CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
Background Materials
Dear Teachers,
In this section you will find a rich variety of resources to augment your understanding of free
expression. We have been very selective in what we chose to include; pieces were screened for
applicability, readability, length, and academic value. While none is required, all are helpful. The
materials are suitable for students in upper grades. Happy reading!
Susie Marcus
Barbara Rost
Contents
Title
Connected to Lesson
“Boobies” – Bracelet Ban Sparks Free Speech Suit,
CBS/AP article on the “I love boobies” breast cancer awareness
bracelets where middle school students were suspended from school.
1
Deliberations in a Democracy – Democratic Government: Protector
and Regulator of Free Expression, Constitutional Rights Foundation.
Superb strategy for classroom discussion of controversial issues.
5
First Amendment History, Birth of the First Amendment,
chapter from First Amendment Schools by Charles C. Haynes,
Chaltain, Ferguson, Hudson, and Thomas. Fascinating six-page
account of how the first amendment came into being.
4
Fourth and Fifth R’s: Respect and Responsibility by Ron Skinner
Two-page character education article underscoring the value
of teaching about respect and responsibility.
2
Introduction to Free Speech History excerpted from materials
from The Constitution Center and University of
Missouri-Kansas City School of Law. Nice one-pager on
America’s history of free speech.
4
Limits on Freedom of Speech, from Freedom Forum – Teaching
about the First Amendment. Succinct two-pager defining
concepts such as clear and present danger, fighting words, etc.
3
The Right to Freedom of Speech, from Our Rights by David J.
Bodenhamer. Great nearly five-page background piece on
free speech from the framers to contemporary
times; emphasis on free speech as a fundamental value.
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Supreme Court Case Summaries, excerpted from Oyez website.
Nine key First Amendment U.S. Supreme Court First Amendment
cases that may interest students; each case summary is 1-2 pages
in length; list is not comprehensive.
1
Words that Matter, vocabulary list of terms from all lessons.
all
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CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
Boobies Bracelet Ban Sparks Free Speech Suit
November 15, 2010 4:44 PM
Two middle schoolers filed a free-speech lawsuit Monday against a Pennsylvania school
district that suspended them for wearing the popular "I ♥ boobies!" bracelets.
The American Civil Liberties Union believes the lawsuit is the first in the country over a
school's ban on the $4 bracelets, which are designed to raise breast-cancer awareness
among young people. The rubber jewelry has become wildly popular among students,
prompting bans across the country.
School officials in Easton argue that the slogan is distracting and demeaning, and that some
staff feel it trivializes a serious illness.
The district banned the bracelets in October, a month into the school year and after
students had been wearing them without serious incident, the ACLU said.
More Bracelet Coverage:
"Boobies" Bracelets Cause Stir in Wash. School
Kayla Martinez, 12, and Brianna Hawk, 13, had their parents' permission to wear the
bracelets but soon found themselves in the principal's office at Easton Area Middle School,
the lawsuit states. They were also banned from school dances for a month.
Amy Martinez said her daughter's suspension seems unduly harsh, given that the seventhgrader had agreed to wear the bracelet inside out, with only a breast cancer-awareness
website address showing. That, too, was deemed inappropriate under the school dress
code, she said.
"I don't believe that vulgarity, obscenity, profanity or nudity (in the school code) apply to
the word 'boobies' or 'breast,"' said Martinez, 32, an accountant whose late aunt suffered
from breast cancer.
"There were teachers that had 'breast cancer awareness' T-shirts on" in October, National
Breast Cancer Awareness Month, she said.
The ACLU calls the bracelets perhaps silly and irreverent, but not lewd or indecent.
The civil-rights group has intervened in similar school disputes across the country,
including a second case in Pennsylvania and one in Wyoming in which a student was
allowed to keep wearing a bracelet except in the presence of two teachers who found it
objectionable.
The Easton families, however, are the first to file suit, ACLU lawyer Mary Catherine Roper
said.
"The First Amendment does not allow schools to censor students' speech merely because
some students and teachers are offended by the non-vulgar educational message, and
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CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
silencing the speakers because other students may react inappropriately would amount to
a constitutionally impermissible heckler's veto," Roper, who represents the families, wrote
in the lawsuit.
"Seeing a bracelet with 'I Love Boobies!' on it is a conversation starter that leads to
discussion and awareness of issues affecting young people," the lawsuit said.
The lawsuit was filed Monday in federal court in Philadelphia.
"I am writing from in-school suspension for wearing an 'I love Boobies' bracelet," Brianna
Hawk wrote in a recent letter to The Express-Times of Easton. "Even though I am only 13
years old, I am well aware of breast cancer and the effects it has on woman."
Kayla Martinez continues to wear the bracelet to school under her sleeve, her mother said.
The suit asks the district to end the ban, allow the girls to attend all school functions and
expunge their disciplinary records.
Easton officials did not immediately return phone and e-mail messages seeking comment.
In discussions between the two sides before the lawsuit was filed, district officials
complained the bracelets made some people uncomfortable and had prompted some boys
to make inappropriate comments, the suit said.
"I don't know ... why the educators are not equipped to deal with distractions. Why do they
have to ban, ban, ban?" Martinez said.
Schools from Florida to California have banned the bracelets. One Oregon high school said
the message was getting lost on the ninth-grade boys who were wearing them.
The rubber jewelry is sold by the Carlsbad, Calif.-based nonprofit Keep A Breast
Foundation to raise awareness and funds for breast cancer organizations.
© 2010 The Associated Press. All Rights Reserved. This material may not be published, broadcast,
rewritten, or redistributed.
http://www.cbsnews.com/2102-201_162-7056590.html?tag=contentMain;contentBody
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Freedom of Expression—Lesson Plan
Student Objectives

Discuss the fundamental role of freedom of expression in a democratic society.

Appreciate the tension between the exercise of freedom of expression in a democracy and the
protection of individuals and minority or disfavored groups.

Understand the concept of hate speech—speech that promotes hatred or violence against
other persons or groups in society.

Examine how democracies that share common principles and face similar problems can still
develop very different solutions.

Explore the influence of history on the specific balance of values and legal protections in
different democratic societies.

Analyze the reasons supporting and opposing the government’s permitting hate speech.

Identify areas of agreement and disagreement with other students.

Decide, individually and as a group, whether the government should permit hate speech;
support decisions based on evidence and sound reasoning.

Reflect on the value of deliberation when deciding issues in a democracy.
Question for Deliberation
Should our democracy permit hate speech?
Materials

Lesson Procedures

Handout 1—Deliberation Guide

Handout 2—Deliberation Activities

Handout 3—Student Reflection on Deliberation

Reading

Selected Resources

Deliberation Question with Arguments
(optional—use if students have difficulty extracting the arguments or time is limited)
© 2006, 2007 Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications
are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for
distribution to students, other school site personnel, and district administrators.
Freedom of Expression—Reading
1
Almost all 192 members in the United Nations have agreed to follow the Universal
2
Declaration of Human Rights. Article 19 of that Declaration states that “Everyone has the right
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to freedom of opinion and expression; this right includes freedom to hold opinions without
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interference and to seek, receive, and impart information and ideas through any media regardless
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of frontiers.” In the words of the non-governmental organization Freedom House, “The operative
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word is ‘everyone.’ To deny that doctrine is to deny the universality of information freedom—a
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basic human right.”
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Democracies believe that free expression is essential to their societies. Free expression, they
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argue, distinguishes them from non-democratic countries. Even democracies, however, limit or
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prohibit certain kinds of speech they consider harmful or dangerous. An example of this tension
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between free expression and other democratic values is hate speech—speech that promotes
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hatred or violence against other persons or groups in society.
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The Role of Free Expression in Democratic Societies
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Self-government requires that citizens have accurate, adequate, and current information about
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issues facing their society. When ideas can be heard, examined, and questioned, society can
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develop culturally, economically, and scientifically. Free expression also allows people to vent
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their anger or frustration with the government and with other problems. It therefore decreases the
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likelihood that people will turn to violent means to express themselves. Freedom of expression
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remains one of the most basic rights in a democracy.
© 2006, 2007 Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications
are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for
distribution to students, other school site personnel, and district administrators.
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Democratic Government: Protector and Regulator of Free Expression
Democratic governments in both North America and Europe protect freedom of expression.
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They also retain certain powers to limit it. For example, the First Amendment to the U.S.
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Constitution states that “Congress shall make no law… abridging the freedom of speech, or of
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the press.” Yet freedom of speech has never been considered absolute in the United States. In
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recent years the U.S. Supreme Court has increased protections for those who support unpopular
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ideas. American civic educators Lee Arbetman and Ed O’Brien note, however, that the Court has
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also held that the government retains the power to limit or punish the content of certain kinds of
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speech, such as obscenity, commercial speech, defamation, “fighting words,” and incitement.
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Other countries’ laws also balance protections and limits on freedom of expression. The 48-
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nation Council of Europe states in Article 10 of its Convention on Human Rights that “Everyone
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has the right to freedom of expression…. without interference by public authority and regardless
32
of frontiers.” Yet Article 10 also includes a long list of exceptions. This freedom can be limited
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to prevent crime and protect national security, public safety, the public health and morality, the
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judiciary, and “the reputation or rights of others.” The Council includes Azerbaijan, Czech
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Republic, Estonia, Lithuania, Macedonia, Romania, the Russian Federation, Serbia, and Ukraine.
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Democracies and Free Expression: Law Shaped by History
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Many democratic societies are composed of people from different races, cultures, languages,
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religions, or ethnicities. Often tension arises between the majority and distinct religious, ethnic,
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cultural, or ideological minorities. This tension can increase during times of economic or social
40
unrest, or when a group believes that it is being treated unfairly. Some of these grievances go
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back many centuries.
Deliberating in a Democracy © 2006, 2007 Constitutional Rights Foundation Chicago.
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More fundamentally, the histories of democratic societies have shaped their laws.
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Democracies share a common devotion to free expression, equality, and respect for their citizens.
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But how they balance these values depends, in part, on their specific histories.
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Free Expression and Hate Speech in Europe. Many democracies in Europe fought against
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Nazi Germany during World War II. Nazism asserted German racial supremacy and classified
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entire groups of persons as “unworthy of life.” Because the Nazis murdered millions of people
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because of their race, ethnicity, or religion, European democracies today are dedicated to
49
preventing such terrible events from happening again. Thus, the Russian Constitution states both
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that “everyone shall be guaranteed the freedom of ideas and speech” and that “the propaganda of
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social, racial, national, religious or linguistic supremacy shall be banned.” Lithuania’s “Law on
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the Provision of Information to the Public” and the Constitution of Azerbaijan include similar
53
provisions.
54
In the Czech Republic, which the Nazis occupied during World War II, the criminal code
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punishes anyone who publicly defames a nation or its language, a race or a group of inhabitants;
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publicly incites hatred against a nation or race; or calls for restrictions on the rights and freedoms
57
of its members. Yet several Czech political leaders have been challenged for statements against
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the Romani population. In April 2007, for example, Romani advocates filed a criminal complaint
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against Deputy Prime Minister Jiri Cunek. Cunek was quoted as saying that anyone who wants to
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receive state support “should get sunburnt, make a mess with their family and put up fires on the
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squares” (“Czech Romanies File Complaint,” 2007). Although Cunek claimed he was referring
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to politicians, not the Romani, observers noted that anti-Roma extremists welcomed his remarks.
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In another incident, Leana Janackova, a Czech senator and mayor of the north Moravian city
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of Ostrava, was caught on audiotape in 2006 making remarks about the Roma in a controversial
Deliberating in a Democracy © 2006, 2007 Constitutional Rights Foundation Chicago.
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settlement called Bedriska. “I’ll tell you this,” Janackova is heard saying, “I don't agree with any
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kind of integration. Unfortunately, I'm a racist. I don't believe in integrating gypsies so that
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they'd be living throughout the district. Unfortunately we chose Bedriska, so that’s where they'll
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be, surrounded by a high fence, an electric fence if you like, and I’ll happily shout that out to the
69
whole world” (“Senator in Hot Water,” 2007). Although Janackova says the recording was
70
leaked by her political opponents, other observers are worried. “We are still just one generation
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away from the horrors of the 30s and the 40s,” said Kumar Vishwanathan, who provided the
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audiotape to the Senate’s human rights committee. “If a responsible, respected senator and a
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mayor of a town says these things, even if it was a joke, I think the person should bear
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responsibility for these words.” The committee decided not to investigate the affair.
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Free Expression and Hate Speech in the United States. The United States was born in a war
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for independence from Great Britain. Americans understood the war in part as a rebellion against
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British restrictions on their rights. As one result, the First Amendment to the U.S. Constitution
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protects freedom of expression. Yet after independence, the United States sanctioned legal
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slavery for millions of persons of African descent. Only after 80 years and a civil war did
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Americans abolish slavery. Another century passed before African Americans began to gain their
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full and equal rights, often in the face of vicious racism and violent resistance.
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As one result, many American cities and states have identified certain symbolic acts as hate
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speech. For over 50 years, Virginia had a law forbidding the burning of a cross with “an intent to
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intimidate a person or group of persons.” The law stated that a burning cross in itself was
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sufficient evidence “of an intent to intimidate.” In 1998, Barry Black burned a cross at a small
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rally of the Ku Klux Klan held on private property. Black had the permission of the land’s
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owner, who also participated. A police officer observed the burning cross and arrested Black.
Deliberating in a Democracy © 2006, 2007 Constitutional Rights Foundation Chicago.
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Black was found guilty of violating the anti-cross burning law. He appealed his decision to
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the U.S. Supreme Court. In 2003, the Court made a distinction between the act of burning the
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cross and the intent of the persons who burned it. The Court held that “the First Amendment
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permits Virginia to outlaw cross burnings done with the intent to intimidate.” However, the
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Court also held that the act of cross-burning can be protected expression: if a burning cross were
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used at a political rally, for example, it would be a statement of ideology or group solidarity. The
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act of cross burning cannot be unconstitutional, the Court said, because such a law might infringe
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on the “lawful political speech at the core of what the First Amendment is designed to protect”
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(Virginia v. Black, 2003).
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Prohibiting Hate Speech: Supporters and Opponents
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Some people believe that hate speech is not a crime. They think that although certain
expressions are painful and hateful, they are a small price to pay for freedom. What is legal is not
100
necessarily acceptable or desirable. The better way to counter hateful expression is to condemn
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such thoughts and to shun those who say them. With arguments, persuasion, and even “loving”
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speech, everyone can use free expression to promote the kind of society he or she desires.
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Others who would permit hate speech argue that laws prohibiting it are unworkable. Such
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laws require the government to determine the intent of the speaker. This is a difficult and often
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impossible task. If a word or symbol can mean something to one person and something very
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different to another person, then the law is the wrong way to classify such expressions. The
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government can use its time better by punishing hateful actions, not presumed hateful intent.
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People who want to punish hate speech argue that there is no absolute freedom of expression.
Instead, society must decide—through its laws—the limits of free speech. By prohibiting hate
Deliberating in a Democracy © 2006, 2007 Constitutional Rights Foundation Chicago.
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speech, government balances freedom of expression with other democratic values like respect
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and tolerance. If government gets the balance wrong, then the people can always change it.
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Opponents also believe that punishing hate speech increases equal protection for all persons,
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not only the powerful. Hate speech directed against marginal or despised minority groups is
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particularly damaging. It strikes against persons who lack power. Punishing hateful speech helps
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prevent unequal power relations from turning into overt discrimination.
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People who would permit hate speech worry that laws punishing it will have the effect of
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“chilling” free speech: people will be less likely to say what they really mean. They argue that
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once the government has the power to punish expression, the definition of prohibited speech will
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grow. Governments should be permitted to control only what people can and cannot do, not what
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they say or believe.
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People who would not permit hate speech also worry about its “chilling” effect: a message of
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hate, spoken once, can be more powerful than a message of tolerance spoken many times.
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History has shown that speech is frequently the first act of persecution against specific persons
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and groups. Punishing hate speech establishes necessary and appropriate limits on what can be
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said in a democratic society.
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The struggle to balance freedom of expression with dignity and respect for all remains a
central challenge for every democracy.
Deliberating in a Democracy © 2006, 2007 Constitutional Rights Foundation Chicago.
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Freedom of Expression—Selected Resources
Arbetman, Lee P., and Edward L. O’Brien, “Freedom of Speech” (Chapter 37), Street Law: A
Course in Practical Law, 7th Edition (Columbus, OH: McGraw-Hill, 2005), pp. 445-462.
Cameron, Rob, “Current Affairs: Senator in Hot Water after Secret Recording Captures Racist
Remarks,” Ĉesky Rozhlas (July 11, 2007), http://romove.radio.cz/en/article/21548.
“Charter of Fundamental Laws and Freedoms: Article 17” (Czech Republic),
http://www.psp.cz/cgi-bin/eng/docs/laws/listina.html (Czech);
http://www.freedominfo.org/countries/czech.htm (English).
“Czech Republic: Criminal Penalties for Discrimination (Articles 198 and 198a),” European
Commission against Racism and Intolerance, http://www.coe.int/t/e/human_rights/ecri/1ecri/3-general_themes/3-legal_research/1national_legal_measures/czech_republic/Czerch_Republic%20SR.asp.
Congressional Research Service, “First Amendment: Annotations, p. 7, Freedom of Expression:
The Philosophical Basis,” The Constitution of the United States of America: Analysis and
Interpretation (Washington, DC: Library of Congress, 1992; updated 2000 by
FindLaw.com), http://caselaw.lp.findlaw.com/data/constitution/amendment01/07.html#1.
“Constitution of Azerbaijan Republic: Article 47: Freedom of Thought and Speech,”
http://www.transparency-az.org/legislation.html.
Constitutional Rights Foundation, “Should Hate Be Outlawed?” Bill of Rights in Action, 10:3
(Summer 1994, updated July 2000), http://www.crf-usa.org/bria/bria10_3.html#hate.
Constitutional Rights Foundation, “Chapter 1: A Free Press,” The Challenge of Information (Los
Angeles: Constitutional Rights Foundation, 1998), pp. 6-23.
“Czech Romanies File Complaint against Deputy Prime Minister,” Cheb (April 16, 2007),
http://www.romea.cz/english/index.php?id=detail&detail=2007_265.
“European Convention on Human Rights: Article 10, Freedom of Expression” (Strasbourg:
Council of Europe, 1950), http://conventions.coe.int/treaty/en/Treaties/Html/005.htm.
“Law on Provision of Information to the Public”(Lithuania), 2 July 1996 No. I-1418 (as
amended by 20 June 2002, No. IX - 972), http://www3.lrs.lt/cgibin/getfmt?c1=w&c2=170831; in English at
http://www.freedominfo.org/countries/lithuania.htm.
“Russian Constitution: Chapter Two, Rights and Freedoms of Man and Citizen, Article 29,”
http://www.constitution.ru/en/10003000-03.htm.
“Universal Declaration of Human Rights: Article 19” (New York: United Nations, 1948),
http://www.un.org/Overview/rights.html.
Virginia v. Black, 538 U.S. 343 (2003), http://laws.findlaw.com/us/538/343.html.
© 2006, 2007 Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications
are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for
distribution to students, other school site personnel, and district administrators.
Freedom of Expression—Deliberation Question with Arguments
Deliberation Question
Should our democracy permit hate speech?
YES—Arguments to Support the Deliberation Question
1. Hate speech is despicable, but it is not a crime. While certain words hurt and are hateful, they
are only words—the pain they cause is a small price to pay for freedom.
2. Just because something is legal does not mean it is necessarily acceptable or desirable. A
better way to fight hateful speech and ideas is through the use of free expression and “loving”
speech to promote the kind of society that people want.
3. Laws that prohibit hate speech will have the effect of “chilling” free speech. If the
government has the power to punish expression, the definition of prohibited speech will
grow. All governments resist giving up powers they already have. Governments should be
permitted to control only what people can and cannot do, not what they say or believe.
4. In order for laws to be effective, they have to be workable. Laws that prohibit hate speech
keep the government involved in making never-ending lists of “permitted” and “forbidden”
expressions. That wastes public money and effort. The police and the courts can use their
time better by prosecuting and punishing actions, not thoughts.
5. Expression is ambiguous. A symbol of hate for one group is a symbol of solidarity for
another group. Government should punish only the actions people take against each other.
Government should not punish how people think or how people express themselves.
© 2006, 2007 Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications
are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for
distribution to students, other school site personnel, and district administrators.
Freedom of Expression—Deliberation Question with Arguments
Deliberation Question
Should our democracy permit hate speech?
NO—Arguments to Oppose the Deliberation Question
1. No democracies allow absolute freedom of expression. By defining hate speech as
unacceptable, the government balances freedom of expression with other essential
democratic values such as respect and tolerance for diversity. The balance is established
through laws, which citizens in a democracy can always change.
2. Punishing hate speech provides equal protection for all persons in a democracy. Punishing
hate speech helps to prevent unequal power relations from becoming overt discrimination.
When hate speech is directed against weak or despised groups, such groups suffer not only
from the hatred itself but also because they lack the power of the majority.
3. A message of hate, spoken once, can be more powerful than a message of tolerance spoken
many times. The “chilling” effects of hate speech on other, more positive forms of
democratic speech should not be underestimated.
4. Throughout history, words have been used to identify persons and groups for persecution. By
the time popular opinion or the legal process can act, it may be too late. A law that punishes
hate speech sends the right message about society’s real intentions.
5. Certain symbols and expressions are clearly hateful and have no meaningful social content.
Like the Nazi swastika, these expressions are designed solely to create fear and to intimidate
other people. Such symbols have no useful purpose. Society loses nothing by banning them.
© 2006, 2007 Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications
are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for
distribution to students, other school site personnel, and district administrators.
Lesson Procedures
Step One: Introduction
Introduce the lesson and the Student Objectives on the Lesson Plan. Distribute and discuss
Handout 1—Deliberation Guide. Review the Rules of Deliberation and post them in a prominent
position in the classroom. Emphasize that the class will deliberate and then debrief the experience.
Step Two: Reading
Distribute a copy of the Reading to each student. Have students read the article carefully and
underline facts and ideas they think are important and/or interesting (ideally for homework).
Step Three: Grouping and Reading Discussion
Divide the class into groups of four or five students. Group members should share important facts
and interesting ideas with each other to develop a common understanding of the article. They can
record these facts and ideas on Handout 2—Deliberation Activities (Review the Reading).
Step Four: Introducing the Deliberation Question
Each Reading addresses a Deliberation Question. Read aloud and/or post the Deliberation Question
and ask students to write the Deliberation Question in the space provided on Handout 2. Remind
students of the Rules for Deliberation on Handout 1.
Step Five: Learning the Reasons
Divide each group into two teams, Team A and Team B. Explain that each team is responsible for
selecting the most compelling reasons for its position, which you will assign. Both teams should
reread the Reading. Team A will find the most compelling reasons to support the Deliberation
Question. Team B will find the most compelling reasons to oppose the Deliberation Question. To
ensure maximum participation, ask everyone on the team to prepare to present at least one reason.
Note: Team A and Team B do not communicate while learning the reasons. If students need help
identifying the arguments or time is limited, use the Deliberation Question with Arguments
handouts. Ask students to identify the most compelling arguments and add any additional ones they
may remember from the reading.
Step Six: Presenting the Most Compelling Reasons
Tell students that each team will present the most compelling reasons to support or oppose the
Deliberation Question. In preparation for the next step, Reversing Positions, have each team listen
carefully for the most compelling reasons.
© 2005, 2006, 2007 Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and publications are
protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein for distribution to students, other
school site personnel, and district administrators.
•
•
Team A will explain their reasons for supporting the Deliberation Question. If Team B
does not understand something, they should ask questions but NOT argue.
Team B will explain their reasons for opposing the Deliberation Question. If Team A
does not understand something, they should ask questions, but NOT argue.
Note: The teams may not believe in or agree with their reasons but should be as convincing as
possible when presenting them to others.
Step Seven: Reversing Positions
Explain that, to demonstrate that each side understands the opposing arguments, each team will select
the other team’s most compelling reasons.
•
•
Team B will explain to Team A what Team A’s most compelling reasons were for supporting
the Deliberation Question.
Team A will explain to Team B what Team B’s most compelling reasons were for opposing
the Deliberation Question.
Step Eight: Deliberating the Question
Explain that students will now drop their roles and deliberate the question as a group. Remind the
class of the question. In deliberating, students can (1) use what they have learned about the issue
and (2) offer their personal experiences as they formulate opinions regarding the issue.
After deliberating, have students find areas of agreement in their group. Then ask students, as
individuals, to express to the group their personal position on the issue and write it down (see My
Personal Position on Handout 2).
Note: Individual students do NOT have to agree with the group.
Step Nine: Debriefing the Deliberation
Reconvene the entire class. Distribute Handout 3—Student Reflection on Deliberation as a guide.
Ask students to discuss the following questions:
•
•
•
•
•
What were the most compelling reasons for each side?
What were the areas of agreement?
What questions do you still have? Where can you get more information?
What are some reasons why deliberating this issue is important in a democracy?
What might you or your class do to address this problem? Options include teaching others
about what they have learned; writing to elected officials, NGOs, or businesses; and conducting
additional research.
Consider having students prepare personal reflections on the Deliberation Question through written,
visual, or audio essays. Personal opinions can be posted on the web.
Step Ten: Student Poll/Student Reflection
Ask students: “Do you agree, disagree, or are you still undecided about the Deliberation Question?”
Record the responses and have a student post the results on www.deliberating.org under the
partnerships and/or the polls. Have students complete Handout 3.
© 2005, 2006, 2007 Constitutional Rights Foundation Chicago.
Handout 1—Deliberation Guide
What Is Deliberation?
Deliberation (meaningful discussion) is the focused exchange of ideas and the
analysis of arguments with the aim of making a decision.
Why Are We Deliberating?
Citizens must be able and willing to express and exchange ideas among themselves,
with community leaders, and with their representatives in government. Citizens and
public officials in a democracy need skills and opportunities to engage in civil public
discussion of controversial issues in order to make informed policy decisions.
Deliberation requires keeping an open mind, as this skill enables citizens to
reconsider a decision based on new information or changing circumstances.
What Are the Rules for Deliberation?
• Read the material carefully.
• Focus on the deliberation question.
• Listen carefully to what others are saying.
• Check for understanding.
• Analyze what others say.
• Speak and encourage others to speak.
• Refer to the reading to support your ideas.
• Use relevant background knowledge, including life experiences, in a logical way.
• Use your heart and mind to express ideas and opinions.
• Remain engaged and respectful when controversy arises.
• Focus on ideas, not personalities.
© 2005, 2006, 2007 Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and
publications are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained herein
for distribution to students, other school site personnel, and district administrators.
Handout 2—Deliberation Activities
Review the Reading
Determine the most important facts and/or interesting ideas and write them below.
1) ___________________________________________________________________________
2) ___________________________________________________________________________
3) ___________________________________________________________________________
Deliberation Question
Learning the Reasons
Reasons to Support the Deliberation
Question (Team A)
Reasons to Oppose the Deliberation
Question (Team B)
My Personal Position
On a separate sheet of paper, write down reasons to support your opinion. You may suggest
another course of action than the policy proposed in the question or add your own ideas to
address the underlying problem.
© 2005, 2006, 2007 Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and
publications are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained
herein for distribution to students, other school site personnel, and district administrators.
Name:
Date:
Teacher:
Handout 3—Student Reflection on Deliberation
Large Group Discussion: What We Learned
What were the most compelling reasons for each side?
Side A:
Side B:
What were the areas of agreement?
What questions do you still have? Where can you get more information?
What are some reasons why deliberating this issue is important in a democracy?
What might you and/or your class do to address this problem?
Individual Reflection: What I Learned
Which number best describes your understanding of the focus issue? [circle one]
1
2
NO DEEPER
UNDERSTANDING
3
4
5
MUCH DEEPER
UNDERSTANDING
What new insights did you gain?
What did you do well in the deliberation? What do you need to work on to improve your
personal deliberation skills?
What did someone else in your group do or say that was particularly helpful? Is there anything
the group should work on to improve the group deliberation?
© 2005, 2006, 2007 Constitutional Rights Foundation Chicago. All Constitutional Rights Foundation Chicago materials and
publications are protected by copyright. However, we hereby grant to all recipients a license to reproduce all material contained
herein for distribution to students, other school site personnel, and district administrators.
CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
Fourth and Fifth R’s: Respect and Responsibility
by Ron Skinner, www.peace.ca/Fourth%20and%20Fifth%20Rs.doc
In a large and growing number of schools around the country, students are learning more than
just reading, writing, and arithmetic. They are learning what character education advocates call
the fourth and fifth R’s: respect and responsibility.
The formal teaching of morals and values is not a new phenomenon; rather, it has been part of
democratic thought throughout history. Plato and Aristotle in the Greece of the 4th century
B.C.E. believed the role of education was to train good and virtuous citizens. John Locke, the
17th-century democratic philosopher, believed that learning was secondary to virtue. "Reading
and writing and learning I allow to be necessary, but yet not the chief business [of education]. I
imagine you would think him a very foolish fellow, that should not value a virtuous or a wise
man infinitely before a great scholar."
As public schools proliferated in the early United States, McGuffey's Eclectic Readers, which
consisted of collections of stories used to educate and transmit moral lessons, were "the most
widely read books in 19th-century America" outside of the King James Bible (Gorn, 1998). The
readers were used as school textbooks and were designed to instill both biblical values and
train good workers by preaching sobriety, thrift, responsibility, and self-restraint. But the
influence of McGuffey's Readers waned in the early 20th century because of their reliance on
religious precepts and because of changes in the way society viewed morality.
However, by the 1960s, the idea of teaching character and values in school was regaining
prominence. But rather than prescribe a set of common values to be taught, popular programs
of the time would "contribute to the development of the student in six areas of human
interaction: communicating, empathizing, problem-solving, assenting and dissenting,
decisionmaking, and personal consistency" (Casteel and Stahl, 1975). In such a program, the
teacher would serve simply as the facilitator, with a mandate not to impose his or her own
values on students.
A program developed by the late Harvard psychologist Lawrence Kohlberg also became
prominent during that time. Although based on democratic ideals derived from citing the U.S.
Constitution as the moral document of American society, Kohlberg's program held that
students must be allowed a certain degree of moral reasoning and that values must not be
imposed by the teacher (Power, Higgins, & Kohlberg, 1989). Under Kohlberg's program,
students would be told short stories that presented moral dilemmas, placing values like loyalty
and honesty in conflict. While the stories were sure to incite lively conversation, critics argued
that Kohlberg's dilemmas assumed that students already had strong feelings about the values
in question or promoted moral relativism, rather than helping children to define values
(Kilpatrick, 1992).
Character education, as it is known today, began to appear in the early 1990s. A 1991 book by
Thomas Lickona, Educating for Character, reintroduced the idea that there is a set of common
beliefs and values upon which all people can agree. A year later, a group of educators, ethicists,
and scholars met in Aspen, Colo., for a gathering that resulted in the Aspen Declaration and
the beginning of the Character Counts Coalition.
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Since the early 1990s, the federal government has embraced the idea of offering character
education in public schools and has made grants available to states interested in piloting new
character education programs in their schools. In response, for-profit and nonprofit
organizations have developed character programs for schools, districts, and states. Most
recently, first lady and former teacher Laura Bush has promoted the use of character education
in schools, saying that "reading and writing are not all we need to teach our children."
"Respect and responsibility are just as important," Mrs. Bush continued. "And we need to make
sure we're teaching our children to be responsible citizens who have good values and ethics."
Implementation of a character education program can be contentious. One of the first questions
people ask when learning that their school plans to implement a character education program
is "Whose values are you going to teach?" (Brooks and Goble, 1997). Most character education
programs in use today are based on the traits developed from the civic virtues found in the U.S.
Constitution and the United Nations charter—as well as common civil and moral values such
as honesty, courage, and respect for others. Advocating that honesty is better than dishonesty,
or that free speech is better than censorship, rarely invites controversy.
What has developed from this basis varies by program. For example, the Character Counts
program is based on the "six pillars of character": trustworthiness, respect, responsibility,
fairness, caring, and citizenship. Character Works, used throughout Georgia, emphasizes 38
character traits, one for each week of a typical school year, including courtesy, integrity,
creativity, fairness, and accomplishment.
The Character Education Partnership has drawn up 11 principles of effective character
education that schools can use to guide their efforts. The principles include the advice that the
term "character" must be well-defined, that the program must be integrated into the
curriculum, and that parents and community members must be involved (Lickona, T., Schaps,
E., and Lewis, C., no date). The final principle is the need to assess the progress of the school
involved in the program. But while there has been much anecdotal evidence about the effects
of character education, not much in the way of scientifically based research exists.
Of the few studies that have been conducted so far, a few suggest that "as you facilitate social
development, you are concurrently, for many kids, advancing their academic function,"
according to Stephen N. Elliott, a professor of educational psychology at the University of
Wisconsin-Madison. Citing one specific example, an Italian study in 2000 that found children's
positive social skills to be powerful predictors of academic achievement, Elliott suggests that
social skills that are part of character education programs may be "academic enablers"
(Viadero, 2003). The Collaborative for Academic, Social, and Emotional Learning recently
examined 242 health, prevention, and positive-youth-development programs. Its examination
resulted in the report "Safe and Sound: An Educational Leader's Guide to Evidence-Based
Social and Emotional Learning Programs," which reviews 80 nationally available, multiyear,
sequenced programs for general education classrooms (2003). The report identifies 22
programs that are especially effective in preventing substance abuse, improving academic
performance, promoting general health, or supporting other social behaviors.
—Ron Skinner
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Background
Introduction to Free Speech History
The Founders saw free speech as a natural right. In Federalist No. 10, James Madison
pointed to freedom of speech as vital to the health of a republic.
A precursor to the First Amendment is found in the English Bill of Rights. The English Bill
of Rights provided for free speech in Parliament, while the First Amendment expanded the
protection of speech from infringement by the government as an individual right of all
citizens.
Although First Amendment jurisprudence is almost entirely a creation that began in the
20th century, common law protection for free speech began much earlier, in the 18th and
19th centuries.
The trial of printer John Peter Zenger in 1735 was a landmark in the development of
common law protection for free speech. In the Zenger case, a New York jury returned a
verdict of "not guilty" on a charge of seditious libel--in contrast to the practice in England
where juries were permitted only to decide whether the defendant printed the allegedly
libelous words. As a result of the precedent set in the Zenger case, and the reluctance of
juries to support prosecutions for seditious libel, the common law of seditious libel in
America became generally unenforceable.
In England, meanwhile, thinking about free speech issues was strongly influenced by
William Blackstone who, in his Commentaries on the Laws of England (1769), wrote of the
liberty of press as consisting "in laying no previous restraints upon publications, and not in
freed
Blackstone's view of no prior restraints formed the bare minimum of protection that
Madison intended to protect when he, as Virginia congressman in the first House of
Representatives, drafted the Bill of Rights. Most observers believe that Madison meant to
protect a great deal more speech than Blackstone may have been inclined to protect.
Madison's original draft of the Bill of Rights contained two proposed amendments dealing
with freedom of speech. One proposed amendment said "The people shall not be deprived
or abridged of their right to speak, to write, or to publish their sentiments; and the freedom
of the press, one of the great bulwarks of liberty, shall be inviolable." The other proposed
amendment of Madison read: "No state shall violate the equal rights of conscience, or of the
press." Congress, however, did not support Madison's efforts to apply free speech
protections against the states, even though Madison called that amendment the "most
valuable amendment on the whole list."
The Alien and Sedition Acts (1798) which outlawed speech critical of government,
presented the first challenge to freedom of speech in the early republic. Congress did away
with the Acts in 1832. It would not be until the 1920s, when the Supreme Court held the
First Amendment protections to be incorporated through the Fourteenth Amendment, that
freedom of speech guarantees would apply against the states.
Sources: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/firstaminto.htm
http://constitutioncenter.org/ncc_edu_Respecting_Freedom_of_Speech.aspx
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Background
Limits of Freedom of Speech
Does the First Amendment mean anyone can say anything at any time? No. The Supreme
Court has rejected an interpretation of speech without limits.
Because the First Amendment has such strong language, we begin with the presumption
that speech is protected. Over the years, the courts have decided that a few other public
interests — for example, national security, justice or personal safety — override freedom of
speech. There are no simple rules for determining when speech should be limited, but there
are some general tests that help.
Clear and Present Danger
Will this act of speech create a dangerous situation? The First Amendment does not protect
statements that are uttered to provoke violence or incite illegal action.
Justice Holmes, speaking for the unanimous Supreme Court, stated, “The question in every
case is whether the words used are used in such circumstances and are of such a nature as
to create a clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent.”
Fighting Words
Was something said face-to-face that would incite immediate violence?
In Chaplinsky v. New Hampshire, the Supreme Court stated that the “English language has a
number of words and expressions which by general consent [are] ‘fighting words’ when
said without a disarming smile. … Such words, as ordinary men know, are likely to cause a
fight.” The court determined that the New Hampshire statute in question “did no more
than prohibit the face-to-face words plainly likely to cause a breach of the peace by the
addressee, words whose speaking constitute a breach of the peace by the speaker —
including ‘classical fighting words,’ words in current use less ‘classical’ but equally likely
to cause violence, and other disorderly words, including profanity, obscenity and threats.”
Jurisdictions may write statutes to punish verbal acts if the statutes are “carefully drawn so
as not unduly to impair liberty of expression.”
Libel and Slander
Was the statement false, or put in a context that makes true statements misleading? You do
not have a constitutional right to tell lies that damage or defame the reputation of a person
or organization.
Obscenity
In June 1973 in Miller v. California, the Supreme Court held in a 5-to-4 decision that obscene
materials do not enjoy First Amendment protection. In Miller v. California (1973), the court
refined the definition of “obscenity” established in Roth v. United States (1957). It also
rejected the “utterly without redeeming social value” test of Memoirs v. Massachusetts. In
the three-part Miller test, three questions must receive affirmative responses for material to
be considered “obscene”:
1. Would the average person, applying the contemporary community standards,
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Background
viewing the work as a whole, find the work appeals to the prurient interest?
2. Does the work depict or describe sexual conduct in a patently offensive way?
3. Does the work taken as a whole lack serious literary, artistic, political, or scientific
value?
One must distinguish “obscene” material, speech not protected by the First Amendment,
from “indecent” material, speech protected for adults but not for children. The Supreme
Court also ruled that “higher standards” may be established to protect minors from
exposure to indecent material over the airwaves. In FCC v. Pacifica Foundation the court
“recognized an interest in protecting minors from exposure to vulgar and offensive spoken
language.”
Conflict with Other Legitimate Social or Governmental Interests
Does the speech conflict with other compelling interests? For example, in times of war,
there may be reasons to restrict First Amendment rights because of conflicts with national
security.
To ensure a fair trial without disclosure of prejudicial information before or during a trial, a
judge may place a “gag” order on participants in the trial, including attorneys. Placing
prior restraint upon the media usually is unconstitutional. In Nebraska Press Association v.
Stuart (1976), the Supreme Court established three criteria that must be met before a judge
can issue a gag order and restrain the media during a trial.
Time, Place, and Manner
These regulations of expression are content-neutral. A question to ask: Did the expression
occur at a time or place, or did the speaker use a method of communicating, that interferes
with a legitimate government interest? For example, distribution of information should not
impede the flow of traffic or create excessive noise levels at certain times and in certain
places.
Source: Freedom Forum – Teaching about the First Amendment,
http://www.freedomforum.org/packages/first/curricula/educationforfreedom/support
pages/L04-LimitsFreedomSpeech.htm
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Background
The Right to Freedom of Speech
from Our Rights by David J. Bodenhamer
Free speech is our most fundamental—and our most contested—right. It is an essential
freedom because it is how we protect all of our other rights and liberties. If we could not
speak openly about the policies and actions of government, then we would have no
effective way to participate in the democratic process or protest when we believed
governmental behavior threatened our security or our freedom. Although Americans agree
that free speech is central to democratic government, we disagree sharply about what we
mean by speech and about where the right begins and ends. Speech clearly includes words,
but does it also include conduct or symbols? Certainly, we have the right to criticize the
government, but can we also advocate its overthrow? Does the right to free speech allow us
to incite hate or use foul language in public?
The framers of the Bill of Rights understood the importance of free expression and
protected it under the First Amendment: “Congress shall make no law. . . abridging the
freedom of speech.” Both English history and their own colonial past had taught them to
value this right, but their definition of free speech was much more limited than ours. Less
than a decade after the amendment’s ratification, Congress passed the Sedition Act of 1798,
making it a crime to criticize the government. Many citizens believed government could
forbid speech that threatened public order, as witnessed by numerous early nineteenthcentury laws restricting speech against slavery. During the Civil War, thousands of antiwar
protestors were arrested on the theory that the First Amendment did not protect disloyal
speech. Labor unrest in the 1800s and 1890s brought similar restraints on the right of
politically unpopular groups, such as socialists, to criticize government’s failure to protect
working people from the ills of industrialization and economic depression.
Freedom of speech did not become a subject of important court cases until the twentieth
century when the Supreme Court announced one of the most famous principles in
constitutional law, the clear and present danger test. The test was straightforward:
government could not restrict speech unless it posed a known, immediate threat to public
safety. The standard sought to balance the need for order with the right to speak freely. At
its heart was the question of proximity, or closeness, and degree. If speech brought about
an action that was dangerous under the immediate circumstances, such as falsely yelling
“fire” in a crowded theater, then it did not enjoy First Amendment protection. With this
case, Schenck v. United States (1919), the Court began a decades-long process of seeking the
right balance between free speech and public safety.
The balance, at first, was almost always on the side of order and security. Another case
decided in 1919, Debs v. United States, illustrates how restrictive the test could be. Eugene
Debs was a labor leader from Indiana who had run for President four times as the
candidate of the Socialist Party of America, once polling more than one million votes. At a
June 1918 rally in Chicago, while U.S. troops were fighting in World War I, he told the
working-class crowd, “You need to know you are fit for something better than slavery and
cannon fodder.” He was sentenced under an existing federal statute to twenty years in
prison for inciting disloyalty and obstruction of military recruitment, which the Supreme
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Background
Court upheld.
For the next five decades, the Court wrestled with the right balance between speech and
order. Much of what defined freedom of speech emerged from challenges to the
government’s ability to regulate or punish political protest. Each case brought a new set of
circumstances that allowed the justices an opportunity to modify or extend the clear and
present danger test. Many decisions recognized the abstract right of individuals to speak
freely, but each one hedged this right in important ways. Always in the background were
conditions that pointed to disorder, dissension, and danger—the Great Depression, World
War II, and the Cold War, among them—so the justices were cautious in expanding a right
that would expose America to greater threats. These cases, however, gradually introduced
a new perspective on the value of free speech in a democracy, namely, the belief that truth
is best reached by the free trade in ideas.
The belief that society is best served by a marketplace of ideas open to all opinions, no
matter how radical, ultimately prevailed. In 1927, the Court had endorsed what came to be
called the bad tendency test: if officials believed speech was likely to lead to a bad result,
such as urging people to commit a violent act, it was not protected under the First
Amendment even if no violence occurred. By 1969, however, similar facts produced a
different outcome. Ku Klux Klan members in Ohio invited a television station to film their
rally. Waving firearms, they shouted racist and anti-Semitic slurs and threatened to march
on Congress before their leader was arrested and later convicted under a state law banning
speech that had a tendency to incite violence. The Supreme Court overturned his
conviction in Brandenburg v. Ohio and established the rule still in effect today: the First
Amendment protects the right to advocate the use of force or violence, but it does not
safeguard speech likely to incite or produce an immediate unlawful act. The Brandenburg
test has allowed Nazis to march, Klan members to hold rallies, and other extremist groups
to promote views far outside the main- stream of public opinion. With few exceptions—
fighting words and obscenity, for example—government today cannot regulate the content
of speech.
Even as society was coming to accept a wide range of political ideas, opposition to an
unpopular war raised other questions about the limits and forms of free speech. By the
mid- to late 1960s, the Vietnam War divided Americans. Although many citizens
supported the use of U.S. troops to stop communism in Asia, a growing minority,
including many draft-age young people, took to the streets to oppose the war. The
protestors did not limit their efforts to antiwar speeches; they also wore shirts with obscene
slogans, burned draft cards, and desecrated American flags. Using these symbols to
protest, they argued, was a form of free speech. Soon, the Supreme Court faced the
question squarely in a case involving a youthful protestor from the nation’s heartland: is
symbolic speech—messages using symbols or signs, not words—protected by the First
Amendment?
The first large-scale American demonstration against the Vietnam War occurred in
November 1965 when more than 25,000 protestors converged on the nation’s capital. Fifty
Iowans made the long bus ride, and on the way home they decided to make their
opposition known locally by wearing black armbands to work and school. One member of
the peace contingent was Lorena Tinker, the wife of a Des Moines Methodist minister and
mother of five children. Mary Beth Tinker, a thirteen-year-old eighth grader, followed her
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Background
mother’s suggestion and became one of a handful of local public school students who wore
this symbol of protest to school. This act placed her in the middle of a national controversy
about student rights and freedom of expression.
In many ways, Mary Beth was a normal eighth grader. She was a good student who
enjoyed singing, spending time with her friends, and taking part in church activities. What
made her different was a commitment to social justice, a passion encouraged by her
parents, both of whom were known for their activism. Her parents wanted their children to
share their moral and social values, and Mary Beth responded eagerly to their invitation to
participate with them. By the time she became a teenager, she already had attended her
first protest, accompanying her father to a rally about fair housing.
Mary Beth Tinker, her brother, John, and a handful of Des Moines students planned their
demonstration for December 16, 1965. The students’ aim was not to protest the war but to
mourn its casualties, Vietnamese and American, and to show support for proposed peace
talks. School officials, however, promised to suspend anyone who came to school wearing
the armbands, and the school principal suspended Mary Beth and sent her home. She was
one of five students suspended that day for wearing the offending cloth. Significantly, the
school ban applied only to armbands, in other words, to students who opposed the
Vietnam War; a number of students that day wore an array of other symbols, including the
Iron Cross, a Nazi medal.
When the school board upheld the suspensions, the Tinkers persuaded the Iowa Civil
Liberties Union to take the case to federal court. Two lower federal courts agreed with the
school’s action, rebuffing the argument that the policy violated the First Amendment
guarantee of free speech. The Supreme Court decided otherwise. In its 7-to-2 decision,
announced in February 1969, the justices held that the wearing of armbands is a symbolic
act akin to “pure speech” and protected by the right to free expression. The protesting
students posed no threat to the order required for effective instruction, nor did the wearing
of armbands interfere with the school’s educational mission. In this instance, the balance
between order and liberty was weighted on the side of the First Amendment. Stu- dents
and teachers, the Court concluded, do not “shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate.”
Symbolic speech has been the focus of some of our greatest constitutional drama. Words
may be powerful and provocative, but symbols are often more inflammatory because they
are visual and evoke an emotional response. We live in an age when we use pictures and
symbols to convey important messages, whether in politics or the marketplace. For these
reasons, the Supreme Court’s recognition of symbolic speech as a right protected by the
First Amendment has been a significant development. Twenty-five years after Mary Beth
Tinker put on her armband in remembrance of the war dead, Life magazine featured a
handful of civil liberties cases to celebrate the bicentennial of the Bill of Rights. Mary Beth’s
case was included, even though the rights of students remained, and still are, more limited
than those of adult citizens. But her actions as an eighth grader expanded our conception of
constitutionally protected speech to include the symbols we use to express our convictions.
More than most other recent decisions, cases involving symbolic speech have revealed how
contentious the right of free speech remains in our society. In 1989, the Supreme Court
ruled that the First Amendment protected individuals who burned the American flag in
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Background
protest. This decision was highly controversial, and it has resulted in numerous attempts to
amend the Constitution to protect the flag and, in effect, limit speech in this circumstance.
The outcome of this effort is uncertain, but the debate raises important questions: What role
does this right play in our democracy? How does it contribute to our liberty as Americans?
The right to speak freely, without restraint, is essential to democratic government because
it helps us develop better laws and policies through challenge, rebuttal, and debate. When
we all have the ability to speak in the public forum, offensive opinions can be combated
with an opposing argument, a more inclusive approach, a more effective idea. We tolerate
offensive speech and protect the right to speak even for people who would deny it to us
because we believe that exposing their thoughts and opinions to open debate will result in
the discovery of truth. This principle is an old one in Western thought. U.S. Supreme Court
Justice Oliver Wendell Holmes’s dissent in Abrams v. United States, a 1919 case suppressing
free speech, is a classic statement of this view: “The best test of truth is the power of
thought to get itself accepted in the competition of the market, and that truth is the only
ground upon which [the public’s] wishes safely can be carried out.”
Governmental actions to deny differing points of view, even distasteful or unpopular
opinions, rob us of the range of ideas that might serve the interests of society more
effectively. In a case decided almost a decade before Tinker v. Des Moines, the Supreme
Court found this rationale especially applicable to the classroom. “The Nation’s future,” the
justices wrote, “depends upon leaders trained through wide exposure to that robust
exchange of ideas which discovers truth out of a multitude of tongues.” As a nation, we are
willing to live with the often bitter conflict over ideas because we believe it will lead to
truth and to improved lives for all citizens. We recognize that freedom of speech is the first
freedom of democracy, as the English poet John Milton argued during his own
seventeenth-century struggle to gain this right: “Give me the liberty to know, to utter, and
to argue freely according to conscience, above all liberties.” The ability to speak freely
allows us to pursue truth, to challenge falsehoods, to correct mistakes—all are necessary for
a healthy society.
Free speech also reflects a commitment to individual freedom and autonomy, the right to
decide for ourselves and to pursue our own destiny. Throughout our history, we have been
so committed to individual choice that many foreign observers believe it is our most
characteristic trait. We see it reflected daily in everything from advertising slogans—“Have
It Your Way”— to fashion statements, but fail to recognize how closely freedom is tied to
the right to speak freely. Free speech guarantees us an individual voice, no matter how far
removed our opinions and beliefs are from mainstream society. With this voice we are free
to contribute as individuals to the marketplace of ideas or a marketplace of goods, as well
as to decide how and under what circumstances we will join with others to decide social
and governmental policies.
A commitment to free speech, of course, will not resolve all conflict, not if our history is
any guide. The debate is most contentious during times of war or other moments when
national security is at stake. Even then—perhaps especially then—we will continue to fight
over words and symbols because they express our deepest hopes and our most worrisome
fears. This contest over what speech is acceptable and what is not has been a constant
theme of our past. Rarely do these struggles produce a neat consensus. More often,
intemperate rhetoric and bitter division have been their legacy, and this angry clamor is
one of the basic noises of our history. What makes the struggle to protect free speech
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worthwhile is its ability to serve as a lever for change. When we practice our right to speak
openly, we are defining the contours of our democracy. It is messy work, but through it, we
keep the Constitution alive and, with it, our dreams of a just society.
~~
“The free communication of thoughts and opinions is one of the invaluable rights of man;
and every citizen may freely speak, write and print on any subject, being responsible for
the abuse of that liberty.” —Pennsylvania Constitution (1790)
~~
“The most stringent protection of free speech would not protect a man in falsely shouting
fire in a theatre and causing a panic. . . . The question in every case is whether the words
used are used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree.” —Justice Oliver Wendell Holmes, Jr.,
Schenck v. United States (1919)
~~
“Restriction of free thought and free speech is the most dangerous of all subversions. It is
the one un-American act that could most easily defeat us.” —Justice William O. Douglas,
“The One Un-American Act” (1953)
~~
Source:
http://www.annenbergclassroom.org/page/our-rights
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Background
Supreme Court Case Summaries
This list is not intended to be inclusive of all important free speech cases. The cases include a few of
those likely to interest or be important to students. Use for background, moot court activities, etc.
CONTENTS
PAGE
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett
Topics: campaign finance, elections, political speech, first amendment
Opinion: 564 U.S. ___ (2011), Monday, June 27, 2011
2
Bethel School District No. 403 v. Fraser
Topics: First Amendment, justiciability, obscenity, freedom of speech,
first amendment, education
Opinion: 478 U.S. 675 (1986), Monday, July 7, 1986
3
Brown v. Entertainment Merchants Association
Topics: First Amendment; video games, top100, obscenity
Opinion citation: 564 U.S. ___ (2011), Monday, June 27, 2011
4
Buckley v. Valeo
Topics: First Amendment, Campaign Spending, separation of
powers, congress, freedom of association, justiciability,
presidency, elections, freedom of speech
Opinion: 424 U.S. 1 (1976), Friday, January 30, 1976
5
Citizens United v. Federal Election Commission
Topics: First Amendment, Commercial Speech
Opinion: 558 U.S. ___ (2010), Thursday, January 21, 2010
6
Elk Grove Unified School District v. Newdow
Topics: Judicial Power, Standing to Sue, Personal Injury
Opinion: 542 U.S. 1 (2004), Monday, June 14, 2004
8
Morse v. Frederick
Topics: speech, press, assembly
Opinion: 551 U.S. ___ (2007), Monday, June 25, 2007
9
Snyder v. Phelps
Topics: First Amendment, Protest Demonstrations
Opinion: 562 U.S. ___ (2011), Wednesday, March 2, 2011
11
Tinker v. Des Moines Ind. Comm. School District
Topics: First Amendment, children, juveniles, symbolic speech,
freedom of speech, education
Opinion: 393 U.S. 503 (1969), Monday, February 24, 1969
12
1
CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett
Topics: campaign finance, elections, political speech, first amendment
Petitioner: Arizona Free Enterprise Club's Freedom Club PAC, et al.
Respondent: Ken Bennett, in His Official Capacity as Arizona Secretary of State, et al.
Consolidation: McComish v. Bennett
Opinion: 564 U.S. ___ (2011), Monday, June 27, 2011
Facts of the Case
Arizona enacted a campaign finance law that provides matching funds to candidates who
accept public financing. The law, passed in 1998, gives an initial sum to candidates for state
office who accept public financing and then provides additional matching funds based on
the amounts spent by privately financed opponents and by independent groups. In 2008,
some Republican candidates and a political action committee, the Arizona Free Enterprise
Club, filed suit arguing that to avoid triggering matching funds for their opponents, they
had to limit their spending and, in essence, their freedom of speech.
The U.S. District Court for District of Arizona found the matching-funds provision
unconstitutional. But the U.S. Court of Appeals for the Ninth Circuit overturned the case,
saying it found "minimal" impact on freedom of speech.
Question
Does the First Amendment prohibit linking the funds participating candidates receive in an
election to the amount of money raised by or spent on behalf of their opponents?
Conclusion:
Yes. The Supreme Court reversed the lower court order in a decision by Chief Justice John
Roberts. "Arizona's matching funds scheme substantially burdens political speech and is
not sufficiently justified by a compelling interest to survive First Amendment scrutiny," the
chief justice writing for the majority, noted that the holding does not contend that the First
Amendment forbids all public financing. Meanwhile, Justice Elena Kagan dissented, joined
by Justices Ruth Bader, Stephen Breyer and Sonia Sotomayor. "The First Amendment’s core
purpose is to foster a healthy, vibrant political system full of robust discussion and debate,"
Kagan argued, adding: "Nothing in Arizona's anti-corruption statute, the Arizona Citizens
Clean Elections Act, violates this constitutional protection. To the contrary, the Act
promotes the values underlying both the First Amendment and our entire Constitution by
enhancing the 'opportunity for free political discussion to the end that government may be
responsive to the will of the people.'"
Decision
5 votes for Arizona Free Enterprise Club's Freedom Club PAC (Roberts writing for the
majority, Scalia, Kennedy, Thomas, Alito). 4 vote(s) against (Ginsburg, Breyer, Sotomayor,
Kagan).
Source: The Oyez Project, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S.
___ (2011), (http://oyez.org/cases/2010-2019/2010/2010_10_238).
2
CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
Bethel School District No. 403 v. Fraser
Topics: First Amendment, justiciability, obscenity, freedom of speech, first amendment,
education
Petitioner: Bethel School District No. 403
Respondent: Fraser
Opinion: 478 U.S. 675 (1986), Monday, July 7, 1986
Facts of the Case
At a school assembly of approximately 600 high school students, Matthew Fraser made a
speech nominating a fellow student for elective office. In his speech, Fraser used what some
observers believed was a graphic sexual metaphor to promote the candidacy of his friend.
As part of its disciplinary code, Bethel High School enforced a rule prohibiting conduct
which "substantially interferes with the educational process . . . including the use of
obscene, profane language or gestures." Fraser was suspended from school for two days.
Question
Does the First Amendment prevent a school district from disciplining a high school student
for giving a lewd speech at a high school assembly?
Conclusion
No. The Court found that it was appropriate for the school to prohibit the use of vulgar and
offensive language. Chief Justice Burger distinguished between political speech which the
Court previously had protected in Tinker v. Des Moines Independent Community School
District (1969) and the supposed sexual content of Fraser's message at the assembly. Burger
concluded that the First Amendment did not prohibit schools from prohibiting vulgar and
lewd speech since such discourse was inconsistent with the "fundamental values of public
school education."
Decision
7 votes for Bethel School District No. 403 (Burger writing for the majority, Brennan, White,
Blackmun, Powell, Rehniquist, O’Connor). 2 vote(s) against (Marshall, Stevens).
Legal provision: Amendment 1: Speech, Press, and Assembly
Source: The Oyez Project, Bethel School District No. 403 v. Fraser , 478 U.S. 675 (1986);
(http://oyez.org/cases/1980-1989/1985/1985_84_1667).
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CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
Brown v. Entertainment Merchants Association
Topics: First Amendment; video games, top100, obscenity
Petitioner: Edmund Gerald Brown, Governor et al.
Respondent: Entertainment Merchants Association, et al.
Opinion citation: 564 U.S. ___ (2011), Monday, June 27, 2011
Facts of the Case
Associations of companies that create, publish, distribute, sell and/or rent video games
brought a declaratory judgment action against the state of California in a California federal
district court. The plaintiffs brought the claim under the First and Fourteenth Amendments
seeking to invalidate a newly- enacted law that imposed restrictions and labeling
requirements on the sale or rental of "violent video games" to minors. The district court
found in favor of the plaintiffs and prevented the enforcement of the law.
On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that: (1)
violent video games did not constitute "obscenity" under the First Amendment, (2) the state
did not not have a compelling interest in preventing psychological or neurological harm to
minors allegedly caused by video games, and (3) even if the state had a compelling interest,
the law was not narrowly tailored enough to meet that objective.
Question
Does the First Amendment bar a state from restricting the sale of violent video games to
minors?
Conclusion
Yes. The Supreme Court affirmed the lower court order in an opinion by Justice Antonin
Scalia. "Like the protected books, plays, and movies that preceded them, video games
communicate ideas—and even social messages—through many familiar literary devices
(such as characters, dialogue, plot, and music) and through features distinctive to the
medium (such as the player’s interaction with the virtual world). That suffices to confer
First Amendment protection." Justice Samuel Alito concurred in judgment, joined by Chief
Justice John Roberts. Alito noted that he disagreed "with the approach taken in the Court's
opinion. In considering the application of unchanging constitutional principles to new and
rapidly evolving technology, this Court should proceed with caution. We should make
every effort to understand the new technology." Justices Clarence Thomas and Stephen
Breyer filed separate dissents. Adhering to his strict understanding of the Framers' intent
with the Constitution, Thomas wrote: "The Court's decision today does not comport with
the original public understanding of the First Amendment." Breyer argued that the
California statute met current constitutional standards.
Decision
7 votes for Entertainment Merchants Association (Scalia writing for the majority including
Roberts, Kennedy, Ginsburg, Alito, Sotomayor, Kagan. 2 vote(s) against (Thomas, Breyer).
Source: The Oyez Project, Brown v. Entertainment Merchants Association , 564 U.S. ___ (2011);
(http://oyez.org/cases/2010-2019/2010/2010_08_1448).
4
CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
Buckley v. Valeo
Topics: First Amendment, campaign spending, separation of powers, congress, freedom of
association, justiciability, presidency, elections, freedom of speech
Appellee: Valeo
Appellant: Buckley
Opinion: 424 U.S. 1 (1976), Friday, January 30, 1976
Facts of the Case
In the wake of the Watergate affair, Congress attempted to ferret out corruption in political
campaigns by restricting financial contributions to candidates. Among other things, the law
set limits on the amount of money an individual could contribute to a single campaign and
it required reporting of contributions above a certain threshold amount. The Federal
Election Commission was created to enforce the statute.
Question
Did the limits placed on electoral expenditures by the Federal Election Campaign Act of
1971, and related provisions of the Internal Revenue Code of 1954, violate the First
Amendment's freedom of speech and association clauses?
Conclusion
In this complicated case, the Court arrived at two important conclusions. First, it held that
restrictions on individual contributions to political campaigns and candidates did not
violate the First Amendment since the limitations of the FECA enhance the "integrity of our
system of representative democracy" by guarding against unscrupulous practices. Second,
the Court found that governmental restriction of independent expenditures in campaigns,
the limitation on expenditures by candidates from their own personal or family resources,
and the limitation on total campaign expenditures did violate the First Amendment. Since
these practices do not necessarily enhance the potential for corruption that individual
contributions to candidates do, the Court found that restricting them did not serve a
government interest great enough to warrant a curtailment on free speech and association.
Decision
7 votes for Buckley (Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist. 1
vote against (Burger) (Stevens did not participate).
Legal provision: Article 2, Section 2, Paragraph 2: Appointments Clause
Source: The Oyez Project, Buckley v. Valeo , 424 U.S. 1 (1976); (http://oyez.org/cases/19701979/1975/1975_75_436).
5
CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
Citizens United v. Federal Election Commission
Topic: First Amendment, Commercial Speech
Appellant: Citizens United
Appellee: Federal Election Commission
Opinion: 558 U.S. ___ (2010), Thursday, January 21, 2010
Facts of the Case
Citizens United sought an injunction against the Federal Election Commission in the
United States District Court for the District of Columbia to prevent the application of the
Bipartisan Campaign Reform Act (BCRA) to its film Hillary: The Movie. The Movie
expressed opinions about whether Senator Hillary Rodham Clinton would make a good
president.
In an attempt to regulate "big money" campaign contributions, the BCRA applies a variety
of restrictions to "electioneering communications." Section 203 of the BCRA prevents
corporations or labor unions from funding such communication from their general
treasuries. Sections 201 and 311 require the disclosure of donors to such communication
and a disclaimer when the communication is not authorized by the candidate it intends to
support.
Citizens United argued that: 1) Section 203 violates the First Amendment on its face and
when applied to The Movie and its related advertisements, and that 2) Sections 201 and 203
are also unconstitutional as applied to the circumstances.
The United States District Court denied the injunction. Section 203 on its face was not
unconstitutional because the Supreme Court in McConnell v. FEC had already reached that
determination. The District Court also held that The Movie was the functional equivalent of
express advocacy, as it attempted to inform voters that Senator Clinton was unfit for office,
and thus Section 203 was not unconstitutionally applied. Lastly, it held that Sections 201
and 203 were not unconstitutional as applied to the The Movie or its advertisements. The
court reasoned that the McConnell decision recognized that disclosure of donors "might be
unconstitutional if it imposed an unconstitutional burden on the freedom to associate in
support of a particular cause," but those circumstances did not exist in Citizen United's
claim.
Question
1) Did the Supreme Court's decision in McConnell resolve all constitutional as-applied
challenges to the BCRA when it upheld the disclosure requirements of the statute as
constitutional?
2) Do the BCRA's disclosure requirements impose an unconstitutional burden when
applied to electioneering requirements because they are protected "political speech" and
not subject to regulation as "campaign speech"?
3) If a communication lacks a clear plea to vote for or against a particular candidate, is it
subject to regulation under the BCRA?
4) Should a feature length documentary about a candidate for political office be treated like
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CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
the advertisements at issue in McConnell and therefore be subject to regulation under the
BCRA?
Conclusion
No. No. Yes. Yes. The Supreme Court overruled Austin v. Michigan Chamber of
Commerce and portions of McConnell v. FEC. (In the prior cases, the Court had held that
political speech may be banned based on the speaker's corporate identity.) By a 5-to-4 vote
along ideological lines, the majority held that under the First Amendment corporate
funding of independent political broadcasts in candidate elections cannot be limited.
Justice Anthony M. Kennedy wrote for the majority joined by Chief Justice John G. Roberts
and Justices Antonin G. Scalia, Samuel A. Alito, and Clarence Thomas. Justice John Paul
Stevens dissented, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia
Sotamayor. The majority maintained that political speech is indispensable to a democracy,
which is no less true because the speech comes from a corporation. The majority also held
that the BCRA's disclosure requirements as applied to The Movie were constitutional,
reasoning that disclosure is justified by a "governmental interest" in providing the
"electorate with information" about election-related spending resources. The Court also
upheld the disclosure requirements for political advertising sponsors and it upheld the ban
on direct contributions to candidates from corporations and unions.
In a separate concurring opinion, Chief Justice Roberts, joined by Justice Alito, emphasized
the care with which the Court handles constitutional issues and its attempts to avoid
constitutional issues when at all possible. Here, the Court had no narrower grounds upon
which to rule, except to handle the First Amendment issues embodied within the case.
Justice Scalia also wrote a separate concurring opinion, joined by Justices Alito and Thomas
in part, criticizing Justice Stevens' understanding of the Framer's view towards
corporations. Justice Stevens argued that corporations are not members of society and that
there are compelling governmental interests to curb corporations' ability to spend money
during local and national elections.
Decisions
5 votes for Citizens United (Kennedy writing for the majority, Roberts, Scalia, Thomas,
Alito). 4 votes against (Stevens, Ginsburg, Breyer, Sotomayor).
Source: The Oyez Project, Citizens United v. Federal Election Commission , 558 U.S. ___ (2010);
(http://oyez.org/cases/2000-2009/2008/2008_08_205).
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CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
Elk Grove Unified School District v. Newdow
Topics: Judicial Power, Standing to Sue, Personal Injury
Petitioner: Elk Grove Unified School District and David W. Gordon, Superintendent
Respondent: Michael A. Newdow, et al.
Opinion: 542 U.S. 1 (2004), Monday, June 14, 2004
Facts of the Case
Michael Newdow's daughter attended public school in the Elk Grove Unified School
District in California. Elk Grove teachers began school days by leading students in a
voluntary recitation of the Pledge of Allegiance, including the words "under God" added
by a 1954 Congressional act. Newdow sued in federal district court in California, arguing
that making students listen - even if they choose not to participate - to the words "under
God" violates the establishment clause of the U.S. Constitution's First Amendment.
The district court dismissed Newdow's complaint for lack of standing, because he and the
mother of his daughter are divorced and he does not have custody. The U.S. Ninth Circuit
Court of Appeals reversed, holding that Newdow did have standing "to challenge a
practice that interferes with his right to direct the religious education of his daughter." The
Ninth Circuit ruled that Congress's 1954 act adding the words "under God" to the Pledge
and the school district policy requiring it be recited both violated the First Amendment's
establishment clause.
Question
Does Michael Newdow have standing to challenge as unconstitutional a public school
district policy that requires teachers to lead willing students in reciting the Pledge of
Allegiance? Does a public school district policy that requires teachers to lead willing
students in reciting the Pledge of Allegiance, which includes the words "under God,"
violate the Establishment Clause of the First Amendment?
Conclusion
In an opinion authored by Justice John Paul Stevens, the Supreme Court found that
Newdow did not have standing to bring suit because he did not have sufficient custody
over his daughter. "When hard questions of domestic relations are sure to affect the
outcome, the prudent course is for the federal court to stay its hand rather than reach out to
resolve a weighty question of federal constitutional law," Justice Stevens wrote. Because it
found that Newdow did not have standing, the Court failed to reach the constitutional
question. Chief Justice Renquist and Justices Sandra Day O'Connor and Clarence Thomas
all wrote seperate concurrences, saying that requiring teachers to lead the Pledge is
constitutional.
Decision
8 votes for Elk Grove Unified School District (Stevens writing for the majority, Rehnquist,
O’Connor, Kennedy, Souter, Thomas, Ginsburg, Breyer). 0 votes against. (Scalia did not
participate)
Source: The Oyez Project, Elk Grove Unified School District v. Newdow , 542 U.S. 1 (2004);
(http://oyez.org/cases/2000-2009/2003/2003_02_1624).
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CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
Morse v. Frederick
Topic: speech, press, assembly
Petitioner: Deborah Morse, et al.
Respondent: Joseph Frederick
Opinion: 551 U.S. ___ (2007), Monday, June 25, 2007
Facts of the Case
At a school-supervised event, Joseph Frederick held up a banner with the message "Bong
Hits 4 Jesus," a slang reference to marijuana smoking. Principal Deborah Morse took away
the banner and suspended Frederick for ten days. She justified her actions by citing the
school's policy against the display of material that promotes the use of illegal drugs.
Frederick sued under 42 U.S.C. 1983, the federal civil rights statute, alleging a violation of
his First Amendment right to freedom of speech. The District Court found no constitutional
violation and ruled in favor of Morse. The court held that even if there were a violation, the
principal had qualified immunity from lawsuit. The U.S. Court of Appeals for the Ninth
Circuit reversed. The Ninth Circuit cited Tinker v. Des Moines Independent Community
School District, which extended First Amendment protection to student speech except
where the speech would cause a disturbance. Because Frederick was punished for his
message rather than for any disturbance, the Circuit Court ruled, the punishment was
unconstitutional. Furthermore, the principal had no qualified immunity, because any
reasonable principal would have known that Morse's actions were unlawful.
Question
1) Does the First Amendment allow public schools to prohibit students from displaying
messages promoting the use of illegal drugs at school-supervised events?
2) Does a school official have qualified immunity from a damages lawsuit under 42 U.S.C.
1983 when, in accordance with school policy, she disciplines a student for displaying a
banner with a drug reference at a school-supervised event?
Conclusion
Yes and not reached. The Court reversed the Ninth Circuit by a 5-4 vote, ruling that school
officials can prohibit students from displaying messages that promote illegal drug use.
Chief Justice John Roberts's majority opinion held that although students do have some
right to political speech even while in school, this right does not extend to pro-drug
messages that may undermine the school's important mission to discourage drug use. The
majority held that Frederick's message, though "cryptic," was reasonably interpreted as
promoting marijuana use - equivalent to "[Take] bong hits" or "bong hits [are a good
thing]." In ruling for Morse, the Court affirmed that the speech rights of public school
students are not as extensive as those adults normally enjoy, and that the highly protective
standard set by Tinker would not always be applied. In concurring opinions, Justice
Thomas expressed his view that the right to free speech does not apply to students and his
wish to see Tinker overturned altogether, while Justice Alito stressed that the decision
applied only to pro-drug messages and not to broader political speech. The dissent
conceded that the principal should have had immunity from the lawsuit, but argued that
the majority opinion was "[...] deaf to the constitutional imperative to permit unfettered
debate, even among high-school students [...]."
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CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
Decisions
5 votes for Morse (Roberts writing for the majority, Scalia, Kennedy, Thomas, Alito). 4
votes against (Stevens, Souter, Ginsburg, Breyer)
Source: The Oyez Project, Morse v. Frederick , 551 U.S. ___ (2007); (http://oyez.org/cases/20002009/2006/2006_06_278).
10
CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
Snyder v. Phelps
Topics: First Amendment, Protest Demonstrations
Petitioner: Albert Snyder
Respondent: Fred W. Phelps, Sr., et al.
Opinion: 562 U.S. ___ (2011), Wednesday, March 2, 2011
Facts of the Case:
The family of deceased Marine Lance Cpl. Matthew Snyder filed a lawsuit against
members of the Westboro Baptist Church who picketed at his funeral. The family accused
the church and its founders of defamation, invasion of privacy and the intentional infliction
of emotional distress for displaying signs that said, "Thank God for dead soldiers" and "Fag
troops" at Snyder's funeral. U.S. District Judge Richard Bennett awarded the family $5
million in damages, but the U.S. Court of Appeals for the Fourth Circuit held that the
judgment violated the First Amendment's protections on religious expression. The church
members' speech is protected, "notwithstanding the distasteful and repugnant nature of the
words."
Question
Does the First Amendment protect protesters at a funeral from liability for intentionally
inflicting emotional distress on the family of the deceased?
Conclusion
Yes. The Supreme Court affirmed the lower court's decision in an opinion by Chief Justice
John G. Roberts, Jr. The Court held that the First Amendment shields those who stage a
protest at the funeral of a military service member from liability. Justice Stephen J. Breyer
filed a concurring opinion in which he wrote that while he agreed with the majority's
conclusion in the case, "I do not believe that our First Amendment analysis can stop at that
point." Justice Samuel Alito filed a lone dissent, in which he argued: "Our profound
national commitment to free and open debate is not a license for the vicious verbal assault
that occurred in this case."
Decision
8 votes for Phelps (Roberts writing for the majority, Scalia, Kennedy, Thomas, Ginsburg,
Breyer, Sotomayor, Kagan). 1 vote against (Alito).
Source: The Oyez Project, Snyder v. Phelps , 562 U.S. ___ (2011); (http://oyez.org/cases/20102019/2010/2010_09_751).
11
CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
Tinker v. Des Moines Ind. Comm. School District
Topic: First Amendment, children, juveniles, symbolic speech, freedom of speech, first
amendment, education
Petitioner: Tinker
Respondent: Des Moines Ind. Comm. School Dist.
Opinion: 393 U.S. 503 (1969), Monday, February 24, 1969
Facts of the Case
John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher
Echardt, 16 years old, decided along with their parents to protest the Vietnam War by
wearing black armbands to their Des Moines schools during the Christmas holiday season.
Upon learning of their intentions, and fearing that the armbands would provoke
disturbances, the principals of the Des Moines school district resolved that all students
wearing armbands be asked to remove them or face suspension. When the Tinker siblings
and Christopher wore their armbands to school, they were asked to remove them. When
they refused, they were suspended until after New Year's Day.
Question
Does a prohibition against the wearing of armbands in public school, as a form of symbolic
protest, violate the First Amendment's freedom of speech protections?
Conclusion
The wearing of armbands was "closely akin to 'pure speech'" and protected by the First
Amendment. School environments imply limitations on free expression, but here the
principals lacked justification for imposing any such limits. The principals had failed to
show that the forbidden conduct would substantially interfere with appropriate school
discipline.
Decisions
7 votes for Tinker (Fortas for the majority, Warren, Douglas, Brennan, Stewart, White,
Marshall). 2 vote(s) against (Black, Harlan).
Source: The Oyez Project, Tinker v. Des Moines Ind. Comm. School Dist. , 393 U.S. 503 (1969);
(http://oyez.org/cases/1960-1969/1968/1968_21).
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CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
Words that Matter:
Partial Free Speech Vocabulary List
Words, definitions, and sources, where available, are listed below. The lesson with which they
correspond is listed as (L1) for Lesson 1, for example.
absolute (L2)
(of powers or rights) not subject to any limitation;
unconditional : no one dared challenge her absolute authority
amendment (L1)
a change or addition to a legal or statutory
document; an article added to the U.S. Constitution : the First Amendment.
basic rights (L2)
The basic rights and freedoms to which all
humans are entitled, often held to include the right to life and liberty, freedom of thought
and expression, and equality before the law.
censorship (L2)
the practice of officially examining books, movies,
etc., and suppressing unacceptable parts : details of the visit were subject to military censorship.
Citizen (L2) a legally recognized subject or national of a state or commonwealth, either
native or naturalized .
cosset (L4)
(verb) to treat with excessive indulgence;
"grandparents often pamper the children"
clear and present danger (L3)
a standard for judging when freedom of speech
can be abridged; "no one has a right to shout `fire' in a crowded theater when there is no
fire because such an action would pose a clear and present danger to public safety"
danger - the condition of being susceptible to harm or injury
disbarred (L4)
longer have the right to practice law
expel (a lawyer) from the Bar so that they no
First Amendment speech (L3)
The First Amendment says that people have the
right to speak freely without government interference.
http://www.illinoisfirstamendmentcenter.com/freedoms.php
Framers (L4)
Delegates to the Philadelphia Convention held in
1787 and those who wrote and ratified the Bill of Rights, www.civiced
free expression (L1, L4)
Right to express one's ideas and opinions
freely through speech, writing, and other forms of communication but without deliberately
causing harm to others' character and/or reputation by false or misleading statements.
Freedom of press is part of freedom of expression.
grand jury (L4)
A jury of 12 to 23 persons convened in private
session to evaluate accusations against persons charged with crime and to determine
whether the evidence warrants a bill of indictment.
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CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
hate speech (L2, L5)
expressions that target individuals or groups by
reason of their race, ethnicity, sex or sexual preference.
www.law.washington.edu/Clinics/.../IndividualRights_HyposArgs.doc
inalienable rights (L3)
unable to be taken away from or given away by
the possessor
http://wiki.answers.com/Q/What_is_the_definition_of_Individual_rights#ixzz1Xx74k2xS
indictment: (L4)
a formal charge or accusation of a serious crime
individual rights (L3)
individual rights are rights held by individual
people regardless of their group membership or lack thereof. Individual rights in the
United States are generally defined as life, liberty and the pursuit of happiness.
limit (L3)
a point or level beyond which something does not
or may not extend or pass : the limits of presidential power | the 10-minute limit on speeches
.The government, for example, may regulate the time, place and manner.
limits (L1)
a point or level beyond which something does not
or may not extend or pass : the limits of presidential power | the 10-minute limit on speeches |
there was no limit to his imagination.
manner (L3)
refers to “time, place, and manner” restrictions to
free speech. Speech may be limited to serve the public interest (traffic, property, sound,
safety, etc. so long as strict guidelines are followed (see place, time).
marketplace of ideas (L3)
The "marketplace of ideas" belief holds that the
truth or the best policy arises out of the competition of widely various ideas in free,
transparent public discourse, an important part of liberal democracy.
obscene language (L1)
the portrayal or description of sexual matters,
offensive or disgusting by accepted standards of morality and decency
offensive, vulgar or lewd speech (L1)
crude and offensive in a sexual way
place (L3)
restrictions regulate where individuals may
express themselves. The Supreme Court has recognized three forums of public expression:
traditional public forums, limited public forums, and nonpublic forums. Traditional public
forums are those places historically reserved for the dissemination of information and the
communication of ideas. Consisting of parks, sidewalks, and streets, traditional public
forums are an especially important medium for the least powerful members of society who
lack access to other channels of expression, such as radio and television. Under the First
Amendment, the government may not close traditional public forums but may place
reasonable restrictions on their use.
political speech (L5)
expressions that comment on government action
rather than the private conduct of an individual.
http://www.duhaime.org/LegalDictionary/P/PoliticalSpeech.aspx
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CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
precedent (L4)
a previous case or legal decision that may be or
(binding precedent) must be followed in subsequent similar cases
prior restraint (L4)
judicial suppression of material that would be
published or broadcast, on the grounds that it is libelous or harmful. In U.S. law, the first
amendment severely limits the ability of the government to do this.
protected speech (L1)
The right, guaranteed by the First Amendment to the
U.S. Constitution, to express beliefs and ideas without unwarranted government restriction.
pure speech (L1)
the communication of ideas through spoken or
written words or through conduct limited in form to that necessary to convey the idea —
SYMBOLIC SPEECH. NOTE: Pure speech is accorded the highest degree of protection
under the First Amendment to the U.S. Constitution.
Quaker (L4)
a member of the Religious Society of Friends, a
Christian movement founded by George Fox c. 1650 and devoted to peaceful principles.
reasonableness (L3)
The reasonableness of any such restriction will be
evaluated in light of specific guidelines that have been established by the Supreme Court.
First, a restriction must be content-neutral, which means the government may not prohibit
entire classes of expression, such as speech concerning poverty, drug abuse, or race
relations. Second, a restriction must be viewpoint-neutral, which means that it must apply
uniformly to all speech; that is, it may not silence only those speakers whom the
government opposes or sanction only those whom the government supports. Third, a
restriction must burden speech no more than is necessary to serve an important
government interest. Restrictions that are carefully aimed at controlling the harmful
consequences of speech, such as litter, unrest, and disorder, will normally satisfy these
guidelines.
http://legal-dictionary.thefreedictionary.com/Time,+Place,+and+Manner+Restrictions
reprieve (L4)
cancel or postpone the punishment of (someone,
especially someone condemned to death)
respect (L2)
See Handout 2-1
responsibility (L2)
See Handout 2-1
repressive (L4)
or group of people
inhibiting or restraining the freedom of a person
rights (L2)
a moral or legal entitlement to have or obtain
something or to act in a certain way : she had every right to be angry | you're quite within your
rights to ask for your money back | there is no right of appeal against the decision.
seditious (L4)
authority of a state or monarch
inciting or causing people to rebel against the
3
CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Background
seditious libel (L4)
a published statement that is seditious; the action
or crime of publishing such a statement
slander (L4)
the action or crime of making a false spoken
statement damaging to a person's reputation
time (L3)
restrictions regulate when individuals may
express themselves. At certain times of the day, the government may curtail or prohibit
speech to address legitimate societal concerns, such as traffic congestion and crowd control.
4