ACLU Busy in Court, From Free Speech to Due Process

December 10, 2002

DETROIT -- Three lawsuits filed by the American Civil Liberties Union of Michigan will be heard this Wednesday, December 11, in three different courts. Two of the cases involve free speech, while the third involves due process.

“It’s obviously a very busy time for the ACLU,” said Kary Moss, ACLU of Michigan Executive Director.  “I’m not sure whether the general public is aware that we fight for the rights of so many different kinds of people, on so many different fronts.”

After a Frenchtown firefighter, along with other Union members, raised serious issues of public safety at a Township Board meeting last year, the Frenchtown Township Board passed an ordinance making it a crime for a firefighter to speak to the media about any fire department matter. The firefighters had expressed concern that staffing levels and incident command procedures contributed to four fatalities at a recent fire.


The ACLU filed a federal case in Detroit on behalf of a Frenchtown Charter Township firefighters’ union and will be arguing on Wednesday that the firefighters have a constitutional right to speak out on matters of public concern.

The U.S. District Court in Ann Arbor will hear a lawsuit against the South Lyon Community Schools for suspending two students who wrote a newspaper entitled The First Amendment. The newspaper contained numerous short articles on a wide variety of topics, including an article criticizing adults for telling jokes about Arabs and Muslims, an article critical of teachers for keeping religion out of the school, an article critical of the football coach, and an article critical of the principal for threatening seniors with criminal charges for carrying out senior pranks. 

Although the students never actually distributed the paper, they were charged with “interfering with the operation of a school building.”  The students were also charged with violating a catchall provision of the Student Code of Conduct stating that corrective measures will be taken “should any student act in such a matter that is detrimental to himself.”  They were suspended for five days.

The lawsuit charges the school district with violating the First Amendment right to freedom of speech and freedom of the press. The suit also challenges the constitutionality of the school regulations controlling the distributions of materials at school as an “unlawful prior restraint” on free expression, as overly broad and vague, and for punishing speech based on its content.

The third ACLU case will be heard by the entire U.S. Court of Appeals for the Sixth Circuit in Cincinnati.

The case, Tesmer v. Granholm, will decide whether Michigan can deny an indigent person who has pleaded guilty to a crime the right to have an attorney assist with his or her appeal from the sentence that the judge imposes after the plea.  Since 1963, the United States Supreme Court has repeatedly held that the poor have the same right as the wealthy to the assistance of an attorney for a first appeal from any criminal conviction, and no State had attempted to take away that right.

In 1999, the Michigan Legislature passed a statute prohibiting the appointment of counsel in guilty plea cases except in limited circumstances. The statute has never taken effect because the federal district court in struck it down in 2000.  In July, a three judge panel reversed the district court ruling, but the entire Sixth Circuit agreed to rehear the case.  Oral argument on Wednesday will be before 12 judges.

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