BENCH MEMORANDUM
TOPIC: FIRST AMENDMENT – FREE SPEECH
October 27, 2012
SUMMARY OF THE FACT PATTERN
The fact pattern examines the case of Lesley Conviction, a graduating senior at Prudence High
School in the City of Harmony. Lesley has the highest grade point average in her class and was named class
valedictorian. Lesley is also the president of the Outspoken Club, the organization that has been most critical
of the Harmony schools. Lesley has organized student protests, written to the state legislature, and appeared
on local television shows to discuss the poor condition of the public high schools.
The City of Harmony, in response to criticism from student organizations, parents, and the teacher’s
union about the run-down and infested buildings, overcrowded classes, and poor qualifications of teachers,
recently enacted the Speech in Schools Act (“SSA”). The SSA requires “students making oral presentations
at any school event held on or off school premises regarding any subject matter related to public schools in
the City of Harmony must be reviewed by the school principal in accordance with Harmony Board of
Education policy and approved by the Deputy Chancellor. Student presentations may not contain any
offensive language or personal attacks.” The Principal has discretion to edit the content of the speech. If
approval is not given to the speech, the student must either (1) rewrite the speech and resubmit for approval,
or (2) deliver a speech prepared by the principal or Board of Education.
A student who makes an oral presentation without receiving approval is subject to disciplinary
proceedings under Section 2(a) of the Harmony Board of Education Policy and Procedures (HBEPP).
Section (2)(a) provides that a student who violates the SSA is subject to suspension, expulsion, or any other
disciplinary action deemed appropriate.
As required by the SSA, Lesley submitted a draft of her valedictorian speech to Principle Dolittle,
and the speech did not contain any negative information about the school or the board of education. Both Mr.
Dolittle and the Deputy Chancellor approved the speech. Mr. Dolittle, who is worried about the lack of funds
coming into Prudence High, solicited private donations from the Megabucks Foundation and the We Are
Rich Coalition to improve the school. Both of the organizations were invited to attend the graduation
ceremony, and days before the ceremony, the We Are Rich Coalition told Mr. Dolittle they were going to
donate 1 million dollars to renovate the school.
When Lesley began her speech at graduation, Mr. Dolittle realized that it was not the speech she had
submitted for approval. The speech criticized Prudence High about the overcrowding, inadequate teaching,
and lack of guidance on the college application process. Lesley then began to criticize Principal Dolittle for
his poor leadership, saying that he doesn’t care about the students, only about the money.
Before Lesley finished her speech, her microphone was turned off and security officers escorted her
off stage. Lesley’s family and friends were also removed from the ceremony. The next day Lesley went to
school to get her diploma and was told that she needed to return next week to meet with Mr. Dolittle. When
she returned, Mr. Dolittle told Lesley that she wouldn’t get her diploma unless she issued a public apology
for the speech, and that he was taking action under Section 2(a) of the Harmony Board of Education Policy
and Procedures (HBEPP) because of her violation of the SSA.
Lesley refused to apologize and went to a local newspaper to publicize the issue. The story was
picked up by major broadcasting stations in Harmony, and the Advocates for Free Speech (“Advocates”)
approached Lesley about her story, telling her that they believed the SSA is unconstitutional censorship of
student speech.
Lesley has brought suit against the City of Harmony in Federal District Court seeking an injunction
against the enforcement of the SSA, alleging that the SSA violates the Free Speech Clause of the First
Amendment. She claims that the SSA improperly restricts and censors student speech. The District Court
ruled against Lesley and found that the SSA does not violate the First Amendment. Lesley has filed an
appeal with the United States Court of Appeals.
PETITIONERS in this case represent Lesley Conviction. RESPONDENTS represent the City of
Harmony.
SUMMARY OF THE LEGAL STANDARDS
Determination of whether the government can restrict student speech in public school
environment:
o The standard the Supreme Court employs to determine if the government can restrict
student speech is that “in order for the government to restrict student expression, it must
show that the expression if permitted would materially and substantially interfere with
the discipline of students and the operation of the school.” (Tinker v. Des Moines School
District)
Restriction of Student Speech
o First Amendment Rights of Students are not automatically coextensive with the rights of
adults; School districts have the right to regulate student speech, but school officials do
not have the absolute authority to restrict all student speech – Hazelwood School
District v. Kuhlmeier
Obscene Material:
o Obscene material is not protected by the First Amendment
o Guidelines for Obscenity:
 (1) whether the average person, applying contemporary community standards
would find that the work, taken as a whole, appeals to the prurient interest
 (2) whether the work depicts or describes, in a patently offense way, sexual
conduct specifically defined by the applicable state law
 (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value
SUMMARY OF THE LEGAL ISSUE AND ARGUMENTS
The dispute in this case centers around one main issue:
Does the Speech in Schools Act (SSA) violate Lesley Conviction’s First Amendment right to
Free Speech?
PETITIONERS will attempt to prove that the SSA prohibits speech that does not “materially
and substantially interfere” with the discipline of students and the operation of the school, and therefore
the SSA violates the First Amendment Guarantee for Freedom of Speech. They will rely on Tinker v.
Des Moines School District to show that the school failed to show a material or substantial disruption to
class work, and that, as in Tinker where the school’s actions were based upon a wish to avoid
controversy, the Harmony School District’s actions here were based upon a wish to avoid criticism over
the deteriorating condition of the schools.
PETITIONERS will also distinguish the majority opinion in Bethel School District v. Fraser on
the grounds that Bethel involved lewd and offensive language in a student speech during the school day.
Here, Lesley’s speech contained no lewd or offensive language, only criticism of the school district.
Furthermore, the obscenity standard, established in Miller is not met in this case, and therefore the SSA
cannot be upheld under obscenity grounds.
PETITIONERS will also attempt to show that, under the letter of the SSA, Lesley complied
with the requirements for student speeches. She submitted a speech for approval to both the Mr. Dolittle
and the Deputy Chancellor, and it was approved. There is nothing in the SSA that prohibits a student
from changing the speech once it has been approved.
RESPONDENTS will attempt to prove that the SSA does not violate the First Amendment
guarantee of Freedom of speech. They will rely on Bethel School District v. Fraser to show that limiting
speech which has an impact on the school environment does not violate the First Amendment. The SSA
seeks to limit the criticism of the school district that leads to decreased school spirit and a negative
learning environment; a negative learning environment materially impacts the ability of the school to
teach its students.
RESPONDENTS will also rely on Morse v. Frederick and Kuhlmeier v. Hazelwood School
District to show that the school district’s actions do not offend the First Amendment by “exercising
editorial control over the style and content of student speech in school sponsored expressive activities so
long as their actions are reasonably related to legitimate pedagogical concerns.”
RESPONDENTS will distinguish Tinker because the student speech at issue in Tinker was
purely passive speech expressing a political viewpoint; Lesley Conviction’s speech was neither passive
nor political. Her speech was at a school event and focused on her personal views criticizing the school
in front of private donors. Lesley’s speech may have impacted the willingness of the Megabucks
Foundation and the We Are Rich Coalition to donate to the school, and the loss of private donations
does materially and substantially impact the ability of the school to do its work.
ADDENDUM ON CIVILITY AND FREE EXPRESSION
For this debate, we are also focusing on having the students focus on the aspect of this debate
problem that involves the relationship between civility and free expression. Tension continues to exist
in First Amendment expression between the rights of individuals to voice their opinions and beliefs and
the tendency of extreme opinions or certain forms of expression to offend others. This tension is seen in
the fact pattern in Lesley Conviction’s speech at the Prudence High School graduation ceremony, where
she both expresses valid concerns about the state of her school mixed with speech that directly insults
Principal Doolittle.
Mentors and Debate Coaches: As you work to prepare students for this debate, please discuss
this aspect of the problem with the students in detail and help them think critically about how these
competing interests (free expression versus civility) relate to public policy arguments for either side.
PETITIONERS should focus on emphasizing Lesley Conviction’s right to freely express her
political opinions, and arguing that by upholding the SSA, the Court may open the door for schools to
effectively serve as censors in limiting student freedom to express particular viewpoints (in this case,
criticizing school policies or conditions). In addition, civility is focused not only on content of speech
but the manner in which it is expressed and the speaker’s tone; in her criticism of Principal Dolittle,
Lesley Conviction did criticize his character but such an attack is connected to his leadership of the
school and is therefore essential to the political message of her speech. Finally, they should argue that
the fundamental purpose of the First Amendment is to allow speech that informs and impacts public
opinion. Frequently, speech that does this effectively is expressed in a controversial manner and to
allow this, the First Amendment requires speakers to be free to express their ideas without interference
or limitations except in a narrow, limited set of circumstances.
RESPONDENTS should focus on emphasizing the importance of schools in educating students
and promoting fundamental values, one of which is the importance of civility and expressing opinions in
a passionate, yet respectful manner. They should argue that the SSA does not serve as a restriction on
student expression of particular viewpoints or opinions, but requires that students do not use offensive
language or engage in personal attacks in sharing those views. They can also include an explanation of
why civility in personal expression is a key, fundamental value to an open democratic society and that
the freedom of expression provided for by the First Amendment is most effective when debate and
dialogue take place within a framework of civility and mutual respect.