a columnist for The Washington Post, as many of you know. He is also a senior fellow at the Brookings Institution, distinguished professor at Georgetown University, but most importantly, illustrious co-chair of the Pew Forum on Religion and Public Life.

So E.J., it is my pleasure to introduce you. He will be moderating the discussion and introducing the panelists this morning.

E.J. DIONNE, JR.: Thank you. Thank you, Luis.

Luis has taken over recently as the director of the Pew Forum, and he spent a long time at the Pew Trusts, where he supported so many religion projects that I once said wherever two or three people are gathered to discuss religion and public life, there is Lugo. He has done a lot of great work.

This is a great issue to discuss. I want to begin with a story, and it happened on May 19th, 1988. I was working then at The New York Times, and my phone rang. On the other end of the phone was Newt Gingrich, then a young, Republican firebrand. And he loved - and still does to some degree - pointing out every weakness that every Democrat ever had. So he was very excited on that day in 1988 because he had found a 1977 veto message issued by Michael Dukakis, then the governor of Massachusetts and the frontrunner for the Democratic presidential nomination. Dukakis had vetoed a bill requiring students to recite the Pledge of Allegiance, and Gingrich, shrewd man that he was, immediately grasped the possibilities. I quote Newt from the time: "I would just love to see him explain on national television for three or four minutes why a bill requiring the Pledge of Allegiance at the beginning of a school day is unconstitutional." And he went on from there.

We've been here before. This has been a very difficult public issue, and it was put back on our national agenda again on June 26, 2002, when a divided three-judge panel of the U.S. Circuit Court of Appeals in the Ninth Circuit ruled in Newdow v. U.S. Congress that the phrase "under God" in the Pledge of Allegiance violates the Establishment Clause of the First Amendment to the Constitution. I can say the Democrats were very grateful that one of those two judges was actually a Richard Nixon appointee, so it sort of diminished some of the possibilities.

I think it should be pointed out for our discussion that the "under God" phrase is venerable, but not as venerable as we think in terms of its age. When the first version of the Pledge was written back in 1892 - by a socialist, as it happens - the reference to God was not there. It was inserted by Congress only in 1954 at the request of President Eisenhower. Doing so, he said, would, "strengthen those spiritual weapons which forever will be our country's most powerful resource in war and peace."

And so now we come to this question again. We have an excellent set of panelists, not to mention an excellent audience, with us here today to discuss this. I want to introduce our two distinguished guests. Each of them was willing to go second, and so they worked out between themselves who would get to go first, and Doug Laycock volunteered.

Doug is one of the nation's premier scholars of the law on religious liberty. In addition to publishing many articles in leading law reviews, he has been active in appellate litigation and in legislative initiatives on these issues. He demonstrates a remarkable ability to work with all sides, as we'll see today. Depending on the specific issue, he has represented evangelical Protestants, the National Conference of Catholic Bishops, the ACLU, parents who object to school-sponsored prayer, Hindus and Santerians. He will, I guess, announce his candidacy for president - (laughter) - at this podium, given the reach of his coalition.

He was deeply involved in legislative efforts in support of the Religious Freedom Restoration Act, the Religious Liberty and Charitable Donations Act, and especially the Religious Land Use and Institutionalized Persons Act. He is a graduate of Michigan State University and the University of Chicago Law School. He is the author of two books and nearly a hundred scholarly articles. Thank you so much for being with us today.

Jay Alan Sekulow is chief counsel for the American Center for Law and Justice, an international public interest law firm and educational organization. He is also chief counsel of the European Center for Law and Justice. He has presented oral argument before the Supreme Court in many cases in defense of constitutional freedoms. He serves as a member of the Office of Legal Education for the U.S. Department of Justice. The National Law Journal has twice named him one of the 100 most influential lawyers in the United States. The list of networks that he has appeared on is so long that I can just say he has appeared on every network, probably including the Food Channel. (Laughter.)

He frequently contributes articles and commentary to national publications, is often quoted in USA Today, The New York Times, The Washington Post, The Washington Times, and many other places. He graduated cum laude from Mercer University, where he received both his bachelor's degree and his law degree. While in law school, he served on the law review, and he, too, is the author of several publications and law articles.

We're very grateful to you both for joining on this important issue. Doug, why don't you begin?

(Applause.)

DOUG LAYCOCK: Thank you. Jay and I were on the same side in a case that the Court decided earlier this year, involving the student from Washington who wanted to take his state scholarship to go to seminary with it. With this case, we're on opposite sides. How does that happen? What's up with me? Explaining that is relevant to what I think about the Pledge of Allegiance.

I come to these cases with a fairly simple theory, which is that people of every religion, including the majority and the minority, and people of no religion at all, are entitled to believe their own beliefs, speak their own beliefs, and act on their own beliefs as long as they're not hurting anybody else, and to be left alone by government and have government not take sides. And a corollary of that is that none of these groups can use the government to try to force the other side to join in or participate in their own religious observances. So when government tries to stop a student prayer club from meeting on its own after school, I think government is wrong. And when that student prayer club - or the supporters of that student prayer club - move into the classroom and try to induce everyone else who didn't want to come to participate anyway, I think they're wrong. And I think the Pledge of Allegiance falls on that side of the line.

The country has been fighting about this issue in various forms since the 1820s, when Catholics objected to Protestant religious observances in public schools. We've gotten better about it. In the 1840s and '50s, we had mobs in the street, we had people dead. We don't do that to each other any more, and that's progress. And "one nation under God" may seem like a pretty minimal violation of whatever principle is at stake here. The Supreme Court for 40 years has said consistently, without an exception, that government may not sponsor religious observances in the public schools, and they've said it with respect to things that were pretty short. The first school prayer case, Engel v. Vitale in 1962, was a pretty generic, monotheistic prayer composed not by clergymen but by the New York Board of Regents, and it was 22 words long, and the Court said you can't ask children to recite that prayer.

Now we're down to only two words, and it's not a prayer, and it's mixed up in the Pledge of Allegiance, and the question is, Does that change the answer? And the Supreme Court has repeatedly suggested, never in a holding, but over and over in what lawyers call dictums - side comments explaining what this opinion doesn't decide - there is some kind of threshold. It's got to be big enough to matter before it's an Establishment Clause violation. There are little, ceremonial, rote, repetition things that the Court is not going to get involved in striking down. "In God We Trust" on the coins is a classic example; various state mottos around the country; certainly religious references in historical documents and in politicians' speeches, the Supreme Court is not going to strike down. And they have said - without a holding - two or three times that the Pledge of Allegiance is like "In God We Trust" on the coins. It's very short, and it's repeated by rote, and nobody really thinks about it much. Well, most people don't really think about it much.

The Court may say the Pledge of Allegiance - the religious part of the Pledge of Allegiance - is just too short to worry about. It's what lawyers call de minimis. That may happen.

I think the Pledge of Allegiance is different from all these other examples of things that might be de minimis. It's different from "In God We Trust" on the coins. It's different from politicians making speeches and so forth. The reason it's different is really unique in the culture. Government doesn't do this to adults; it doesn't do this to children in any other context. In the Pledge of Allegiance, we ask every child in the public schools in America every morning for a personal profession of faith. You don't have to take out your coin and read and meditate on "In God We Trust." You don't have to pay any attention when the politician is talking, and lots of us don't.

But this asks for a personal affirmation: I pledge allegiance to one nation under God. Now if God does not exist, or if I believe that God does not exist, then that isn't one nation under God. We can't have a nation under God unless there is a God. It doesn't say one nation under our god, or some gods, or one of the gods. It pretty clearly implies there is only one God, and if there is only one God, then the God of the Pledge is the one true God, and other alleged gods around the world are false gods.

It says one other thing about this God - it doesn't say much, can't say much in two words - but the nation is "under God." God is of such a nature that God exercises some sort of broad superintending authority so that it is possible for a whole nation to be under Him. Now that doesn't exclude many folks, but it excludes some, right? This is not God as First Cause who set the universe in motion and doesn't intervene any more; this is not God as a metaphor for all the goodness imminent in the universe or imminent in the population. This is God exercising some kind of authority over at least this nation; maybe over all nations.

It's a pretty generic concept of God, and it's comfortable for a lot of people. But we may overestimate how many people. The largest private opinion polls have about 15 percent of the population not subscribing to any monotheistic conception of God. Who is in that 15 percent? Buddhist and other non-theists, Hindus and other polytheists, those with no religion, atheist, agnostic, humanist, ethical culturalists. That's 15 percent of the population, with 7.2 million children in public schools who are being asked to personally affirm every morning a religious belief that is different from the religious belief that is taught or held in their home and by their parents. And it is the personal affirmation request in the Pledge, it seems to me, that makes the Pledge unique. It is different from all the other kinds of ceremonial deism that go on in the country.

In the attempt to defend the Pledge, government and the various friends of the Court supporting the Pledge have said a remarkable variety of things, but probably the most common thing they've said is variations on what appears in the brief of the United States. It is not religious. We don't mean for them to take it literally. We ask the children to say the nation is under God, but we don't expect them to really believe that the nation is under God. Here is a quote from the government's brief: "What it really means is, I pledge allegiance to one nation, founded by individuals whose belief in God gave rise to the governmental institutions and political order they adopted, indivisible, with liberty and justice for all."

Now if that were what it means, if anybody thought that was what it meant, we would not have had the great political outcry in response to the Ninth Circuit's decision. If people want to get mad about this because it had some recital about what the founders believed, or because of the other point the government makes - that it's in reference to historical and demographic facts that most Americans over time have believed in God - that would be one thing. But people don't get angry at a recital of historical and demographic facts. People get angry because they know what it means; it's plain English. They believe what it means, they want people to say what it means, they want their kids to say what it means. And I'll tell you a dirty little secret: They want to coerce other kids to say what it means and what they believe to be true. They know that "under God" means under God.

And if it doesn't mean under God, if we were to take the government seriously for asking children every morning to say the nation is under God but not to mean the nation is under God, well, Christians and Jews have a teaching about that, too. "Thou shalt not take the name of the Lord Thy God in vain." If we don't mean it, if it's a vain form of words that doesn't mean what it says, then it is indeed a taking of the name of the Lord in vain. That is why the brief that I filed is on behalf of 32 Christian and Jewish clergy who do care, not only about not coercing other people to practice their religion, but also care that if we are going to practice religion, we mean it seriously. We don't want a watered down religion that we don't really believe.

Jay Sekulow's version is a little different. He says there's a category - and there's some of this in the government's brief as well - of patriotic observances with religious references. You can't do religion in the school, but you can do patriotism with a religious reference. The consequence of that would be, I suppose, that we could undo all the school prayer cases as long as we wrapped them in a coat of patriotism.

Mingling the patriotic and the religious seems to me to make it worse, not better. Think about what the Pledge does to a child who cannot in good faith affirm that the nation is under God and who actually thinks about it. And let me tell you, kids think about it. You don't think about it if you're comfortable with it, if it doesn't challenge anything you believe, you blur right over it. You can say it pretty fast, and most of us don't stop to reflect on the Pledge anymore. But for kids who don't believe it, and maybe most especially for kids who once went to a church and now don't believe it, whether or not to say "under God" becomes a big issue. I don't claim it becomes a big issue for all 7.2 million whose parents show up in opinion polls, but for a substantial minority of kids, to say "under God" or not becomes an issue.

Some kids drop it out. One of the saving graces here is that it's only two words, so you can get away with dropping it out, and your friends may not notice. But there are people who refuse to say those two words because they don't believe them, and there are a few who refuse to say those two words because it's religious in a governmental context, and it shouldn't be there. It belongs somewhere else.

And for the child who cannot say it, here's what we do by putting the religious reference in the middle of the Pledge of Allegiance to the nation: If you are doubtful about the existence of God, you are of doubtful loyalty to the nation. What kind of a citizen can you be? You can't even say the Pledge of Allegiance in the prescribed form that Congress has written. You can't pledge your loyalty to the nation without pledging your belief in the existence of God.

Now over and over and over the Supreme Court has said the reason it will not allow the government itself to take a position on a religious question, will not allow the government to endorse a religious viewpoint or an anti-religious viewpoint is because government should not make any citizen's political standing in the community depend upon his religious beliefs, not even implicitly, not even by implication. The Court says repeatedly that if the government says this is a Christian nation or this is a religious nation, then non-Christians and non-religious folks will think the government really views them as a second-class citizens. That's pretty indirect and implicit. This is very direct and explicit. Now, children, it is time to pledge your allegiance to the United States of America, and to do that, you have to pledge that the nation is under God. We have linked religion and politics, religion and patriotism, religious faith and patriotic standing inseparably right in the middle of one sentence. And the only way to avoid the religious part is literally to drop out mid-sentence and then come back in.

What would follow from a Supreme Court either striking down or upholding the Pledge? I think because of the fact that the Pledge is unique in asking for a personal affirmation, not much follows about other cases from a decision striking it down. Political volcano is going to follow, but not much is going to follow legally. "In God We Trust" doesn't come off the coins, the other religious references in the school curriculum don't come out. Of course the government can teach historical documents that have religious references in them because that is part of the history curriculum. I think they can teach music with religious references in it because that's music. It's important in the culture. I think schools should be more sensitive than they are about the problems faced by nonbelieving children when they're asked to sing that music. I think we can deal with those problems, but I don't think the Constitution requires that all - indeed, I think it forbids - certainly, it's sound educational policy - forbids stripping all religious references out of history. Religion is part of history.

None of those things ask the child to personally affirm his belief that the nation is under God, so in this sense, the Pledge case is unique. A decision taking "under God" out of the Pledge would not really portend much change on anything else.

A decision upholding the Pledge, well, you've got to see how they write it. If the Court wants to say the Pledge is special, we're going to let this go by, but it doesn't mean we're unraveling all the school prayer cases, it doesn't mean anything else much changes. They can write this very narrowly. There is a whole list of objective factors that are special about the Pledge that cut the other way. They could say it is only two words; it is recited by rote; it is not a prayer; it has been around in exactly the same form for 50 years before we got a hold of it; kids don't have to say it - we settled that in 1943 [in West Virginia v. Barnette]; they don't have to say it. For those reasons, in combination with all those reasons, we're going to uphold this. Nothing else will satisfy all those reasons. Nothing else is only two words, for starters, and that would be an opinion that doesn't change much.

If they write an opinion that's like the government's brief - we're going to declare that this really isn't religious - the problem with that is that it's completely standardless and therefore it's completely boundless. It's a fiat. The plain language is religious, but five of us on the Supreme Court - hey, with five votes, you can do anything - we're going to tell the country this is not religious. The Fifth Circuit recently held the Ten Commandments are not religious. A big monument across the top, giant letters, "I am the Lord, thy God. Thou shalt have no other gods before me." Not religious, the Fifth Circuit says.

If the Supreme Court adopts that kind of approach - we'll just decree things not to be religious - then everything's up for grabs. If you're going to arbitrarily decree religious things to be secular, you can do it in any case, and district judges will be asked to do it in any case. So that would be a much scarier opinion, a much more potentially wide-ranging opinion, and then other possibilities sort of range in between. Any religion is okay if you're wrap it in patriotism. I think that's pretty wide open, too, because political officers can be pretty clever about wrapping things in patriotism.

So we may get an opinion either way - we may get a very narrow opinion either way or a very broad opinion, particularly if they uphold it. Watch not only for the result; watch for how they write it.

MR. DIONNE: Thank you very much.

(Applause.)

JAY ALAN SEKULOW: First, let me say that I probably agree with Doug on more cases than I disagree. In fact, the very first case I argued at the Supreme Court of the United States [Airport Commissioners v. Jews for Jesus]- which seems like a long time ago, because it was - Justice O'Connor wrote for the Court, and she relied primarily on an article that was written by Professor Laycock. So I've always appreciated that unanimous opinions are rare and getting rarer every day, especially in the Religion Clause cases.

Let me give you five reasons why the Pledge of Allegiance is constitutional and should be affirmed by the Court as not violating the Establishment Clause.
1. The Pledge of Allegiance is not in a form of prayer.
2. The Pledge of Allegiance does not refer to Christianity or any other particular religion. 3. The religious portion of the Pledge of Allegiance is only two words.
4. The Pledge of Allegiance was recited unchanged for 50 years before the Court considered the question.
5. And no one can be required to recite the Pledge of Allegiance.
That's the closing portion of the brief Professor Laycock filed, where he argued that if the Court was going to rule in favor the Pledge of Allegiance, here's five ways to do it. And it may well be what the Supreme Court does, because it does give a very specific approach, and I think a fairly persuasive one.

Doug talked about the 40 or 50 years of history when the Supreme Court has dealt with the school prayer issue and not allowing for school prayer in that context. There's another history that's over 200 years now, and it goes something like this: "God save the United States and this Honorable Court" - that's how this Supreme Court oral argument's going to start when Dr. Newdow presents his arguments before the Supreme Court next Wednesday.

So the fact of the matter is that the Supreme Court itself has had this cry as part of its opening ceremony described as an invocation. Students attend oral arguments frequently, including kids in high school and even elementary school. And when those justices stand up or walk in, the students stand up. And while they don't have to repeat it, students also don't have to repeat the Pledge of Allegiance, and correctly so, since the Supreme Court's decision in Barnett, which is now dating back almost 60 years, said you can't be compelled to violate your conscience, and in that way, if you are objecting to the form of the Pledge of Allegiance.

I think that the words "God save the United States and this Honorable Court," like the words of the Pledge of Allegiance, echo what our founding fathers thought, and that was that our freedoms, rights and liberties are derived not from government but rather from God granting them to mankind. And in a sense, it's a very Lockean concept. Thomas Jefferson talks about it. And even, of course, in the Declaration of Independence itself, how often have we learned or were required to learn and recite in school the words, the famous portion of the Declaration of Independence where it's written, "We hold these truths to be self-evident, that all men are created equal, endowed by their Creator with certain unalienable rights. Amongst them are life, liberty and the pursuit of happiness."

If the Pledge of Allegiance were to say something like that, I would suspect that there would be the same objection. Why? Because of its reliance on a Creator, and it is a concept where the Creator endows us with our rights. But in the context of the history of our country, that makes a lot of sense. Our country was founded on the concepts that the rights of man don't derive from a king and they can't be taken away from us by a king. The rights of mankind, the basic rights of mankind - liberty, freedom, the things that we cherish in this country - derive from a Creator. That's what our founding fathers mean.

It's often talked about, Thomas Jefferson's famous letter to the Danbury Baptist Connecticut Association, where he talked about what he called the "high and mighty duty in this wall of separation between church and state." There's something else that Jefferson wrote several years before he wrote that famous letter to the Danbury Baptists, and that was during the debates on the First Amendment and also in discussions with friends about the concept of liberty. He wrote, "Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that the liberties are a gift of God and that they are not violated but with His wrath?"

Now, Thomas Jefferson, in the classic understanding of his religious belief, would not fall within what most people would consider an orthodox Christian position. In my view of history anyway, I would not consider him to be - and I'm not speaking as a theologian- He had various views on religion and faith. I don't think faith was insignificant in his life, I don't mean to suggest that at all, but it wouldn't be what we would typically talk about today as a Protestant form of Christianity or Catholic form of Christianity. He kind of had his view of faith, Christianity, and the deity of Jesus, and that's a whole different topic.

But he recognized something very fundamental in that our rights don't come from a king; they are endowed to us. So if the requirement of the school district in Elk Grove was that we begin each school day by reminding ourselves, as students, that we should remember the history of this great nation, that we are endowed by our Creator with these rights, they're inalienable, and that the Creator bestowed them upon us - life, liberty and the pursuit of happiness - I submit that many people, Dr. Newdow included, would object, saying again it's this compelled reliance.

Now, nobody can be compelled, nor should they be, as I said, to recite the Pledge. Let's talk about the more recent history, and that is, what happened in 1954? Now, of course, the issue upon which certiorari is granted - and I am frequently reminded of that both when I'm watching arguments and when I argue them myself - is not the congressional action here, which is interesting. The United States asked for review of the 1954 congressional act amending the Pledge of Allegiance. The Supreme Court denied review there. They granted the school district's policy for review, which is a policy that said the school day will start with a patriotic expression. The Pledge of Allegiance would meet that patriotic expression.

In 1954, though, when the Pledge was modified to include the phrase "under God," what was motivating Congress? There were a lot of things motivating Congress. We were in the midst of the Cold War. There was this desire to treat and to establish the difference between how we viewed our rights and liberties, and how communism viewed these things, which is any rights that you have, whatever they might be, are derived from the state; the state is supreme. Congress, reflecting, again, on what the founding fathers thought, said, No, it doesn't work that way. We believe the foundation of our country is different, and this shows the difference. We believe that our rights come from God to mankind.

And I don't know if this is a true fact or not, but it's in one of the briefs, that Dr. Newdow is actually an ordained minister with the Universal Life Church, and I'm not sure if that's correct. What the Universal Life Church has as one of their - and I know they have a pretty broad view of what constitutes God - mission statements, it says that - and they use the phrase "gods" in terms of recognizing that individuals, us, are given what he calls "God-given rights" - freedoms, liberties. Again, this is part of the American experience.

Now, no one's required to believe that, and I don't think that that's the intent of saying the Pledge. Students who don't want to participate don't have to participate, and I think acknowledging the historical significance of how our rights are derived in the foundation of America is correct. The idea that you would be able to tell a student, You cannot be compelled to memorize the Declaration of Independence - which many of us remember having to do - and recite it because of its reference to a Creator, I would think would be wrong. Now, could you argue that there should be a religious exemption? Probably you could argue that under the Free Exercise Clause. These days, though, I don't know if any of us would be too persuasive on how that would go. But I will tell you this much: that is the historical fact. Our founding fathers did recognize- This was part of the Lockean concept of the rights of mankind, and you don't have to be a historian to check this out.

Let me do something I never do, and I really don't do anymore, but I'm going to do it anyway, and that is justice counting, which is always a very dangerous thing. And I'll just give two personal anecdotes. I've argued two cases this term. I argued a portion of the campaign finance case, and I argued a free exercise case. And I was joking with Linda Greenhouse from The New York Times - one of my favorite writers, I might add; I'll give that plug to The New York Times there - that in the campaign case - I argued just one section of it - I think I got 24 questions in about 10 or 12 minutes. It was a lot of questions. And I walked out of there saying, Oh, I don't know if we're going to pull that one off; it's going to be pretty close. And of course the opinion came out and the Supreme Court declared most of the campaign finance laws constitutional, but in our case we were successful unanimously. Well, I kind of misjudged that one - I was glad we were.

Then I argued a Free Exercise case about two months later, and I said it's going to be very close - 4-4 probably, with one justice deciding it, Justice O'Connor. She could easily go the other way on that particular case, I thought, against us. It was a decision coming out of the Ninth Circuit, which is generally never good news. I will tell you, the day I argued Locke v. Davey, there were two decisions decided that day. They were both from the Ninth Circuit and they were both reversed unanimously. Just saying all that - and in that case the Court ruled against us, including conservative members of the Court, 7-2.

So you just don't know how to justice count. But I will say, taking a look at what the Court has written about the Pledge of Allegiance, and really looking at a couple of justices that I would think would be key- Justice O'Connor has already made a statement specifically about the Pledge in context being constitutional, in the schools. She's talked about it being recited daily by tens of thousands of students. Interesting, for a case like this, Justice Stevens joined a portion of the opinion in Allegheny, along with Justice Blackman, Justice Marshall Brennan, and held that the state, regarding the Pledge of Allegiance as well as our national motto, would both be constitutional, calling it "ceremonial deism." Justice Brennan specifically, right in the Abington v. Schempp and the Engle cases, specifically said the Establishment Clause doesn't require the Pledge to be struck down at all, in his view.

Justice Powell - obviously some of these justices are no longer alive nor serving on the Court - Justice Powell stated that "religion permeates our history and the Constitution does not require that public school children be insulated from these historical truths," noting that there is a constitutional difference between acknowledging the role that belief in God has played in our nation's history and endorsement of God or any religious institution. This is important, assuming they reach the merits.

Now, Professor Laycock has made this statement in his brief, and it's good rhetorically, but I don't think it's correct contextually, with due respect, and that is "one nation" - the Pledge of Allegiance, "I pledge allegiance...one nation" - (cell phone rings) - under phones - (laughter) - "one nation under God," and of course ellipses in between. But that's not what the Pledge of Allegiance says. It doesn't say "one nation under God," and context matters in Establishment Clause cases. And I think the context of the Pledge and the history of how this country came into existence is going to point to what I would expect to be a Supreme Court decision affirming the constitutionality of the Pledge.

Let me give you my other two predictions - and generally I'm not correct so, Dr. Newdow, don't worry. Two other things. Assuming they reach the merits - and I think the standing issue, which is going to play a big part of this, I think it would be anti-climactic, in a sense, for most of us who are concerned about the Establishment Clause if they threw it out on the standing issue; but I've been there, Professor Laycock's been there, and we know standing matters to the Supreme Court of the United States, especially this court. Now, you've got the dynamic of Justice Scalia not participating, which will make the oral argument different than it normally is, I will tell you - for good or for ill, Dr. Newdow; probably for good in your case. But I think you've got to look at the possibility in a case like this, assuming they reach the merits, that if justices start peeling off - in other words, if you've got a couple of justices that are inclined to dissent and say the Pledge is unconstitutional, if it's one or two, it could become three or four very easily, and then you end up with this dichotomy of a 4-4 split, which gives the Court two options - and I've been through one of the options.

One option is that they just let the decision go 4-4 and there is an affirmation of the lower court. In other words, for my side to prevail, we would have to obtain five votes. Dr. Newdow has to get four, the way the case is. Now, I did a case where there were eight justices - and I hope this doesn't happen to anybody, but I had this - I had eight justices on the Court - Justice Marshall had retired. I argued it the first day of the term, and I got a call on the very last day of the term. I was waiting for the opinion, of course. And Sandy Nelson was then the deputy clerk, and she called me up and said, "Jay, I hate to make this phone call, but the Court has asked the case to be reargued." Of course, it took them a whole year to figure that out, but this was the Bray v. Alexandria. It was the Operation Rescue Protest cases. We reargued the case in October of the next term, and the Court ruled in our favor, but I suspect that it was a 4-4 tie and this was the fifth vote, and Justice Thomas would have been the fifth vote. Then the decision came out and the Court ruled in our favor 6-3.

So I cannot explain that, I'm not going to explain that, I'm just going to say justice counting is a dangerous thing. And it's especially dangerous in a case like this, but this could be one of those cases where if one or two start peeling off, there may be a couple that peel off as well. On the other hand - and I would say this with caution as you're arguing these cases - Justice Stevens on flag burning, for instance, took a very patriotic - and I know you don't like the phrase in that regard but - and it didn't have a really religious connotation to it, but he has a lot of respect for the American flag and symbolism generally. And his statement, I think, in Allegheny, if he sticks to that and talks about ceremonial deism - which some people on my side of these issues don't like that term. It's never bothered me, to be honest with you. I don't think there's anything wrong with ceremonial deism. We're not a nation founded under Christianity, and we're not a nation founded under Judaism, but we do know what our founding fathers believed, and this is a general concept. But this could be one of those cases where justices start peeling one way or another. You could have a situation where the Court comes out with a 4-4 tie. It could be one of those.

So, having said that, let me close with this, and then I know there's going to be some questions. I think it would be revisionist history if we're going to start saying that students cannot say the Pledge of Allegiance, and revisionist in this context: the history, granted, of the Pledge itself is only 50 years old - it's not that old. But I'll tell you something: the religious heritage of the country goes back to its founding, and whether you take the very strict view of church-state separation or a more accommodationist view, or somewhere in between, denying the history is denying the fact. And I think that mandating a change in the Pledge or finding that those statements, those two words, as Professor Laycock pointed out so well in his brief, those two words create a constitutional crisis, I would hope the Court does not go there.

But this is going to be a fascinatingly important case, and Dr. Newdow deserves a lot- Listen, anytime you get to argue a case before the Supreme Court of the United States, win or lose, it's the thrill of a lifetime. I told him that before, and you got the case up there, and that's the hardest challenge sometimes. I don't know which is more difficult, though, the oral arguments or the press conferences after, but you'll get to decide that on March 24th. Thank you.

(Applause.)

MR. DIONNE: All right, this is training for the press conferences. And Jay must have recently filled out an NCAA bracket, because I loved his justice counting, and if Doug wants to fill out his own bracket on this case, feel free.

Here's what I'd like to do. I want to ask one question myself. I would like to give the first set of questions to my friends in the media, because they may actually have to write about this fairly soon. If you all could jump in - I'd love Dr. Newdow to jump in and have anyone else join us. At some point I'll probably start grouping questions together. We're supposed to end promptly at 11:30, so I want to get as many voices as I can in.

I just want to ask one question. This notion - I'm glad you brought it up at the end - of ceremonial deism strikes me as bothersome from almost everybody's point of view. In essence, it's the idea that references to God become meaningless if recited often enough in public places. And in a sense, that takes neither religious people nor people who reject religion seriously. And I'd just like to hear you both talk a little bit about this notion of ceremonial deism, because I have a hunch that if this case goes in an important direction - that is to say, if they don't punt all the important issues - that is something they're going to have to deal with. But whether I'm right about that or not, I'd like you guys to deal with it.

Doug, do you want to start - and also, feel free to answer anything Jay said.

MR. LAYCOCK: I think you're right. I think the principal religious division in the country used to be Protestant-Catholic. It's not that anymore. It is a continuum from intense anti-religion to intensely religious. Intensely devout Protestants, Catholics, Muslims, Jews find themselves on the same side of a lot of issues, given that divide, and ceremonial deism is very comfortable for the vast range in the middle. The religious center in America is low-intensity theist.

I think these ceremonial references are very problematic for the anti-religious and for the seriously religious, and many of the seriously religious, in good faith, defend that kind of watered-down ceremonial deism in court on the theory that it's better than nothing; that's all they'll let us have, that's all we can get in a government-sponsored forum, and it's not for me to tell them they're making a mistake. But it seems to me it is a mistake, and a lot of folks who are intensely religious aren't comfortable with it, and to some extent, it is a position only for the Court. So the Justice Department, representing the United States, says, This is not religious at all. But the form letter from the White House that goes out to people who write in about this issue says it is profoundly religious. They're telling the Court one thing and the public something completely different. The ceremonial deism is a placeholder.

MR. SEKULOW: I'll go quickly, because I addressed the issue and covered it, but I'll give you two quick thoughts.

I don't for those who are anti-religious - and I know there are people who are anti-religious- I mean, the fact of the matter is you could be anti-something or pro-something; it's a free country, and neither the anti-religious nor the majority religion have a veto right over everybody else. And I think that's one thing.

Number two, a lot of people on my side of these issues normally, Doug, get nervous about the phrase ceremonial deism. I've never had a problem with it. I think what Justice O'Connor said is right. It's one of these phrases that does tend to solemnize an occasion. It expresses hope for the future and reflects our past, but again, you're not compelling anybody to say this. You're not compelling anybody to believe this, but I suspect there'll be a lot of questions - I mean, I'm guessing again - on the issue of ceremonial deism. I've had that happen on a couple of the cases that I argued on those issues where prayer came up, and even in some of the earlier cases, in the early '90s. That's an issue that's going to come up. The ceremonial deism question is going to, I think, play in this probably significantly.

MR.: Assuming they get to the merits.

MR. DIONNE: Just to follow up, I'd like both of you to comment on whether there is a path that we go down that essentially declares that the public realm - whatever is supported by government - must necessarily be godless, or is there an alternative to this? Does this case take you there or does it not necessarily take you there?

MR. SEKULOW: I think this case says you don't have to be godless. You can accurately reflect the historical precedent of the country's founding. That's how I would pitch this case. If I were arguing this case to the Court, I would be talking about the historic fact of patriotic expression. Sure, it's got religious overtones, but so does the "Star Spangled Banner" and a host of other religious music and songs and documents of our country. It's part of who we are.

So, yes, I think it can reflect- If you don't want to be in a situation where the next thing - and maybe some do - that we're fighting over is whether you really can have those students memorize the Declaration of Independence and be required to recite it as my teacher required me to recite it flawlessly, and if you didn't do it flawlessly you did it again, and it could go on, for many of us, for weeks.

MR. LAYCOCK: There's no path that leads to the public sphere being godless. There is a path that leads to any activity sponsored by government being godless. The simple absolutist rule is that if the government's sponsoring it, there's no mention of God. In the public schools, the Court has never found a case where a government could mention God, but they've never said this is an absolutist rule with no exceptions either.

This case does not take us there. It does not present the question whether there can ever be any exceptions because this case has the unique feature of requesting a personal affirmation. So a decision in this case wouldn't say anything about whether the rule about what the teacher can do is absolute or the rule about what the president or the governor or the mayor at a public ceremony can do. That's never going to be absolute.

MR. SEKULOW: But it would say something about what the Supreme Court can do when they open up their session and those students are required to be there and stand up.

MR. LAYCOCK: They're required to stand but they're not required to repeat it or agree with it.

MR. SEKULOW: But they have to hear it.

MR. LAYCOCK: "Pledge" is a strong word, right? This is half a step short of a loyalty oath, right? "I pledge allegiance" is unique. We don't do that in any other context, and what the language says it is not plausibly about history. It doesn't say anything about what the founders believed or what they were thinking. It's in the present tense. It's in the first person. It is what I, the student, believe today about the relationship between this nation and God. That's what's so troubling about it.

MR. SEKULOW: So if the Pledge of Allegiance were to read like this: I pledge allegiance to the flag of the United States of America, a nation that recognized that we are all created equal, endowed by our Creator with certain unalienable rights and amongst them are life, liberty and the pursuit of happiness. That's okay with you?

MR. DIONNE: He still knows it by heart.

MR. LAYCOCK: He still knows it by heart. That would be much -

MR. SEKULOW: Mrs. Sopher required me to know it by heart and I'll never forget it.

MR. LAYCOCK: That would be much less troubling, because that is a description of something that actually happened in history.

MR. SEKULOW: But that's a pledge and it says God -

MR. LAYCOCK: Yeah, I know.

MR. SEKULOW: - is the Creator, which, to some people, is even more significant than - okay. Just curious.

MR. DIONNE: It's fun watching lawyers. Yes, please?

ROB MARUS: I'm Rob Marus from Associated Baptist Press, and I have a similar question to what E.J. just asked, specifically for Mr. Sekulow, but from a slightly different perspective. You mentioned earlier that you're speaking as a lawyer not as a theologian, but every Christian, every person of faith, is a lay theologian in one way or another. And so, as a Christian -

(Off mike.)

MR. MARUS: Right. As a Christian, how would you respond to Professor Laycock's argument that - does it not bother you theologically, as a Christian, that what you have to assert to win this case on the constitutional merits is that the phrase "under God" doesn't really mean anything?

MR. SEKULOW: No, because I don't think -

(Off mike.)

MR. SEKULOW: (Off mike.) No, I don't think it presents a difficult question because again it's acknowledging- It's not a theological statement. It is a statement that reflects an historical fact. This is what our founding fathers believed, and so I don't think it presents either a constitutional crisis or a theological one. Having said that, obviously, five justices of the Supreme Court thought that it presented enough of a constitutional crisis that they're going to review it. So, no, I don't think it's disjoined. I don't think it has to be a particular theological belief.

MR. DONNE: Wait for the mike, I'm sorry. And if you could say who are you, that'd be -

JIM PUZZANGHERA: Sure, Jim Puzzangahera with the San Jose Mercury News. Professor Sekulow touched on this a little bit, but I'm wondering if you all can elaborate on it. Justice Scalia's recusal from this case, how does that affect the dynamics of both the oral arguments and the Court's deliberation of the issue?

MR. DIONNE: As Richard Nixon used to say, I'm glad you asked that question.

MR. LAYCOCK: It does a lot of things. One thing it does is take the option off the table of sending the case for re-argument, because Justice Marshall was going to be replaced, but Justice Scalia is recused forever, having announced how he thinks the case ought to be decided while it was already on its way to the Court. So they've got to deal with this with eight. Four to four affirms the judgment below without an opinion of the Supreme Court, without effect as precedent, so the "under God" in the Pledge would be unconstitutional in the Ninth Circuit and unresolved everywhere else in the country.

And it changes the dynamics of oral argument because Justice Scalia is a very active and aggressive questioner. He's not the only active questioner, so it'll still be hard for the lawyers to get a word in edgewise. If you get to count the words in transcripts, the justices typically say more words than the lawyers now, and that's been true for a while. But Justice Scalia is particularly aggressive, and Mr. Newdow won't have that to deal with that. He'll have plenty else to deal with, I'm sure.

MR. SEKULOW: Can I say one thing on the argument side? It is going to be a different dynamic, but the two most active questioners generally are - it depends on the case - are Justice Scalia and Justice Ginsburg. They tend to ask a lot of questions, Justice Breyer does, too, and they all are pretty active. Even though Justice Scalia is not going to be there, there will be lots of questions. I've had that situation, too, where you're expecting a lot of questions and you don't get them. That's kind of the worst thing - you want the questions. The dynamic, I think, will be different. I agree with Professor Laycock. I think it's going to be quite different.

MR. DIONNE: Ma'am, please.

ALEX McRAE: Alex McRae, Marketplace Radio. I was wondering what implications this case would have for currency in the message "In God We Trust" on the U.S. dollar notes and coins.

MR. LAYCOCK: I'm sure there are people who fear it portends that any governmental reference to God goes, and so the currency all has to be changed. I don't think that follows at all because no one has to agree with the currency or pledge allegiance to the currency or even pay any attention to what it says on the currency, beyond the number.

MR. SEKULOW: I do think the lawsuit will follow, though. If the Pledge of Allegiance is declared unconstitutional- There have already been a series of cases on the national motto. Most recently, I handled one in Kansas. The district court ruled in our favor, and there was no appeal taken in that case. But I would expect that whether it applies or not, you will see those kind of lawsuits being filed if they declare the Pledge unconstitutional.

Whether they'll succeed or not, that's going to depend on how this opinion's written and what the Court says. But to say that it's not going to have far reaching consequences if the Pledge is struck down as unconstitutional - even if it is a four-four decision, which, as Professor Laycock said, is just an affirmance of the judgment - I will tell you that there will be school districts all over the United States that are going to say, Well, look, we're going to not read the tea leaves here. We don't want to get sued and lose again, so we're just going to stop saying the Pledge. I think that will be a ripple effect of this, too.

MR. DIONNE: This gentleman over here, then Linda Greenhouse and then our good friend Al in the front.

SETH LINDEN: Thank you. Seth Linden, NBC News channel. Two questions. The first one is, very simply, who will actually be arguing the case on Wednesday and how does that affect the dynamics? And then I have a second question regarding the Ninth Circuit.

MR. SEKULOW: Well, as far as the argument goes, Dr. Newdow's representing himself, what's called pro hac vice. He was admitted - he is a lawyer and he's - are you doing it pro se or pro hac vice?

(Off mike.)

MR. SEKULOW: Yeah, I think they granted both actually, the way the order - it's worded because it approved your motion, which means he's arguing it on behalf of himself, and since he's a lawyer but hadn't applied for admission, they'll waive him in. He'll argue the case. The school district is represented by a lawyer in California, and the Department of Justice, Solicitor General Ted Olson is given 10 minutes.

The oral argument is a blast anyway - win or lose, oral arguments are a lot of fun. Professor Laycock's done several - they're fun, but the briefing of the case is sometimes overlooked by the public. That is really, to me, always the critical aspect of the case, how it's presented, how it's framed, and I think the issues here, because of the standing issue, you could have an argument that focuses on that. W're thinking we're going to hear a lot about the Pledge of Allegiance, but we may hear a lot of questions about standing. So it's going to be an interesting dynamic there.

MR. LAYCOCK: I especially agree with that last point. I have a feeling the justices know what they think about the Pledge of Allegiance. The standing issue is complicated. I would not be surprised if three-quarters of the time is devoted to standing. I'm not predicting that, but it sure wouldn't be surprising.

MR. SEKULOW: And I wouldn't be surprised either, because I think they come to this with a good framework in their own minds on how they're viewing the Pledge, but the standing issue is- It's never easy, and this Court particularly has been very concerned about standing, and I think to ignore standing here - and you can imagine the school district's going to talk about it. It's in all the briefs. We've all talked about it. I think there'll be a lot of questions on standing.

MR. LINDEN: And then my question regarding the Ninth Circuit: There is an effort in Congress right now to essentially break off part of the Ninth Circuit and create a new circuit. This has happened in years past, but there seems to be some momentum this time because of the Pledge decision and, in fact, the Judiciary Committee is actually going to hold a hearing on this. Do you think, based on this case, that now there's actually some real possibility that that would occur?

MR. SEKULOW: I'll give you my view quickly. The last split we had in a circuit was the Fifth creating and then the Eleventh and that was because of - not because of decisions. It was because of volume. If there was a split of the Ninth Circuit, I don't think it would be because of this decision or any decision. I think ultimately it would be because of the volume of cases, and that is a big area, is just so significant.

I take a very cautious view there. I mean, I've had the Ninth Circuit rule for me, and I've been reversed. I've had the Ninth Circuit rule against, reversed it and I've had it where I've won at the Ninth Circuit and won at the Supreme Court. There are some circuit justices on just about every circuit that you could find a disagreement with. That's not a basis upon which you start splitting the circuits.

If the Ninth Circuit is actually split, though, I think it's going to be the sheer volume of cases that are being handled by the Ninth Circuit just because the size of California is so significant that they're going to have to do something.

MR. LAYCOCK: This is an old proposal, it's been around for 20 years and it desperately needs to be done, because the circuit's too big. It's impossible to do because California's too big. Nobody wants one circuit that's only California, where two senators dominate the appointments and another circuit that's everybody else, and nobody wants to split California and have L.A. in the Ninth Circuit and San Francisco in the new Twelfth Circuit with different federal law within the same state. That is the core impracticality of the problem, and nothing about this changes it, so I assume this hearing is grandstanding.

MR. DIONNE: I imagine some members of Congress want the Ninth Circuit to cover only the Aleutian Islands but that's - (laughter.)

Linda Greenhouse.

LINDA GREENHOUSE: Hi. Doug, you argue that the Pledge requires an affirmation of personal faith and consequently has got to go. Jay, you say no, it doesn't - it's not an affirmation of personal faith, so it's okay. One point of view that's not represented here, but it's in some of the top side briefs - I guess, John Whitehead for the Rutherford Institute - is that yes, it requires an affirmation of personal faith and that's fine. And the Court should say that's fine. Is that a possible outcome? Can you play around with that a little bit?

MR. SEKULOW: I can't imagine the Court saying that - if they hold the Pledge constitutional, I think - actually, if they hold the Pledge constitutional, I think, it's going to be for the five reasons that Professor Laycock laid out in his brief. I think that is a pretty straightforward way for the Court to go if they decide it's constitutional. I can't imagine them saying the Pledge is constitutional, and you must believe it when you say it.

MR. LAYCOCK: I think that's quite unlikely. It's not impossible, but let me just give you 30 seconds of the background. What the Court has said over the years on political issues the government can try to lead public opinion - which it does all the time, it tries to rally public support for its own agenda - but it cannot coerce people to agree with the government or to say that they agree with the government. And that's why in 1943, when the Pledge was entirely secular, it didn't have "under God" in it, and the Pledge case got to the Supreme Court, they said, You can't make students say it. Any student can opt out, but the teacher can lead it. On religious questions in the school prayer cases, they've said opt out isn't enough, because it's really outside the government's jurisdiction, the government isn't responsible for leading public opinion on religion, so the government can't do it at all. It can't ask the kids, even with an opt-out right, to say anything religious, and that's why I agree with Jay.

It would be quite unlikely for them to say this really is religious, it really is an affirmation of faith and the government can ask you to say it as long as it gives you the right to opt out. That would be a striking departure from the structure of doctrine they've set up over the past 60 years.

MR. DIONNE: I want to turn to Al, and I want to invite Dr. Newdow, anytime you want to jump in, just raise your hand. We'd love to hear from you.

Al.

AL MILLIKEN: Al Milliken, an affiliate with Washington Independent Writers. If our nation was not under Christianity at the birth of our Constitution, which I think scholars generally acknowledge Thomas Jefferson, whether he was a deist or a heretical Christian or a Unitarian, whatever he was, he was a religious man, obviously. But whether he was a Christian or not isn't relevant as far as the Constitution goes. But why did our Constitution refer to a Christian Sabbath, not a Jewish or a Muslim or an atheist Sabbath? And why was the document dated in the year of our Lord? Would anyone dare to say that that Lord is anyone other than Jesus Christ? And - I do have a question - well, not a question, I just - a warning for -

MR. SEKULOW: Why don't we try that one first.

MR. MILLIKEN: Well, for Michael Newdow, I wanted to mention, though, that should he win this case, couldn't he face the same fate that other past Supreme Court winners - Norma McCorvey, Bill Murray, might the same thing happen to him? He might be joining them for eternity as a Christian brother.

MR. SEKULOW: Well, let me answer the legal - (laughter) - question, and Professor Laycock also. I've just completed a dissertation on a lot of the historical backgrounds, mostly focusing on the Supreme Court justices, not on the founding fathers. But what becomes very clear is that a lot of terminology was used by the founding fathers and by Supreme Court justices that we take in one context and, culturally, at the time, meant something very different. It's not to say that they were not people of faith, but there is no doubt about it, I mean, if you study history in America, it was a pretty broad - even within the founding fathers, a pretty broad swath of faith.

And statements like "In the year of our Lord" were the customary ways in which these documents were signed. It does not mean that they were anti-religious. Obviously they included them in there. The Declaration of Independence, I think, as a foundational document established how Americans viewed the relationship between rights, liberty, mankind and God, and I think they did it in one document and actually in one portion of that document.

A lot of the justices, for instance, had said this is a Christian nation, in 1892, 1864. We're Unitarians. Now, I'm not saying that they weren't Unitarians, weren't Christians, it's just that it wasn't what you would typically think of as Protestantism as we know it. So you've got to look at the cultural context to understand.

Now, having said all of that, to remove that history, I think, would be very dangerous. The fact that there was this general belief in the way rights derived to mankind, to remove that, I think, would be wrong.

MR. LAYCOCK: I agree with most of what Jay just said. Let me elaborate a little bit further and add a piece that I think is very important here. The founding generation fought hard about religious liberty, but they fought about the issues that were controversial in their time. And the religious liberty issue that was controversial in their time was how do you fund the church? And it was controversial because Protestants disagreed about it, because Episcopalians and Congregationalists had had tax support and nobody else did, and fixing that, not surprisingly, produced a huge fight.

They did not fight about these sort of religious references in public documents and public events because there was broad diversity of opinion, but the country was overwhelmingly Protestant and there wasn't any disagreement there big enough to get a fight going. The disagreement became big enough to get a fight going in the 1820s, when they started creating public schools and conservative Protestants said you Unitarians - Horace Mann was a Unitarian, and he was the founder of the public school movement - you Unitarians are putting watered down Christianity. It's not much more than Unitarianism in the public schools. We want real religion in the public schools. And then the huge Catholic immigration began and you got much bigger fights between Protestants and Catholics about what to do with the schools. And really, today's battles over prayer in the public schools and funding for private religious schools both of those battles date to those early 19th century disputes and the Protestant-Catholic conflicts that comes all the way down.

Now if the Religion Clauses of First Amendment are a guarantee of principle that government will leave each of us alone, give us as much religious liberty as we can, that principle encountered a whole new set of applications when religious diversity became greater and when the public schools got going. And so to say that in the Declaration of Independence, which is our founding political theory but it's also a political document to rally opinion, that they invoked both the secular rationale, natural law, and the religious rationale, nature's God and our Creator, they did both, that's true. And that was shrewd, but I don't think that tells us anything about how the government should handle religion when it has other people's children in its custody.

MR. SEKULOW: There's also this misconception that's out there, especially in the school prayer debate. People think that students can't pray in school. Just to end that conflict, because I argued both cases and it's very clear now, student-led and student-initiated activities are allowed. For instance, in the Bible club settings, or in the see-you-at-the-poll events that are held annually at schools, or voluntary prayer groups that want to meet every day on public school campuses during break time or lunchtime, they absolutely have the right to do that. The Supreme Court is basically unanimous on that point.

What they can't do is have the school's machinery involved, and that's where it's going to be interesting, because I argued the Texas football game prayer case policy, and the Court said there that even though the policy had changed, looking at the history of the case, gee, there was too much school involvement. So that's the line drawing here, and how that plays into the Pledge case is going to be interesting, because you run into all of those lines plus the ceremonial deism issue. So all of those are going to come into play.

MR. DIONNE: I want to bring in Dr. Newdow. There are very patient people here, the lady in the gray scarf, the gentleman in the blue shirt, the gentleman in the green tie. But let me bring in Dr. Newdow first and then you all can - thank you for your patience.

MICHAEL NEWDOW: I would just say, to Jay especially, since he's obvious on the other side: This idea that this is history and you really want to maintain our history, et cetera, it just seems to me, with all due respect, bogus. I understand that you really want that history, but that's not what anybody is complaining about. The people didn't have this outcry, this didn't get onto the front page and 99 senators didn't go stand out because they're concerned about the nation's history.

Roper did a poll in 2000 of students at the top universities - 55 top universities and liberal arts colleges. They asked about some historical facts. Who's the father of the Constitution? Where do you find "Of the people, by the people and for the people?" They gave four choices and for the father of the Constitution, 23 percent got it right. For the Gettysburg Address, 22 percent got it right. That's worse than random chance.

MR. SEKULOW: But that's an indictment of the public school and -

MR. NEWDOW: No, that's Harvard, Yale, Stanford. These are the best - seniors of the best universities. These people don't know this stuff.

MR. SEKULOW: Maybe they need to modify the SAT.

MR. NEWDOW: That has nothing to do with what this case is about. This case is about people wanting to have God and do exactly as you just referred to, to have the machinery of the state used so that they can further their religious views.

MR. SEKULOW: Let's be realistic. Everybody's reviewed the brief and realism is those who are going to be opposed to the Pledge are going to say it's too much state machinery involved. Those who are saying it's really not are going to say it's not, it's this kind of ceremonial acknowledgement. And the question's going to be how do the eight of them line up?

If I were arguing for the school district, I wouldn't run away from the fact that the policy says the teachers will lead in a patriotic exercise and this - you run away from the facts - and you'll find this out because I'm sure you won't do this, but a lot of lawyers do and it's a mistake - is well, here's my facts and this is how I'd like to pitch it. They're going to want the broad implications here across the board.

MR. LAYCOCK: I think that's kind of a category mistake. Clearly, you've got the machinery of the state involved here because the teacher in the classroom. I think your argument is that it's not religious enough, it has this historical interpretation. You can do other things with it.

MR. SEKULOW: Your five points.

MR. LAYCOCK: Let me say another thing about those five points. You know the phrase "damage control," right? What I did in the brief I filed was make the strongest argument we could make about why this really is unconstitutional. Partly because it might persuade the Court and partly because they need to at least understand they can't blow this off. This is a serious problem. Asking kids for a profession of faith every morning is a serious problem.

And then if they're determined to uphold it anyway, well, I don't have a vote on the Supreme Court, so I can't control that. They'll either write a better opinion, and I suggested to them here's the narrowest way to do it. If you're determined to uphold this and you don't want to do any damage to anything else, here's how. That's what those five points are, but I can't imagine that the low involvement in the machinery of the state is going to play a role in it. This is in the classroom.

MR. SEKULOW: Yes, but it's going to depend on whether the Court looks at it as a school prayer case or a patriotic expression. I tend to think they're going to take your view, at least your alternative view, which is that this is more of a patriotic expression. It's limited in context. Doug's brief argued aggressively that the Pledge should not be given, but he brings five points up as kind of the assuming - (inaudible) - if you don't go with me, here's the way you should go, which may well be the way the Court goes, because it's a fairly narrow position and it doesn't create any of the firestorm after the fact.

MR. DIONNE: Sekulow quotes Laycock's words against him. (Laughter.)

Ma'am? The lady in the scarf, yes.

LEE McAULIFFE RAMBO: My name is Lee McAuliffe Rambo. I'm a freelancer. Much has been made of the fact that there are only two words here, but one of those words is a preposition, which, to at least some ears, implies a particular type of God, one that we are under, one that is transcendent. And I wonder if consideration of that aspect would move this particular phrase beyond ceremonial deism?

MR. SEKULOW: But it's an historical fact that the phrase under God- Most people think it originated in the Gettysburg Address, when President Lincoln said "This nation under God shall have a new birth of freedom." But actually it predates that by almost a hundred years, because General Washington - I think he was Colonel Washington then actually - in his order to the Continental Army said, "Millions of lives are in jeopardy, both born and unborn" - talking about posterity - "and this army under God" - now, does that mean that this army's under God? That's how they viewed the interplay of Divine Providence. That's what they meant by that.

And, again, the Pledge is an historic statement. You can't change the history; you can debate what the history means, but the words they used are- Fortunately for all of us, we have them, and that's what they meant and that's what they said.

MR. DIONNE: Yes. Do you have a quick follow-up?

MS. McAULIFFE: Yes, I did actually. I guess my concern is that if you reject the historical document argument, it does seem to imply that we're asking people to affirm a particular type of God, which in 2004, many, many people do not affirm.

MR. SEKULOW: Yes, but let's say you don't agree with the historical document, say the Declaration of Independence. Again, Mrs. Sopher requiring us to memorize it when I was in junior high. There's no dispute that that's what the document says. It says we're endowed by our Creator with these rights. It was a Lockean concept that rights derived not from the King of England, because then the king could take them away, but derived from God to mankind. That's what they thought, whether they were deists or whatever their views were theologically, that is what their overall and overarching propositions were, and that's their thought process.

So you could say you don't agree with the historical documents or you don't assume they're historic, you could argue anything, but I think they're pretty clear.

MR. LAYCOCK: I think what she said was if you don't agree that the pledge is an encapsulation of those historical documents, right?

MR. SEKULOW: But it is, I mean -

MR. LAYCOCK: But it isn't. It doesn't say anything about history. It's about this nation right now, today, that it is under God.

MR. SEKULOW: But Doug, you would say that the Pledge of Allegiance that I read you, one that says "I pledge allegiance to the flag of the United States of America, a nation that was founded by believing that man was endowed by his Creator with certain unalienable rights life, liberty and the pursuit of happiness." That's okay with you?

MR. LAYCOCK: I didn't say okay, I said it's less troublesome, but here's what would be okay. Here's how you could make it okay. A nation founded by people, many of whom believed that. And then you can fill in anything historical -

(Cross talk.)

MR. LAYCOCK: I think that if you want to talk about history, let's talk about history. "One nation under God" does not talk about history. It talks about theology and the relation of this nation today to God today and it does say we're under, that is a particular kind of God. I don't think that's going to trouble the Court much because it doesn't eliminate many conceptions of God, but it does eliminate some, as I said. But it's hard to talk about God without talking about some conception of God. It's impossible to be truly neutral in God-talk because humans have evolved too many radically diverse understandings of God.

MR. SEKULOW: But the founding fathers believed that these were self-evident truths. So I guess it's just that we have a historical framework disagreement, and I think the Pledge is a reflection of that, and basically you think the Pledge is not, so that's the -

MR. LAYCOCK: And partly we have a disagreement about how you translate principles written for a Protestant country and apply them to a country that's only about 65 or 60 percent Protestant.

MR. DIONNE: Thank you. Sir?

THABITI ANYABWILE: Thabiti Anyabwile, Center for the Study of Social Policy. Your last comment, in terms of being only about 65 percent is a good segue for my question to you, which is, you opened your comments by saying, Professor Laycock, that your principle in deciding how to take sides on these issues was to think about how government can not take sides. In a country that is as pluralistic as you've described it, how can you apply that principle equitably when you're going to have this non-correspondence of outcomes? There's going to be winners and losers.

And if I could ask a question to Mr. Sekulow as well: What do you make of Professor Laycock's critique that the Pledge improperly, and perhaps even dangerously, combines patriotism with religious reference?

MR. LAYCOCK: Government spends about three-eighths of gross national product, so when the gorilla's that big, it's impossible for it to have no effect on anything, including people's religious views, but it can come close, and I think the key is to leave religious choices as much as possible at the individual level. If the individual's making the choice, that's good. If we are collectively making the choice, through an election or through an elected body or through a government appointed authority figure, that's problematic.

So the government decides that it's going to put religious content into the Pledge, and the government decides what the religious content is going to be, and the government decides how often kids should say it. It helps that we individualize to the extent of saying kids can opt out. They can refuse to say it. I don't think a lot of kids know that, I don't think a lot of teachers know that. I don't think teachers are explaining that to kids, but it's true. If they get the word, they can opt out. But we have collectivized the decision about what the national recitation shall be about the relationship between God and country, and I think we should not collectivize that choice. That choice should be left to each of us individually, and that principle, can we decollectivize the choice, can we leave it to individuals is the best guide we have to how do we get government out of the way and maximize religious freedom for all of us, including very intense believers and non-believers and everybody in between.

MR. SEKULOW: But I don't think we need to take it to the least significant - the "we can all agree" approach, because you get to such a low common denominator that it's meaningless, and I think again you start tinkering with much that is historical fact. No one can sit in this room and deny that our founding fathers in the Declaration of Independence wrote that these rights derived from God to mankind. You can't deny that fact, whether you agree with that proposition or not. That's what the founding fathers wrote. That's what's in the document.

So as far as the religious statements with patriotism - look, that's part of the tapestry of the American experience, and I think we'd be denying reality if we were to say completely that religious faith or religious beliefs intertwined with patriotism is somehow not part of the American experience. Now, could you be not religious and be patriotic? Sure. Could you be religious and not patriotic? Absolutely. We've seen that.

So I don't think it's that simple of an analysis. Believe me, you don't want me to sing any songs, trust me, I have a horrible voice, but if you were to sing a lot of the songs that are sung every day by Americans all over the country, they have references to faith in them and it's part of the American experience, and you shouldn't feel like you're left outside of this.

I want to say something about the opt out. I have heard that the opt-out situation on the Pledge has really been in great shape. When I was in school, there were students who left it out. We had kids who were Jehovah's Witnesses in my elementary school, and they left it out and nobody said anything bad. It was different during the 1950s, and I understand that, or right before that, I guess, right before the decision in '47 and as the decision was moved forward. But the opt out has worked.

Nobody should be compelled to violate their conscience by being required to say something. On the other hand, I don't think there's a minority right veto on the heritage of the American experience. That's how I view it.

MR. DIONNE: We've got two folks over here who have been very patient. The gentleman in the green tie, the gentleman right behind him, and then there are about three people over here - I'd like to both of you in together, those three in together and I think we're going to run out of time. I apologize to anyone else. I'm trying to leave no questioner behind, but I may have to in the end.

Sir?

MATTHEW CLOUD: Hi, thanks. Matthew Cloud, I'm a law student at Catholic. I have two brief questions. I was wondering if either of you would be willing to comment on the relevance, if any, that you think Article 6 and the No Religious Test clause has to the Pledge and the fact that the president can take an oath or affirmation and does not have to say, "So help me God" while - as you said, Mr. Laycock, that children uniquely in our country are coerced into reciting God.

Secondly, as to the opt out, I think it's worth pointing out that the policy here in Elk Grove essentially requires volunteerism. That is to say, the Pledge of Allegiance is going to be recited each day whether anyone likes it or not, and that raises issues both regards to whether teachers can be required to lead students, which is not at issue in this case, but it was a related issue. And secondly, is a policy that requires volunteerism really the kind of thing that Barnett contemplated?

MR. DIONNE: And could you pass the mic right behind you to - thank you.

KENNETH JONES: Kenneth Jones with Congressional Quarterly, and my question is hard to group with that one. But I'd like each of you -

MR. SEKULOW: It's just like a Supreme Court case.

MR. JONES: - I'd like each of you - I want to ask about standing because, as Dr. Newdow puts it in his brief, it bears on the role of religion in the public sphere. He says he has standing because his child will be taught that her father's beliefs are those of an outsider and, in addition, that he has standing because of the conflict his child may experience when forced to express a religious belief she knows her father denies. I'd like each of you to address that on the merits and on the likely reception by the justices.

MR. LAYCOCK: There are a couple of briefs that go to the questions you posed. There's a brief that emphasized the test oath clause, which says ,"no religious oaths shall be required for any office in the United States," and that doesn't control here, but it reminds us of the founders' suspicion of oaths, and this comes very close to an oath, and that's not a knock down winner one way or the other. It's a factor that reminds us why this is troublesome.

There's a brief that uses the model of oath or affirmation for the president, for witnesses in court, for cops getting search warrants, for lots of people. Oath was understood religiously in the framers' time, affirmation was the secular alternative, and suggests you can do a religious version of the Pledge if you provide a secular alternative. That's kind of like opt out, but, I think, in their view, a little different. They want the government to write two versions.

Volunteering to opt out is always a problem, but that's why the Court has said in a religious context you don't have to call attention to yourself and opt out that way. They may make an exception here. It is pretty easy to just drop out for two words and you can get away with that for years without being noticed if you're moderately clever.

Standing - this is partly a problem of American family law, that there are a lot of divorced parents. Somebody's got to be in charge if the parents can't agree anymore, and the Court might say, you know, Mom is in charge because she got the top side in the last custody order. On the other hand, standing is a very - and it's not on the other hand, it's on the same hand - standing's a very attractive way for the Court to duck this whole problem. There will not be a political explosion if they find that there's no standing room. But, on the other hand, those arguments you've made, you've recited, make absolute sense. A parent cannot object to a child studying political ideas the parent disagrees with, but a parent ought to be able to object that the government is taking sides on a religious question, as between the two parents.

MR. SEKULOW: Really quick, because I know we're running out of time, I don't think the oath clause is involved here at all, because obviously this is not a requirement for public office or any other office. I think it's interesting but irrelevant.

On the standing issue, though, I suspect three-quarters of this argument could be on the standing issue. And I think that's going to be the most difficult for Dr. Newdow, because he's the advocate and the client. I'm sure he's worked that through in his moot courts, because the standing issue is - and I agree completely here with Doug - if the Court were to decide it doesn't want to decide the merits of this, it is very easy to say the mother had custodial control for the education. Thus, if she wanted to send the child to parochial school five days a week, his only way to object would be to go back into court and show that it's not in the best interest of the child. And no Supreme Court wants to get into domestic disputes like that. But I do think the standing issue, which is the first issue that is going to come up in this case, and I suspect it will come up in the argument significantly, is going to play a major role here.

MR. DIONNE: Now, we've got some folks over here. If you could be very, very quick with a quick question, we could get everybody in, and they could close on these.

KEN MASUGI: Ken Masugi, the Claremont Institute. I find both sides' reasoning somewhat muddled. Could you apply it to the case of the Presidential Proclamation of Thanksgiving? That's not covered by the First Amendment. How far could the president go without violating the Constitution in proclaiming what is obviously a - to some extent at least - a religious holiday? After all, we're not asked to thank football coaches.

MR. DIONNE: There was somebody else with a hand right behind the doctor.

PHILIP MUNOZ: Hi. Phillip Munoz - I'm a Pew Fellow at the American Enterprise Institute. Specifically for Professor Laycock: You want to narrow the ruling by saying that the government is requesting a pledge, yet none of the precedents you've cited - coercion or endorsement or even Lemon - would let you narrow it in that way. So are you advocating a new sort of test?

MR. DIONNE: Thank you. We'll close with that.

MR. LAYCOCK: Those two questions do go together. The general standard is the government cannot endorse a religious viewpoint. Thanksgiving Proclamations flunk that standard, right? It's an endorsement of religion. In my view, the president shouldn't do it. But we also have this recurring dictum running through the cases that some things are just too generic, too low level, too insignificant to worry about. The Thanksgiving Proclamations may be like that. Nobody pays any attention to it.

I'm on a list serve of law professors that argue about religious liberty issues, and when I tried to float the idea that Thanksgiving actually is a religious holiday, I just got hooted down. No one thinks of it as a religious holiday. They think of it as a shopping day and a football day and a stuff yourself day. My church actually has a Thanksgiving service, but not many others do, apparently.

Assuming this de minimus or low-level exception exists, you can't put a request for a personal affirmation into it. Request for a personal affirmation inherently is not de minimus. It is not below the threshold that doesn't raise a problem. It raises a serious problem when the government asks an individual American for a profession of faith. So that's the new step that I'm proposing. I wouldn't change the endorsement test for the stuff the Court views as important. I'm just saying you can't view this as unimportant.

MR. SEKULOW: I suspect that in this case, if the Court rules that the Pledge is in fact constitutional, you may see no mention of endorsement. You may see no mention of the three-pronged Lemon test as now modified. I think the Court could do a kind of Marsh vs. Chambers - the legislative chaplaincy prayer cases - and say, Look, this is part of the American experience. It's ceremonial deism, or whatever you want to call it. It doesn't rise to the level of a serious Establishment Clause problem. It's almost like a gimme.

And I suspect I would be very surprised to see the Court rule in favor of the Pledge and apply the three-prong test. They have gone a lot of different ways lately on that, so the Establishment Clause jurisprudence, as I've said and argued and written, is unclear, contradictory and difficult to apply, and they probably would say the same, and they do say the same thing.

MR. DIONNE: First, I want to thank Dr. Newdow for joining us. Thanks to a great audience who gave these guys excellent spring training for what they're going to face in the court. God save these honorable panelists, and thank goodness - (laughter) - thank goodness they agree on liberty and justice for all. Thank you.

(Applause.)

(END)

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Under God? Pledge of Allegiance Constitutionality

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10:00 - 11:30 a.m. National Press Club Washington, D.C. Speakers: Doug Laycock, Counsel of Record for 32 Christian and Jewish clergy, urging the Court to affirm the 9th Circuit's ruling Jay Alan Sekulow, Chief Counsel, American Center for Law and Justice; Counsel of Record for United States Senators and Congressmen and the Committee to Protect the Pledge, urging the Court to reverse the 9th Circuit's ruling Moderator: E.J.

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Social media platforms have increasingly become a hotbed for political discourse - with opinions ranging from the farthest flung left to the alt-right - leaving companies to sort through what represents a violation of their terms of service.

The events of Jan. 6, 2021, and the subsequent platform bans placed on former President Donald Trump for his role - real or perceived - reinvigorated legislative debate largely centered on two types of bills: anti-censorship bills and those that would draw hard lines around the responsibilities of social media companies to moderate their online communities.

So far, only two states have passed legislation focused on social media censorship. However, other states are moving in a similar direction, raising the question: Should government legislate how social media is used? Or do these laws cross the line and interfere with freedom of speech?

The answer is not so straightforward.

In 1997, the first social media platform - sixdegrees.com - was launched, allowing users to upload pictures, send messages and post bulletin board items. From there, other platforms like Myspace, Facebook, Twitter and more soon followed, connecting millions of people worldwide at the click of a mouse or tap of a finger.

As these platforms grew, issues around privacy and censorship started to emerge, prompting legislation to try and navigate these areas.

One of those policies is Section 230 of the Communications Decency Act. In 1996, the legislation was enacted by Congress but faced pushback after the American Civil Liberties Union and the American Library Association challenged its constitutionality.

The Supreme Court struck down one portion of the act for attempting tocriminalize the transmission of "obscene or indecent" materials online to individuals under 18. The court decided this would infringe on free speech, making it unconstitutional.

However, Section 230, a separate portion of the act, remained. Today, it protects intermediaries from laws that could hold them legally responsible for what platform users say and do online, protecting the likes of social media companies.

CAN FREE SPEECH BE RESTRICTED ONLINE? IF SO, HOW?

When it comes to the government, the First Amendment states that Congress cannot make laws restricting free speech.

However, when it comes to social media companies, they can set their own editorial rules and regulations because they are private entities, allowing them to take certain actions towards users' posts if they breach company guidelines.

Vera Eidelman, a staff attorney with the ACLU Speech, Privacy and Technology Project, expanded on the topic, saying, "Since I've been following the trend, the types of bills that are flagged require social media content, viewpoints of political figures and media outlets to focus on transparency."

"Florida and Texas recently passed these types of laws, but both are being challenged by a number of advocacy amicus briefs drafted by the Reporters Committee for Freedom of the Press," Eidelman told Government Technology.

In Florida's case, Senate Bill 7072 looks to levy fines and impose penalties against social media platforms that block or inhibit content from political candidates and media organizations.

NetChoice and the Computer and Communications Industry Association sued the state, resulting in a judge blocking the bill because it violated Section 230. The governor's office is in the process of appealing the decision.

As for Texas, House Bill 20 states that "a social media platform may not censor a user, a user's expression, or a user's ability to receive the expression of another person based on the viewpoint of the user or another person."

Like Florida, the law was legally challenged by NetChoice and the Computer and Communications Industry Association for violating the First Amendment, resulting in the state appealing the suit.

WHAT COMES NEXT?

"We are waiting for the lawsuits challenging the Florida and Texas laws to see what happens next," David Greene, the civil liberties director and senior staff attorney at the Electronic Frontier Foundation, said. "In each case, trial courts found that the laws did violate the First Amendment and put them on hold."

Each state's appeals will be influential, Greene said. If they are struck down, it could slow down the momentum of other states, but if one or both of them are upheld, there could be a wave of these types of laws.

In the meantime, other types of legislation can be proposed as an alternative to curb social media's power and reach.

"I would hope states look more into legislation that has to do with market dominance," Greene said. "That can be regulated under our constitutional systems and is different from regulating speech."

As for social media platforms, Greene said, people want platforms to do a better job at being more predictable; users need to put pressure on their services to make their content moderation policies more understandable.

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To Censor or Not to Censor: States Take on Social Media Giants

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Social media platforms have increasingly become a hotbed for political discourse - with opinions ranging from the farthest flung left to the alt-right - leaving companies to sort through what represents a violation of their terms of service. The events of Jan.

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Facts about how the Patriot act has effected citizens.

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Hastily passed 45 days after 9/11 in the name of national security, the Patriot Act was the first of many changes to surveillance laws that made it easier for the government to spy on ordinary Americans by expanding the authority to monitor phone and email communications, collect bank and credit reporting records, and track the activity of innocent Americans on the Internet. While most Americans think it was created to catch terrorists, the Patriot Act actually turns regular citizens into suspects.

Hastily passed 45 days after 9/11 in the name of national security, the Patriot Act was the first of many changes to surveillance laws that made it easier for the government to spy on ordinary Americans by expanding the authority to monitor phone and email communications, collect bank and credit reporting records, and track the activity of innocent Americans on the Internet. While most Americans think it was created to catch terrorists, the Patriot Act actually turns regular citizens into suspects.

On May 26, 2011, Senator Ron Wyden (D-OR), said, "I want to deliver a warning ... when the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry."

Under the Patriot Act, National Security Letters (NSLs) are issued by FBI agents, without a judge's approval, to obtain personal information, including phone records, computer records, credit history, and banking history.

Between 2003 and 2006, the FBI issued 192,499 NSLs, which led to one terror-related conviction. The conviction would have occurred even without the Patriot Act.

Abuse of Privacy: The Patriot Act does not require information obtained by NSLs to be destroyed - even if the information is determined to concern innocent Americans. Your info: Saved forever.

At least 34,000 law enforcement and intelligence agents have access to phone records collected through NSLs. In response to 9 NSLs, 11,100 Americans' telephone account records were turned over to the FBI.

The Patriot Act prohibits Americans who receive NSLs from telling anyone. These gag order provisions have been held unconstitutional in several legal cases.

Between 2003 and 2005, the FBI made 53 reported criminal referrals to prosecutors as a result of 143,074 NSLs.

143,074 NSLs, 53 reported criminal referrals:

17 were for money laundering.

17 related to immigrations.

19 involved fraud.

0 were for terrorism.

"Sneak & Peek" Searches: The Patriot Act allows federal law enforcement agencies to delay giving notice when they conduct secret searches of Americans homes and offices-a fundamental change to Fourth Amendment privacy protections and search warrants. This means that government agents can enter a house, apartment or office with a search warrant when the occupant is away, search through his/her property and take photographs-in some cases seizing property and electronic communications-and not tell the owner until later.

Of the 3,970 Sneak & Peeks in 2010:

76% drug-related

24% other

1% terror-related

To learn more visit aclu.org/patriot.

Source
1. http://wyden.senate.gov/newsroom/press/release/?id=34eddcdb-2541-42f5-8f...
2. http://www.justice.gov/oig/special/s0803b/final.pdf
3. http://thescienceofsecurity.org/blog/CT%20Since%209-11_by_Breakthrough.pdf
4. http://www.justice.gov/oig/special/s0703b/final.pdf
5. http://www.justice.gov/oig/special/s0803b/final.pdf
6.Report of the Director of the Administrative Office of the United States Courts on Applications for Delayed-Notice Search Warrants and Extensions for fiscal year 2010, on file with the Administrative Office of the United States Courts.

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Hastily passed 45 days after 9/11 in the name of national security, the Patriot Act was the first of many changes to surveillance laws that made it easier for the government to spy on ordinary Americans by expanding the authority to monitor phone and email communications, collect bank and credit reporting records, and track the activity of innocent Americans on the Internet.

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this is posted by Henry F

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James Madison. Courtesy: Library of Congress

James Madison

Born into a prosperous slave-owning family in Virginia in 1751, James Madison was baptized in the Anglican Church.

Madison was outraged to discover that a number of Baptist ministers had been thrown into a Virginia jail for preaching without licenses. He committed himself to fighting for liberty of conscience, which he equated with religious liberty.

Madison became a delegate to the Virginia Convention, which gathered in May 1776 to declare independence from Great Britain and to write a Constitution for Virginia. Madison objected to the use of the phrase "fullest toleration," because he believed that toleration of religious dissidents was more limited than a guarantee of full and complete religious freedom. Madison urged the Legislature to amend the declaration to recognize "free exercise" of religion rather than toleration. He lost the battle for disestablishment, but his suggested phrase, "all men are equally entitled to the free exercise of religion," eventually became part of Virginia's Constitution.

When the Founding Fathers met in Philadelphia in 1787, Madison served as the architect of the Constitution. Following Virginia, the Constitution gave the federal government no authority over religion, creating a free marketplace for religion.

The original draft of the Constitution did not contain any written guarantee of religious liberty; Madison thought it was unnecessary and unwise. But Jefferson disagreed, and he encouraged Madison to change his mind. Unwilling to let the anti-Federalists undo the Constitution and eager to get himself elected to Congress, Madison supported an amendment.

Madison's talent for negotiation helped to secure the passage of the Bill of Rights, including the guarantees of religious liberty contained in the First Amendment.

Thomas Jefferson

Keenly attuned to the intellectual currents of the day, Jefferson eagerly embraced the Enlightenment with its emphasis on reason over revelation and absorbed the tenets of Whig political theory that stressed the dangers of concentrated power and the importance of restraints on government.

Convinced that the state had no business coercing religious conformity, Jefferson made defense of liberty the hallmark of his career. In 1776, he wrote the Declaration of Independence. The following year, he introduced a Bill Concerning Religious Freedom to the Virginia Legislature. In 1787, he urged his friend and colleague James Madison to amend the Constitution to include a written guarantee of religious liberty.

Jefferson's campaign to end state support of religion fueled doubts about his personal religious beliefs. These doubts, which had swirled around him for years, emerged as a critical issue in the bitter presidential campaign of 1800. His Federalist opponents vilified him as an atheist and libertine. Jefferson fumed at the harassment coming from what he referred to as an "irritable tribe of priests" and even compared his persecution at the hands of the New England clergy to the crucifixion of Christ.

Jefferson won the election, beating his friend and rival John Adams. On New Year's Day 1802, he welcomed to the White House the dissident Baptist preacher John Leland. That same day, Jefferson replied to a letter sent by Baptists in Danbury, Conn., who chafed under the authority of the established Congregational Church. In his reply Jefferson invoked the famous metaphor of a "wall of separation" between church and state.

Like other Founding Fathers, Jefferson was considered a Deist, subscribing to the liberal religious strand of Deism that values reason over revelation and rejects traditional Christian doctrines, including the Virgin Birth, original sin and the resurrection of Jesus. While he rejected orthodoxy, Jefferson was nevertheless a religious man.

Influenced by the British Unitarian Joseph Priestley, Jefferson set his prodigious intellect and energy on the historical figure at the center of the Christian faith: Jesus of Nazareth. Jefferson became convinced that Jesus' message had been obscured and corrupted by the apostle Paul, the Gospel writers and Protestant reformers. While president, Jefferson took a razor to the Bible, cutting out portions of the Gospels that involved miracles and retaining his parables and ethical teachings. The resulting volume, The Philosophy of Jesus of Nazareth, affirmed his conviction that Jesus was not divine, but "a Teacher of Common Sense," primarily concerned with morality and ethical conduct.

Years later, Jefferson drew from the New Testaments in Greek, Latin, French and English to create The Life and Morals of Jesus, commonly known as the "Jefferson Bible." For Jefferson, it was the moral message of Jesus, not claims of his birth, death and resurrection, that lay at the center of the Christian faith.

God and the Constitution

In 1787, 55 delegates to the Constitutional Convention gathered in the city of Philadelphia to debate the foundational document for the newly formed United States. Despite individual differences, these men professed a belief in God as the Creator of the universe and believed that religion encouraged a moral citizenry, which they deemed essential to the success of the new republic. Yet they were keenly aware that European history demonstrated the power of religion to spawn sectarian strife and violence.

By time of the convention, the Founding Fathers and "ordinary" Americans subscribed to the idea of religious liberty. This was not an abstract principle but a vital, living concept influenced by multiple sources, including Whig political theory that rejected the concentration of political power; the experience of religious dissenters, British and American, who resisted the authority of established churches; and the religious revival known as the Great Awakening that stressed individual experience over orthodoxy. The concept of religious liberty was coupled with a corollary principle: The state must have no power to establish a church or to impose religious conformity.

With James Madison's guidance, the First Congress approved the First Amendment to the Constitution that begins: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." The amendment applied only to the federal government, not to the states.

Wall of Separation

The "wall of separation" is the famous and contentious metaphor invoked by President Thomas Jefferson in his reply to a letter from the Baptists of Danbury, Conn, who were a minority in a state dominated by the Congregational Church. In their letter, the Baptists sought to congratulate the president on his electoral victory, chastise his critics and celebrate his commitment to religious liberty.

Jefferson saw an opportunity to achieve three goals: to articulate important principles and influence public opinion; to justify his refusal to declare national days of fasting and thanksgiving; and to reassure his political supporters and his opponents that he was a friend, not a foe, of religion.

The final letter, sent to the Baptists on Jan. 1, 1802, quoted the language of the First Amendment and included the famous metaphor:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State.

Jefferson's metaphor lay largely ignored until 1947, when Supreme Court Justice Hugo Black invoked the phrase in Everson v. Board of Education and argued that the "wall of separation" must be kept "high and impregnable." Since then, no phrase has exerted a more profound influence on debates about the proper relation between church and state in America.

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People and Ideas: Early America's Formation | American Experience | PBS

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Born into a prosperous slave-owning family in Virginia in 1751, James Madison was baptized in the Anglican Church. Madison was outraged to discover that a number of Baptist ministers had been thrown into a Virginia jail for preaching without licenses. He committed himself to fighting for liberty of conscience, which he equated with religious liberty.

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You Don't Need a College Degree to Land a Great Job.

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https://www.aclu.org/other/surveillance-under-usapatriot-act