Freedom of Speech

First Amendment

•Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or the right of the people to peaceably assemble and to petition the government for a redress of grievances.

•You can express an opinion without fear of censorship by the government, even if that opinion is an unpopular one

•It does not mean you can say anything you want- wherever you want- or whenever you want

•Fighting words- words that cause distress or incite violence, are not protected

•Obscene expressions are not protected by the First Amendment

•If you tell a lie about someone who then sues you because you damaged their reputation, you will not be able to claim that the First Amendment protects you

•http://www.firstamendmentcenter.org/

Symbolic Speech

•Conduct that expresses an idea

•Sit-ins, flag waving, demonstrations, protest buttons,

•Only some conduct is protected as symbolic speech

•Did the speaker intend to convey a message and was the message understood?

Texas v Johnson

•1984 Republican National Convention

•Gregory Lee Johnson took part in a demonstration

•His group was protesting against nuclear weapons and other things

•Johnson was carrying an American flag

•When he reached Dallas City Hall, he poured kerosene on the flag

•Set it on fire•People chanted “America, the red, white, and blue, we spit on you”

•No one was hut, but some people who were there said they were very upset

•Johnson was arrested•Charged with violating Texas law that said people couldn’t vandalize a respected object

•Convicted, sentenced to a year in prison, fined $2000

•Appealed his case•Texas Court of Criminal Appeals agreed with him

•Court said freedom of speech included “symbolic speech”

•State wanted to maintain order and to preserve the flag as a symbol of national unity

•State argued its interests were more important than Johnson’s symbolic speech rights

•Court did not agree with State•Court said the government cannot “carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol…”

•Supreme Court said that Johnson’s burning of the flag was a form of symbolic speech that is protected by the First Amendment

•“If there is a bedrock principle underlying the First Amendment it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

•Flag Protection Act of 1989 was passed- the law made it a crime to knowingly mutilate, deface, physically defile, burn, or trample a U.S. flag

•Supreme Court of the United States declared this law unconstitutional in the case of United States v Eichman

•Proper method of destroying or “retiring” a flag that is worn out or soiled is to burn it

•Boy Scouts and American Legion groups perform the ceremonies

•Data Analysis for Flag Burning.doc

•What Is Symbolic Speech.doc

Hazelwood v Kuhlmeier (1988)

•May 1983•Students in Journalism II class at Hazelwood East High School in St. Louis, Missouri

•School paper final edition, advisor submitted paper to principal

•Reynolds (principal) reviewed the paper

•Two articles that concerned him•First article addressed the issue of teen pregnancy, including comments from pregnant students at the school

•There were enough details in the article to make it easy for other students to determine the identities of the pregnant teens

•He was concerned about their privacy

•Second article was about divorce, and included personal articles

•Principal was concerned about what the students said about their families

•In the article, one student whose parents were divorced made negative comments about her father- saying her father was always out with the guys, that he didn’t spend enough time with his family, and that her mother and father were always fighting

•The principal was troubled by the fact the father had not been given a choice to defend himself

•The article mentioned sex and birth control

•He didn’t feel as if students in 9th grade should be reading that

•He had wanted the students to make changes in their articles, but was worried about missing the deadline for publication

•Told the advisor to delete the two pages with the questionable articles and publish the rest

•Students were upset they had not been approached about the problems

•They felt this censorship violated their First Amendment rights

•Took it to court

•The court did not agree with them- judges said the school officials might impose limits on students’ speech in activities that are “an integral part of the school’s educational function”

•Students appealed their case•Court of Appeals in the Eighth Circuit reversed the decision of the lower court- said the students’ First Amendment rights had been violated

•School newspaper was part of school curriculum but also a “public forum”

•The newspaper was “intended to be and operated as a conduit for student viewpoint”

•Felt the principal or other officials could censor it only when “necessary to avoid material and substantial interference with school work or discipline…or the rights of others.”

U.S. Supreme Court•“….educators 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.” Justice White- speaking for the majority

•This case made is easier for principals and other school officials to censor student expression

•Some states have “anti-Hazelwood” laws to allow journalists more protection

•Arkansas, California, Colorado, Iowa, Kansas, Massachusetts

•What Would You Do Hazelwood cases.doc

•You Decide Worksheet.doc

Tinker v Des Moines

•John and Mary Beth Tinker were public school students in Des Moines, Iowa

•December 1965•Part of a group against American involvement in the Vietnam War

•Wanted to publicize their opposition by wearing black armbands to school

•Principals adopted and informed students of a new policy concerning armbands

•Policy stated that any student who wore an armband to school would be asked immediately to remove it

•A student who refused to take off the armband would be suspended until agreeing to return without the armband

•Two days later- the Tinker children and a friend decided to wear armbands to school

•They were asked to remove them- they did not remove the bands and were suspended

•The children returned to school with armbands after Jan 1, 1966- the date scheduled for the end of their protest

•Their fathers filed suit in U.S. District Court

•Suit asked the court for a small amount of money for damages and an injunction to restrain school officials from enforcing their armband policy

•District Court recognized children’s First Amendment right to free speech, but refused to issue the injunction- claimed the school officials’ actions were reasonable in light of potential disruptions form the students’ protest

•Tinkers appealed case in U.S. Court of Appeals- tie vote in the court allowed the District Court ruling to stand

•Appealed to the Supreme Court of the United States

•Do the First Amendment rights of free speech extend to symbolic speech by students in public schools? And, if so, in what circumstances is that symbolic speech protected?

•Fourteenth Amendment extends the rule of the First Amendment- (First says “Congress shall make no law…abridging the freedom of speech”) Fourteenth extends it to include state governments- school systems are a part of the state government

•First Amendment though doesn’t identify which kinds of speech are protected

•It is not clear whether hate speech against an individual or group is protected

•Does not specify what types of expressive actions should be considered as speech

Internet•Jessica Logan Bill.doc•Layshock v Hermitage School District.doc

•http://www.citmedialaw.org/threats/blue-mountain-school-district-v-js

•Third Circuit sides with students in online speech fight.doc

O’Brien v Westlake City Schools Board of Education (1998)•O’Brien was a junior at the high

school when he created a web site “raymondsucks.org”

•It criticized his band teacher•School officials accessed the site from school, assistant principal suspended O’Brien for 10 days

•“students shall not physically assault, vandalize, damage, or attempt to damage the property of a school employee or his/her family or demonstrate physical, written, or verbal disrespect/threat.”

•His grades plummeted, failed band as a result of suspension

•He filed a lawsuit against Board of Education

•Judge agreed that school officials do not have the authority to regulate speech made by students off campus

•Judge recognized that “the involvement by the school in punishing plaintiff for posting an Internet Web site critical of defendant…raises the ugly specter of Big Brother.”

•School expunged suspension, wrote him a letter of apology, nad paid Sean $30,000

Beussink v Woodland R-IV School District (1998)•Buessink, junior at Woodland High School- added comments to his personal home page that criticized teachers and administrators at his school

•A teacher was upset by the vulgar language and criticism

•Principal suspended the boy for five days due to the “offensive nature” of his site, then decided to extend the suspension to 10 more days

•He took the case to U.S. District Court, First Amendment protection of free speech meant his suspension was unconstitutional

•Judge agreed

•Judge said school officials did not “show that its action [suspension of Brandon] was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

Emmett v Kent School District Number 415 (2000)•Unofficial Kentlake High Home Page- published by an 18 year old student at the school

•Allowed visitors to vote on which mock obituary subject posted on the site should be “next to die”

•Shortly after school administrators gained knowledge of the site, a local news station ran a story in which the site was described as containing a “hit list” of people to be killed

•The site contained a disclaimer stating that the site was an independent effort and for entertainment purposes only, school officials immediately placed the site’s author on emergency expulsion

•School’s action was based on the policy prohibiting “harassment, intimidation, disruption to the educational process and violation of Kent State District copyright”

•Expulsion was converted to a five day suspension, student sued in U.S. District Court on First Amendment grounds

•Judge admitted in his ruling that student Web sites “can be an early indication of a student’s violent inclinations.”

•Judge stated that the student generated nature of the site, combined with the failure of the school officials to present any evidence that “the mock obituaries and voting on this Web site were intended to threaten anyone…” did not meet the standards laid out in preceding student free speech cases

•School district agreed to pay the student one dollar plus attorney’s fees and remove the student’s suspension from school records

Beidler v North Thurston School District Number Three (2000)•Beidler was a junior at the

high school•Created a Web site depicting one of Timberline’s assistant principals as a Nazi, drunk, graffiti artist

•Teachers complained about feeling uncomfortable with the boy in their class

•Principal found Web site “appalling and inappropriate”

•Placed boy on emergency expulsion

•Beidler was transferred to an alternative educational program in district

•He took the case to Washington state trial court

•Court agreed with Beidler

JS v Bethlehem Area School District•8th grader suspended for 10 days as a result of the Web site he made from his personal computer

•Contained vulgar and derogatory information about several employees from his school

•Why should she (algebra teacher) die? Take a look at the diagram and reasons I give, then give me $20 to help pay for the hitman

•Court disagreed with him- Web site “materially disrupted the learning environment”