Freedom of Expression and Religion

March 13, 2018

The last year was a relentless attack on civil rights and civil liberties emanating from the highest echelons of political power and emboldening state and local leaders to act in ways previously unimaginable. Nevertheless, we persisted, we resisted, and we achieved important progress.

Crista Eggers tried for years to qualify a ballot initiative to de-penalize the use and possession of medical cannabis. As Eggers and Nebraskans for Medical Marijuana sought to qualify for the ballot in 2022, they turned to the ACLU of Nebraska for help challenging a provision of the state constitution that requires a certain threshold of signatures from 38 counties to qualify for the statewide ballot. Eggers v. Evnen argued current law treats ballot signatures as unequal based on geography, violating the principle of “one person, one vote” that’s protected under the 14th Amendment.  For example, a single Douglas County voter has less than a thousandth of the power of an Arthur County voter in determining whether their county meets its signature threshold. A district court judge initially issued an order temporarily blocking the enforcement of this provision. A month later, however, the U.S. 8th Circuit Court of Appeals issued a stay on the earlier order, effectively overturning it and upholding the ballot qualification requirement. Our litigation ended with a split decision in the U.S. 8th Circuit Court of Appeals that keeps the rule in place on the basis that our equal protection argument did not apply to state ballot initiative processes. One dissenting judge noted that “if the right to vote is fundamental, I see no reason why it should not apply equally to the initiative process at the heart of Nebraska’s electoral and legislative system.”

Marcus Pennell, then a senior at Northwest Public High School, was a student reporter for the school’s newspaper called the Viking Saga. In the paper’s June 2022 issue, Pennell wrote an editorial on the Florida Parental Rights in Education Act, or what’s been popularly called the ‘Don’t Say Gay’ law, discussing the history of LGBTQ+ rights and the harm of erasure. Days after publication, the school shuttered the newspaper and terminated its newspaper class. We launched a lawsuit against Grand Island Northwest Public Schools on behalf of the Nebraska High School Press Association and student journalist Marcus Pennell for claims that school officials shut down the school newspaper for publishing articles on LGBTQ+ topics. Our lawsuit argued that school officials’ decision to shutter the newspaper violated the plaintiffs’ First Amendment free speech rights on three counts: their right to be free of viewpoint discrimination, their right to be free of retaliation and their right to receive information. The case was unfortunately dismissed because Pennell was no longer a current student, but the judge noted “school administrators would be wise to remember that policies and decisions to restrict speech in student newspapers [...] may run afoul of the First Amendment if they reflect ‘an effort to suppress expression merely because public officials oppose a speaker’s view.’”