ACRU

First Amendment Protects Prayer, Not Obscene Violence

This column by ACRU Senior Legal Analyst Ken Klukowski was published June 5, 2011 on The Washington Examiner website.

James Madison, Alexander Hamilton and the rest of the framers of the Constitution would be astounded to hear a federal judge order a valedictorian’s prayer is not protected by the First Amendment, but marketing sickening video games to children is protected by the First Amendment.

On June 3, I debated Barry Lynn, president of Americans United for the Separation of Church and State, on Fox News Channel. Lynn’s group represents in court an agnostic family suing a Texas school district.

Like most high schools, Medina Valley Independent School District allows the class valedictorian to deliver a graduation address. This year’s valedictorian, Angela Hildenbrand, is a Bible-believing Christian.

Many knew that Angela would give thanks to God for blessing her work as a student, and that she might offer a prayer. Alleging that hearing a prayer would cause serious and irreparable harm, one of Lynn’s lawyers at AUSCS filed suit for the agnostic family.

A federal judge appointed by President Clinton issued an order that no prayers could be offered, and also that Angela could not utter certain words in her speech, including the phrase “bow your heads” or the specific words “prayer” or “amen.”

In other words, suppose Angela said, “As long as students have to take final exams, there will be prayer in schools. Can I hear an ‘amen’?” She would have violated the judge’s order twice, and could be thrown in jail.

The reality is, the judge’s order, not a prayer Angela might offer in her speech, violated the First Amendment. In 1992, the Supreme Court (wrongly) held 5-4 that high school graduation prayers violated the First Amendment Establishment Clause.

Even then, though, the court’s holding was merely that a school could not organize the prayer or invite a clergyman to lead the prayer. In that moment, the clergyman is speaking for the government.

In this case, a student is given the stage not specifically to pray, but to speak about her values and priorities and to thank whomever she wishes for helping her succeed in school.

Because she’s a private citizen (not a government agent), her speech is protected by the First Amendment Free Speech Clause. For government (including a judge) to censor her private speech is unconstitutional.

So ironically, there is a First Amendment violation here. But it comes from stopping Angela’s prayer, not from allowing it.

The school district defended itself, and Angela was separately represented in court by attorney Erin Leu from Kelly Shackelford’s Liberty Institute. On June 4, the Fifth Circuit federal appeals court granted an emergency motion to reverse the district judge.

So Angela’s speech proceeded as planned, including the now-controversial word “amen.” But don’t get your hopes up that sanity is making a comeback.

On June 5, I debated on Fox News Channel again, this time jousting with another lawyer over a stomach-turning video game.

The game is called “School Shooter.” In it, children play as a Columbine-type shooter, gunning down as many classmates and teachers as possible, then shooting themselves when cornered by the police.

The Supreme Court has held that the First Amendment does not protect obscene material, which is content with no redeeming social or artistic value that appeals only to unwholesome interests. “School Shooter” is a textbook example.

It’s not even speech. There’s no expression of ideas. It’s role-playing a depraved shooter without plot or dialogue.

The problem here is described in my new book, Resurgent. The Constitution must be interpreted consistently with the original meaning of its terms. The original meaning of the First Amendment is clear both regarding the valedictorian and this appalling video game.

If we’re going to correctly resolve such absurd controversies, then we must restore fidelity to the Constitution.