Free Expression: Boundaries in Historical Context
In this lesson, students consider when government should be permitted to limit freedom of expression—a right that is protected in the U.S. Bill of Rights and the EU Charter of Fundamental Rights. Americans are engaged in an ongoing discussion about how much speech should be constitutionally protected. To many, it seems that we allow people to have and express repellent views and draw a line at punishing them for doing so. Allowing the government to decide what is acceptable speech goes against our historical distrust of government—it’s in our DNA. We do agree
that any legislation restricting freedom of speech should be kept to the very minimum. Where our Supreme Court draws the line on free expression cases makes the news and our water cooler discussions. The situation in Europe is significantly different, however. There, people can be punished if the content of their speech crosses specified boundaries.
Why do governments treat free expression differently? In this lesson, students consider the important role our respective histories have in influencing where the boundaries for free expression are drawn. Students use their U.S. history or civics texts to examine the historical reasons for our Bill of Rights and world history texts to recall the experiences of Europeans in World War II and the Cold War era. They use this background knowledge to analyze cases involving free expression.
; Analyze several U.S. and European cases involving free expression. ; Hypothesize to what extent differences in the boundaries of free expression set
by governments are influenced by the history and experiences of a particular
; Take and defend a position on how much protection government should provide
free expression in the United States.
Materials and Preparation:
; You will need U.S. history or civics textbooks and world history textbooks for
student research. If you do not have access to texts, make enough copies of the
following handouts for one-third of the class to have each: U.S. History: The
Debate over The Bill of Rights; World History: The Aftermath of World War II in
Europe; and Life Under Communism in Eastern Europe.
; Make enough copies of The Boundaries of Free Expression: Where to Draw the
Line? handout for all students.
Teaching Time: 2 class periods (1 block period)
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1. Write on the board or project the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
2. Ask students if they have heard about the recent Snyder v. Phelps Supreme Court
case (2011) involving hate speech at a military funeral. (See U.S. Case #1 on the handout titled The Boundaries of Free Expression: Where to Draw the Line?) Explain to students that, in the United States, saying hateful things to others, even with the intent to cause distress and to generate contempt and loathing, is protected by the First Amendment (Liptak, New York Times, June 12, 2008,
“Unlike Others, U.S. Protects Freedom to Offend in Speech”). The same is not
3. Arrange students in triads. One student will research relevant historical background about the Bill of Rights; the second student will find information about the devastation in Europe as a result of World War II; and the third student will look at post-war Eastern Europe and the authoritarian regimes that followed there. If history books are not available, students can use the handouts provided for this purpose. They should answer these questions and share their responses:
; Student #1: Why did so many Americans favor adding a Bill of Rights to our
new Constitution? Why did we distrust government so much? Why are they
stated as “negative rights”? How did the Constitution differ from the Articles
; Student #2: Describe the level of destruction that occurred in Europe during
World War II. To your knowledge, how do the deaths and devastation in
Europe during World War II compare with the Civil War? More deaths? How
many times more? More cities destroyed?
; Student #3: What happened to people’s liberties in Eastern Europe during
the post war era? How were the experiences of Eastern Europeans different
from those of Western Europeans?
4. Distribute the handout entitled The Boundaries of Free Expression: Where to Draw the Line? Working in their triads, students should discuss the following:
; What limits, if any, are placed on speech in each of the cases below? ; How is the conflict between freedom of expression and the right to be secure
dealt with in each these cases?
; Which nations in the examples use the law to limit speech? What are the
circumstances under which speech can be limited?
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; To what extent might these differences in the protection/boundaries of free
expression be explained by the historical background of the nations involved?
5. Ask students: Knowing the historical context for the cases, do you agree or disagree with the outcome in each case? To what extent does an understanding of our history and the history of Europeans influence your decision?
6. To conclude the lesson, discuss the quotations below with students or have students choose one quote and write a one-page essay explaining why they agree or disagree with it:
; “Free speech matters because it works. Scrutiny and debate are more
effective ways of combating hate speech than censorship—and all the more
so in the post September 11 era. The world didn’t suffer because too many
people read Mein Kampf (Hitler’s biography). Sending Hitler on a speaking
tour of the U.S. would have been quite a good idea.” Harvey Silverglate, civil
liberties lawyer (“Unlike Others, U.S. Defends Freedom to Offend in Speech,”
New York Times, June 12, 2008).
; Some prominent legal scholars say the U.S. should reconsider its position on
hate speech. Many foreign courts have respectfully considered the American
approach—and then rejected it. “It’s not clear to me that the Europeans are
mistaken when they say that a liberal democracy must take responsibility for
protecting an atmosphere of mutual respect against vicious attacks” Jeremy
Waldron, legal philosopher (“Unlike Others, U.S. Defends Freedom to Offend
in Speech,” New York Times, June 12, 2008).
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The Boundaries of Free Expression: Where to Draw the Line?
U.S. Case #1
The family of a deceased U.S. Marine filed a lawsuit in U.S. District Court against members of the Westboro Baptist Church, who picketed at the Marine’s funeral. The
family accused the church members of defamation and invasion of privacy. They also told the court that the signs that church members displayed (“Thank God for
dead soldiers” and “Fag troops”) were intended to cause them emotional distress.
The family was awarded $5 million in damages. On appeal, the U.S. Court of Appeals for the Fourth Circuit held that the judgment violated the First Amendment's protections of religious expression. The church members' speech is protected, "notwithstanding the distasteful and repugnant nature of the words." On appeal to the U.S. Supreme Court, the court ruled 8-1 affirming the lower court’s decision. The
Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability. (Snyder v. Phelps, 2011)
U.S. Case #2
In an effort to stop racially motivated hate crimes, many states and municipalities have enacted laws criminalizing attacks motivated by prejudice. Juveniles burned a cross on a black family's lawn in violation of a St. Paul (MN) criminal ordinance. The ordinance made it illegal to place on public or private property symbols or objects that one knows or has reasonable grounds to know arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender. The trial court dismissed this charge. The state supreme court reversed. R.A.V. appealed to the U.S. Supreme Court. In a 9-to-0 vote, the Supreme Court held the St. Paul ordinance unconstitutional. It said: “The First Amendment does not permit St. Paul
to impose special prohibitions on those speakers who express views on disfavored subjects." (R.A.V. v. St. Paul, 1992)
U.S. Case #3
During the 1984 Republican National Convention in Texas, demonstrators protested the policies of the Reagan Administration and of certain corporations based in Dallas. At one demonstration, Gregory Lee Johnson poured kerosene on an American flag and set the flag on fire. No one was hurt, but some witnesses said they were very offended. Johnson was charged with the desecration of a venerated object in violation of the Texas Penal Code. He was convicted and lost his case on appeal to the Texas Court of Criminal Appeals. On appeal to the U.S. Supreme Court, Johnson was finally successful. The court said that the First Amendment protection of free speech included "symbolic speech," an action that expresses an idea. It said that flag burning was a form of symbolic speech, so Johnson’s speech was protected. Justice
Brennan, speaking for the majority, said: "If there is a bedrock principle underlying Center for Education in Law and Democracy 4
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; http://www.streetlaw.org/en/Case.16.aspx)
U.S. Case #4
First introduced in the U.S. House of Representatives by Representative John Salazar (Colorado District #3), the Stolen Valor Act was signed into law by President George W. Bush in 2005. This law makes it a federal misdemeanor to falsely represent oneself as having been awarded any U.S. military decoration. It carries a sentence of up to six months. If the offense is lying about the Medal of Honor, the punishment could be up to one year in prison. In March 2011, the 9th U.S. Circuit Court of Appeals upheld an earlier ruling determining that the law was a violation of free speech.
U.S. Case #5
“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 county.” In 1977 a neo-Nazi group
planned a march in Skokie, a Chicago suburb where many Holocaust survivors lived. The Nazis claimed their march was protected by the freedom of assembly. Citizens argued that the march would be deeply distressing to citizens and spark violence. Citizens won a court injunction against the marchers. However, the American Civil Liberties Union successfully defended the Nazis' right to free speech and the decision was upheld by the Court of Appeals. The Supreme Court refused to hear the case.
European Case #1
In 2007, the EU passed a law making denying the Holocaust punishable by jail sentences. It also gave member countries the option of not enforcing the law if such a prohibition did not exist in their own laws. Denying the Holocaust is illegal in several European countries, including Austria, Belgium, the Czech Republic, France, Germany, Liechtenstein, Lithuania, the Netherlands, Poland, Romania, Slovakia, Spain, and Switzerland. (http://news.bbc.co.uk/2/hi/6573005.stm)
European Case #2
Hitler’s biography, Mein Kampf, cannot be purchased in Germany, Hungary, Latvia,
Norway, Portugal, Sweden, and Switzerland.
European Case #3
In 2005, several EU Parliament members urged the EU to match a proposed ban on Nazi signs with one on communist symbols like the hammer and sickle. The Members, from Lithuania, Estonia, the Czech Republic, Hungary, and Slovakia, said Center for Education in Law and Democracy 5
communist symbols were a reminder of suffering under Soviet-era regimes. EU debate over Nazi symbols was fuelled by outcry after the UK's Prince Harry wore a swastika to a costume party. A spokesman said the EU had no plans to ban communist signs. (http://news.bbc.co.uk/2/hi/europe/4234335.stm)
European Case #4
European nations have long condemned communism, but none have gone as far as Poland. In November 2009, President Lech Kaczynski approved an amendment to the nation’s criminal code. The amendment outlaws production, possession, spread, and sale of items or recordings containing symbols of communism. Disobeying the law carries a fine or jail sentence of up to two years.
European Case #5
In March 2011, the EU Parliament called on the Hungarian government to restore the independence of the media and to stop state interference in freedom of speech issues. The controversial media law passed in Hungary provides for balanced coverage of news events and the creation of a media council appointed by the ruling party. The media council will be able to impose fines on media outlets for unbalanced news coverage, material it considers insulting to a particular group or the majority, or material that violates public morality. The law also removes legal protection against the disclosure of journalists' sources.
(http://www.npr.org/2011/01/11/132833404/hungary-measures-draw-fears-of-autocratic-rule; http://www.hrw.org/en/news/2011/01/07/hungary-media-law-endangers-press-freedom; http://www.neurope.eu/articles/105245.php)
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U.S. History: The Debate over the Bill Of Rights
Adapted from “The First Amendment and Visions of ‘the Good Society,’” by Warren
Solomon, Education for Freedom: Lessons on the First Amendment for Secondary School Students (Denver, CO: First Amendment Congress, 1997).
In the history of our nation, mistrust of government power can easily be traced to our colonial experiences. Having fought for independence from the English monarchy, we wanted strong guarantees that the new government would not trample upon freedom of speech, press, and religion, nor upon our right to be free from warrantless searches and seizures. Our founders believed that the new government’s power should be limited and should protect individual rights.
When the Constitution was submitted to the states for ratification in 1787, it did not include a bill of rights. Some delegates to the Constitutional Convention refused to sign the Constitution because of the omission. It quickly became an issue in the ratification process.
James Madison, Alexander Hamilton, and John Jay, authors of the Federalist Papers, said a bill of rights was unnecessary. They argued that the new government’s
structure – with separation of powers and checks and balances among the three branches – would prevent rights from being violated. Furthermore, they said the Constitution clearly indicated that the government had limited powers. If a bill of rights was included, it might suggest that only those rights listed in it were protected. Finally, they said a bill of rights was unnecessary because many state constitutions had such guarantees.
The opponents, who were called the Anti-Federalists and included such people as George Mason, Edmund Randolph, Elbridge Gerry, and Mercy Otis Warren, said a bill of rights was absolutely necessary. Remembering the tyranny of the British government, the Anti-Federalists feared that the stronger federal government created by the Constitution would abuse the rights of the individuals.
After many months of debate, the Federalists compromised with the Anti-Federalists to get the large – and important – states of Virginia and New York to
ratify the Constitution. The Federalists agreed that a bill of rights would be added to the Constitution as soon as the first Congress was convened.
James Madison, who had originally opposed a bill of rights, said in his campaign for the first Congress that, if elected, he would introduce a bill of rights. He had come to believe that a bill of rights was necessary. Madison had always been concerned about the majority taking away the rights of minorities. He thought a bill of rights would help the courts protect minorities.
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Madison was elected and took on the job of going through all the changes states had suggested when they ratified the Constitution. This was a long list—Virginia alone
had suggested dozens. Madison thought the Bill of Rights would have a better chance of being adopted if it was not too long. He drafted a list of 17 amendments that was proposed to Congress. After much debate and rewriting, Congress passed a list of 12 amendments, and of those, 10 were approved by the states.
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World History: The Aftermath of World War II in Europe
Few of us can imagine the level of destruction suffered in the countries in Europe where the fighting was most intense during World War II. It was the deadliest
military conflict in history. Close to 40 million Europeans died—two-thirds of them
civilians. 50 million people were uprooted from their homes, and property damage was estimated in the billions of dollars. Hundreds of cities were destroyed, some of
them centuries-old. Entire towns and villages were eradicated. (By all accounts,
there were over 125,000American casualties in Europe during World War II. In contrast, over 600,000 Americans lost their lives in the American Civil War.)
The war officially began on September 1, 1939, when Germany attacked Poland. Germany then defeated additional nations in three months – Denmark, Norway,
Belgium, Luxembourg, Netherlands, and France – and then moved on to conquer
Yugoslavia and Greece.
Hitler carried out a program of systematic annihilation of six million Jews. In 1933, nine million Jews lived in the 21 countries of Europe that would be occupied by Nazi Germany during World War II. By 1945, two out of every three European Jews had been killed in the Holocaust.
By the end of World War II, Europe lay in ruins. Two-thirds of the deaths in the war occurred in Europe, making the war there far bloodier than in Asia. Constant bombing and shelling had reduced hundreds of cities to rubble. The ground war destroyed much of the countryside. Displaced persons from many nations struggled to get home.
The Blitz left London in ruins. Over 60,000 London civilians died in the German bombings. Eastern Europe and Germany were far worse off. Warsaw, the capital of Poland, was almost wiped from the face of the earth. From a population of over a million when the Soviets entered the city in January 1945, only 153,000 people remained. In Berlin, 25,000 tons of Allied bombs had demolished almost all of the central city.
After the war, many civilians tried to get on with their lives. They had no water, no electricity, and very little food. With factories destroyed or damaged, most people couldn’t buy the food that was available. Many displaced persons wandered
throughout Europe. Displaced persons included the survivors of concentration camps, prisoners of war, and refugees fleeing the Soviet army. Thousands died as famine and disease spread through the bombed-out cities. In August 1945, 4,000 citizens of Berlin died every day. Recent research in Russia puts current estimates of Soviet war dead at 26.6 million.
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In the nations of Eastern Europe, millions found themselves in the wrong country when the postwar treaties changed national borders. World War II brought about the downfall of Western Europe as the center of world power and led to the rise of the Soviet Union, thereby setting up the beginnings of the Cold War and the nuclear age.
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