Middle School Civics - Article

Prepared: The New Jersey Center for Civic Education

“Congress shall make no law …abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”

Standards:

• 6.1.8.CivicsPI.3.a: Cite evidence to evaluate the extent to which the leadership and decisions of early administrations of the national government met the goals established in the Constitution.
• 6.1.8.CivicsHR.3.a: Explain how and why constitutional civil liberties were impacted by acts of government during the Early Republic (i.e., Alien and Sedition Acts).
• 6.3.8.CivicsPR.5: Engage in simulated democratic processes (e.g., legislative hearings, judicial proceedings, elections) to understand how conflicting points of view are addressed in a democratic society.
• 6.3.8.CivicsPI.1: Evaluate, take, and defend a position on why government is necessary, and the purposes government should serve.

Background: What is the promise of the First Amendment?

The First Amendment prohibits Congress from interfering with:

• an individual’s ability to express views freely
• the ability of the press to write and publish (no censorship)
• individuals’ ability to assemble (meet with) others
• individuals’ ability to petition the government (send letters, emails, phone calls, meet in person, lobby, protest peacefully)

Collectively these four guarantees are often referred to as the right of free expression. For a brief overview of the promise of the First Amendment, view two short videos from the Constitution Explained series developed by the Center for Civic Education and iCivics: Freedom of Expression and Freedom of Assembly and Petition. The Fourteenth Amendment (1868) extended First Amendment protections to state and local governments. For a brief explanation, see Expanding the Bill of Rights.

Why is Freedom of Expression Important?

The First Amendment was written because the Founders believed that free expression of personal opinion was essential to free government. Speech, press, assembly, and petition were instrumental to their resistance to British tyranny in the years leading up to the American Revolution. From this experience and their knowledge of history, the Founders understood that protection of free expression held benefits for individuals and society. Freedom of expression:

• Promotes individual growth. As people develop their conclusions about morality, life, politics, and other matters, it is important to test and refine their views by comparing them to the views of others. That includes, importantly, views with which individuals may disagree.
• Is Important for the advancement of knowledge. As British philosopher John Stuart Mill (1806 - 1873) argued, progress is possible only when all points of view can be expressed and considered. It is in this manner that science and other fields of study flourish.
• Is a necessary part of representative government. If the people are to be sovereign and instruct the government properly, then they must have unrestricted access to ideas, information and various points of view.
• Is vital to bringing about peaceful social change. The ability to freely express strongly held and dissenting points of view allows people to influence public opinion and create change through persuasion rather than violence.
• Is essential to the protection of all individual rights. When rights such as liberty, property, the franchise, or due process are infringed, people can look to speech, press, assembly and petition to fight for their preservation. When used effectively, they can offer powerful protection. As Dr. Martin Luther King Jr. said to the disenfranchised citizens in his audience in 1955 on the eve of the Montgomery Bus Boycott , “the only weapon we have in our hands tonight is the weapon of protest.”

Source: We the People: the Citizen and the Constitution, Level 3, Volume 4.

Are there limits to Freedom of Expression?

Although the language of the First Amendment is clear, the right to speech, press, assembly and petition is not absolute. Appropriate limitation has been debated by generations of Americans as well as state and federal courts. The Supreme Court has generally not limited the content of speech or expression. Instead the Court has applied a content-neutral standard, assessing the time, place and manner of expressive activity. Time, place and manner restrictions come in many forms, such as:

• imposing limits on the noise level of speech,
• capping the number of protesters who may occupy a given site,
• barring early-morning or late-evening demonstrations, and
• restricting the size or placement of signs on government property.

The Supreme Court has, however, recognized limited categories of speech that may be regulated specifically because of the content of expression:

• Obscenity. Expressive material can be restricted when it "appeal[s] to the prurient interest in sex," depicts/describes sexual conduct in "a patently offensive way," and "lacks serious literary, artistic, political, or scientific value." (See: Miller v. California | Oyez)
• Child Sexual Abuse Material. The Supreme Court recognized "child pornography” as "child sexual abuse material" and a category of unprotected speech separate from obscenity. (See: New York v. Ferber | Oyez)
• Commercial Speech. Speech that involves commercial transactions and relates to the economic interests of the speaker and the audience generally receives less First Amendment protection. For instance, federal law can require disclosure statements on food labels and prescription drugs. (See: Assessing Commercial Disclosure Requirements under the First Amendment | Congress.gov)
• Defamation. Defamation involves false statements of fact intended to damage another person’s character or reputation. Written or published defamation is called libel, and spoken or oral defamation is called slander. (See: Libel Laws | Libel and Slander | The First Amendment Encyclopedia

The lessons that follow will take a more detailed look at two additional categories of content based limitation on free expression: (1) expression that threatens national security interests and, (2) inflammatory speech that incites violence or intimidates a particular race, ethnicity, or group.

Threats to National Security Interest:

Background: Wars, threats of wars, and perceived risks to national security have prompted the government to, at times, restrict freedom of speech and other First Amendment freedoms throughout U.S. history. The first example came less than a decade after ratification of the First Amendment.

Sedition Act of 1798: The first sedition act in United States history made it a crime for American citizens to "print, utter, or publish . . . any false, scandalous, and malicious writing" against the government of the United States. It was passed in anticipation of an expected war with France. The Federalist party wanted to control public and political dissent, as well as solidify its majority control of Congress and support for Federalist president John Adams. The Sedition Act of 1798 was used aggressivley against Democratic-Republican newspapers which regularly criticized the actions of the Federalists in power. After Thomas Jefferson defeated Admas in the Election of 1800, the Sedition Act was allowed to expire and the U.S. government publicly repented and repaid the fines imposed. (For more information see The Sedition Act of 1798 | US House of Representatives: History, Art & Archives or Alien and Sedition Acts (1798) | National Archives)

The Espionage Act of 1917 and Sedition Act of 1918: Congress passed the Espionage Act of 1917 with the support of President Woodrow Wilson soon after U.S. entry into World War I. It criminalized false statements which interfered with military effort during wartime. It also criminalized speech that may cause disloyalty or obstruct military recruitment and enlistment efforts. These provisions were strengthened by the Sedition Act of 1918, which made it a crime to “incite, provoke or encourage resistance to the United States” or “to cripple or hinder” the United States in the prosecution of the war. Antiwar journalists were arrested during WWI and the “Red Scare” that followed. Their convictions were upheld by the Supreme Court in Schenck v. U.S.,1919 and Abrams v. U.S., 1919. Though Congress repealed the Sedition Act in 1920, the Espionage Act of 1917 remains on the books today. (For more information see Espionage Act of 1917 and Sedition Act of 1918 (1917-1918) | Constitution Center or The Sedition and Espionage Acts Were Designed to Quash Dissent During WWI)

New York Times. V, United States (1971): A reporter shared over 7000 pages of documents concerning the United States’ involvement in Vietnam. The “Pentagon Papers,” as they came to be known, exposed the United States’ government knowledge of escalating casualties and commitments in Vietnam even as President Nixon assured the public that the war was close to ending. The New York Times began printing excerpts from the documents on June 13, 1971. The government obtained a court order of prior restraint, forbidding future publication, on national security grounds. The New York Times appealed. Two weeks later, the Supreme Court ruled 6-3 that the prior restraint was unconstitutional. The majority agreed that “Only a free and unrestrained press can effectively expose deception in government [and] … the [New York Times] nobly did what the Founders hoped and trusted [a free press] would do.” (For more information see: New York Times v. United States, 1971 Supreme Court case, prior restraint, First Amendment, freedom of the press, legal precedent, national security and New York Times Co. v. United States (The Pentagon Papers Case) (1971) )

Discussion Activity: Review the relevant background and links to the Supreme Court decision in New York Times v. United States with the students. (See: New York Times Company v. United States | Oyez and New York Times Co. v. United States | 403 U.S. 713 (1971)) Then engage students in a discussion based on the following questions.

1. What are the Pentagon Papers?
2. Why did the government seek a prior restraint against the New York Times and the Washington Post?
3. Why did the Court find the prior restraint unconstitutional?
4. In his dissent, Justice Harlan objected that the Court did not have adequate time to examine the thousands of pages of classified material to determine if national security was truly at stake and that the Court had been “almost irresponsibly feverish in dealing with these cases.” Do you agree? Why or why not?
5. If you were the editor of the New York Times, would you have published the excerpts from the Pentagon Papers? Why or why not?
6. Explain whether you believe prior restraint would be constitutional in the following cases:
   • A television network plans to broadcast soldiers’ flag-draped coffins being returned to the U.S.
   • A magazine will feature an interview with and photographs of a seriously wounded soldier.
   • A newspaper article will detail a major city’s response plan in case of a terrorist attack.
   • A news report will contain a map of Iran and the broader Middle East, illustrating American troop positions.

(Lesson courtesy of the Bill of Rights Institutes: New York Times v. United States, 1971 Supreme Court case, prior restraint, First Amendment, freedom of the press, legal precedent, national security)

Inflammatory Speech that Incites Violence or Hatred: Background

Schenck v. United States (249 US 47, 1919) During World War I, socialists Charles Schenck distributed leaflets urging the public to disobey the draft through peaceful action. Schenck was charged with conspiracy to violate the Espionage Act of 1917 by encouraging insubordination in the military and obstructing military recruitment. He appealed his conviction, claiming the law violated the First Amendment. Justice Oliver Wendell Holmes wrote the majority opinion of the Supreme Court, holding that the Espionage Act was an appropriate exercise of Congress’s wartime authority. The opinion established that speech can be limited when it creates “a clear and present danger that will bring about substantive evils.” Famously, Holmes compared the leaflets to falsely shouting “Fire!” in a crowded theatre, which is not permitted under the First Amendment. (For more information, see; Schenck v. United States (1919) and Schenck v. United States | Oyez )

Image of Leaflet distributed by Charles Schenck

Whitney v. California (274 U.S. 357,1927): Charlotte Anita Whitney gave a speech in Oakland, California on behalf of the Communist Labor Party. She was convicted of violating California Criminal Syndicalism Act, which criminalized membership in organizations that called for “economic and political change through unlawful use of violence.” The Supreme Court unanimously upheld her conviction, asserting that the First Amendment was not an absolute right and establishing the “bad tendency” test. States may restrict speech that has a tendency “to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow." (For more information see: Whitney v. California (1927) and Whitney v. California | Oyez)

Charlotte Anita Whitney	Father Athur Terminiello	Irving Feiner

Terminiello v. Chicago (337 U.S. 1, 1949): Arthur Terminiello was a Catholic priest who gave a fiery speech which targeted political and racial groups. An angry crowd of more than 1000 protested outside. When the crowd became violent, the police eventually arrested Father Terminiello for inciting the crowd. He was convicted of disorderly conduct and fined for speech that "stirs the public to anger, invites dispute and creates a condition of unrest.” The Supreme Court threw out his conviction and ruled the Chicago ordinance unconstitutional. The majority opinion applied the Schenck precedent, holding that speech could be restricted only if it is "likely to produce a clear and present danger of a serious substantive evil.” (For more information see Terminiello v. Chicago (1949) and )

Feiner v. New York (340 U.S. 315,1951): Irving Feiner was a Syracuse student who made an inflammatory speech to a racially mixed crowd of 75 or 80. He urged black people “to rise up in arms and fight for equal rights.” As counter-protestors arrived, the crowd spilled into the streets and tensions became very high. Police feared a riot and asked Feiner three times to stop his speech. When he refused, Feiner was arrested for breach of peace. The Supreme Court upheld Feiner’s conviction. The opinion for a five-justice majority, asserted that Feiner was not convicted for content of his speech but for his conduct. His “refusal to … obey police requests” amounted to an “incitement to riot.” The opinion relied on the precedent of Cantwell v. Connecticut (1940): “When clear and present danger of riot, disorder, interference with the traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.” (For more information see: Feiner v. New York (1951) | The First Amendment EncyclopediaFeiner v. New York (1951) | The First Amendment Encyclopedia and Feiner v. New York | Oyez)

Brandenburg v. Ohio (395 US 444, 1969): In Schenck v. United States (1919), the Supreme Court held that speech can be limited when it creates “a clear and present danger that they will bring about the substantive evils.” The “clear and present danger” test was altered and ultimately redefined by a two-part test outlined in the ruling of Brandenburg v.Ohio.

Clarence Brandenburg was arrested after speaking at a small Ku Klux Klan meeting in Harrison County, Ohio. He was convicted for advocating revenge on Congress and the government of the United States for “suppression of the white race.” The Supreme Court overturned his conviction, ruling that speech can only be prohibited when (1) it is "directed at inciting or producing imminent lawless action," and (2) it is "likely to incite or produce such action." (For additional information, see; Brandenburg v. Ohio | Oyez and Brandenburg v. Ohio (1969) | The First Amendment EncyclopediaBrandenburg v. Ohio (1969) | The First Amendment Encyclopedia

(Image: Clarence Brandenburg poses with American Nazi Party Member Richard Hanna after his arrest, August 8, 1964)

Activity - Mini Moot Court. Moot Courts are mock appellate court hearings. In appellate court hearings, judges or justices are asked to rule on a lower court’s decision. No witnesses are called, nor are the basic facts of the case in dispute. The focus is on the application, fairness and/or constitutionality of the law. A moot court is an effective strategy for teaching students’ the underlying principles and concepts of justice and the law. It also provides excellent instruction on how to collaborate, analyze complex texts and build consensus as they form arguments. . (For additional information see: Moot Courts and the Common Core - Street Law)

A Mini-Moot Court activity is a way to ensure the involvement of every student so they have the opportunity to learn the vital skills of collaboration, analysis and consensus building. Consider the following procedure to implement a mini-moot court activity with your students.

1. Provide and review the background material and links for the five Supreme Court cases that considered inflammatory speech that may incite violence and hatred. (You may wish to do this with the full class the day before you begin step 2)
2. Divide your class into groups of three. In each group, have students count off by 3.
3. Inform students in each group, that the student with the number 1 will play the role of an appellate court justice; the student with the number 2 will play the role or attorney for the appellant (the party that appeals the case to the court); and the student with the number 3 will play the role of attorney for respondent (the party that responds to the appeal once accepted). Provide copies of the background and relevant links above.
4. Share the background and constitutional question that will be discussed in the mini-moot court.
   • A well-known public speaker called for a specific violent action. Members of the audience later performed the violent action called for in the speech and were arrested. The state then arrested the public speaker as an accessory to the violent acts of the audience members. The public speaker appealed his arrest, arguing that it violated his First Amendment right of free expression.
   • Question: Should a public speaker who calls for violent action be protected by the First Amendment whereas an audience member who performs the action (that the speaker calls for) can be sent to prison?
5. Clarify for the groups that the public speaker is the appellant. Those who are assigned that role will frame their arguments on the public speakers behalf. The state that arrested and charged the public speaker is the respondent. Those assigned that role will frame their argument on the state’s behalf.
6. Allow 15 minutes for students in each group to prepare. Appellant and respondent attorneys frame their arguments; justices prepare questions they may ask each side in the hearing process.
7. Hearing process - All groups will simultaneously carry out the following process:
   • Petitioner attorneys present their argument to the justice within their group. The justice may intercede (5 minutes maximum)
   • Respondent attorneys present their argument to the justice within their group. The justice may intercede at any time with questions. (5 minutes maximum)
   • The justices in each group are provided 5 minutes to make their decision and compose a short rationale.
8. After the five minutes of justice deliberation, all justices are called to the front of the room and asked in turn to reveal their decision (i.e., did they rule for the petitioner or the respondent) and offer a brief rationale for that decision.