Despite his opposition to a constitutional amendment, Gore voted in favor of the 1989 bill to outlaw flag burning.7 At the time, he remarked that "to me the flag is an important enough symbol to deserve legal protection through legislation . . . [such an] approach is certainly preferable to amending the Bill of Rights."8
When asked about his position on a flag burning amendment at a New Hampshire rally, Bush simply responded that "I support it."9 Scott McClellan, a member of the governor's campaign staff, elaborated on Bush's support for an amendment that would protect the American flag from desecration: "[Bush] believes and supports a constitutional amendment because brave Americans have fought and died to protect the ideals of democracy it represents."10
Funding for the Arts
Public funding for the arts is a perennially potent legal and political issue. In 1998, the U.S. Supreme Court ruled that a statute requiring the National Endowment for the Arts to consider "decency and respect" as one of the criteria by which grant applications are judged was not a violation of the First Amendment.11 The Court emphasized, however, that the "decency and respect" criteria could not be used to discriminate against artworks based on the "viewpoints" expressed in such works.12
Last year, Mayor Rudolph Giuliani of New York tried to cut off public funding to the Brooklyn Museum of Art for displaying an exhibition that included, among other pieces, a depiction of the Virgin Mary covered in elephant dung. A federal district court rejected his attempt as an unconstitutional violation of the First Amend-ment.13 In stinging words, the court ruled that "there can be no greater showing of a First Amendment violation" than the mayor's decision to cut off funding to the museum based on the "particular viewpoints" expressed in the exhibition.14 The court invoked the U.S. Supreme Court's admonition that, "if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. . . ."15
Bush believes that "we should continue federal funding for the arts, but give states a greater say in how the funds are spent."16 He does not believe, however, that "we should spend public money to support obscene material or denigrate religion."17 Bush's stated position is consistent with his remarks during the Brooklyn Museum controversy. During a campaign stop in Buffalo with New York Governor George Pataki, Bush voiced support for Mayor Giuliani's efforts to cut off city funds to the Brooklyn Museum.18 "From what I've read, the exhibit besmirches religion," he said.19 "I don't think we ought to be using public monies to denigrate religion."20
Gore disagreed with the mayor's position regarding the Brooklyn Museum and commented that although "he had no intention" of seeing the exhibition, he was not "in favor of censorship."21 Gore also "strongly believe[s] in encouraging and supporting the arts and would continue the current policy of support. The arts are an important part of our life and our history and should be supported."22
The U.S. Supreme Court has had little occasion to address issues relating to speech on the Internet [see also page 3]. In 1997, the Court struck down the Communications Decency Act, which attempted to restrict the transmission of offensive material via the Internet.23 Congress responded by fashioning a narrower version of that law, but a federal appellate court recently struck that down as well.24 As time passes, the U.S. Supreme Court will undoubtedly rule again on issues directly applicable to speech on the Internet.
"There ought to be limits to freedom." This was George W. Bush's response to an Internet website that parodied his presidential campaign site.25 Beyond this remark, the Bush campaign complained to the Federal Election Commission (FEC) about the mock website's alleged violations of election laws and has also considered pursuing copyright, trademark, and misappropriation claims against the site's author.26 The FEC dismissed the Bush campaign's complaint, explaining that the commission would rather devote its resources to more significant issues.27 On a different note, Governor Bush recently signed legislation that overturned a ban on self-help legal software in Texas.28 The Texas legislature and Bush decided that such software is protected by the First Amendment as long as it clearly states that it is not a substitute for legal counsel.29
Gore and his campaign have also been the subject of parody websites. Unlike Bush, he declined to file any complaints with the FEC. In a speech, Gore commented that "[w]e must harness the powerful new forces of technology, and use them to strengthen our oldest values-to promote freedom, to educate our children, and to lift our families and our nations up."30
In Mainstream Loudoun v. Board of Trustees,31 a federal district court found unconstitutional under the First Amendment a county library's use of Internet blocking software to eliminate access to "obscene" sites from its computers. The court applied strict scrutiny to the library's policy because the library was a limited public forum and its policy was a content-based restriction on speech. In striking down the policy, the court found that it was not narrowly tailored to serve a compelling government interest and was an invalid prior restraint on free speech.
On June 27, 2000, the Senate passed its versions of two different bills designed to require Internet filters in public schools and libraries.32 The first proposal, the Children's Internet Protection Act, would require schools and libraries that receive universal service discounts or federal "e-rate" money for technology to install a mechanism to filter Internet content.33 The second, the Neighborhood Children's Internet Protection Act, requires only that schools and libraries work with their communities to design effective mechanisms to protect children from questionable matter on the Internet.34 Both bills are currently in conference committee.
Gore is "calling for new legislation to require every school and library that applies for the e-rate to come up with its own plan for protecting children from objectionable Internet content. These plans would be developed in the community-not in the Congress."35 With this position, Gore disagrees with those who "say we should take no action at all [and] just let children roam free on the Internet."36 Gore warns that children "are vulnerable and impressionable, and we have an obligation to protect them from harmful words and images on the Internet."37
At a campaign stop in Holland, Michigan, Bush registered support for local efforts to establish "filters for Internet services that exist in public places."38 The governor's position, which is very similar to Gore's, stems primarily from a concern over public display of "pornography and smut" in schools and libraries.39
Establishment Clauses and Free Exercise
The U.S. Supreme Court has never specifically decided whether parents can redeem vouchers from the government to send their children to parochial schools. However, the Court has dealt with similar issues on a number of occasions. In the seminal decision of Lemon v. Kurtzman,40 the Court constructed the three-part Lemon test, which was later collapsed into two parts,41 instructing that a government program must (1) have a secular purpose whose (2) primary effect neither enhances nor inhibits religion. The second prong is further divided into three subparts warning that government programs are unconstitutional if they: (1) result in government indoctrination, (2) define recipients by reference to religion, or (3) create an excessive entanglement between government and religion.42 In Lemon, the Court struck down as unconstitutional state programs that provided aid to parochial elementary and secondary schools and for their teachers of secular subjects. Although many decisions invoke and recast the Lemon test, the Court has not articulated any clear principle with respect to government aid to parochial schools.
Professor Erwin Chemerinsky suggests one way to evaluate precedent in the area: the government can give the same aid to parochial schools as it does to public schools so long as it is unlikely that the aid can be used for religious instruction.43 Moreover, Chemerinsky observes that the Court is more likely to uphold programs where the aid is provided directly to the students and their parents rather than to the schools.44
Within this context, any legal discussion of school vouchers undoubtedly would include, among other decisions, the Court's holdings in Committee for Public Education and Liberty v. Nyquist,45 Sloan v. Lemon,46 Mueller v. Allen,47 Agostini v. Felton,48 and Mitchell v. Helms.49 In the twin opinions of Nyquist and Sloan, the Court struck down as unconstitutional state programs that provided tuition reimbursements and tax relief to the parents of private and parochial school children. Despite the fact that the aid in those cases ostensibly went directly to the parents of the children and not to the schools, the Court found the programs unconstitutional because the benefits were available only to the parents of nonpublic school children. In contrast, the Court in Mueller upheld a Minnesota statute allowing the parents of public and parochial school children to deduct school-related expenses from their state taxes. In Agostini, the Court upheld a law allowing government-funded teachers to teach in private schools because the carefully crafted program had the secular purpose of educating disadvantaged children, and did not result in governmental indoctrination, did not define its recipients by reference to religion, and did not create an excessive entanglement with religion. Most recently, in Mitchell, the Court upheld a school aid program that distributes federal funds to state and local agencies that in turn provide public, private, and parochial schools with equipment and educational materials.50 The Court reasoned, as it had in previous cases,51 that the provision of basic materials and neutral funds does not constitute an establishment of
religion in violation of the First Amendment.
Although the U.S. Supreme Court has not examined the school voucher issue, a number of lower courts have. For example, the Wisconsin Supreme Court in 1998 upheld a program in Milwaukee allowing parents or guard-ians of disadvantaged children to endorse funds from the government to private and parochial schools and allowing their children to "opt out" of religious activities.52 Ultimately, the court held that the Milwaukee system, "which provides a neutral benefit directly to children of economically disadvantaged families on a religious-neutral basis, does not run afoul of [the Lemon] criteria the Court has traditionally used to evaluate whether a state educational assistance program has the purpose or effect of advancing religion."53
In contrast, a federal court in Ohio recently struck down Cleveland's school voucher program as violative of the Establishment Clause.54 After providing a thorough analysis of the applicable case law and its historical context, the court drew a close analogy to Nyquist and held that the voucher program could not withstand constitutional scrutiny primarily because it allowed parents to redeem their vouch-ers only at participating schools, the vast majority of which were religious.55 "Thus," the court held, "the [Cleveland] Program has the effect of advancing religion through government-sponsored religious indoctrination" since it "create[s] incentives for students to attend religious schools."56
Four months before the federal court in Cleveland struck down that city's voucher program as unconstitutional, Governor Bush denounced the court's decision to merely halt the program pending a constitutional analysis. Bush described that intermediary step as "judicial overreach with serious consequences [for] Cleveland's disadvantaged school children."57 "This case is not about the state imposing religion," Bush insisted, but is instead about "parents having the right to choose an appropriate school for their children."58 Given these remarks and Bush's proposals to provide federal vouchers to aid low-income students (conditioned on their schools' academic performance),59 there is little doubt which side of the issue the governor falls on.
Unlike Bush, Gore opposes school vouchers. His opposition appears not to be based on First Amendment concerns, but rather on his belief that vouchers will hurt public schools' ability to effectively educate their students. In an interview with Bob Herbert of the New York Times, Gore explained that "[n]inety percent of the school children are in public schools. The teachers are overburdened. The classrooms are overcrowded. The buildings are falling down. . . . In a situation like that, to call for draining away money from public schools toward private schools is just plain irresponsible."60 On the other hand, Gore's running mate, Senator Joseph Lieberman, has been a vocal proponent of school vouchers.61
Posting of the Ten Commandments
In 1980, the U.S. Supreme Court found unconstitutional a state law that required every public school classroom in Kentucky to post a copy of the Ten Commandments.62 The Court reasoned that the law violated the Establishment Clause because it had no secular legislative purpose.63
Governor Bush bluntly registered his opinion on this issue by remarking at a campaign stop in Richmond, Virginia: "I have no problem with the Ten Commandments posted on the walls of every public place."64 However, Bush could not identify which version, whether Protestant, Catholic, or Jewish, of the Ten Commandments that he would have posted. In response to a question on the subject, he replied, "[t]he standard version. Surely we can agree as a society on a version that everybody can agree to."65 As for who will "agree," the governor has consistently remarked that states and localities, and not the federal government, should make decisions about religion in schools.66
In contrast, Gore is strongly opposed to the posting of the Ten Commandments in public schools or government buildings.67 When asked about his position by CBS, Gore responded that
1. 491 U.S. 397 (1989).
2. Formerly Tex. Pen. Code Ann. § 42.09(a)(3) (1989). Presently at Tex. Pen. Code Ann. § 42.11 (West 1999).
3. 18 U.S.C. § 700.
4. 496 U.S. 310, 317 (1990).
5. In June 1999, the U.S. House passed a flag-burning amendment by a margin of 305 to 124, i.e., with fifteen more votes than the two-thirds necessary to amend the Constitution. On March 29, 2000, the U.S. Senate voted sixty-three to thirty-seven to pass such an amendment.
6. CBS News: President Match <http://cbsnews.cbs.com/network/htdocs/campaign2k/aol_frameset/index.html> [hereinafter CBS News: President Match] (visited Aug. 14, 2000).
7. H.R. 2978, 101st Cong., Sen. Vote No. 227 (Oct. 5, 1989). Senator Joseph Lieberman also voted in favor of the Flag Protection Act of 1989.
8. Carol Bradley, Gannett News Serv., Sept. 12, 1989.
9. David Von Drehle, Bush Sets No Litmus Test for Judges: GOP Front-Runner Finds Big Crowds in Debut, Wash. Post, June 15, 1999, at A1.
10. Erin Sherbert, Texans React to Failure of Flag-Burning Amendment, Daily Texan via U-Wire, Mar. 31, 2000.
11. National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).
12. Finley, 524 U.S. at 579-83.
13. Brooklyn Institute of Arts and Sciences v. City of New York, 64 F. Supp. 2d 184 (E.D.N.Y. 1999).
14. Brooklyn Institute, 64 F. Supp. 2d at 200.
15. Id. at 198 (quoting West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)).
16. Where the Candidates Stand-Part 2 of 2, Columbus Dispatch (Ohio), Feb. 27, 2000, at 13A.
18. Bush Backs Cutoff of Museum Funds, L.A. Times, Oct. 5, 1999, at A21.
19. Alexander Cockburn, Shit Happens, Nation, Oct. 25, 1999, at 8.
21. Review & Outlook: No Controlling Artistic Authority, Wall St. J., Oct. 8, 1999, at W15.
22. Where the Candidates Stand, supra note 16, at 13A.
23. Reno v. ACLU, 521 U.S. 844 (1997).
24. ACLU v. Reno, No. 99-1324, slip op. (3d Cir. June 22, 2000).
25. Does First Amendment Protect Internet Speech? Libel Suit, FEC Complaint Raise Constitutional Issues, Political Finance & Lobby Rep., May 26, 1999.
27. Massie Ritsch, Parody Web Sites Skewer Campaigns, L.A.Times, Apr. 23, 2000.
28. Pat Newcombe, Web Regulation Battles Heat Up: The Internet and Software Industry Fight Government Regulation, Am. Libraries, Nov. 1, 1999, at 50.
30. Al Gore for President Official Site: Internet and Technology <http://www.algore2000.com/internet and technology/ www agenda1.html> (visited Aug. 16, 2000).
31. 24 F. Supp. 2d 552 (E.D. Vir. 1998).
32. See Senate Passes Children's Protection Act Along with Consensus Measure, 2 E-Commerce L. Wk. 757 (June 29, 2000).
33. S. 97, 106th Cong. (2000).
34. S. 1545, 106th Cong. (2000).
35. Remarks by Vice President Al Gore, "Protecting Our Children in the 21st Century," to the National Parent Teachers Ass'n <http://www.algore2000.com/speeches/pta.html> (visited Aug. 14, 2000).
38. Brian Krebs, Bush in Porn in Libraries: Filter This!, Newsbytes, Feb. 28, 2000.
40. 403 U.S. 602, 612-13 (1971).
41. Agostini v. Felton, 521 U.S. 203 (1997).
42. See Agostini, 521 U.S. at 234.
43. Erwin Chemerinsky, Constitu-tional Law: Principles and Policies 1008 (1997).
45. 413 U.S. 756 (1973).
46. 413 U.S. 825 (1973).
47. 463 U.S. 388 (1983).
48. 521 U.S. 203 (1997).
49. 120 S. Ct. 2530 (2000).
50. Mitchell, 120 S. Ct. at 2530.
51. See, e.g., Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (funding to assist hearing-impaired children); Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481 (1986) (funding to vocational program for physically disabled students that was used by a blind student at a Christian college); Board of Ed. v. Allen, 392 U.S. 349 (1975) (loaning of textbooks to parochial schools).
52. Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998).
53. Jackson, 578 N.W.2d at 620.
54. Simmons-Harris v. Zelman, 72 F. Supp. 2d 834 (N.D. Ohio 1999).
55. Simmons-Harris, 72 F. Supp. 2d at 864-65.
57. George W. Bush for President Official Site: News Release, Governor Bush Critical of Court Decision to Suspend Cleveland Voucher Program <http://www.georgewbush.com> (visited Aug. 1, 2000).
59. David Tell, Judges and Schools, Wkly. Standard, Sept. 13, 1999, at 11.
60. Bob Herbert, A Campaign from the Heart Could Save This Candidacy, Star Trib., Oct. 5, 1999, at 13A.
61. Sandra Sobieraj, Gore, Lieberman Face Differences, AP Online, Aug. 9, 2000.
62. Stone v. Graham, 449 U.S. 39 (1980).
63. See Stone, 449 U.S. at 42-43.
64. Alan Elsner, Disputes Seen in Push to Post Ten Commandments, Buffalo News, June 25, 1999, at 13A.
66. See, e.g., Tessie Borden, Candidates Mixed on House Action, AP Online, June 18, 1999 (paraphrasing Bush spokesperson Mindy Tucker).
67. CBS News: President Match, supra note 6.
69. See, e.g., Engel v. Vitale, 370 U.S. 421 (1962) (nondenominational prayer in public school is unconstitutional); Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963) (required silent reading of Bible and recitation of the Lord's Prayer in public school unconstitutional); Wallace v. Jaffree, 472 U.S. 38 (1985) (law authorizing moment of silence for meditation or prayer in public school unconstitutional).
70. Lee v. Weisman, 505 U.S. 577 (1992).
71. 120 S. Ct. 2266 (2000).
72. See, e.g., Widmar v. Vincent, 454 U.S. 263 (1981) (striking down state university policy of opening school facilities to secular groups but excluding religious ones); Board of Ed. v. Mergens, 496 U.S. 226 (1990) (upholding federal law preventing religious discrimination in access to school facilities); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) (finding unconstitutional a school district policy opening facilities to community and civic but not to religious groups).
73. Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819 (1995).
74. Bennett Roth, Bush Backs School Prayer Amendment/Governors Warn Issue Is Divisive, Houston Chron., Nov. 21, 1994, at A1.
76. Amici Curiae Brief for State of Texas et al., Santa Fe Indep. Sch. Dist. v. Doe, No. 99-62 (U.S. June 19, 2000).
77. Id. at 4.
78. CBS News: President Match, supra note 6.
80. Epperson v. Arkansas, 393 U.S. 97 (1968).
81. Edwards v. Aguillard, 482 U.S. 578 (1987).
82. Bush Sees Place for Teaching on Creation, L.A. Times, Nov. 4, 1999, at A29.
83. James Ridgeway, Mondo Washington, Village Voice, Sept. 7, 1999, at 38.
85. See, e.g., Roemer v. Board of Pub. Works of Maryland, 426 U.S. 736 (1976) (upholding conditional state aid to religiously affiliated colleges). See also Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998).
86. Bradfield v. Roberts, 175 U.S. 291 (1899).
87. Bowen v. Kendrick, 487 U.S. 589 (1988).
88. George W. Bush for President Official Site: Issues, Faith-Based Initiatives <http:// www.georgewbush.com> (visited July 31, 2000).
89. CBS News: President Match, supra note 6.
91. 2 U.S.C. §§ 441 et seq.
92. 424 U.S. 1 (1976).
93. Buckley, 424 U.S. at 19.
94. See, e.g., California Medical Ass'n v. Federal Election Comm'n, 453 U.S. 182 (1981) (upholding limits on individual and association contributions to political action committees); Federal Election Comm'n v. National Conservative PAC, 470 U.S. 480 (1985) (striking down expenditure limits imposed by the Presidential Election Campaign Fund Act); Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U.S. 604 (1996) (declaring unconstitutional a federal law limiting expenditures by a political party to a candidate).
95. 120 S. Ct. 897 (2000).
96. Al Gore for President Official Site, Campaign Finance Reform: Accomplishments <http://algore2000.com/campaign_finance_ reform/cfr_accomp.html> (visited Aug. 14, 2000).
98. Al Gore for President Official Site, Campaign Finance Reform: Agenda <http://algore2000.com/campaign_financ_ reform/cfr_agenda1.html> (visited Aug. 14, 2000).
100. CNN/AllPolitics-Election 2000-Where They Stand <http://www/cnn.com/ ELECTION/2000/resources/where.they.stand/> (visited Aug. 14, 2000).
101. Jeff Dickerson, George W. Bush, In His Own Words, Atlanta J. & Const., Mar. 3, 2000, at A18.
102. Wayne Slater, Bush Proposes Lifting Political Donor Limits, Dallas Morning News, Apr. 15, 1999, at 29A.
103. George W. Bush for President Official Site: Issues, Campaign Finance Reform <http://www.georgewbush.com> (visited Aug. 2, 2000) (Bush's campaign website asserts that it was the first to voluntarily implement "near-real-time" disclosure of contribution information on the Internet).
104. Al Gore for President Official Site, Children and Families: Accomplishments <http://www.algore2000.com/children_and_families/chi_accomp.html#B> (visited Aug. 14, 2000).
105. White House 2000 Gore: Stresses Community Action After Littleton, American Pol. Network-Hotline, Apr. 29, 1999.
106. Todd Spangler, Gore Brings Pa. Different Messages, AP Online, Mar. 16, 2000.
107. Morton Kondracke, A National Issue, But Gore and Bush Are Silent, San Diego Union-Trib., Apr. 16, 2000, at G4.
108. Eric Mink, TV's Other Big Brother, Daily News, Aug. 9, 2000, at 80.
109. Ronald Brownstein, National Perspective Bush, Gore Share Some Ideological Space, but Their Orbits Are Distinct, L.A. Times, June 21, 1999, at A5.
110. Ruiz v. Hull, 957 P.2d 984, 1002 (Ariz. 1998).
111. Osler McCarthy, Arrested Pickets Sue DPS, Bush: Activists Say Their Free Speech Rights Were Violated, Austin Am.-Statesman, Aug. 31, 1999, at A4.
112. Plaintiffs' Original Petition at ¶¶ 14-27, Texans United Educ. Fund, Inc. v. Bush, No. 99-10051, District Ct., Travis Cty., Tex.
113. Id. at ¶¶ 28-39.
114. See United States v. Grace, 461 U.S. 171 (1983) (holding that law that restricted protests in front of the U.S. Supreme Court building was unconstitutional); Schneider v. New Jersey, 308 U.S. 147, 163 (1939) (acknowledging city's authority to keep streets clear but ultimately pronouncing that "[t]he streets are the natural and proper places for the dissemination of public opinion").