THE STATEMENTS AT ISSUE:

“The Justice Department’s decision to treat routine news-gathering efforts as evidence of criminality is extremely troubling and corrodes time-honored understandings between the public and the government about the role of the free press.”

– Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, in a statement issued May 21 that was quoted in various news stories, regarding an FBI document filed in court to justify a search warrant of emails of Fox News reporter James Rosen. The document suggested that Rosen may have acted “at the very least, either as an aider, abettor and/or co-conspirator” with an official who allegedly leaked secret information to Rosen.

“To treat a reporter as a criminal for doing his job—seeking out information the government doesn’t want made public—deprives Americans of the First Amendment freedom on which all other constitutional rights are based.”

– Dana Milbank, Washington Post columnist, in an op-ed article on May 22, titled “Criminalizing journalism.”

“If you’re asking me whether the president believes that journalists should be prosecuted for doing their jobs, the answer is no.”

– White House Press Secretary Jay Carney, in a briefing for reporters on May 21, quoted in various news stories.

WE CHECKED THE CONSTITUTION, AND…

Long ago, America’s press and government officials worked out a rough bargain under the First Amendment: The press would be free to publish information that the government would prefer to be withheld, but the government would retain the option of trying to punish those who leaked such information illegally.

The bargain has generally meant that reporters would not themselves be prosecuted as criminals for publishing unauthorized leaks, but that they could be investigated and, indeed, might even have to go to jail if they refused to identify their sources. It is an understanding that has left both sides not entirely trusting of each other.

What has stirred even greater distrust in recent days was the revelation that the FBI was treating a Fox News reporter as a potential subject of criminal prosecution, at least for purposes of a formal request to a judge for a search warrant in a sweeping investigation of the source of leaks to the reporter about North Korea’s missile program.

Reporters, of course, have gone to jail for refusing to obey court orders that they had to disclose sources of stories that the government was investigating to find the source. But, so far as anyone can remember, no reporter has ever been charged with a crime for publishing a leaked bit of information, even of the most sensitive national security data. That is what the FBI affidavit in the case of James Rosen seemed to suggest, although the White House press secretary has now sought to head off such speculation.

Most of the recent investigations by the government in high-profile news leak cases have involved the publication of information about national defense or national security, and there is no doubt that some officials in the government believe that the Espionage Act, which makes it a federal crime to release classified data, also applies to the conduct of the press in publishing such data. But that is a view that has never been supported by a majority of the Supreme Court.

In fact, in the famous Pentagon Papers decision in 1971, two members of the court—Justices William O. Douglas and Hugo L. Black—said explicitly that the Espionage Act does not apply to the press in any way. Whether or not that represented a majority view then or since, it is an understanding that has generally led prosecutors not to try to bring criminal charges against reporters or publications that printed classified information.

But the Supreme Court has also made clear that the First Amendment does not give the press a constitutional right to print classified information. Less than a year after the Pentagon Papers ruling, the Supreme Court said in the case of Branzburg v. Hayes that “it has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”

Elsewhere in that same decision, however, the court said it was not suggesting “that news gathering does not qualify for First Amendment protection,” and it added that “without some protection for seeking out the news, freedom of the press could be eviscerated.” The court elaborated on that somewhat, eight years later, in the case of Richmond Newspapers v. Virginia.

In that decision, the court ruled that the press shared with the public the right to sit in on government meetings or court sessions—so long as those traditionally had been opened to the public. The court, however, has never spelled out fully just what it meant by saying that the First Amendment provided “some protection for seeking out the news.”

Clearly, the prospect of facing criminal charges for “seeking out the news” about some classified government program or activity would be seen by the press as a threat to its news-gathering operations.

Whether such a threat ever will arise, no one can know at this point. On that, the press may have to wait until, perhaps some day, an adventuresome prosecutor decides that a reporter did act as a “co-conspirator” or as an “aider or abettor” to a leaker of such information, and attempted to pursue a criminal charge along those lines. That is not a day, however, to which the press ought to look forward eagerly; the outcome would not be predictable, whatever past experience has shown.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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THE STATEMENT AT ISSUE:

“Recognizing the potential danger to conscience rights posed by government oversight of worship practices, this court has repeatedly cautioned against government control of prayer content. The adoption of an endorsement test effectively nullifies this line of precedent. An endorsement test requires courts to play the role of theologian, making judgments about the prayers’ validity based on the supposed religious effect they are likely to have on observers.”

– Attorneys for the town of Greece, New York, in appeal papers asking the Supreme Court to rule on the constitutionality of opening the local governing body’s public meetings with prayers recited by local clergy. The court on Monday accepted the case for review at its next term starting in October.

WE CHECKED THE CONSTITUTION, AND…

Since 1962, the Supreme Court has been quite consistent in the constitutional view that prayer is a form of religious devotion that belongs in private settings—the home or the worship center—not in the halls of government. It broke with that consistency some 30 years ago, when it allowed prayer with decidedly religious content to be recited by a paid chaplain at the opening of a state legislature’s sessions. It said that was different, historically. After that, its skepticism about official prayer returned and has continued.

On Monday, the court signaled its willingness to reopen the entire issue of prayer in the public sphere, as a question under the First Amendment’s Establishment Clause. Just as the  justices have slowly grown more tolerant of government displays of the 10 Commandments, especially if those exhibits have been in place for many years, they may now be pondering a greater acceptance of official prayer—if it occurs in a setting where most of the audience is made up of adults.

A defining feature of most of the court’s rulings against prayer rituals is that they have come in the public school setting, where the audience is composed of impressionable youngsters. What has emerged in the most recent rulings—a decision in 1992 against officially sponsored prayers at a public middle school graduation, and a 2000 decision against such prayers at a high school football game—is the court majority’s concern that younger students may be coerced into conforming to a dominant religious theme, and, if they are of a different faith (or of none), will feel isolated and hurt.

In a word, that reaction reflects the fear of coercion—that is, the government sending the message to go along with religious dogma. The coercion theory under the Establishment Clause has been most identified with Justice Anthony M. Kennedy.

There is a rather subtle difference between that theory of coercion and another theory that the court has sometimes used in trying to keep religion and government separated: the theory of endorsement. That theory is closely identified with the work of retired Justice Sandra Day O’Connor.

That, too, is about government sending a message: When government appears to be sponsoring a creed linked to one faith alone, it is said to be passing the word that this is essentially the official religion. Appearances count more under that theory than they do under coercion theory, which involves the implied taking away of choice.

When the court agreed to hear the new prayer case from the city of Greece, New York, a community of about 100,000 people near Rochester, it stepped into a case in which a prayer practice at the opening of the town board meeting was struck down by a lower court using the endorsement theory. And, by granting review of that specific decision, the justices may well have been telegraphing a desire to second-guess the endorsement theory when prayers are recited at the outset of a public meeting of a government agency, with adults making up most of the audience.

Here is the way the appeals court summed up its ruling in the Greece town board case: “Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution.” What is forbidden, it went on to say, is a prayer practice that expresses “an official town religion.”

It is worth noting that, when the Supreme Court itself last used the endorsement test to strike down prayer in a public arena (the football game case), it did so with six justices in the majority, but now only three of those remain: Justices Kennedy, Stephen Breyer, and Ruth Bader Ginsburg.

That trio might still form the nucleus of a new majority in favor of continued application of the endorsement test to monitor the line between favored and disfavored religious expression, but again it may not. And the replacement, in the meantime, of Justice O’Connor by Justice Samuel A. Alito Jr. has definitely brought a strong new voice for acceptance of religious expression in the public sphere.

It would have been easy enough for the court to have passed up the Greece town board case, and stayed on the sidelines of the prayer controversy as it has for the past 13 years. It very well may mean something that it has decided to return to the fray, in a case where the appeal is so heavily focused on a challenge to the entire endorsement theory against official prayer.

In coming months, this case is sure to draw a heavy involvement by outside groups of many different persuasions, seeking to shape where the court goes from here on prayer.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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The court said it will grant a hearing in the case of Town of Greece v. Galloway, which involves the legality of saying a prayer before the start of public township board meeting. The court didn’t say on Monday that it will hear a second case involving public school graduation ceremonies at church sanctuaries.

In 2008, two Greece, New York, residents sued over the town’s practice of having a prayer delivered before board meetings, in a community heavily dominated by Christian churches.

At the heart of the case is the Establishment Clause in the Constitution’s First Amendment, which deals with issues about the separation of church and state. The residents who sued say the board’s policy about the prayers was tantamount to the endorsement of a religion.

They believed the practice violated the First Amendment because of the types of prayers offered. A U.S. district court said the prayers didn’t violate the First Amendment. But the 2nd Circuit U.S. Court of Appeals in May 2012 overturned the lower court decision.

“The town’s desire to mark the solemnity of its proceedings with a prayer is understandable; Americans have done just that for more than 200 years. But when one creed dominates others–regardless of a town’s intentions–constitutional concerns come to the fore,” Judge Guido Calabresi wrote for a unanimous three-judge panel last May.

Greece is mostly Christian, and most of the prayers offered at its board meeting were Christian or came from Christian clergy within that community.

After initial complaints in 2007, the board in Greece invited a Wiccan priestess, a chairman of a Baha’i congregation, and a lay Jewish man to give prayers. But most prayers were delivered by Christians.

The other case, Elmbrook School District v. Doe, involves a controversy over the rental and use of a church sanctuary to host graduation ceremonies for two public schools.

The court has yet to say if it will consider the Elmbrook case, deny it, or send it back to a lower court.

Constitution Daily contributor Lyle Denniston covered the Elmbrook story and its history in detail last month.

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In Brookfield, Wisconsin, a western suburb of Milwaukee, the two local high schools for years staged graduation exercises in the sanctuary of Elmbrook Church, an evangelical congregation not affiliated with any denomination. The practice began in 2000 with a choice by one of the high schools, at the request of its graduating class, to move the ceremony out of the school’s gym, because of limited conditions there.

The church’s leaders and its congregation had no role in the graduation celebration, and there was no one on hand to offer any kind of religious counseling.

But for nine people–current and former students and their parents–the site itself was the problem, with its religious symbolism and significance. They said the exposure to artifacts of faith offended them and compromised the experience of graduating.

The lawsuit continued, even though the district stopped using the sanctuary, as the challengers took the case on to the 7th U.S. Circuit Court of Appeals.

A three-judge panel there agreed with a trial judge, finding no First Amendment religion problem. But the full circuit court reconsidered. Splitting 7-3, that court found that the Elmbrook Church site could not avoid being coercive for the students and their younger brothers and sisters attending the ceremony.

Among the parties involved in the case are The Becket Fund for Religious Liberty and the Americans United for Separation of Church and State.

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But for the non-celebrities whose mug shots and arrest records are online, it’s no fun at all. A lawsuit was just filed that seeks to change the obligations of electronic news media to take down those reports.

Lorraine Martin, a Connecticut nurse, was arrested in 2010 along with her sons when the police raided her home and found a small amount of marijuana. The charges against Martin were later dropped and the official criminal record was purged.

But Martin has since been unable to find a job, and she claims it is because when you type her name into a search engine, articles like the one entitled “Mother and Sons Charged with Drug Offenses” are still available through online news outlets.

So Martin has filed a lawsuit against the local news outlets for herself and on behalf of others like her who were arrested, but whose criminal record have since been expunged. The suit claims that the online media outlets defame them by continuing to make available content about the story.

The press is protected by the First Amendment of the Constitution, which states in pertinent part: “Congress shall make no law … abridging the freedom of speech, or of the press …”

But there are some forms of speech that are not protected by the First Amendment, notably, speech that is defamatory.

In order to be defamatory (and therefore not protected by the First Amendment), the communication must be a false statement of fact made to a third party that harms a person’s reputation or ability to earn a living.

The novel question presented in Ms. Martin’s class-action is this: Can an article written about an incident that accurately describes an event that did take place be false if the record of that event was later expunged?

In other words, does the truth change into a falsehood over time such that what happened after the fact makes the event described at the time defamatory?
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And if it does, then does the online news agency have an obligation to take down content that hurts a person’s reputation or ability to earn a living if the subsequent events make it clear that the arrest should not have happened or where the prosecutor has, by expunging the record, shown that the person who was arrested for a crime should not continue to be judged on the basis of her arrest for it?

The power of the Internet to continue to perpetuate past events makes rehabilitating one’s reputation difficult in cyberspace—and in real life. It is for this reason that states are beginning to limit online access to certain legal records.

For now, the class-action lawsuit will be an uphill battle involving the novel issue of whether truth becomes false and then defamatory. What do you think? Should newspapers or other online outlets be forced to take down descriptions of arrests, mug shots, or other reports that show a person who was arrested but whose record was later expunged? Let us know!

Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the General Counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

The statements at issue:

“The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate. The ultimate result of the NLRB’s intrusion would be to create hostile work environments where none exist.”

– Jay Timmons, president and CEO of the National Association of Manufacturers, in a statement quoted in The New York Times May 8 in response to a federal appeals court decision striking down a requirement by the National Labor Relations Board that some 6 million companies display in their workplaces a poster telling workers of their rights to unionize.

“In today’s workplace, employers are required to display posters explaining wage and hour rights, health and safety and discrimination laws, even emergency escape routes. The circuit court’s rulings suggests that courts should strike down hundreds of notice requirements, not only those that inform workers about their rights and warn them of hazards, but also those on cigarette packages, in home mortgages, and many other areas.”

– Richard Trumka, president of the AFL-CIO labor union federation, in a statement quoted in the same The New York Times article May 8.

We checked the Constitution, and …

For generations, the First Amendment’s Free Speech Clause has been a battleground between companies and labor unions over how they communicate with workers about the issue of joining a union to bargain over workplace benefits. Recently, in the background of that struggle has been the reality that labor unions are continually losing popularity. In January, government figures showed that the rate of union membership in the U.S. was at its lowest level since 1916, and the decline is especially severe in private sector workplaces.

That trend, in fact, was a key factor in the National Labor Relations Board’s decision in 2011 to require employers whose dealings with employees are governed by the federal labor law that dates back to 1935 to put up an 11-by-17-inch poster telling workers about their rights. Declining union membership, the board found, was due in part to the fact that workers did not know their rights, and so should be told about them and told how to enforce those rights.

The board’s poster rule told workers that they had a right to form, join, or assist a labor union, a right to bargain collectively through a union, a right to discuss workplace benefits and conditions with other workers and with a union, a right to take action to improve working conditions, a right to strike and picket, and a right to choose not to engage in any of those activities.

The fight over that rule is a modern-day echo of past disputes arising out of NLRB attempts to police the workplace, when management associations complained in the courts and to Congress that the board had “pushed the labor relations balance too far in favor of unions,” as the Supreme Court described those complaints in a ruling five years ago.

That decision, in fact, noted that the Supreme Court as long ago as 1941 had recognized “the First Amendment right of employers to engage in non-coercive speech about unionization.” In other words, they were free to talk to their employees in ways that sought to discourage them from joining unions, so long as that was done without threats of reprisal or coercion. Congress, in fact, wrote that guarantee of employer free speech into labor law in 1947, in what is called the Taft-Hartley Act.

The Court of Appeals for the District of Columbia Circuit, in its ruling this month striking down the NLRB’s poster requirement, relied on that provision, but also gave what appeared to be an expanded interpretation of the First Amendment as it applies to employers’ speech rights.

The appeals court turned to Supreme Court rulings outside the workplace context: one that barred  a state from requiring motorists to put a state-approved slogan on their license plates, and another forbidding a school district from requiring students to salute the American flag even if that violated their religious beliefs.

The NLRB, the court said, was actually trying to force employers to deliver the NLRB’s own message as if it were their own–a form of compelled speech that the First Amendment forbids. The court noted that the challenging employer groups had argued that the poster was not neutral at all, but rather was strongly slanted in favor of unionism:

“Like the freedom of speech guaranteed in the First Amendment, [federal labor law] necessarily protects–as against the board–the right of employers (and unions) not to speak.”

Finding that nothing of the enforcement mechanisms the board had adopted to compel companies to put up the poster were allowed by labor law, the appeals court struck down the rule.

This dispute over the poster rule, of course, comes against a broader background of increasing management objection to what the National Association of Manufacturers has called the “rogue” behavior of the NLRB. The resistance to the board has spread to the Senate, with filibustering of appointees to the board, and by objections to President Obama’s appointments to the board to serve temporarily when the Senate was not in session to review those appointments.

The president’s lawyers have now taken to the Supreme Court the constitutional fight over his recess appointments to the board, and the court is likely to rule on that at its next term starting in October.

Whether the poster rule fight also goes on to the Supreme Court has not yet been decided. The board has said it is considering what to do next.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Lawmakers in Tennessee have passed a Livestock Cruelty Protection Act and sent it on to the state’s governor, Bill Haslam, to sign or veto. The measure is similar to laws in at least nine states.

Haslam asked state attorney general Robert Cooper for an opinion on the act’s constitutionality, and Cooper’s 10-page report raises some broad issues.

The law would compel anyone shooting video of alleged animal cruelty to give a copy of it to law enforcement within 48 hours, or face a misdemeanor charge and a possible fine.

Supporters of Tennessee’s proposed law say it will help officials fight against animal cruelty; protect public safety; and aide investigators as they try to determine when the incidents happened—and if video released by organizations or news gatherers is outdated or edited.

The bill passed by a 50-43 margin in the state House, and a 22-9 margin in the state Senate.

Opponents have labeled it an “Ag-Gag” law and an attempt to curb the activities of animal rights groups (who are undertaking prolonged investigations) and advance the interests of livestock owners. Celebrity Carrie Underwood is among the opponents of the law.

Attorney General Cooper’s opinion from Thursday was that the bill is “constitutionally suspect” on at least three grounds. In addition, Cooper has fears that the law could violate a person’s Fifth Amendment right to protection against self-incrimination.

One of the three grounds listed by Cooper has broad implications: “[The] reporting requirement could be found to constitute an unconstitutional burden on news gathering.”

Cooper points out that the First Amendment protects against burdens on news gathering and “while this principle has been recognized primarily in the context of the press, it has also been acknowledged that the concept of news gathering is very broad and can encompass a wide scope of activity outside what is recognized as the traditional press.”

Supporters of the bills say the crux of their argument is that the law should protect a right to privacy.

While journalists have a right to shoot video, they also are restricted by state laws as to where they can record, especially in areas where the public doesn’t normally have access.

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“At the end of the day it’s about personal property rights or the individual right to privacy,” said Bill Meierling, a spokesman for the American Legislative Exchange Council, in a statement to the Huffington Post. “You wouldn’t want me coming into your home with a hidden camera.”

Others argue that act poses First Amendment problems for journalists, assuming they’ve obtained video under the consent and privacy laws in their states.

“The First Amendment protects an independent press because the Founders understood that freedom of the press is a logical extension of the basic freedom of speech and is vital to keeping government power in check,” said Knoxville News Sentinel editor Jack McElroy in an April editorial.

“Freedom of the press means anyone can be ‘the press.’ In this era of websites, blogs and tweets, there are no practical barriers to self-publication, either,” says McElroy.

And in a USA Today editorial, Ken Paulson from the First Amendment Center wonders how Upton Sinclair, the famous muckraking journalist who covered the meat packing industry in his novel The Jungle, would deal with the laws.

But he also makes an important point about state laws already on the books that should protect livestock owners from unwanted intrusions by photographers.

“State laws bar trespassing, so farm owners already have a means to keep activists off the premises. And if any videos are used to actually libel a business—meaning that the video is untrue or significantly misleading—there are other recourses in the courts,” he says.

However, whether citizen journalists understand state privacy and consent laws is another matter.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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Likely nothing in the way of a fine is in the future of NBC affiliate KFYR. But it did have to apologize to viewers and then explain to people sympathetic to Clemente about his dismissal after one day on the job.

Clemente was recently hired by the Bismarck, North Dakota, TV station to co-anchor a weekend evening newscast. As he later explained to “The Today Show,” he was caught live on the anchor desk as the broadcast started 30 seconds early.

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He also acknowledged he wasn’t wearing the earpiece most anchors wear to get instructions from the show’s producers. (And neither was his co-anchor.)

Clemente then blurted out two of the seven words made famous by George Carlin in his 1970s comedy routine about what you can’t say on radio or television.

Within 24 hours, Clemente was fired–and he gained a legion of sympathetic fans in the world of social media. On Wednesday, Clemente had appeared on two NBC shows, “Today” and “Morning Joe,” and he skipped over to an interview on “Live with Kelly & Michael,” where he was offered a one-time job covering an event for the show.

Clemente was scheduled to appear on David Letterman’s show at night.

The link between Clemente and Carlin is ironic, because a radio station’s use of Carlin’s dialogue sparked a Supreme Court case that set the baseline for First Amendment rights when it comes to broadcasters and indecent or obscene language.

The broadcast networks follow a 34-year-old precedent set in FCC v. Pacifica Foundation, which involved a broadcast of Carlin’s “filthy words” comedy routine on a radio station.

The court decided that the Federal Communications Commission could punish stations that broadcast over the airwaves the use of indecent or obscene language, and that the use of such language had less First Amendment protection because it could be heard by children and intruded into the homes of listeners.

Over the years, the FCC guidelines have evolved, as has the willingness of the agency to fine stations for violations.

The Supreme Court ruled on two related cases last year. In one ruling, the decision in Federal Communications Commission v. Fox Television Stations was about three incidents where the FCC wanted to punish Fox and ABC for what it deemed as offensive content.

Fox in particular was facing potential fines from the FCC for two incidents of “fleeting” cursing during live broadcasts involving Cher and Nicole Richie.

The Supreme Court found that the FCC didn’t provide fair notice to both networks. Also, the ruling was specific to the three incidents, and not meant to alter the FCC’s policy about broadcast regulations of obscenity.

Also, the court refused to hear an FCC appeal after a lower court tossed out a $550,000 fine against CBS for the 2004 Janet Jackson halftime show incident. The justices said the FCC had failed to give CBS proper notice in that specific incident.

Even though the court turned down the FCC case, Chief Justice John Roberts made his opinions very clear, after the FCC changed its policy on “fleeting expletives” and fined CBS for the Jackson incident after the Super Bowl.

“It is now clear that the brevity of an indecent broadcast—be it word or image—cannot immunize it from FCC censure,” Roberts said last June. “Any future ‘wardrobe malfunctions’ will not be protected on the ground relied on by the court below.”

In its official guidelines, the FCC says, “Obscene material is not protected by the First Amendment to the Constitution and cannot be broadcast at any time.” Its rules for profanity, such as the words used by Clemente, are different.

“The FCC has defined profanity as ‘including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.’ Profane speech is prohibited on broadcast radio and television between the hours of 6 a.m. and 10 p.m.,” the FCC policy reads.

Clemente’s gaffe was outside of the “safe harbor” period, and the station could be subject to a fine. But based on recent statements from the FCC, it’s unlikely anything will happen.

Outgoing FCC chair Julius Genachowski, citing a backlog of indecent language complaints, indicated in early April 2013 that the agency would only pursue “egregious” complaints. The FCC said it reduced its case backlog by 70 percent after the 2012 Supreme Court decisions by following that policy.

As for Clemente, he’s enjoying another First Amendment benefit. The FCC doesn’t regulate the Internet, where his TV appearance (in its uncensored form) went viral, as did the widespread public debate about giving an employee a second chance after a bad first day at work.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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Source: Anna Frodesiak (OpenStreetMap).

To be sure, federal and local investigators are looking at all angles in the case, which they have called a “worldwide investigation.”

“It will take time to follow every lead and determine what happened, but we will find out,” President Barack Obama said on Tuesday. “We will find whoever harmed our citizens, and we will bring them to justice. We also know this: The American people refuse to be terrorized.”

Law enforcement officials have been quick to say that they won’t rule out any suspects—and people shouldn’t jump to conclusions.

Those statements might be an allusion to the Oklahoma City bombing on April 19, 1995, when government officials first blamed international terrorists for the massive blast that killed 168 people at the Alfred P. Murrah Federal Building.

Timothy McVeigh, a former U.S. Army soldier, was upset about government incidents at Ruby Ridge and Waco, and he plotted to bomb the Murrah building with Terry Nichols. Both were convicted, and McVeigh was executed in 2001, while Nichols is in jail for life without parole. A third man, Michael Fortier, testified against McVeigh and Nichols and received a 12-year prison sentence.

The federal government has ramped up its efforts against domestic terrorism since Oklahoma City and the 9/11 terror attacks.

According to a May 2012 Congressional Research Service report,  the Justice Department and FBI have defined domestic terror threats to include “individuals who commit crimes in the name of ideologies supporting animal rights, environmental rights, anarchism, white supremacy, anti-government ideals, black separatism, and anti-abortion beliefs.”

The report also explains why the federal government tracks a list of domestic terror threats, and not an official public list of groups that could be considered at threats.

“There is no official open-source roster of domestic groups that the FBI or other federal agencies target as terrorist organizations. The lack of such a designation may spring partly from First Amendment concerns. Such a list might discourage speech and expression related to the ideologies underpinning the activities of named groups.”

The CRS also cites an FBI report from 1999 that said “[d]uring the past 30 years, the vast majority—but not all—of the deadly terrorist attacks occurring in the United States have been perpetrated by domestic extremists.”

Among these incidents were a 1910 incident, when union organizers bombed the Los Angeles Times building (killing 21 people); the 1920 Wall Street bombing by anarchists (where 38 people were killed); the Bath, Michigan, schoolhouse bombing in 1927 (where 45 people died); the Centennial Park Olympics bombing of 1996; and the Unabomber incidents.

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And even in the post-9/11 world, there have been at least a dozen incidents, says the CRS, tied to domestic terrorism. They mostly have been planned under the radar.

“Aware of the lines between constitutionally protected speech and criminality, domestic terrorists often rope themselves off from ideological (above-ground) elements that openly and often legally espouse similar beliefs. In essence, the practitioners who commit violent acts are distinct from the propagandists who theorize and craft worldviews that could be interpreted to support these acts,” the CRS says.

The FBI does have a domestic terrorism list, which features six people wanted for crimes dating back to the 1970s.

Aiding the investigators in Boston will be a large amount of digital evidence in the case, where thousands of people had mobile devices and cameras at the event. The FBI will also be able to ask for subpoenas to see cell tower records in the vicinity of the explosions.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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Luckily, CBS, which was broadcasting the game, never showed the gore and afterward, in an example of taste that has become unusual in this day and age, stopped showing the footage after two replays.

We know after the last controversy at a major televised championship—the infamous wardrobe malfunction at the 2004 Super Bowl—that the Federal Communications Commission strictly regulates obscenity, indecency, and profanity.

But given the likelihood of cellphone cameras at crime scenes and other opportunities to record guts and gore, what are the regulations regarding the broadcasting violence on television, and what does the First Amendment have to say about the matter?

The FCC is a federal government agency that regulates interstate and international communications by radio, television, wire, satellite, and cable.

When it comes to the government’s ability to limit communication, the First Amendment states in relevant part: “Congress shall make no law … abridging the freedom of speech, or of the press.”

Based on that premise, one would imagine that the FCC would not have much to do. Indeed, the FCC itself discusses its limited role in regulating broadcast communication based on the fundamental First Amendment privileges enjoyed by the American public:

The FCC is barred by law from trying to prevent the broadcast of any point of view. The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech. Expressions of views that do not involve a “clear and present danger of serious, substantive evil” come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press and prevents suppression of these expressions by the FCC.

As you may imagine, that is not the end of the story–or the “wardrobe malfunction” of the 2004 Super Bowl would have had no more repercussions than the electricity malfunction of the 2013 Super Bowl.

The FCC is, despite the above limitation, not without regulatory power. Supreme Court decisions have found that even indecent and profane material is protected by the First Amendment.

See, for example, Justice Harlan’s opinion in the 1971 case Cohen v. California,  that “one man’s vulgarity is another man’s lyric.  That does not mean, however, that its broadcast cannot be restricted to times when children are not likely to be watching.

For this reason, the FCC limits broadcasting of such material to the hours between 10 p.m. and 6 a.m. Courts have ruled that obscene material, on the other hand, is not protected by the First Amendment and therefore the FCC can—and does—prevent it from being broadcast at all.

Which brings us to the question: How does the FCC define the level at which violence, blood, or gore is so gruesome that its hours of broadcast may be regulated?

You may be surprised to know that the FCC does not  currently regulate violence on television. While the FCC issued a report in 2007 on the effects of violence on television in which it implored Congress to create regulations to rein in violence on television, to date no such regulations have been created granting the FCC regulatory power over the broadcasting of violence.

Instead, decisions about the appropriateness of violence on television are left to each network to self-regulate and to each parent to monitor.

So while networks that broadcast uncovered body parts may face FCC sanctions, their broadcasting of bloodied body parts, on the other hand, carry no such potential penalties.

Further Reading

• Cohen v. California, 403 U.S. 15 (1971). Read online at oyez.org.

Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the general counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

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For decades, the Supreme Court has held the view that mixing religion and public education in grade schools and high schools is potentially a violation of the First Amendment’s ban on government endorsement or promotion of religion. But the justices have been most troubled by the perceived effect on young minds of religious practices, such as prayer or devotional services, especially if those are the expressions of a particular faith. The justices have been more ambiguous in their reaction to displays on government property of religious messages, such as the Ten Commandments.

The new case takes the justices to a different level.  The question in the new case is whether exposure to religious symbolism in a private setting, with no attempt of any kind to provide religious teaching as such, is enough to make the very scene unconstitutional. An answer may not be easy.

In Brookfield, Wisconsin, a western suburb of Milwaukee, two local high schools for years staged their graduation exercises in the sanctuary of Elmbrook Church, an evangelical congregation that is not affiliated with any denomination. The practice began in 2000 with a choice by one of the high schools, at the request of the graduating class to move the ceremony out of the school’s gym.

The gym, the students said, was too hot, too cramped, and made everybody uncomfortable by having to sit in the bleachers. The church charged $2,200 in rent, and the students raised some of that money through events; the school paid the remainder. The school district’s other high school chose the same site two years later for its graduation ceremonies.

The Elmbrook Church sanctuary was dominated by a large Latin cross of the Christian faith, and a number of religious banners were clearly visible. The students and families sat in pews, with Bibles, hymnals, and religious literature in front of their seats. School officials asked the church leaders to take down the banners, but they refused, and the ceremonies went ahead anyway.

The church’s leaders and its congregation had no role in the graduation celebration, and there was no one on hand to offer any kind of religious counseling.

For nine individuals, present and former students and their parents, the site itself was the problem, with its obvious religious symbolism and significance. They said the exposure to such artifacts of faith offended them, and compromised the experience of graduating. A federal judge rejected their challenge, concluding that the site was chosen entirely for non-religious purposes, and the ceremonies had gone off with no attempt to teach any aspect of the congregation’s faith.

While the case was moving up through the courts, the school district built a new, larger gymnasium, and ceremonies were then transferred there. The lawsuit, however, continued as the challengers took the case on to the Seventh U.S. Circuit Court of Appeals, based in Chicago.

A three-judge panel of that court agreed with the trial judge, finding no First Amendment religion problem. But the full circuit court reconsidered. Splitting 7-3, that court found that the Elmbrook Church site, arrayed as it was, could not avoid being coercive of the students and their younger brothers and sisters attending the ceremony.

“The difference,” the majority said, “is one of degree, not kind. … Here, the involvement of minors, the significance of the graduation ceremony, and the conditions of extensive proselytization prove too much for the District’s actions to withstand the strictures of the [First Amendment’s] Establishment Clause. … The atmosphere of the Church, both inside and outside the sanctuary, is indisputably and emphatically Christian.”

The majority sought to stress that it was ruling as narrowly as it could, confined to the specifics of the Elmbrook Church’s physical adornments and the display of its religious literature.  It insisted that it was not ruling out all governmental use of religious facilities for public purposes.

The dissenters argued that the majority had stretched prior Supreme Court rulings–forbidding organized prayers by religious leaders at public school graduations, and forbidding student-led prayers at public school sporting events–far beyond their actual scope. Those practices failed in the Supreme Court, one of the dissenting judges wrote, because they involved “governmental sponsorship, endorsement, or coercion,” but there was no evidence of that in the Brookville ceremonies. That judge said the ruling “creates a new and dangerous principle.”

All of the judges who wrote opinions in the case did so at great length, apparently in the expectation that the case would go on to the Supreme Court–as, indeed, it has. The school district officials contended that the decision, if allowed to stand, “would unsettle long-standing practices in public schools across the country.”

The justices have now examined the case twice during private meetings, but have yet to take any action on it. If a majority concludes that the circuit court ruling strays so far from what the Supreme Court precedents required, it is conceivable that the lower court decision could be overturned without the justices  even holding a hearing or getting full written legal arguments.   If the court opted instead to review the decision, it could be setting the stage for a major new pronouncement on when faith and public education can coexist.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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