Fall 2003
This Is Not Your Founding Fathers' Country \ Attorney General Drew Edmondson \ The education for freedom project \ Only cure for HIPAA is elimination \ Creek County jury astonishes News OK owners \ Serious censorship at Hooker H.S.\ A win-win Situation \ Justices take on High Profile 1st Amendment cases \ Keep your faith, lose your job \ Meagan's Law is a joke to Creek County \ Bible wars in public schools \ Do you really know how your tax dollar is spent \ Patriot Act controversy rages on \ Ala renews call for legislative amendments to Patriot Act\ The State of the First Amendment\

1st Amendment Congress - 2003

This Is Not Your Founding Fathers' Country

The architects of the U.S. Constitution and its Bill of Rights had a dream of freedom. This design of a society that allows and values free expression was far from set in stone when the Republic was established. In fact, the experiment in democracy was just beginning.

For more than 200 years, Americans have been debating and redefining this dream. The abolition of slavery, women’s suffrage, and the civil rights movement have been milestones in the journey. By the late twentieth century, Americans were enjoying unprecedented freedom of expression, brought about by both legal victories in the courts and technological wonders like the Internet.

In this new century, the threat and fear of terrorism on American soil has lead to yet another round of negotiations. Surely, restricting certain freedoms, under certain conditions, is a small price to pay to protect our loved ones. Isn’t it?

How important is freedom, when our very lives are at stake? Oklahoma’s fifth annual First Amendment Congress continues the discussion on Homeland Security and its impact on our constitutional rights as U.S. citizens.

Who should attend? Media people, elected officials, teachers, school administrators and board members, students, librarians, library trustees, business leaders—anyone interested in our civil liberties.

Attorney General Drew Edmondson to address 1st amendment congress

Justice Marian Opala 1st Amendment Award Luncheon—Friday Nov.7
Oklahoma Attorney General Drew Edmondson will discuss the Friend of Court Brief filed by the 50 state Attorney Generals concerning the constitutionality of the Pledge of Allegiance, and its line “one nation, under God.”

Drew Edmondson was elected Oklahoma's Attorney General in 1994 and re-elected without opposition in 1998. He was re-elected in 2002 to a third term. He served as President of the National Association of Attorneys General in 2002- 2003 after serving two years as the Chair of the Consumer Protection Committee and Chair of the Southern Region of Attorneys General.

Also at this luncheon, the winner of the 2003 Marian Opala 1st Amendment Award will be announced.

The education for freedom project — Oklahoma report

The Education for Freedom project consists of a curriculum and seminars designed to aid educators who teach about the First Amendment to the U.S. Constitution in their classrooms.

The project was designed by the Social Science Education Consortium for the (National) First Amendment Congress and is administered in the states by the variety of First Amendment organizations.

The curriculum is divided into elementary (grades K-4) and secondary (grades 5-12) sections. Each part is aimed at different levels, but the lessons in each section are universal and can be adapted for any age group including college and adult students.

All of the lessons were created to achieve three specific goals:
1. After completing the lessons, students will understand the history and meaning of the First Amendment and its importance in today's society.
2. Students will understand that the First Amendment belongs to each individual, not any one segment of society or institution.
3. Students will understand the importance of protecting their First Amendment freedoms through exercising their rights and responsibilities as citizens in our democracy. What can the Education for Freedom curriculum and seminars do for teachers?
· Gives you ready-made lesson plans that encourages Higher Order Thinking Skills
· Gives you copyright-free material
· Provides educational professional development
· Develops higher education thinking skills
· Provides handouts
· Allows you to adapt to your lesson plans
What do teachers say?
"I enjoyed today's presentations and the diversity of activities kept the pace at an appropriate level." "This information has added to the programs that are used in my classroom. I feel it can be used throughout the curriculum in the primary grades. There is so much that can be done with this program. I really enjoyed everything! " "Outstanding seminar! " "I am surprised to have discovered an organization that has a powerful message and relevant curriculum to supplement my course. " "I enjoyed the cooperative learning activities. The books are filled with a wealth of activities and strategies for teachers to use in the classroom. These activities are needed to increase student understanding of the First Amendment." "This information has added to my bank of classroom materials concerning the Constitution. The ideals can form an ongoing basis for law-related instruction.” “My students want to know about the law, and this information helps inform them in a meaningful way." "Very informational! " "Great presentation and great curriculum. I'm looking forward to using the materials." "Very knowledgeable speaker." "Rita Geiger brought pertinent information to us to take right into the classroom and use right away." "It was a great workshop. It was informative and fun. The curriculum will be very useful." "Rita was very informative and an extremely educated voice on the subject." ——

There is no charge for the seminar. FOI Oklahoma has raised funds specifically for this project. SBC has provided funding for the printing of literature. Rita Geiger, Social Studies Coordinator for Norman Public Schools, retired will lead the workshops. If you are interested, please email Rita for more information. Rgeiger@cox.net

Only cure for HIPAA is elimination

(according to the June issue of the OK Publisher)

The Health Insurance Portability and Accountability Act of 1996 has taken full effect and limits access to medical information by the media, medical personnel and citizens alike.

Are the new regulations restricting your “Right to Know”? These Issues on HIPAA will be addressed by a panel of experts from the medical community, the media, and the police department on Friday afternoon during the 2003 1st Amendment Congress.

The national Reporters Committee has offered the following suggestions on how to fight for access:
Work with hospitals and medical associations to encourage the release of information during emergencies, tragedies, accidents and other newsworthy situations.
Encourage lawmakers to approve openness laws.
Support legislation protecting whistle-blowers.
Challenge nondisclosure
Comment on the rules.

Creek county jury astonishes News OK owners—awards $3.7 million

Listing a public record and claiming immunity because it is privileged information was ignored by Creek County Chief District Judge Donald Thompson and a jury on Thursday, 18 September 2003. It awarded plaintiff Dennis L. Stewart actual damages of $200,000 and punitive damages of $3.5 million against defendants Oklahoma Publishing Co., Griffin Television OKC (KWTV-Ch.9) and NewsOK LLC. At issue is publication of the name and registered address of a convicted sex offender in Collinsville (Tulsa county) as furnished to NewsOK by the Oklahoma Department of Corrections (DOC). State law requires the DOC to publicize the list of offenders and their registered addresses.

Ron Wesley Lyon, 30, (convicted of assault with intent to commit lewd molestation in Tulsa county, 19 July 1998) had registered with the DOC at the Collinsville house owned by his sister. By February 2002 the house was occupied by Dennis L. Stewart, 46, who works as a lab technician at an area cement plant.

A woman in the neighborhood, Donna Taylor, circulated a photograph of Lyon and a list of registered offenders in the Collinsville area containing Lyon's name and registered address. Ms. Taylor said she obtained the list from the NewsOk web site and the photograph from the DOC web site. Stewart's name was never listed on NewOK, only Lyon's.

Stewart hired Tulsa attorney Doug Stall who sued in Creek county on the basis that OPUBCO is a foreign corporation that can be sued wherever it owns property. Creek county also offered a "more favorable" venue, Stall told Rhett Morgan of the Tulsa World. Plaintiff attorneys alleged that Stewart's reputation was destroyed when NewsOK wrongly published that a sex offender lived at his Collinsville address.

Bob Nelon, attorney for the media defendants, said: "The gist of our argument is that the media have an absolute privilege to report accurately a government document and that NewsOK did just that. But the court did not instruct the jury about statutory privilege to do so." Nelon said an appeal will be filed.

Plaintiff attorney Stall said "Either the defendant should never have put it out there, or, . . . have put a nice big warning out there that says: 'Don't rely on this information.'" Enough jurors believed Stall's logic that it is the job of the Dept. of Corrections to publish a sex offender list, but it isn't the job of the media to do so. The jury vote on actual damages was 10-2; on punitive damages 9-3.

Well, it's another example of Creek County Justice -- my home county. If sustained, this award should alarm all media how far they can rely upon public records, even to traffic offenses. Note the jury's assumed view that extra publication of an open record is risky, perhaps costly. —- By Ben Blackstock

Serious censorship situation at Hooker High School.

Marilyn Scoggins, who has led the HHS yearbook staff to repeated national recognition, resigned her position as adviser on September 22.. The book has been an outstanding yearbook. But, because they didn't like it, the administrators (superintendent and principal) told Marilyn they wanted her to produce just a little picture book in the future. These administrators, unsatisfied with the theme development of the 2003 yearbook exchanged concerns with the school board and the consequences are that all content is now to be judged against administrative, not journalistic, ideals.
1st amendment issues and schools will be addressed on Thursday and Friday of the 2003 1st Amendment Congress

A win-win situation

The Oklahoma City federal court system joins 25 federal district courts nationwide as it enters the technological age. After more than a year of planning, U. S. District Judge Robin Cauthron issued the state’s first paperless order under the new Case Management and Electronic Case Files system. Now attorneys can file court documents from their desks and citizens will be able to access records from their home computers. No more traveling to the court house and requesting documents. No more paying from 25 cents to $1.00 a page to have records copied. At least that’s how it’s supposed to work.

Justices take on high-profile First Amendment cases

WASHINGTON — Sacramento atheist Michael Newdow's solitary quest to remove the words "under God" from the Pledge of Allegiance took a major step forward yesterday as the Supreme Court agreed to consider the issue.

The Court also granted review of two other petitions raising recurring First Amendment issues: Ashcroft v. ACLU II, testing the constitutionality of the Child Online Protection Act, and Littleton, Colo. v. Z.J. Gifts, asking how promptly courts must review the denial of licenses for adult businesses. In addition, the Court denied review in another closely watched First Amendment case: Walters v. Conant, in which the Bush administration had asked the Court to uphold regulations prohibiting physicians from discussing medical marijuana with patients.

But the pledge case promises to dominate national debate in coming months, provoking strong emotions over religion and patriotism at a time of war. The Court will hear arguments in the case early next year, with a decision likely before the end of June.

Keep your faith, lose your job

— Guest Commentary : by Charles C. Haynes, senior scholar at the 1st Amendment Center. Posted on NFOIC website on Sunday, October 12, 2003

Your God — or your job. Believe it or not, that’s the cruel choice confronting a growing number of workers in the United States. Although religious discrimination in the workplace has been a significant problem for years, it has gotten substantially worse since the terrorist attacks of Sept. 11, 2001. The Equal Employment Opportunity Commission (EEOC) receives hundreds of complaints from Muslim Americans — and people mistaken for Muslims — alleging hostility on the job. EEOC statistics may only be the tip of the iceberg. Many Muslims — especially recent immigrants — are reluctant to file claims. "My boss told me to remove my head covering," a young Muslim woman told me recently, "or be fired. So I quit my job." Most incidents like this go unreported.

Muslims in post-Sept. 11 America may be the most frequent target for unfair treatment, but they aren’t alone. Christians, Jews, Sikhs, Hindus and others all experience religious discrimination in the workplace. Even before the terrorist attacks, the problem had gone from bad to worse. From 1992 to 2000, claims to the EEOC concerning workplace religious discrimination rose by 28 percent.

Sikh Americans, for example, often bump up against work-related grooming and head-covering regulations. Earlier this year, a Sikh police officer in New York sued the city after he was fired for refusing to shave his beard or remove his turban — both required by his faith.

Or consider the Seventh-day Adventists, whose Sabbath is sundown Friday to sundown Saturday. According to the Adventist News Network, each year the Adventist Church receives as many as 1,000 requests for legal help from members fired or disciplined — usually because they can’t work on Saturday.

Note that religious liberty on the job isn’t just for the religious. A number of years ago, an atheist worker fought for (and eventually won) the right to be excused from worship services that his company required all employees to attend.

Lawsuits and complaints about religious discrimination in the workplace ought to be rare in a nation committed to religious liberty under the First Amendment. Under Title VII of the Civil Rights Act of 1964 (as amended in 1972), employers are supposed to "reasonably accommodate" workers ’ religious beliefs and practices in the workplace — unless doing so would cause "undue hardship."

Unfortunately, a 1977 Supreme Court decision in Trans World Airlines Inc. vs. Hardison took the teeth out of the law, ruling that even a minimal expense can be considered an "undue hardship." Since that decision, employers can (and do) refuse religious accommodation for the flimsiest of reasons.

Religious groups haven’t given up. Every year for the past five years, a broad coalition of more than 40 religious and civil rights groups have pushed Congress to pass the Workplace Religious Freedom Act (WRFA). It was introduced in the Senate yet again last spring by Sens. Rick Santorum, R-Pa., and John Kerry, D-MA

What would WRFA do? It would clearly define "undue hardship" to mean more than the minimal standard set by the Supreme Court. It would require an employer to provide a reasonable accommodation — unless doing so would involve "significant difficulty or expense." WRFA would put an end to arbitrary and unfair refusals to accommodate sincere religious beliefs and practices. Religious requests for accommodation aren’t based on personal preferences in dress or on a desire to take time off from work. These are claims of conscience — claims based on what the individual believes faith requires.

Will protecting liberty of conscience mean a little more work for employers? Yes. But upholding basic freedoms is what defines (or should define) our nation.

Meagan's Law is a joke to Creek county courts

Most state legislators enacted what they called "Meagan's Law" requiring that the names and addresses of child molesters be made public to warn parents and to help; protect children.

Oklahoma has such a law. Names & addresses of convicted sex offenders are compiled by the Oklahoma Department of Corrections and posted on its web site. NewsOK, a joint venture of The Oklahoman and KWTV-Ch.9, connected to that protected information. It may cost NewsOk $3.7-mil. Most shocking in a story elsewhere in this Newsletter is evidence the public doesn't understand that media can't be sued for publishing a public record. Or, worse, the jury verdict in Sapulpa shows citizens may know but don't care.

The judge should have dismissed the suit or he should have instructed the jury that public records may hurt a subsequent renter where a sex crime perpetrator once lived. The renter must beware. It is clear that a panel of typical Creek county citizens do recognize that the DOC does have to publish such a list but woe be unto a web site, broadcaster or newspaper who does.

Is that what the right of privileged, open to all public records means? What reliance can any media place on every other kind of public record from the police blotter and jail register on up to even copies of supreme court orders? Talk about chilling effect!

It sure is the job of appellate courts to correct this kind of trial court ignorance. The Creek county judge and jury may have missed a few classes in history and law. It tells us as believers in openness that we can never let up on teaching everyone the basics of what makes a republic work.

A recent public opinion poll reported that 40% of a sample don't even believe in The Bill Rights.

Explain again, and again teachers & editorialists. It's like sweeping the sea back with brooms. BB

Inside the First Amendment — Bible wars in public schools: No truce in sight

CHARLES C. HAYNES What’s the most controversial book in public schools? If you guessed one of the Harry Potter series or "The Adventures of Huckleberry Finn," you’re wrong. The correct answer: the Bible.

The conflict over the place of the Bible in schools is the longest running fight in the history of public education. The latest battles in the Bible wars involve students pushing for equal treatment of their Bible clubs — and parents and teachers arguing over the constitutionality of Bible courses.

Nothing divides Americans like the Bible. No sooner had "common schools" opened their doors in the 19th century than a bitter struggle broke out between Protestants and Catholics over whose version of the Bible would be read each morning. By the early 20th century, John Scopes was on trial in Tennessee for teaching a theory that the state had declared unbiblical. And now in the 21st century, school districts across the nation are plagued with lawsuits over Bible courses and clubs.

Christian groups have been educating students for years about the Equal Access Act, a 1984 law protecting the right of students in secondary schools to form religious clubs, including Bible clubs, if the school allows other extracurricular student groups.

"Approved" student clubs meet during instructional time and receive funds from school fund-raisers and events, but most school officials have decided that religious clubs have to be treated differently to uphold church-state separation.

Last week the Supreme Court refused to hear an appeal in a Bible-club case from Spanaway, Wash., leaving the 9th Circuit’s ruling in place which ruled that the Bible club had to be given the same status and benefits as other student-initiated clubs.

Now the Bible club can make announcements, meet during the activities period and draw on the pool of funds for student activities on the same basis as all other student extracurricular groups. What’s most troubling about this case is the use of school funds for evangelization in a public school.

A better approach — one that upholds the First Amendment principle of "no establishment" — would be for administrators to stop funding all student-initiated extracurricular clubs. Use school funds only for curriculum-related clubs and let other clubs support themselves. Bible courses are even more contentious than Bible clubs. There’s nothing unconstitutional about a Bible elective — as long as it’s objective, academic and includes a variety of perspectives. But here’s the issue: Many advocates of Bible courses want only their interpretation of the Bible taught. And that is unconstitutional.

Sorting out what is historical in the Bible is complicated and potentially controversial. Such a course would need to include non-biblical sources from a variety of scholarly perspectives. Unless schools carefully design the course (and find someone qualified to teach it), they’ll face endless legal challenges.

Anything having to do with "Bible and public schools" is bound to start a fight. That’s why the First Amendment Center keeps reprinting by the thousands copies of the pamphlet The Bible and Public Schools — consensus guidelines supported by a broad range of 18 religious and educational groups from the Christian Legal Society to People for the American Way. Of course, guidelines alone, no matter how widely endorsed, aren’t likely to end the Bible wars anytime soon. Too many people are too deeply invested in keeping the fight alive. But a cease-fire that ends some of the confusion and conflict about the role of the Bible in schools would be good for public education — and for our nation.

Do you really know how your tax dollar is spent?

I always thought a pass-through had something to do with road construction. I was wrong!

The Oklahoma legislature began funding a variety of programs across the state of Oklahoma with pass-through money several years ago. The idea is — put money in, say, the Department of Commerce and order Commerce to send the money on to a particular program supported by a particular legislature. There are all kinds of agencies with pass-through money.

The problem is tracking the money. The agencies that get the money say they are not responsible for tracking how the money was spent. It simply passes through the agency. So now, as reporters, we must find the agency. Find the pass-through. Separate which agencies then got the money and then try Open Records requests with each of the programs that receive the money.

Okay, a little more work but it's our job right. Well here's the problem.
Some of the agencies that receive the money are private agencies and do not believe they are subject to the Open Records Act. They do not believe they are accountable for how the money is spent. It may take a lawsuit to try and get the information. So the money, taxpayer money, has been hidden from public view unless someone is willing to spend tens of thousands of dollars to force the issue.

I do not know if this was the legislative intent behind the program. But it is the end result. My question is, if a lawmaker supports a program in his or her home district, why do they need to hide it? That is what has happened with pass-through. I don't mind the work. I mind the fact that in tough budget times, tens of millions are being hidden or at least cloaked from the Open Records Act.
Terri Watkins — FOI Board Member

Patriot Act controversy rages on

Government Has Not Tracked Bookstore or Library Activity, Ashcroft Says (Taken in part from an article by Dan Eggen — Washington Post Staff Writer)

The Justice Department has escalated its attack on opponents of the USA Patriot Act , ridiculing criticism of the anti-terrorism law and accusing some lawmakers of ignoring classified reports that showed the government has never used its power to monitor individuals' records at bookstores and libraries.

Attorney General John D. Ashcroft labeled critics of the law "hysterics" and said "charges of abuse of power are ghosts unsupported by fact or example."

Ashcroft's comments came after the release of a memo he wrote disclosing that the Justice Department has never used a controversial section of the Patriot Act that allows authorities in terrorism investigations to obtain records from libraries, bookstores and other businesses without notifying the subject of the probe.

By disclosing that the provision has never been used, Ashcroft and other Justice officials hope to neutralize much of the criticism and beat back attempts to curb the law, officials said.

The Justice Department did not disclose how many times investigators have used a similar tool, national security letters, to obtain business records. Sources have said that scores of such letters have been used since the Sept. 11, 2001, attacks.

The department also took special aim at some members of Congress who have implied that Ashcroft was spying on Americans' book-reading habits, despite the lawmakers' access to classified reports that showed that the Patriot Act provision had never been used.

Some senators, who voted for the Patriot Act when it was approved in October 2001, are now concerned about potential abuse of some parts of the statute. They contend that Justice officials have offered confusing information about the monitoring of library use. One Justice official testified earlier this year that the FBI had sought records from about 50 libraries, but that most, if not all, of the requests were part of criminal investigations, not counterterrorism probes.

The American Civil Liberties Union, which has filed a lawsuit challenging the government's powers to monitor such records, said its concerns were not allayed. "What we've always been focused on is the scope of the law itself, and that hasn't changed at all," ACLU attorney Ann Beeson said. "They could use it tomorrow and we would never know, and that makes it extremely dangerous."

Ashcroft's decision to publicly disclose the previously classified information marked a turnabout for Justice, which has consistently resisted requests for the information on the basis of national security concerns. Ashcroft is in the midst of a cross-country tour in defense of the Patriot Act.

More than 150 cities and three states have passed resolutions condemning the legislation as an attack on individual liberties.

The House voted in July to cut off funding for "sneak-and-peek" searches, in which investigators do not immediately notify the subject that a search has been conducted.

Ashcroft and the administration have reacted aggressively, vowing to thwart any attempts to limit the Patriot Act's reach. He has unleashed aggressive new rhetoric in several appearances. At a speech in Memphis, for example, the attorney general said he sought to clarify who should be worried about government monitoring. "If your idea of a vacation is two weeks in a terrorist training camp" or "if you enjoy swapping recipes for chemical weapons from your 'Joy of Jihad' cookbook," Ashcroft said, "you might be a target of the Patriot Act."

ALA renews call for legislative amendments to PATRIOT Act

The American Library Association welcomed news reports that the Department of Justice had declassified its report on Section 215 of the USA PATRIOT Act.
"I am glad the Attorney General finally agreed to declassify this report after almost two years of seeking an open and full accounting of activity by federal agents in libraries," said ALA President Carla Hayden. "We hope this symbolizes a significant commitment to ongoing reporting to the American public and the U.S. Congress. As librarians, we understand the importance of open access to information. The American public deserves no less. We were surprised to learn, however, that the Justice Department has never utilized Section 215 relating to the production of business records, particularly in light of previous statements from the Justice Department."
For example: Last December, assistant attorney general Daniel Bryant said information had been sought from libraries on a voluntary basis and under traditional legal authorities, possibly including national security letters. In March 2003, Justice Department spokesperson Mark Corallo said libraries had become a logical target of surveillance. In May 2003, in testimony before members of Congress, assistant attorney general Viet Dinh said federal agents had visited about 50 libraries.

"In any case, we hope members of Congress will restore the historic protections of library records and pass one of the legislative proposals currently on the floor.”

"Legislators and the general public can be assured that traditional legal protections extended to library records are not an obstacle to ensuring national security.

The State of the First Amendment survey

The State of the First Amendment survey, released by the First Amendment Center each year, is a reality check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The survey, conducted annually since 1997 by the Center for Survey Research & Analysis at the University of Connecticut, examines public attitudes toward freedom of speech, press, religion and the rights of assembly and petition.

In 2003, Americans’ support for their First Amendment freedoms – shaken by the events of Sept. 11, 2001 – appears to be returning to pre-9/11 levels.

Among the key findings of this year’s survey:
* About 60% of respondents indicated overall support for First Amendment freedoms, while 34% said the First Amendment goes too far.
* 52% said media ownership by fewer corporations has meant a decreased number of viewpoints available to the public; 53% said the quality of information also has suffered.
* Almost eight in 10 respondents said owners exert substantial influence over news organizations’ newsgathering and reporting decisions. Only 4% said they believed there is no tampering with story selection or play.
* 54% favored maintaining limits on how many radio, television and newspaper outlets may be owned by a single company, but 50% opposed any increased regulation.
* 65% favored the policy of “embedding” U.S. journalists into individual combat units; 68% said the news media did an excellent or good job in covering the war in Iraq.
* 48% said they believe Americans have too little access to information about the federal government’s efforts to combat terrorism – up from 40% last year.
* About 55% of those surveyed opposed a constitutional amendment to ban flag-burning, up from 51% in 2002.