Is your freedom of speech absolute? What kind of speech should be protected? Why?

Is your freedom of speech absolute?

What kind of speech should be protected? Why?

FIRST AMENDMENT FREE SPEECH and EXPRESSION

Day I

Aim: Should your speech ever be limited?

Vocabulary•Symbolic speech•Assembly •Offensive•Obscene vs. indecent

Essential Questions: (1)Should your freedom of speech be protected at all costs?(2)Under what circumstances should your speech be limited? Why?

Freedom of Speech and Expression

A. Types of speecha. speech as words - verbalb. speech as expression - symbolic speech

B. Language as speech

a. sayings/commentsb. public speaking

C. When is speech considered symbolic? When it expresses an idea.

Free Speech StandardsObjectives: What is the difference between speech and expression?

What is the standard used by the federal government/Court to evaluate speech/expression?

Is this standard effective? Why or why not?

Court Standard for Symbolic Speech

Court Standards:

a) Intended to convey a message

a) Likely that the message was understood by viewers/a reasonable person

In Court: When Clothes Speak to More Than Fashion September 2007; Our Towns By Peter Applebome

Given the importance placed on robust student expression, it’s not completely surprising that a federal judge in New Jersey found himself opining on whether it was appropriate for two fifth graders to be sporting buttons featuring Hitler Youth members. The occasion was a protest against the local school district’s party-pooper policy mandating uniforms for students in kindergarten through the eighth grade.The Court had a review of a surprisingly ample array of similar cases raising more questions about acceptable attire and behavior than answers. The judge ruled that the buttons, which featured the words “No School Uniforms” in a slashed red circle over a photo of young boys in Hitler Youth uniforms, was protected speech, in that wearing them did not “materially and substantially disrupt the work and discipline of the school.” But then things got complicated. In Bethel School District No. 403 v. Fraser (1986), the Supreme Court ruled against a high school student who had been disciplined after giving a speech invoking an extended, but not explicit, sexual metaphor. The court ruled it was a highly appropriate function of schools to “prohibit the use of vulgar and offensive” speech.

Where do you stand? What kinds of speech should not be tolerated in school?

What arguments can the government use to limit free speech?

When should your speech be limited?

• Circumstances that may endanger others – causes harm

• When it insights violence – imminent danger• Disrupts order – ex. cuts off traffic routes• National Security reasons

• Hate speech?

Case Studies 1-3• Sable Communications of California vs. FCC (1989) – “sex phone”

businesses.a) Obscene is limited/banned; indecent is protectedb) People area aware of the content of the speech they are involved with

• Bethal vs. Fraser (1986) – Indecent school election speech.a) School does not allow indecent speech. Must keep order; must get an

education. * see SLIDE 13

• United States vs. O’Brien (1966) – Burning of draft cards.a) Government right to have and maintain a military.b) Not allowed to protest in this way. * see SLIDE 14

I hate hate speech!Free Expression Day II

Free Expression Flag Burning and Cross Burning

Aim: How can we justify protecting speech that we are offended by?

VOCABULARY•Offensiveness•Hate speech•Imminent danger•Censorship

Essential Questions: (1)What types of speech deserve protection? What doesn’t?(2)Why can’t we use offensiveness to judge speech?

What does the flag symbolize?

• National symbol – representation of American beliefs/freedom

• Patriotism/unity• Recognized; power• Tradition/pride• Support for our troops

Flag Burning – Is this offensive? Should it be limited?

Against Flag Burning“The American flag…throughout more than 200 years of our history has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another “idea” or “point of view” competing for recognition in the market place of ideas. Millions and millions of Americans regard it with an almost mystical respect regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the Frist Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag…uncritical extension of constitutional protection to the burning of the flag risks the frustration of the very purpose for which organized governments are instituted. The Court decides that the American flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be enjoined. The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag but the government may not prohibit the public burning of the banner under which they fight.”

Flag Burning as Speech“The First Amendment literally forbids the abridgment only of “speech,” but we have long recognized that its protection does not end at the spoken or written word. It remains to consider whether the State’s interest in preserving the flag as a symbol of nationhood and national unity justifies Johnson’s conviction…Johnson was not, we add, prosecuted for the expression of just any idea; he was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values…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…”

Texas v. Johnson (1989)“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. . .”

‑Chief Justice Earl Warren, speaking for the majority

Can Congress pass legislation banning desecration of the flag? Should they be allowed to?

Supporters say that the flag needs to be protected as an important national symbol, but opponents of the measure arguethat it would infringe on the right of free speech granted by the First Amendment.Which side is right?

OFFENSIVENESS IS NOT THE MEASURE

BY WHICH WE JUDGE SPEECH!!!

Should cross burning be banned?

• Virginia vs. Black (2002) Cross Burning case. a) Protected speech because it has a message; message is

understood by viewers. b) Cannot limit speech that is threatening or frightening…speech

must be intended to intimidate and must create an “imminent danger,” speech that leads directly to violent acts (takes into consideration time of act in relationship to speech/symbolic speech).

c) Where intent is racial intimidation cross burning can be banned BUT any cross burning on its face (prime facie case) cannot be banned.

d) Therefore, cross burning may be protected free speech!e) Speech can be limited for other reasons…such as arson laws, or

trespassing laws!

KKK

(1) Should hate speech be limited? Why or why not?

(2) What should be the standard by which we judge speech/expression?

CENSOR

Censor: to examine in order to suppress or delete anything considered objectionable; also : to suppress or delete as objectionable

Why is the protection of free speech sometimes difficult/troubling?

“I defend the most extreme speech from the left or from the right. My father was a Holocaust survivor, I am a Jew: I know from logic and from observation and experience that the more powerless you are as a group, gender, or ideology, the more you should defend your freedom of speech.”

- Nadia Strossen, U.S. Civil Rights Lawyer

(1) What is the message of this cartoonist? (2) Do you think that this is an accurate assessment of free speech today?

Speech in School!

(1) Should standards in school be different than in the outside world?

(2) Why might speech in school be particularly important?

(1) Should public schools have school uniforms?(2) Is such uniformity stifling free expression?

OFFENSIVE!

What can be considered offensive?

Should schools limit offensive speech?

Should standards in school be different from those of the “real world?” Why/why not?

School Standards for Speech/Expression

• Does not cause disturb order and safety

• Does not disrupt/interfere with education

• Is not offensive…

If you lived in fear of losing your free speech, what would be the one thing you would risk

everything for because it must be said?

•Create a T-shirt that you would wear expressing your right to free speech…•The irony: You may not use profanity (at least not spelled out)!•You may say anything else controversial or even offensive…SO LONG as it is sending a clear POLITICAL MESSAGE and the message can be understood by viewers. •You may use any Amendment rights or Legislative laws that are current. •Work with a partner!

Shouting Fire

How far can we take our freedom of speech?

Shouting Fire: Stories from the edge of free speech

Motivation

What does “you can’t shout fire in a crowded theatre” mean?

Aim: What is the line between speech protection and limitation?

Vocab•libel •Intifada

Essential Questions: (1)Should free speech/expression have boundaries? (2)How does being in academics, in school, in government affect your freedom of speech?(3)Why is freedom of speech and expression so “f-ing important”???

Documentary Questions

Ellsberg UpdateEllsberg released the Pentagon Papers – which covered only the period up to 1968 and therefore did not implicate the Nixon administration but Nixon and co. feared that Ellsberg possessed documents concerning Nixon's secret plans to escalate the Vietnam War (including contingency plans involving the use of nuclear weapons), Nixon and Kissinger carried out a campaign to discredit him. An FBI agent named G. Gordon Libby and a CIA operative named Howard Hunt – a duo dubbed "the Plumbers" – wiretapped Ellsberg's phone and broke into the office of his psychiatrist, Dr. Lewis Fielding, searching for materials with which to blackmail Ellsberg. “The Plumbers" eventually led to Nixon's downfall in the Watergate scandal.Ellsberg was charged with theft, conspiracy and violations of the Espionage Act. As a result of this behavior, Ellsberg trial and sentencing ended in mistrial.

Whistle BlowerFederal statutory protections of the Whistleblower Protection Act (WPA) for federal employees who engage in “whistleblowing,” that is, making a disclosure evidencing illegal or improper government activities. The protections of the WP A apply to most federal executive branch employees and become applicable where a “personnel action” is taken “because of” a “protected disclosure” made by a “covered employee.” Generally, whistleblower protections may be raised within four forums or proceedings: (1) employee appeals to the Merit Systems Protection Board of an agency’s adverse action against an employee, known as “Chapter 77” appeals; (2) actions instituted by the Office of Special Counsel; (3) individually maintained rights of action before the Merit Systems Protection Board (known as an individual right of action, or IRA); and (4) grievances brought by the employee under negotiated grievance procedures.

On March 9, 2007, the House Committee on Oversight and Government Reform reported H.R. 985 (110th Cong.) H.Rept. 110-42, the Whistleblower Protection Enhancement Act of 2007, which would amend the WPA by providing protections for certain national security, government contractor, and science-based agency whistleblowers, and by enhancing the existing whistleblower protections for all federal employees.