When May Speech Be Limited?

Education for Freedom Lesson 4

When May Speech Be Limited?

LEVEL Beginning
SUBJECT Government, Civics

Introduction
One of the most difficult but important questions the public faces is: If freedom is
not absolute, then what circumstances justify a limitation? This lesson introduces
standards that have been used in answering this question. Students then evaluate
several cases, applying the standards and deciding specifically the beneficial or
harmful consequences of the particular speech in question. Finally, students
determine what values underlie the perceived need to limit speech, uncovering
and discussing conflicts between freedom of speech and other values.

Develop in students the habit of visiting freedomforum.org. They will find
breaking news relating to speech issues and access to the archives of news articles
and commentary.

Key concepts

q Freedom of speech is not absolute.
q Society and the legal system recognize limits on the freedom of speech.
q Issues arise in which freedom of speech conflicts with other values.

First Principles
Go to this curriculum’s First Principles. The First Principles document was
developed to explain in practical, everyday terms just what the First Amendment
means.

Read the explanations to the principles listed below. They have special relevance
to the activities in this lesson.

q The First Amendment tells the government to keep its “hands off” our

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religion, our ideas, our ability to express ourselves.

q “Who draws the line, and how?” is a key question.

First moments
Review the benefits of freedom of speech in a democracy. Point out that the First
Amendment states “Congress shall make no law … abridging the freedom of
speech.” That sounds very straightforward and simple. Ask the students to
imagine this scene:

Your pep band is at a rival school across town for a game one evening. Suddenly
they find themselves surrounded by angry, taunting students from the other
school. The crowd shouts, “You stink!” “You’ll never get home tonight alive!”
“You’re gonna pay for being here!” Even though no one has touched anyone,
some fear for their lives. Does the crowd have the constitutional right to yell at
the pep band members?

Use student discussion as a springboard for the idea that society and the courts
have agreed upon limits to free speech. You may also consider: Which is more at
risk, student safety or free speech?

In the example, the hecklers are causing a dangerous situation that could easily
get out of hand. At a minimum, they are causing great distress to the surrounded
students. Various laws might be applied to the incident depending on the number
of perpetrators, the presence of weapons, the age of the victims and even where
the incident takes place. Legislatures, as well as courts and law- enforcement
agencies, influence how these incidents are handled. Teachers, check on the
policies and laws in your local jurisdictions.

Procedure

1. Distribute Limits of Freedom of Speech. Review the tests that the
Supreme Court has established to determine whether speech may be
limited. You may also want to discuss symbolic speech with the students
before giving students the case studies. (Symbolic speech has been defined
as the communication of an idea through an action.)

2. Have students work in small groups to complete the Limits of Freedom of
Speech Case Studies. Students may be given all the case studies or only
some of the studies. You may wish to download and print them as cards in
order to distribute individual cases to each group. Use the tests on limits to
freedom of speech as a way to structure student debate over the cases.

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(The case studies can also be completed individually online if you prefer
to do this as homework, or each group could focus on a selected case.)

The case studies:
Case study 1—Permits and demonstrations
Case study 2—Burning a selective service registration certificate
Case study 3—Gathering petitions in a shopping mall
Case study 4—Obscene or indecent phone calls
Case study 5—Distribution of anonymous political flyers
Case study 6—Third-party candidate inclusion in televised debates
Case study 7—Student speech at school assemblies
Case study—Answers

3. When students have finished, have them take turns explaining what they
decided in each case and why. Check which groups or individual students
agreed and which disagreed. When disagreements arise, refer to the tests,
discussing (1) the potential for the speech to result in a harmful
consequence, 2) the probability that this might occur, and 3) how to
resolve conflicting values.

4. After this introduction to the tests, have students study one of these
guidelines for limiting speech. Students will then write a personal reaction
paper on the topic: Do you agree or disagree with the necessity for this
limit on speech?

Enrichment
To help students understand that freedom of speech is a contemporary issue, have
them scan the newspaper for approximately one week to find articles regarding
freedom-of-speech issues. Clip and glue each article to a piece of paper. Beneath
the article, students should indicate the specific speech issue involved and
whether or not, in their opinion, the speech would be protected.

Resources

On the Web
ACLU Briefing Paper, No. 10
“Freedom of Expression” gives an overview of pure and symbolic
speech, limits to speech and three reasons why freedom of
expression is essential to a free society.

Ask Sybil Liberty about your right to Free Expression
Answers to students' basic questions.

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Heckler’s Veto
An activity based on an actual case that occurred at Northwestern
University in March 1999.

Heckler’s Veto
Columnist Nat Hentoff on use of the heckler’s veto to limit free
speech.

freedomforum.org

CD
Goldman, Jerry. "The U.S. Supreme Court’s Greatest Hits." CD-
ROM. Multimedia: audio, images, text. 1999.

Developed and edited by Jerry Goldman,
Northwestern University professor and developer of
OYEZ Web site. Contains more than 70 hours of the
actual oral argument in 50 of the most significant
constitutional cases, searchable by name, date and
justices participating. Cases include Lee v. Weisman,
Miller v. California, Roth v. United States, Tinker v.
Des Moines Ind. Comm. School Dist.

In print
Hentoff, Nat. Free Speech for Me — But Not for Thee.
HarperCollins Publishers, Inc. 1992.

McElroy, Wendy. Queen Silver. Prometheus Books. 1999.

Biography of a passionate advocate for women and labor. Includes
articles and speeches.

National Standards
U.S. History, Standard 8: Understands the institutions and practices of
government created during the Revolution and how these elements were revised
between 1787 and 1815 to create the foundation of the American political system
based on the U.S. Constitution and the Bill of Rights.

Civics, Standard 8: Understands the central ideas of American constitutional
government and how this form of government has shaped the character of
American society.

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Civics, Standard 18: Understands the role and importance of law in the American
constitutional system and issues regarding the judicial protection of individual
rights.

Civics Standard 26: Understands issues regarding the proper scope and limits of
rights and the relationships among personal, political, and economic rights.

Benchmarks
U.S. History, Standard 8, Grades 9-12: Understands the Bill of Rights and various
challenges to it.

Civics Standard 8, Grades 6-8: Knows opposing positions on current issues
involving constitutional protection of individual rights, such as limits on speech
(e.g., "hate speech," advertising), separation of church and state (e.g., school
vouchers, prayer in public schools), cruel and unusual punishment (e.g., death
penalty), search and seizure (e.g., warrantless searches), and privacy (e.g.,
national identification cards, wiretapping).

Civics, Standard 18, Grades 9-12: Understands the effects of Americans relying
on the legal system to solve social, economic and political problems rather than
using other means, such as private negotiations, mediation and participation in
the political process

Civics, Standard 26, Grades 6-8: Understands what is meant by the "scope and
limits" of a right; Grades 6-8: Understands the argument that all rights have
limits, and knows criteria commonly used in determining what limits should be
placed on specific rights (e.g., clear-and-present-danger rule, compelling-
government-interest test, national security, libel or slander, public safety, equal
opportunity).

Interdisciplinary
Speech: Students prepare a speech on a speech-related topic, such as It is/is not
necessary to limit freedom of speech.

Debate: Students debate whether there should be limits on freedom of speech.
Use Limits of Freedom of Speech to understand the reasons speech is limited.
Students may use any of the case studies or add their own to substantiate their
positions.

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Answers, case studies: when may speech be limited?

Case 1 — This case, which involved the National Socialist Party of America
and the Village of Skokie (a suburb of Chicago), generated rulings in both
Illinois state and federal courts. The Illinois Supreme Court, by a 6-to-1 margin,
held that displaying swastikas was a form of symbolic speech protected by the
First Amendment. The court further held that the “fighting words” doctrine
developed by the Supreme Court did not permit “prior restraint” of the Nazis’
speech because advance notice of the march gave citizens the option of avoiding
face-to-face insults. Such prior restraint to prevent violence, which the court
admitted was a possibility, amounted to a “heckler’s veto.”

A month later, a federal district judge ruled that Skokie’s ordinances were
unconstitutional, holding that not only did the ordinances censor certain kinds
of speech, they provided for censorship on the basis of what might be said,
rather than what was actually said. The judge said, “The ability of American
society to tolerate the advocacy even of the hateful doctrines espoused by the
plaintiffs without abandoning its commitment to freedom of speech and
assembly is perhaps the best protection we have against the establishment of
any Nazi-type regime in this country.” This decision was upheld by the court of
appeals. When the Supreme Court refused to hear National Socialist Party of
America v. Skokie, 432 U.S. 43 (1977). The decision of the court of appeals
held.

Case 2 — In the case of the United States v. O’Brien, the Supreme Court ruled
8 to 1 against the protesters. The Court held that Congress had the authority to
raise armies and could therefore require that Selective Service registration
certificates (draft cards) be handled in particular ways. The military purposes of
the draft law outweighed David O’Brien’s right to expression through symbolic
speech (i.e., burning of his draft card). He had alternative ways to express
himself that did not involve violating a valid law that prohibited destroying the
card.

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Case 3 — In this case, Pruneyard Shopping Center v. Robins (1980), the court
ruled that Robins’ manner of speech was orderly and the activity was conducted
in the common public area of the mall. Since the California Constitution
protected “speech and petitioning, reasonably exercised, in shopping centers
even when the shopping centers are privately owned,” the time, place, and
manner test was not violated and the speech was protected.

This case affirms the legal principle that state and local governments may give
their citizens more free-speech rights than are accorded them by the First
Amendment and the federal constitution.

Case 4 — In this 1989 case, Sable Communications of California v. FCC and
Thornburgh, the Supreme Court said that the government could ban “obscene”
communications but not “indecent” communications. While the Supreme Court
agreed that preventing children from hearing indecent messages was a valid
goal, it did not think this goal justified making indecent communications illegal.
While stopping “indecent” speech would protect children, it would also
unconstitutionally deny adults access to protected “indecent” speech. The
Supreme Court and other courts have cited Sable to rule unconstitutional federal
laws setting limits on Internet expression.

Case 5 — The Court ruled in McIntyre v. Ohio Elections Commission (1995)
that Ohio’s ban on anonymous elections literature was too broad to achieve the
purpose that it was intended to achieve — protecting voters and candidates from
false, misleading or libelous statements. While such a state interest might be
compelling, the remedy used by the state was too broad. The court stated,
“Anonymous pamphleteering is … an honorable tradition of advocacy and of
dissent” and held that McIntyre’s speech was protected.

Case 6 — Forbes lost in district court but won on appeal. AETC appealed to the
Supreme Court, where the case was argued on October 8, 1997. In a 6-to-3
decision, the court found in favor of AETC since AETC had created a
“nonpublic forum” when it selected participants by “objective indications of

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their popular support” rather than their points of view. Arkansas Ed. Television
Comm. v. Forbes determined that public broadcasters can exclude participants
from sponsored debates as long as the debates are not public forums. News
coverage of the case can be found on washingtonpost.com.

Case 7 — The U.S. Supreme Court ruled in Bethel School District No. 403 v.
Fraser that school systems may prohibit the use of vulgar and offensive
language at school-sponsored activities or forums. The informal suggestion by
teachers not to give the speech was sufficient warning to Fraser. The decision
held: “It is a highly appropriate function of public school education to prohibit
the use of vulgar and offensive terms in public discourse. Nothing in the
Constitution prohibits the states from insisting that certain modes of expression
are inappropriate and subject to sanctions. The inculcation of these values is
truly the work of the school, and the determination of what manner of speech is
inappropriate properly rests with the school board.”
Note that this decision applies only to school-sponsored expression. The Bethel
ruling and standard do not apply to individual expression, such as wearing an
inscribed pin or a shirt with a message that does not disrupt the school or
educational process. The court made it clear in Bethel that it was not
overturning Tinker, with the “disruption” standard that applies to individual
expression. And that test survived Hazelwood, as well.

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