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Frequently Asked Questions (FAQs) in the Killian Nine Case
What freedoms comprise First Amendment "freedom of expression" rights?
Freedom of speech, of the press, of association, of assembly and petition – this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. The Supreme Court has written that this freedom is "the matrix, the indispensable condition of nearly every other form of freedom." Without it, other fundamental rights, like the right to vote, would wither and die.
Historically, what limits have been imposed on Americans' freedom of expression?
In spite of its "preferred position" in our constitutional hierarchy, the nation's commitment to freedom of expression has been tested over and over again. Especially during times of national stress, like war abroad or social upheaval at home. People exercising their First Amendment rights have been censored, fined, even jailed. Those with unpopular political ideas have always borne the brunt of government repression.
In 1798, during the FrenchIndian War, Congress passed the Alien and Sedition Act, which made it a crime for anyone to publish "any false, scandalous and malicious writing" against the government. It was used by the thendominant Federalist Party to prosecute prominent Republican newspaper editors during the late 18th century.
Throughout the 19th century, sedition, criminal anarchy and criminal conspiracy laws were used to suppress the speech of abolitionists, religious minorities, suffragists, labor organizers, and pacifists. In Virginia prior to the Civil War, for example, anyone who "by speaking or writing maintains that owners have no right of property in slaves" was subject to a oneyear prison sentence.
The early 20th century was not much better. In 1912, feminist Margaret Sanger was arrested for giving a lecture on birth control. Trade union meetings were banned and courts routinely granted injunctions prohibiting strikes and other labor protests. Violators were sentenced to prison. Peaceful protesters opposing U.S. entry into World War I were jailed for expressing their opinions and handing out antiwar leaflets. In the early 1920s, many states outlawed the display of red or black flags, symbols of communism and anarchism. In 1923, author Upton Sinclair was arrested for trying to read the text of the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as "radical" by the government.
When did the turning point in expanding freedom of expression occur?
During our nation's early era, the courts were almost universally hostile to political minorities' First Amendment rights; free speech issues did not even reach the Supreme Court until 1919 when, in Schenck v. U.S., the Court unanimously upheld the conviction of a Socialist Party member for mailing antiwar leaflets to draftage men. A turning point occurred a few months later in Abrams v. U.S. Although the defendant's conviction under the Espionage Act for distributing antiwar leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law. Justices Holmes and Brandeis argued speech could only be punished if it presented "a clear and present danger" of imminent harm. Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the "clear and present danger test."
But were some of the comments in the Killian students' pamphlet a threat of violence? Does the First Amendment protect those who advocate violence?
In 1969, in an ACLU case involving a KKK leader who had urged at a rally in Hamilton County, Ohio, that Black Americans be sent back to Africa, the United States Supreme Court unanimously established the principle that speech may not be restrained or punished unless it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (Brandenburg v. Ohio)
In this, and in earlier cases involving advocates of draft resistance in World War I and leaders of the Communist Party during and following World War II, the Supreme Court made it clear that before speech can be suppressed there must be a clear and present danger that the audience will act illegally and imminently do what the speaker urges – not just believe in what is advocated.
What are the limitations of freedom of expression in the public school setting?
First Amendment protection is not limited to "pure speech" – books, newspapers, leaflets, and rallies. It also protects "symbolic speech" – nonverbal expression whose purpose is to communicate ideas. In its 1969 decision in Tinker v. Des Moines, the Court recognized the right of public school students to wear black armbands in protest of the Vietnam War. The Court recognized that students in public schools "do not leave their First Amendment rights at the schoolhouse gate." This meant that a public school student could express his or her opinion orally and in writing – in leaflets or on buttons, armbands or Tshirts.
Although in 1982 the Supreme Court in Island Trees v. Pico ruled that school boards can't remove books from a school library just because they don't agree with their content, the tide turned against studentcreated speech six years later. In its 1988 decision in Hazelwood v. Kuhlmeier , the Supreme Court held that public school administrators can censor student speech in official school publications or activities – like a school play, art exhibit, newspaper or yearbook – if the officials think students are saying something "inappropriate" or "harmful" even if it is not vulgar and does not disrupt.
Completely studentrun papers, on the other hand, are a different matter. Students have carte blanche so long as they have not expressed themselves in an "indecent" way or in a manner that "materially and substantially" disrupts classes or other school activities. The only limitations the school can place are on the "time, place or manner" of handing out the studentrun paper. The same rule applies to leaflets or buttons that students have created and paid for.
Some states – including Colorado, California, Iowa, Kansas, and Massachusetts – have "high school free expression" laws that give students more free speech rights than the Constitution requires.
Is the "Killian Nine" case unprecedented?
There is a long history of school administrators suppressing student publications in South Florida and elsewhere – both official and underground papers. But in the past, they've been handled with suspensions. In 1994, for instance, three students at Hialeah High were suspended after publishing a threepage edition filled with profanity, threats to faculty and a graphic depiction of a shooting death. Ironically the Killian Nine arrests occurred in one of the few counties that had restored some of the rights of student journalists that the 1988 U.S. Supreme Court Hazelwood School District v. Kuhlmeier decision took away. MiamiDade, for instance, is one of the few districts that does not allow prior review of student newspapers. Only items denoted slanderous, provocative with a sexual connotation, or disruptive of school activities can be censored by school officials.
The "Killian Nine" students are the only students we are aware of who have been subjected to arrest for publishing written material at school.
