The First Amendment Rocks!

1. Situation

 Have you ever said one thing but others decode it differently? Words are powerful by the way we arrange them in speech and on paper. A single word can change a whole idea. For instance, what if you published a story and used the word her rather than the word Susan? The word her can apply to more than one person and takes a direction that you did not mean for it to go. It is important to clarify in speech when speaking about numerous people, or in general, the way we may use a pronoun. Libel is defined by Webster as, “a written or oral defamatory statement or representation that conveys an unjustly unfavorable impression.” Libel can be claimed in almost any publication.

 Picture that you a writer for the BG News. You do a story covering the BG Chamber of Commerce. You speak with a board member about a present issue in which you write, “they decided not to support a new local business to the city of Bowling Green that will donate three percent of its annual earnings to the university.” The word they is vague and could pertain to members that do indeed admire and support the business.  The community knows members on the board and it could give a bad representation to certain members. What do you think? Do you think using the word they in this context are appropriate or should the writer state it in a better form?

 2. Legal Background

 In New York Times Co. v. Sullivan the Supreme Court ruled in favor of a reporter that was accused of libel. An elected official alleged that he had been libeled but, the catch is proving how damages apply to him. In the article they portrayed the police as having over aggressive methods. The article used the word police. As the city commissioner he technically supervised the police, therefore, he claimed that word made him look like the police acted the way they did because of his orders. The court found that the commissioner cannot claim actual malice without hard proof that the article tried to make him look bad. His name was not mentioned anywhere and one would really have to stretch the mind to link him to the police department’s actions. Therefore the reporter was sought to be in negligence and unaware that evil intentions were meant.

 Although the Supreme Court favored for the reporter it is important to know what can be harmful and to be aware of the words we use.

 3 Three Questions

1. What would be the first thing you would do if you were accused of libel?

2. Do you think differently now about the way words can be twisted in public forum?

3.  Should you have review your story with public figures involved before you release it to eliminate any possible threats of libel?

New York Times v. Sullivan (1964)

Facts of Case:

After a student-led protest against segregation occurred in the South, the New York Times ran a full page ad entitled, “Heed Their Rising Voices.” Some of the specifics of the advertisement were false, such as the number of times Martin Luther King was jailed. L.B. Sullivan, the Montgomery city commission field a libel suit against the newspaper, claiming the allegations against the Montgomery police department defamed him personally. Though the advertisement did not name Sullivan directly, he claimed it was indirectly related to him because he was responsible for the police.

The jury found the New York Times ad libelous without proof of malice and awarded Sullivan $500,000 in damages. The New York Times appealed.

Legal Issue/Decision:

The question the Supreme Court Justices had to answer was whether the New York Times is liable for defamation for printing an advertisement, which criticized a public official’s official conduct. The judgment was reversed. The New York Times was protected by the First and Fourteenth Amendment. Also, Sullivan was prohibited from recovering damages unless malice could be proven.

Analysis:

This was the first case to rule that the First Amendment covers libelous statements. The Court ruled in favor of the New York Times because they were not maliciously going after L.B Sullivan. They were trying to make a general point about the segregation issues in the South, and he happened to take it a little too personally. This case will take precedence in other cases we look at and in future cases that have yet to occur.

Questions:

1. Have you ever felt like news coverage or an advertisement reflected poorly on you or something you were a part of? What did you do about it? Examples – Bowling Green State University, a sorority or fraternity, work place, etc.
2. What do you think today’s society would be like if the case held it’s original standing?
3. How would this case compare to Hazelwood School District v. Kuhlmeier (1988) if the stories on teen pregnancy and divorce were printed?

1. Situation:

            In December of 1965, 16 year old John F. Tinker, 13 year old Mary Beth Tinker and Christopher Eckhardt met inside of the Eckhardt home with their parents and other petitioners who were upset with the excessive violence happening in the Vietnam War.  In protest, everyone inside the home that night decided to wear black armbands during the winter holiday season and by fasting on December 16^th and New Years Day.  The school district however, had become aware of these protest events and decided to make a rule banning such actions prior to the teenagers showing up to school.  The ruling they came up with was that any petitioners with armbands on would be asked to remove their bands and if they refused, they would be suspended until they agreed not to wear the pieces of the clothing.  The Tinkers and Christopher Eckhardt became aware of this newly developed rule and on December 16^th, Eckhardt and Mary Beth Tinker wore their armbands with John Tinker wearing his on the 17^th.  The three students were sent home and suspended until they wouldn’t wear their armbands anymore but none of them would do so, until after the scheduled armband period was over.

            After complaints from the students’ fathers, the case was taken to the district court and it was eventually said that, “…wearing armbands for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment.” 

            One hypothetical situation that could relate to this situation would if a union of teachers were to all wear the same t-shirts on every casual Friday with statements on there stating that they’re not receiving fair contracts would be allowable.  As long as the teachers weren’t being loud and obnoxious and interfering with the rights of the children to learn, their actions would be covered under the first amendment.

 2. Legal Background:

            Tinker vs. Des Moines is relatable to the Chaplinsky vs. New Hamshire (1942).  In this case, a man by the name of Chaplinsky was distributing literature on the streets of Rochester, New Hampshire.  Chaplinsky, a Jehovah’s Witness, drew a crowd when he started denouncing all religion as racket and when told by an officer stop saying such things, he continued and a riot started.  Chaplinsky, after told again by an officer to stop, cursed out the officer the second time claiming he was only spreading the word of the Bible.  He was then arrested for his actions.  It was eventually determined in court that, “Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action.” 

 3. Questions:

In the Chaplinsky vs. California case, was it legal for him to curse out the officer when the officer was violating his right to freedom of religion?

            In the Tinker vs. Des Moines case, how far or obscene do you think students and/or teachers can go with their rights to express themselves through their clothing?

            Also in the Tinker vs. Des Moines case, what sort of expressive actions or words wouldn’t be allowable in schools because they disturb the teaching environment?

Simone Swanson, communication major at Bowling Green State University from Cleveland, Oh has committed and dedicated herself to giving back to her community in a number of ways. While serving on the executive board for Precious Stones, she and her group brought the first ever plus size fashion show to Bowling Green State University. The goal of the fashion show was to dispel the myth that beauty was one size or shape. While serving as a member on the executive board Simone also contributed to a conference on professionalism. As chair of the conference she was instrumental in bringing Omarosa Manigault star of the Apprentice, as the keynote speaker for the event. In addition to her endless efforts to unit woman on Bowling Green’s campus, Simone has also been involved in several other community service programs. Including alternative spring break and the South Bronx mission trip. With plans to graduate in the fall, Simone will continue her love for serving her community in the future.

1. Facts of Case

In the case Hosty vs Carter (2005), http://caselaw.findlaw.com/us-7th-circuit/1316383.html, the administration at Governors State University in Illinois shut down Innovator, a college student run
newspaper, after the students refused to let administration approve publications before they were published. Three students then sued the University because their First Amendment rights were being violated.

2. Legal Issue

The issue brought before us is whether or not the administration has the authority to censor college run media. While arguing the Hosty vs Carter case, the court looked back on a similar case known as Hazelwood.

In the Hazelwood case the court decided that it was okay for a principle to censor a high school newspaper if it was considered, “poorly written,” “ungrammatical,” “biased” or “inconsistent with the shared values of a civilized social order”.

3. Decision

The students won the battle in district court and U.S. Seventh Circuit Court Appeals. They acknowledged that a high school principle and the president of a public University should not have the
same the censorship authority.

However after asking the Seventh Circuit to reconsider the decisions was reversed the ruling in the lower courts and said the ruling for Hazelwood was justifiable for college universities under the Seventh Circuit which included Illinois, Wisconsin and Indiana. For those three states censorship by the administration can be considered okay.

4. Analysis

The courts decided that the newspaper wasn’t considered a public forum but instead an extracurricular activity. Since it is not a public forum it was not protected by the First Amendment. Therefore in this case the courts decided in favor of Carter. However, this legal decision only impacts those who live in the Seventh district.

5. Questions

• If the administration is unhappy with the articles published by a college student media do they have the right to cut
  funding?
• What do you think would happen to the BGNews if they applied the Hosty ruling to the newspaper?
• Should editors outside of the Seventh District warn/communicate to administration before reporting controversial articles?

1. THE FACTS

In May 1983, Cathy Kuhlmeier and two other student journalists at Hazelwood East High School filed suit against the Hazelwood school District. Kuhlmeier and the two other staff members did this after the principal, Robert Reynolds, required the deletion of two pages from the school paper on May 13, 1983.

The articles Reynolds believed to be inappropriate concerned one about pregnancy and one about how divorce affected students. While names were originally stricken from the pregnancy story, Reynolds believed that the names of students could be inferred. Reynolds also thought that it was unfair to call certain students’ parents out in the story about divorce. However, instead of deleing the two stories, Reynolds eliminated the two whole pages that the articles sat on, including the other stories on that accompanied them on those pages.

Kuhlmeier and the two other newspaper staff members filed their suit in the Federal district court, claiming that the school district and school officials violated their First Amendment rights.

2. LEGAL ISSUES/ BACKGROUND

Kuhlmeier and the two staff members of Hazelwood East’s school paper alleged that their first amendment rights were violated by Principal, Robert Reynolds’s decision to strike to pages from the publication’s May issue on May 13, 1983.

Kuhlmeier filed suit against the school district and school officials. Throughout the argument and deciding process, the courts followed precedent from Tinker vs. Des Moines Independent Community School District. The precedent standard stated that school officials or educators do not violate first amendment rights by refusing to allow the creation of a school sponsored publication.

3. THE DECISION

The court found that Kuhlmeier’s first amendment rights were not violated in 1988. It said that the principal was acting reasonably and that the school officials and district essentially have the right to deny publication of something that is school sponsored. The Hazelwood East newspaper was considered part of school curriculum and therefore considered school sponsored.

4. ANALYSIS

The court made its decision based on previous precedent in the case Tinker v. Des Moines Independent Community School District. The court made its decision because the newspaper in question was a school-sponsored publication. Therefore, the school holds the right to deny publication as it did in this case.

5. QUESTIONS

1. Was it actually constitutional for the court to rule in favor of Hazelwood School district?
2. How does this case further extend a limit on freedom of speech?
3. In what, if any cases would this precedent not apply?

Mary Beth Tinker and her mother

Facts: As we finish discussing the first amendment and begin analyzing student speech, it seems fitting to look at a case that combines both: Tinker v. Des Moines Independent Community School Dist. 393 u.s. 503 (1969).  John F. Tinker and Christopher Eckhardt went to high school in Des Moines, Iowa.  Mary Beth Tinker attended middle school.  In 1965, a group of the students and adults decided to support Kennedy’s Christmas truce and protest the Vietnam War by wearing black armbands, as several groups had done before.  The principals of the school found out the plans and quickly devised a policy that students who wore black armbands would be asked to remove them, and suspended if they did not comply, unless they would remove the armbands.  Well, John, Mary Beth and Christopher wore thier black armbands and were suspended.  They returned to the school after the new year, the time they had set to conclude their Vietnam War protest. For more background, and to see an interview with the one and only Mary Beth Tinker, check out this video!

If you can read the cartoon to the right, you will find that although the students ended the protest, they (especially their parents)  took the case to court in order to maintain their first amendment rights.  Eventually, the case made its’ way to the Supreme Court.  Here is the progression of appeal that the angry parents and students made:

1. The Tinker’s first stop was the District Court.  The Court, after an evidentary (preliminary) hearing, upheld the constitutionality of the school officials’ actions as reasonable, because they were acting to prevent disturbance of discipline in the school.
2. The  complaint then showed up at the Court of Appeals for the Eighth Circuit, which affirmed the District Court’s decision without opinion.
3. Finally, the case reached the Supreme Court.

Legal Issue: So what was the court trying to decide?  Well, in the words of Justice Fortas, who delivered the court opinion, the problem was deciding, “where students in the exercise of their first amendment rights collide with the rules of the school authorities.”  Basically, was it constitutional for the school authorities to invoke a suspension on the students who were manifesting their freedom of passive protest by wearing the black armbands?  The court had to decide how much power the school officials had in the Tinker case, before the school infringed upon the first amendment rights of the students. 

Decision: The court ruled 7-2 in favor of Tinker, reversing and remanding the previous decisions of the lower courts.

  In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.

Analysis: The court firmly stated that the classroom is the “marketplace of ideas,” as stated in Shelton v. Tucker, and it is crucial to keep the freedom readily available.  The school authorities were clearly trying to avoid disturbence in the school from the controversy, not by wearing the armbands, but what the armbands made students consider, the coversation about the legitimacy of the Vietnam War.

The opinion stated:

But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk.

Furthermore, only five students of the 18,000 students were suspended for refusing to take off their armbands!  Similarly, while banning the armbands would be a less obvious disregard of first amendment rights than say, if students were banned about talking about the Vietnam war in class, the ban is still infringing upon the first amendment rights of “pure speech” as Justice Fortas said.  The opinion states why the armbands are permissible:

Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom.   

Finally, and perhaps most interesting, the school officials only banned the black armbands, not other items like the Iron Cross (a symbol of Nazism).

In a  dissenting opinion, Justice Black said that students a reflection of their parents’ ideals, thus do not neccessarily need the extensive freedom of speech that adults have.  Also, he said that the black armbands did indeed cause the disruption that the school officials so feared.

I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would, that is, took the students’ minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war.

 Questions:

1. Do you think the court made the right decision about declaring the suspension unconstitutional?
2. Do you think the dissenting opinion by Justice Black holds any weight?
3. What is the significance of this case in light of student speech?
4. Did the time period in history affect the school officials’ response to the symbolic protest? (remember: Kennedy had declared a Christmas truce)
5. Fact: This regulation was a response to a student asking a journalist teacher to publish a story about Vietnam in the paper.  The student was rejected.  How has this changed today?

Whitney v. California was decided on May 16, 1927.

(http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=274&invol=357)

1. Facts

 Anita Whitney was charged in violation of the Criminal Syndicalism Act (CSA) of the state of California on five counts. The CSA states,” that any doctrine or precept advocating, teaching, or aiding  and abetting the commission of crime sabotage or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change is in direct violation.”

 Whitney helped organize a California branch of the Communist Labor Party. This group came after her involvement with the Oakland branch of the Socialist Party. The Communist Labor Party was formed after a split difference toward a more radical thinking during the national convention of the Socialist Party. They stated their purpose was, “to create a unified revolutionary working class movement in America.”  They stated that they wanted to organize the workers as a class in a revolutionary class struggle to conquer the capitalist state, for the overthrow of capitalist rule, the conquest of political power and establishment of a working class government. Whitney saw involvement in this movement by being a member of the Credentials Committee and a member of the Resolutions Committee of the Communist Labor Party.

 The state of California therefore charged that the Communist Labor Party was focused on the violent overthrow of the government in their efforts. Whitney appealed the ruling of the Alameda County Court with her involvement in the movement. She tried to have the case appealed to the Supreme Court but her petition was denied. The case was brought to the Supreme Court finally after a writ of error (due to jurisdiction, the Judge asked to have them review the case).

 2. Issues

 Whitney argued the vague outline of the state law in violation of the Fourteenth Amendment that covers her federal right established in the Constitution. The Fourteenth Amendment says that, “no state shall deprive any person of life, liberty, or property, without due process” (idea that laws must be fair).  She argued that she had no intentions of criminal acts with the organization.

 The court was trying to determine whether a state law restricting free speech is valid to exercise for enforcement to their jurisdiction. The court also was determining where it fits in with legislation with the state as this law applies to everyone, and direct proof of violence must be sought. A major issue of the case was having evidence to link and determine any criminal intentions of actions by the group, rather than seeing them as a threat to take down by what their mission statement might have inferred.

 3 Decisions

 Whitney was tried and convicted on the first count to imprisonment. The Supreme Court decided that it cannot disturb the judgment of the state due to a testimony that intended to establish conspiracy on the part of the members of the International Workers of the World, to commit serious crimes that Whitney was a member of. The verdict stands from the previous court.

 4. Analysis 

I believe the court came to this verdict because they were unable to find hard evidence against what the local court decided on with violation of the extent of the organizations criminal intentions. It would be one thing if proper testimony was given that reflected a non-criminal view but, even regard to the freedom of speech, their statements to me seemed very aggressive as well as to the courts thoughts. Though her intentions may have been good, the organization’s overall direction seemed dictatorial. No real hard evidence was presented after the appeal to overturn the initial verdict. The only defense was the violation of states right to federal rights. The freedom of speech applies to all states and is restricted to what is really intended.

 5. Questions

1. How do you feel about the state trying to take control over our federal rights?

2. Would you favor with the state or Whitney in saying measuring her intnetions?

3. Did you think Whitney’s rights were given?

4. Did yousee any intent in the case reading that Whitney confessed to her actions in admitting criminal intent?

The United States has been engaged in war in the Middle East for years now. A political group is making an Internet campaign through social media to tell Americans not to support the government and to oppose U.S. involvement in the Middle East. Part of the campaign is directed to convincing Americans not to join the United States Army and, therefore, make the war more difficult for the United States.

Many Americans feel that the actions of this political group are not patriotic. Some feel that this group is posing a danger to national security. Are the actions of this political group protected speech under the First Amendment?

2. Legal Background

The 1919  ruling of the Supreme Court in Schenck v. United States would say no. In this WWI case, Charles Schenck, a leader of the Socialist Party, mailed about 15,000 anti-draft pamphlets to men in the Philadelphia area. These pamphlets spoke to the men about opposing U.S. involvement in WWI and not supporting the pro-war government. Schenck was convicted by the Supreme Court for violating the Espionage Act of 1917, which made it illegal to “wilfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States” or “wilfully obstruct the recruiting or enlistment service of the United States.” Schenck argued that the Espionage Act infringed on his First Amendment right to free speech.

The Supreme Court unanimously convicted Schenck on the grounds that his actions posed a clear and present danger to the United States. The court stated that otherwise legal actions and words can become criminal during wartime because they are dangerous to national security.

The 1969 case of Brandenburg v. Ohio, however, adds a new element to the discussion. In this case, the Supreme Court ruled that the First Amendment protects the right to “advocate abhorrent ideas about social, political, and economic change.” Brandenburg establishes a new test for situations like Schenck. The Brandenburg test says that advocacy of illegal actions are punishable by the government if the speech is “directed toward inciting immediate violence or illegal action and is likely to produce that action.”

3. Questions

-How did Schenck’s actions pose a clear and present danger to the United States? Did they?

-Under the precedent established by Schenck and the clear and present danger test, would the actions of our hypothetical political group be punishable? What, if any, would the clear and present danger be?

-Under the Brandenburg Test, would Schenck’s conviction have stood? Under the same test, would the actions of our hypothetical political group be punishable?

-Should anti-war speech and anti-government speech be protected during wartime?

1. Facts of Case

The United States v. O’Brien case started in 1966 and was officially settled in 1968. David Paul O’Brien and three others were arrested on March 31st, 1966 by several FBI agents on the steps the South Boston Courthouse. Members of the large crowd that had gathered attacked the three men after O’Brien burned his draft card. The FBI agents who happened to be in the crowd made the arrest on the grounds of the 1965 Amendment to the Selective Service Act (1948) that prohibited desecrating and/or destroying draft cards. O’Brien openly admitted to burning his draft card and even allowed photos to be taken of its charred remains.

2. Legal Issue

O’Brien was not arrested for protesting the Vietnam War but for burning his draft card. Representing himself, O’Brien claimed his actions were to convince others to protest and that the 1965 Amendment to the the Selective Service act was unconstitutional because it violated the freedom of speech as defined in the First Amendment of the Constitution.

3. Decision

The United States v. O’Brien eventually reached the Supreme Court. The original decision in the District Court for the District of Massachusetts found him guilty of destroying his draft card and sentenced him to a maximum of six years of prison under the now nullified Youth Corrections Act. O’Brien was able to appeal to the First Circuit Court of Appeals who overturned the decision. They did so under the grounds that the 1965 Amendment violated O’Brien’s First Amendment rights. However, the Selective Service Act also requires all males from the age of 18 to 26 to register at their local draft office. Upon registration they are to receive their draft cards which they are legally required to carry on their persons at all times. The Appeals Court convicted O’Brien for not having his draft card since he obviously burned it and willingly allowed its charred remains to be photographed. Both the United States and O’Brien were unsatisfied with the verdict and appealed to the Supreme Court on two grounds. The United States did not want the 1965 Amendment to be declared unconstitutional and O’Brien wanted his new charges repealed since they were not what he was originally tried for. The Supreme Court reviewed both of the grievances as one case. They determined via an eight to one majority that the 1965 Amendment was in fact constitutional and that O’Brien was guilty of not having his draft card on his person. The lone dissenting justice did not disagree with the verdict but questioned whether a peace-time draft is constitutional.

4. Analysis

I believe the Supreme Court made its decision because it did not want radically shake the political atmosphere. If they found O’Brien not guilty and declared the 1965 Amendment unconstitutional it would encourage others to burn their draft cards which would seriously derail the government’s efforts to enlist soldiers in the Vietnam War. If they sided with the lone dissenting justice then the U.S. government would have to officially declare war in order to continue drafting soldiers for the Vietnam War. This could have untold ramifications abroad and would have almost definitely changed the course of world history.

5. Questions

• Is a peace time draft unconstitutional?
• Is the draft itself constitutional?
• How would young men (18-26) react if they still had to carry around draft cards?