Case Involving Harsh Words About Religion Heads to 9th Circuit

[WSJ_law_blog]

Here’s a strange little constitutional riddle for you: When can a spoken statement constitute a violation of the First Amendment?

Answer: When the speaker is a government employee and the spoken statement amounts to an “establishment” of one religion over another.

Granted, it’s a bit of a trick question, as the First Amendment violation involves the Establishment Clause rather than the Free Speech Clause, but we still think it’s kind of fun.

We came across this little quirk earlier today while reading about an interesting lawsuit heading up to the Ninth Circuit.

The backstory: In 2007, a public high-school teacher in Orange County, Calif., made some provocative statements in an AP history class slamming religion pretty hard.

The teacher, James Corbett of Capistrano Valley High School in Mission Viejo (which graduated former Los Angeles Raider Todd Marinovich) referred to Creationism as “religious, superstitious nonsense” during a 2007 lecture. Corbett made a host of other controversial statements as well. One of his students, Chad Farnan, sued Corbett and the school district, alleging a violation of his First Amendment Rights.

In May, a federal judge in Santa Ana, Calif., James Selna, granted summary judgment, partly in favor of Farnan and partly in favor of the defendants. Click here for the opinion. Specifically, Judge James Selna ruled that the “superstitious nonsense” comment violated Farnan’s rights, but ruled that nearly two dozen statements did not. Both sides appealed to the Ninth Circuit.

Joining Corbett for the appeal: Erwin Chemerinsky, the dean of the UC Irvine law school. According to this story in the OC Register, Chemerinsky was named in the filings as a member of Corbett’s new, four-person defense team. All of the attorneys will work on a pro bono basis.

“Dr. Corbett has rendered an extraordinary service to the Capistrano Unified School District and its students for many, many years,” said one of the attorneys, Craig Johnson, “and I think that it is a disservice to his record and his legacy to allow the current ruling on summary judgment to stand.”

Chemerinsky did not immediately return a request for comment from the Register.

Meanwhile, attorneys for student Chad Farnan simultaneously appealed the case today to the Ninth Circuit. They believe Selna should have found Corbett liable for more than just the Creationism comment.

“We will ask the court to reconsider all 22 statements,” said Farnan’s attorney, Robert Tyler. “We hope that the Court of Appeals will recognize that comments like, ‘Religion was invented when the first con man met the first fool,’ are truly a violation of the establishment clause, when used in the context used by Dr. Corbett.”