○ Core Political Speech (opinions about policies and our government, not just speech about elections or politicians) ■ Expressive and important to our democracy. ○ Expressive Conduct (nonverbal actions to communicate a message) ■ Symbolic actions such as marches, clothing, body language to convey a message.
○ Content – cannot generally restrict speech to suppress a particular viewpoint. ○ Time, Place, and Manner Restrictions ■ Whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. ■ “Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” ■ Restrictions can be appropriate if there are ample alternatives available.
Prior restraints (also referred to as prior censorship or pre-publication censorship) is censorship imposed, usually by a government or institution, on expression, that prohibits particular instances of expression.
● RECOMMENDED QUESTIONS ● What constitutional rights are implicated in this scenario? (First Amendment – free speech) ● Was (student volunteer) treated fairly? Why/Why not? ● EXPLANATIONS ● Scenario is based on Tinker v. Des Moines Indep.Cmty.Sch.Dist ., 393 U.S. 503 (1969) ● Students were suspended from school for wearing black armbands to protest U.S. involvement in the Vietnam War. ● Lower Courts had agreed with the school’s ban on the armbands in order to prevent a “disturbance of school discipline.” ● The U.S. Supreme Court reversed and held that “the wearing of armbands in the circumstances of the case was entirely divorced from actually or potentially disruptive conduct by those participating in it, and as such was closely akin to ‘pure speech’ which is entitled to comprehensive protection under the First Amendment, and that the school regulation prohibiting students from wearing the armbands violated the students’ rights of free speech under the First Amendment, where there was no evidence that the authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students, but on the contrary it appeared that the authorities’ action was based upon an urgent wish to avoid the controversy which might result from the expression symbolized by the armbands, and that the particular symbol of black
armbands was singled out for prohibition.”’ ● This case reiterated that First Amendment free speech rights apply to teachers and students in the school setting and that the Fourteenth Amendment prevents the State (through the school) from unconstitutionally interfering with that liberty, essentially protecting the citizen from the State and its actors. ● The Court also reminded us that the right to free speech is not absolute and constitutional restrictions can exist within its framework. However, the Court here pointed out that there was absolutely no evidence presented that the armband protest caused a disturbance or danger to the learning environment; therefore, there were no circumstances to even weigh against the outright ban. ● The Court found it relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. These students were treated unequally when they were suspended for their symbols of protest when other students were not. ● A public school may be held to different scrutiny than a private school. Private schools are not state actors like public schools are. ● Does the location of this protest matter? Why/Why not? Would it matter if it was a private school?
● After the story went viral, the Marshal told AP news that he had received death threats. The town posted a statement online that stated that the action that was taken was appropriate and directed readers to ARS 13-2401 which is an Arizona law that makes it a class 5 felony to post personal information about a police officer online if that information poses a threat. ● QUESTIONS FOR DISCUSSION: ● What is the role of the press in America? ○ Answer: The press, sometimes referred to as the Fourth Estate, is a further check on the powers of government and those in power. Educating the public about what is going on in their communities, state, nation and world, help to ensure that an informed populace is voting in elections. ● What does it mean to have a free press? ○ Answer: It means that there cannot be prior restraint on news that is reported. Those in power, the government, cannot stop reporters from reporting the news. Reporters cannot be made to allow the government to edit or pre approve stories before they are published. ● Why does it matter that the press be protected by the First Amendment? ○ Answer: Because if the people are only told what is going on by the people in power, then there is a high likelihood that the people in power will distort and restrict the information that is provided to the
people in order to make those in power look more favorably.
● Do students/minors have the same freedoms as adult press members? ○ Answer: Sometimes. It depends on where and when the reporting takes place. ● Should Hilde Lysiac have the right to be where she was when she was reporting for her newsletter? ○ Open discussion ● If so, how were her rights being infringed? ○ She was in a public place, recording what was going on around her. She was being told that she couldn’t do something just because police didn’t want her to do that, even though she was not disrupting law enforcement or breaking the law. ● What was the outcome for Hilde? ○ Answer: She received an apology and national recognition. She also has a scholastic book deal and a TV deal with Apple.
RECOMMENDED QUESTOINS ● Are there state actors? Who? ● BUT, can the school regulate this type of speech? ○ Where did the speech happen? ○ When did the speech happen? School grounds or school hours? ○ Does the audience matter? What if it was a more public forum? ○ Were the girls in their cheer uniforms? EXPLANATIONS ● This scenario is based on an ongoing case that you can google by looking up “Mountain Crest Cheerleader Lawsuit”. It is ongoing. ● Angelica’s father filed a complaint alleging that the school’s actions unreasonably restricted her speech. ● There are no exact cases on point yet, but the court will be wrestling with the questions posed above. ● In the real case, it is a public school, so there were state actors. ○ What if it was a private school? ○ What if it wasn’t a school but a cheer studio? ● If the speech happened at school, there is a greater argument for restriction? ● If it happened during school hours, or during the hours where the girls were attending a sanctioned activity, there is a greater argument for restriction. ● Angelica said she didn’t mean to even post the video? Does that matter? ● She only sent the video to 40 friends, she didn’t add it to her story, does the audience matter?
● The girls were wearing new cheerleading t-shirts, not their uniform. Were they representing the school? ● United States District Court for the State of Utah, Northern Division - 1:18CV57DAK
RECOMMENDED QUESTIONS ● Are there state actors? Who? ● BUT, can the school regulate this type of speech? ○ Where did the speech happen? ○ When did the speech happen? School grounds or school hours? ○ Does the audience matter? People are offended by it! ● Because it was part of a uniform was the message imputed to the school? ● What if it hadn’t been a question of uniform but what if they had knelt during the national anthem? ○ Is it disruptive then? ○ Is the message imputed to the school then? ● Was the punishment ok? ○ Issues that reach beyond the loss of the activity. ● Why is the Colin Kapernick kneeling situation different? ○ His bosses are private actors EXPLANATION ● Just like in Tinker, the school cannot unreasonably restrict political speech. BUT ● In Harper v. Poway Unified School District , 445 F.3d 1166 (9th Cir. 2006) the 9 th Cir. did uphold a school’s direction for a student with a targeted and controversial message on a t-shirt to turn the shirt inside out so that the message was not visible. ● The proportionality of the punishment is important and was discussed in that
case. ● Colin Kapernick could get “fired” for kneeling (which was also political speech), because his bosses are not public actors.
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