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  Volume XXVIII, Number 1
Winter/Spring 1996




CIVIL LIBERTIES UP FOR A VOTE Ballot Measures Oregonians Are Likely To Face This November


1995 RECAP

FREE SPEECH & EXPRESSION: Challenge to Measure 9, 1994's Campaign Finance Measure

SEPARATION OF CHURCH & STATE: Religious holiday programs in public schools.

CONGRESSIONAL UPDATE Civil Liberties At Stake in the 104th Congress
FACES OF LIBERTY Two Sets On The Road in 1996

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Campaign Speech About Censorship Is Censored

Sarah Yearout called the ACLU with a unique civil liberties dilemma -- her student government campaign speech denouncing school censorship was censored.

In _Yearout v. North Clackamas School District_, the ACLU Foundation of Oregon represents Clackamas High School senior Sarah Yearout in her challenge to the school district policy that caused school officials to censor her speech. Our aim is to clarify the free speech rights of all Oregon high school students.

The Clackamas controversy began in January, 1995, when Sarah Yearout was prevented from giving her student government campaign speech at a student assembly. She had signed a "contract" when she became a candidate, agreeing not to "...make derogatory remarks about our school..." However, she never dreamed her speech about the need for better communication between students and the administration would be censored.

"I don't understand what they thought I was going to do," Sarah explained. "My speech wasn't radical. It was about communication between the school and students, and how I wanted to make things better."

Sarah contacted the ACLU of Oregon after her speech was censored, and after, she feels, she lost the election because of it. On behalf of Sarah Yearout, ACLU volunteer attorney Brian Posewitz filed suit in Multnomah County Circuit Court in December, 1995, arguing that Sarah's free speech rights under the Oregon and U.S. Constitutions were violated when the school censored her speech.

Oregon ACLU Executive Director David Fidanque says the case could be an important milestone in the fight for students' rights.

"When government officials refuse to let an individual, in this case a student, speak based on the content of that speech, that's censorship. While the government could never censor the speech of adults, it's becoming more and more common for students."

Fidanque noted that a 1986 decision by the U.S. Supreme Court (_Bethel School District v. Fraser_) ruled that Washington school officials did not violate the First Amendment rights of a student government candidate who was suspended for making a sexually suggestive campaign speech to a school assembly.

"This case is very different," Fidanque said. "Sarah Yearout's speech was in the finest tradition of advocating change within the existing political process and she was prevented from ever giving the speech. This is a classic case of misguided censorship."

Sarah Yearout says it was because an ACLU speaker had visited her government class shortly before the school candidate assembly that she realized there might be something she could do to protect her rights.

"I don't know what I would have done if I hadn't known about the ACLU," she said.

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From the Inside

Initiative sponsors have until July 5th to gather signatures, and we won't know for sure which initiatives will appear on the November ballot until the Secretary of State completes verification of the signatures on July 20th. Unfortunately, the campaigns against these measures can't afford to wait that long if we are to be successful.

The nuts and bolts of a successful ballot measure campaign are daunting. One of the most important tasks starts as soon as a proposed initiative is filed: to make sure that the measure's ballot title accurately describes the actual purpose and effect of the measure if it's approved. This step is critical because the ballot title is the description of the measure which is printed on the ballot on election day. It is always the last thing one sees before voting and it's the only thing seen by voters who don't read the fine print in the Voters' Pamphlet.

ACLU monitors all proposed measures filed with the Secretary of State. We submitted comments on the draft ballot titles for at least 19 different statewide ballot measures in 1995. We also appeared in the Oregon Supreme Court cases reviewing most of those ballot titles. The Oregon ACLU does more of this kind of work than anyone except the Oregon Attorney General's office which represents the state in all ballot title cases.

We occasionally file lawsuits seeking to have proposed measures declared ineligible for the ballot because they are unconstitutional or fall outside the scope of the initiative power. So far, those challenges have not been successful. Nevertheless, we have three such challenges pending and a fourth in the planning stage.

Beyond that, there is the business of getting campaign coalitions organized, raising money, researching voter attitudes through polling, raising more money, preparing campaign materials, identifying supportive voters, raising lots more money, buying radio and TV time, and finally, making sure voters get to the polls on election day.

Running a full-blown initiative campaign costs between $1.2 and $1.8 million and uses hundreds of volunteers. That describes the kind of effort it took to defeat the OCA's anti-gay measures in 1992 and 1994, and also the effort it took to defeat the anti-choice measures in 1990.

Obviously, it will be difficult to mount that kind of effort for all of the measures we face this year. At this writing, three of the campaigns are already well organized and by the time this reaches you, others may also be in high gear.

Most of the campaigns will have permission to write ACLU members seeking contributions. We never give physical possession of our membership list to any other organization. Instead, the campaigns are required to send the mailing to a reputable mailing service which then puts the labels on envelopes and delivers the mailing to the post office. Members who have indicated that they don't want their name exchanged with other organizations would be excluded from the mailing.

If you have any questions about the pending ballot measures or ACLU's activities, please call or e-mail ( us anytime.

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Ballot Measures Oregonians Are Likely To Face This November

Anti-civil liberties ballot measures which are likely to appear on this November's ballot include:

Censorship/Obscenity - Would effectively repeal the Oregon free speech protection for "obscenity" and would allow Oregon's 276 cities and counties to adopt different definitions of what is obscene. Would encourage censorship by overzealous police, prosecutors and elected officials.

OCA Anti-Gay - The Oregon Citizens Alliance has once again targeted lesbians, gays and bisexuals for special discrimination. In order to inoculate the measure against a possible Supreme Court ruling overturning Colorado's anti-gay measure, the 1996 OCA measure includes language that would establish a religious "right of conscience" to discriminate because of "sexual behaviors such as homosexuality."

OCA Anti-Abortion - The OCA is also circulating a measure to outlaw second and third trimester abortions unless the life of the pregnant women is in danger. This extreme proposal makes no allowances for rape, incest or situations where the pregnant woman's health is at risk--not even when the fetus has no chance of surviving.

Anti-Immigrant - Four separate measures would require various state and local government programs to require proof of legal residency or citizenship to obtain services. Everything from local schools to universities, hospitals and driver's licenses would be covered. The measures would be burdensome and expensive for all Oregonians, and would encourage discrimination against anyone who looks or sounds "foreign."

Anti-Affirmative Action - The Oregon Supreme Court has now certified ballot titles for all seven versions of a measure designed to prohibit all state and local government affirmative action programs--even when those programs have been adopted to remedy past discrimination.

Criminal Justice - Crime victim advocates are proposing to effectively repeal the Oregon Bill of Rights provisions that guarantee due process to people accused of crimes. The measure would make it much more likely that innocent people will be convicted, including those facing a possible death sentence.

Prisons - A proposed measure would greatly increase prison terms for repeat burglars and thieves. This measure is a prescription for more crime down the road because it would require deeper cuts in the education and social service programs that have been proven to prevent youngsters from becoming the criminals of tomorrow.

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1995 RECAP

The ACLU Foundation of Oregon continued to have an aggressive litigation program in 1995. For the first time in recent memory, countering the radical right organization the Oregon Citizens Alliance (OCA) was not the primary catalyst behind our litigation. While the number of cases related to the OCA remained substantial, 17, the dominant factor in our 1995 litigation was the initiative process itself. Between ballot title, pre-election and post-election challenges, ballot-measure related litigation accounted for 32 cases last year. If you are a member of the ACLU of Oregon and you would like to receive a copy of our current docket, call the Portland office at (503)227-3186.

Here is the breakdown of cases and the primary constitutional issue involved in each:

Equal protection (includes challenges to OCA, anti-immigrant and anti-affirmative action initiatives): 26
Free speech: 13
Religious liberty / Separation of church & state: 11
Search & seizure: 8
Due process: 7
Privacy (includes reproductive freedom): 5
Preserving Oregon's Bill of Rights: 2
Death with dignity: 1
Right to a fair trial: 1
Right to petition government: 1
Protection against self-incrimination: 1

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FREE SPEECH & EXPRESSION: Challenge to Measure 9, 1994's Campaign Finance Measure

1994's Measure 9, the Campaign Finance initiative, was overwhelmingly passed by Oregonians who seemed to feel the voice of the "average" citizen is barely heard above the much louder voice of the almighty dollar. Whether or not you agree that campaign financing needs to be overhauled, once you find out what Measure 9 really does, you will probably agree that Measure 9 is not what it seemed.

In the guise of keeping big money out of elections, Measure 9 actually limits the voices of social workers, teachers, lesbians and gay men, and many other Oregonians who deserve a voice in the political process. Meanwhile, the monied forces who try to dominate the process, and whose influence Measure 9 sought to limit, continue to find loopholes in order to maintain their influence.

On behalf of the American Civil Liberties Union, Inc., Social Workers PAC (SW PAC), Oregon Faculties PAC (OF PAC) and Right to Privacy PAC (RTP), the ACLU Foundation of Oregon is petitioning the Oregon Supreme Court for permission to file a friend of the court brief in a challenge to Measure 9. Our brief will highlight the free speech and freedom of association problems inherent in the measure.

SW PAC and OF PAC are organizational PACs, created so individuals with like concerns can donate what they are able; the combined donations add up to a louder voice, with the end goal of having some influence in the political arena. RTP's primary goal is to collect donations form individuals who not only wish to have a greater, combined effect, like SW PAC and OF PAC, but who contribute to RTP instead of directly to campaigns and/or candidates for other reasons. RTP Executive Director Barry Pack explains the necessity of RTP for gay and lesbian Oregonians.

"Gay and lesbian Oregonians live in constant fear of losing their job, losing their housing and in fear for their own physical safety because of their sexual orientation," explained Pack. "RTP exists solely to represent them and allow them an entry into the political process without sacrificing their physical safety."

Because Measure 9 limits contributions from individuals to PACs ( maximum $100) and from PACs to candidates ($100 for legislative, $500 for statewide races), groups like RTP, SW PAC and OF PAC will have much smaller voices. However, wealthy individuals, corporations and labor unions can still influence elections through "independent expenditure" campaigns. The U.S. Supreme Court has said such spending is protected by the First Amendment. Wealthy candidates, like U.S. Senate candidate Gordon Smith, are also free to spend unlimited amounts of their own money.

The ACLU supports public financing of election campaigns in order to guarantee that _all_ candidates would have enough money to get their message to voters.

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Religious holiday programs in public schools.

Mr. Funfiddle seems innocuous enough at a glance. He is a festive-looking man in holiday green and red, romping with equally festive children who have "Peace", "Love", "Hope", and "Joy" emblazoned on their shirts. Sure, there is a Christmas tree in the picture, but schools are allowed some leeway during the holidays.

However, perusing the playbook for "Mr. Funfiddle's Christmas" quickly gave credence to the concerns of some Silverton parents. "Mr. Funfiddle's Christmas" blatantly promotes a fundamentalist Christian viewpoint, and kindergarten through eighth grade students at Victor Point Elementary School, located in a small, rural town in central Oregon, were practicing scenes from it during their class time, for a production to take place in school, during the school-day.

Even supporters of the ACLU feel we may go too far when we interrupt a school's holiday festivities with concerns about mixing government and religion. However, the Victor Point production of Mr. Funfiddle's Christmas is a perfect example of why we must maintain a strict separation between church and state. Five and six year-olds do not understand when they recite the line "Jesus was the gift God sent to the people of earth," that _they_ don't have to believe that. On the contrary, if they are learning it in school, they could very reasonably deduce that the school is teaching that as fact. This is the problem.

When we learned about "Mr. Funfiddle's Christmas", ACLU cooperating attorney Jossi Davidson agreed to take on the thankless task of attending the Victor Point school board meeting to explain why the principal had to cancel the play. In a letter to the principal, Davidson explained that the production of Mr. Funfiddle's Christmas " the school would unconstitutionally promote religion in violation of the First Amendment of the United States Constitution, Article 1, sections 2, 3 and 5 of the Oregon Constitution..."

In response to our letter, the principal agreed that Mr. Funfiddle crossed the line; he changed the mandatory classroom activity into a voluntary, after-school event. Additionally, supporters of the play who would coordinate the after-school production agreed to remove all blatantly religious dialogue and music from the play. Unfortunately, we received word that those changes may not have been made, so we continue to investigate.

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Civil Liberties At Stake in the 104th Congress

It is very important to contact your Senator, Representative and/or the President in the next couple of months about severe threats to civil liberties. Issues we anticipate congress will act upon this session include:

The Anti-Terrorism Act
The Anti-Terrorism Act's ultimate impact will be felt by law-abiding citizens who could suffer grave invasions of privacy in the name of national security. The Anti-Terrorism Act would give the Executive branch the authority to blacklist certain groups by designating them as terrorist organizations; prevent Americans from inviting dissenting voices from other nations to speak or to visit the United States; allow the deportation of individuals without giving them the opportunity to know why they are being deported; give expanded powers to the FBI to search hotel and travel records without declaring that the search is for a criminal investigation; and, it will provide an ongoing source of funding for retrofitting the nation's phone lines to make them more wiretap ready. A House vote is expected soon.

Welfare Reform
The House and Senate will vote this session on welfare reform bills that include provisions to deny benefits to legal immigrants; gut the federal standards preventing child abuse and neglect; and, exclude needy children from benefits because of the actions of their parents.

Partial Birth Abortion Act
An expected second House vote on the Partial Birth Abortion Act threatens women's reproductive freedom. The exemptions in the Partial Birth Abortion Act are so restrictive that even if the pregnancy threatens the life of the woman she will not be able to have an abortion. If this legislation becomes law, a woman's right to choose under less severe circumstances is also at risk.

Anti-Immigration Bills
The House and Senate will probably face votes this session on bills that threaten the civil liberties of both legal and illegal immigrants. The proposed legislation would make it very difficult for any person dealing with the United States government, including those seeking asylum and undocumented workers facing deportation, to receive the full due process protections all persons are entitled to receive. The proposed national ID system will fundamentally erode the privacy of all Americans.

Stop Turning Out Prisoners Act (STOP) and Prison Litigation Reform Act are very destructive bills that limit the power of federal courts to issue relief in prison conditions cases; make it difficult to settle prison condition suits; and, place a two year limit on federal court injunctions designed to remedy unconstitutional prison conditions. Legitimate complaints by prisoners concerning abuse by prison staff and administration, including rapes, beatings and sewage in drinking water, will go largely unheard if this legislation passes.

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Two Sets On The Road in 1996

Faces of Liberty, the ACLU of Oregon's traveling photo-journal exhibit, has been so popular that a second set has been produced! There are now two sets of Faces of Liberty traveling around the state, educating Oregonians about ACLU's most important client -- the Bill of Rights.

If you know of a venue that can host Faces of Liberty, please contact Kathy Armstrong at the ACLU's Portland office (503-227-3186) so we can schedule a visit. We are particularly interested in exposing students to this important educational exhibit. Suggestions are welcome!

Faces of Liberty is a set of 9 panels that documents, through black & white photographs and accompanying text, eight stories of individual Oregonians who stood up for basic civil liberties. Faces of Liberty is an education project of the ACLU Foundation of Oregon. Brochures about the exhibit are available at all exhibit sites, and from the ACLU office in Portland.

Copyright 1996 ACLU Oregon


Copyright September, 2005 , ACLU of Oregon
Last updated September 05, 2005