A Conversation on the Constitution: Freedom of Speech
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A Conversation on the Constitution: Freedom of Speech

September 20, 2019


– THIS VIDEO IS A PROJECT OF
THE ANNENBERG FOUNDATION TRUST AT SUNNYLANDS. – WHY DO YOU THINK THE FRAMERS
VALUED FREEDOM OF SPEECH IN OUR CONSTITUTION? THEY PUT IT RIGHT IN THE VERY
FIRST AMENDMENT. AND WHY DO YOU THINK THAT WAS
FIRST AND FOREMOST? – IT ALLOWS THE CITIZENS OF
AMERICA TO PUT A CHECK ON THEIR GOVERNMENT. AND IT ALLOWS PEOPLE TO CRITIQUE
THEIR GOVERNMENT. AND IT ALSO MAKES KNOWN
PUBLIC OPINION. – ALL RIGHT. WELL, I’M NOT SURE
IT SERVES AS A CHECK. IT ALLOWS YOU TO CRITICIZE,
DOESN’T IT, FREELY? – PEOPLE BACK THEN WERE
TERRIFIED OF THE MONARCHY THAT EVERYONE ESCAPED
FROM IN ENGLAND. AND WHEN WE HAD ORIGINALLY
THE ARTICLES OF CONFEDERATION, THEY TOTALLY FAILED. SO WHEN WE REWROTE
THE NEW CONSTITUTION, PEOPLE SAW THAT AS AN ATTEMPT
TO GET BACK TO MONARCHY. AND EVERYONE HATED THAT IDEA. SO JAMES MADISON AND THE OTHERS
HAD TO WRITE THE BILL OF RIGHTS. AND THEY INCLUDED FREE SPEECH
AND ALL THE REST IN THE FIRST AMENDMENT SO THAT
PEOPLE WOULD BE ASSURED THAT THEY WOULD BE ABLE TO
CRITICIZE– THEY WOULD BE ABLE TO, YEAH,
CRITICIZE THE GOVERNMENT AND NOT GO BACK
TO THAT MONARCHY. – THEY WOULDN’T BE ABLE TO BE
PACKED OFF TO JAIL BECAUSE THEY WERE CRITICAL OF
THOSE IN POWER–THE GOVERNMENT, AS WOULD HAVE BEEN THE CASE,
PERHAPS, UNDER A DIFFERENT FRAME OF GOVERNMENT OR THE MONARCHY,
WHICH WAS BEING REJECTED. – DOES THE FIRST AMENDMENT APPLY
JUST TO POLITICAL MATTERS? “WE WANT…OBAMA OR McCAIN,” OR “WE WANT…A REPUBLICAN
OR A DEMOCRAT.” – NO, IT DOESN’T… – WHAT ELSE DOES IT APPLY TO?
– IT APPLIES TO ALL MATTERS. IT COULD APPLY
TO YOUR PERSONAL BELIEFS ON CERTAIN SOCIETAL MATTERS. – HOW ABOUT THE FACT THAT I LIKE
THE WASHINGTON REDSKINS? IS THAT COVERED BY
THE FIRST AMENDMENT? – THAT COULD BE.
IF YOU WANTED TO– – OR DO YOU HAVE ANY
DOUBT ABOUT THAT? – NOT AT ALL. IF YOU WANTED TO
EXPRESS THE FACT THAT YOU LOVE THE WASHINGTON
REDSKINS, THAT’S, OF COURSE, YOUR RIGHT TO SAY SO.
IT’S YOUR RIGHT TO PRACT– – IS IT IMPORTANT FOR ME
TO SAY THAT? IS IT IMPORTANT FOR SOCIETY TO
SAY THAT? – YES, IT’S IMPORTANT. – SPORTS FOR SOME PEOPLE
ARE AS IMPORTANT AS POLITICS, AREN’T THEY? – ALL FORMS OF EXPRESSION ARE
IMPORTANT, ESPECIALLY IN A DEMOCRACY. – SO WHAT DOES THAT TELL YOU
ABOUT WHY WE HAVE SPEECH? – SPEECH IS IMPORTANT
IN OUR GOVERNMENT BECAUSE WE ARE A DEMOCRACY. “DEMOCRACY,”
THE ACTUAL WORD MEANS A GOVERNMENT RUN BY THE PEOPLE. – BUT DOESN’T THAT SLIDE BACK
INTO THE POLITICAL JUSTIFICATION THAT YOU GAVE, WHICH IS A VERY
IMPORTANT JUSTIFICATION, BUT WE WERE SAYING THAT IT
APPLIES TO OTHER SUBJECTS AS WELL. AND THEN YOU SAID,
“THAT WAS FOR OUR GOVERNMENT.” SO DON’T LET ME TALK YOU
OUT OF IT. – WELL, SOCIETY ALTOGETHER.
EVERYONE IN A SOCIETY HAS A RIGHT TO EXPRESS
THEIR IDEAS IN SPEECH IN SOME WAY, FORM, OR ANOTHER. – I THINK IT’S ESPECIALLY VITAL
BECAUSE IT’S THE WAY THAT WE EXPRESS OURSELVES. I THINK WHETHER IT’S SPORTS OR
POLITICS OR WHATEVER, YOU… – WHY IS IT IMPORTANT THAT YOU
HAVE THE RIGHT TO EXPRESS YOURSELF? – BECAUSE IT’S WHO YOU ARE AND IT’S WHO YOUR PERSONAL
BELIEF IS. AND IF WE FOUNDED THIS COUNTRY
ON THE PEOPLE AND WHAT THE PEOPLE WANT
AND HOW THEY CHOOSE AND THEY MAKE THEIR DECISIONS,
I THINK IT’S VITAL TO KNOW WHAT THEY WANT AND WHAT THEY
MAKE THEIR PRIORITIES. – I THINK THAT’S VERY
IMPORTANT. IT’S WHO YOU ARE. WE DEFINE
OURSELVES BY WHAT WE SAY, BY WHAT WE READ,
BY WHAT WE THINK, BY WHAT WE HEAR, BY WHAT WE
SING, BY WHAT WE PRAY. THIS IS WHO WE ARE. THIS IS
OUR SELF-DEFINITION. AND WE DEFINE OURSELVES. THE
GOVERNMENT DOES NOT DEFINE US. – I THINK IT’S ALSO IMPORTANT
BECAUSE WHEN YOU’RE EXPOSED TO DIFFERENT VIEWPOINTS,
IT HELPS YOU FORM YOUR OWN VIEWPOINTS. AND IF YOU DON’T KNOW WHAT OTHER
PEOPLE THINK, YOU’RE NOT INFORMED. AND IF YOU’RE NOT INFORMED, YOU
CAN’T MAKE YOUR OWN DECISIONS. – EXACTLY. NOW, WHAT IS SPEECH? DO YOU THINK SPEECH IS ONLY
WHEN WE ARE SPEAKING AS I AM RIGHT NOW, OR CAN IT BE SYMBOLIC OR SOME
OTHER KIND OF EXPRESSION. YES? – SPEECH CAN TAKE MANY FORMS. IT CAN BE BOTH VERBAL
AND NONVERBAL. AND AS YOU WERE SAYING,
SYMBOLIC SPEECH BECAUSE SPEECH IS JUST
THE EXPRESSION OF AN IDEA. YOU CAN HAVE THE EXPRESSION
OF AN IDEA JUST BY TALKING, OR YOU CAN WRITE IT DOWN, OR YOU CAN, LIKE, WEAR A BLACK
ARMBAND, AND THAT ALSO REPRESENTS
AN EXPRESSION OF AN IDEA. SO THAT’S WHY SYMBOLIC SPEECH IS
ALSO SPEECH BECAUSE EVEN IF
IT’S NOT TALKING, YOU’RE STILL EXPRESSING
AN IDEA ON AN ISSUE, ON SOMETHING LIKE THAT. – AS IN THE TINKER CASE THAT
CAME ALL THE WAY TO THE U.S. SUPREME COURT,
AND IT INVOLVED STUDENTS WEARING BLACK ARMBANDS DURING
THE CONFLICT IN VIETNAM TO EXPRESS A VIEWPOINT THEY HAD. AND THE COURT ENDED UP
SUPPORTING THAT AND SAYING, “YES, EVEN THOUGH
THE SCHOOL DIDN’T LIKE IT, THE STUDENTS COULD WEAR
AN ARMBAND.” – LET’S THINK OF THE WORST
POSSIBLE RACIST, DISGUSTING, TERRIBLE, TROUBLEMAKING, AWFUL
THINGS YOU CAN THINK OF. WHAT ABOUT HITLER, FOR EXAMPLE,
OR WORSE? AND THERE PROBABLY ARE WORSE. – IF THEY CAN LIMIT ONE PERSON’S
RIGHTS, EVEN IF THAT PERSON SUPPORTS
SOMETHING THAT MOST OF SOCIETY DOESN’T BELIEVE IN, THEN THEY
CAN MOVE ON TO LIMIT OTHER PEOPLE’S RIGHTS. SO THE POEM “FIRST THEY CAME FOR
THE SOCIALISTS, BUT I WASN’T A SOCIALIST,” AND EVENTUALLY THEY KEEP ON
KNOCKING PEOPLE DOWN. AND YOU’RE FINALLY LEFT WHERE YOUR RIGHTS ARE
BEING TAKEN AWAY. SO… – ALL RIGHT. WELL,
THEY HAVE STATUTES IN SOME EUROPEAN COUNTRIES THAT
SAY–TWO. I’LL GIVE YOU TWO. THE FIRST IS, YOU CANNOT MAKE
RACIST REMARKS WHERE THE RACIST REMARK IS
LIKELY TO STIR UP RACIAL HATRED. SECOND, YOU CANNOT DENY
THE HOLOCAUST. YOU KNOW WHAT I’M TALKING ABOUT. OK. NOW, THOSE ARE TWO STATUTES IN COUNTRIES THAT BELIEVE IN
FREE SPEECH, BUT THEY HAVE THOSE STATUTES. WHAT’S YOUR
VIEW? YEAH? – THE HORRORS OF THE HOLOCAUST
WERE SO ATROCIOUS, ESPECIALLY IN THOSE EUROPEAN
COUNTRIES. DURING WORLD WAR II,
THOSE COUNTRIES WERE DESTROYED AND DEMOLISHED. – YES, THEY WERE
DESTROYED AND DEMOLISHED. SO YOU THINK THAT’S A GOOD IDEA,
THAT STATUTE. – CITIES WERE RAZED
TO THE GROUND. WHAT I’M
SAYING IS THAT BECAUSE– – AH, YOU MEAN, YOU THINK
IT’S A GOOD IDEA, OR DO YOU THINK IT’S NOT
A GOOD IDEA? – IT COULD PUT PEOPLE IN
IMMEDIATE DANGER. IF YOUR SPEECH PUTS SOMEONE
IN IMMEDIATE DANGER, THEN IT SHOULD BE LIMITED. – SO IN YOUR VIEW, YOU SHOULD BE
ABLE TO HAVE A STATUTE THAT SAYS YOU CANNOT DENY THAT
THE HOLOCAUST HAPPENED. – IF IT PUTS YOU
IN IMMEDIATE DANGER. – IF YOU ASK SOMEONE
WHY DO YOU HAVE IT, THE RECOUNTS ARE PRETTY MUCH
WHAT YOU’VE SAID. – I THINK THAT IT’S IMPORTANT
FOR ANYONE TO BE ABLE TO EXPRESS ANY VIEW THAT DOESN’T SHOW
A CLEAR AND PRESENT DANGER. AND I DON’T THINK THAT DENYING
THE HOLOCAUST DOES THAT. NOW, I’VE OFTEN STRUGGLED WITH
THE AMERICAN LEGAL SYSTEM NOT DISALLOWING NEO-NAZISM
AND SUCH HATEFUL TYPE OF GROUPS. BUT AS A JEWISH AMERICAN, IT’S
VERY DIFFICULT FOR ME, BUT I’VE OFTEN THOUGHT OF IT IN
THE TERMS THAT IF WE DIDN’T KNOW THAT THAT EXISTED, IF WE WEREN’T
AWARE OF THE NEO-NAZI PROBLEM AS I SEE IT, THEN WE WOULDN’T
HAVE A COUNTERMOVEMENT, AND WE WOULDN’T BE AWARE,
MORE AWARE OF THAT. – ALL RIGHT. NOW WE’RE REMOVED
FROM THAT. BUT LET’S TAKE REALLY A TOUGH
ONE RIGHT NOW. WHAT ABOUT THE STATUTES THAT EXIST IN CANADA, I THINK, AND OTHER PLACES THAT SAY YOU CANNOT MAKE A SERIOUSLY RACIALLY BIGOTED REMARK SHOWING HATRED OF A RACIAL MINORITY. WHAT DO YOU THINK OF THAT? – I THINK THAT THAT’S PART OF
FREE SPEECH AND THAT IT SHOULD BE PROTECTED
BECAUSE IF YOU CAN’T SHOW HATRED OF A CERTAIN GROUP, THEN MAYBE
THAT WILL BE FURTHERED TO MEAN YOU CAN’T SHOW HATRED
OF THE GOVERNMENT, YOU CAN’T
SHOW HATRED OF THIS AND THAT. AND THAT WILL SERIOUSLY IMPINGE
YOUR RIGHTS. – SO YOU SAY YOU HAVE TO
DRAW A LINE, YOU HAVE TO STICK TO THE LINE. THE LINE HAS TO BE
THAT THAT FREE SPEECH IS THERE NOT FOR PEOPLE WE LIKE AND NOT FOR PEOPLE WHO HAVE
POPULAR VIEWS, IT’S THERE FOR PEOPLE WE HATE. IT’S THERE FOR THE ONES WHO ARE
THE MOST BIGOTED, TERRIBLE, AWFUL, AWFUL PEOPLE
WE CAN THINK OF. AND IT’S THERE FOR THEM BECAUSE
IF IT ISN’T THERE FOR THEM, MAYBE SOMEDAY IT WOULDN’T BE
THERE FOR US. THAT’S THE ARGUMENT. WELL, THAT’S THE ARGUMENT
WE’VE PRETTY MUCH ACCEPTED HERE, PRETTY MUCH ACCEPTED. – HOW ABOUT BURNING THE AMERICAN
FLAG AS A FORM OF PROTEST FOR WHAT WE’RE DOING? YES? – THAT FALLS UNDER
SYMBOLIC SPEECH BECAUSE BURNING THE FLAG ITSELF
IS, YOU KNOW, AN EXPRESSION OF A VIEW. MAYBE YOU REALLY
DISLIKE THE GOVERNMENT. AND THAT’S STILL PROTECTED
SPEECH BECAUSE YOU’RE ALLOWED TO EXPRESS YOUR VIEWS
ON THE GOVERNMENT FREELY. AND SO BURNING THE FLAG ITSELF
IS NOT AN ILLEGAL ACT… AND IT’S PROTECTED. – I GUESS THERE WAS A CASE THAT
CAME ALL THE WAY TO THIS COURT DEALING WITH THAT, WASN’T THERE? BUT IT’S KIND OF A BIG
STUMBLING BLOCK TO GET OVER. AND MANY COUNTRIES DO PROHIBIT THE BURNING OF THAT NATION’S
FLAG, AS YOU PROBABLY KNOW. – I’LL TELL YOU A STORY ABOUT
THE FLAG BURNING CASE. AFTER I WROTE A SHORT OPINION
IN THAT CASE, AGREEING THAT THAT’S SYMBOLIC SPEECH AND
THAT IT IS PROTECTED, AND I WAS IN CALIFORNIA TO VISIT
MY TWO BOYS WHO WERE THERE AT THE TIME. AND WE ATE BREAKFAST TOGETHER. AND SOMEBODY CAME OVER, AND THEY
SAID, “ARE YOU JUSTICE KENNEDY?” – I THOUGHT, “THIS GUY WATCHES
C-SPAN LATE AT NIGHT. [LAUGHTER] AND HE SAID,
“I WANT TO TALK TO YOU ABOUT YOUR FLAG BURNING CASE.” AND I SAID, “OK, I’LL LISTEN.” HE SAID, “I’M A LAWYER IN
UKIAH, CALIFORNIA,” WHICH IS WAY UP IN NORTHERN
CALIFORNIA. A SMALL TOWN. “AND I LIVE THERE BECAUSE
MY FATHER LIVES THERE. “I LOST MY MOTHER YEARS AGO, AND
I WANTED TO BE CLOSE TO MY DAD. “I’M AN ATTORNEY. “HE NEVER COMES INTO THE OFFICE. “WHEN THE SAN FRANCISCO
CHRONICLE REPORTED “THE FLAG BURNING CASE, “HE CAME RUNNING INTO MY OFFICE. “WITH A LOT OF PEOPLE THERE, HE SAID, YOU BE ASHAMED TO BE AN ATTORNEY.” HE SAID, “THERE’S A REASON “HE SAID THAT. “HE WAS A PRISONER OF
WAR IN GERMANY. “THEY USED TO COLLECT
LITTLE BITS OF CLOTH– “RED, WHITE, AND BLUE CLOTH–
AND MAKE A LITTLE FLAG, “THE PRISONERS. “THE GERMAN GUARDS WOULD FIND
IT, WOULD BEAT THEM UP, “TAKE AWAY THE FLAGS. “AND THEY WOULD MAKE ANOTHER ONE
THE NEXT DAY. “AND MY FATHER, WHO HAD BEEN IN
THIS PRISON CAMP, SAID, “YOU SHOULD BE ASHAMED OF BEING
AN ATTORNEY WITH A LEGAL SYSTEM THAT DOESN’T PROTECT THE FLAG.” HE SAID, “I GAVE HIM A COPY OF
YOUR OPINION,” WHICH IS SHORT. AND HE SAID, “HE CAME BACK
THE NEXT DAY AND SAID, YOU CAN PROUD TO BE
AN ATTORNEY.” HE THOUGHT ABOUT IT. HE REALIZED THAT HE WAS FIGHTING FOR
SOMETHING. AND WHAT HE WAS FIGHTING FOR WAS THE RIGHT TO HAVE
YOUR OWN THOUGHTS, TO REACH YOUR OWN
CONCLUSIONS, TO PROTEST, TO CHANGE YOUR MIND.
AND HE CHANGED HIS MIND. – NOW, WHAT ABOUT FREE SPEECH
IN SCHOOLS, IN PUBLIC SCHOOLS WHERE YOU’RE UNDER
THE AGE OF 18? YOU’RE NOT AN ADULT. AND THE SCHOOLS ARE SERVING
IN THE PLACE IN A WAY OF YOUR PARENTS
AS THE AUTHORITIES THAT GOVERN YOUR BEHAVIOR WHILE
YOU’RE IN THEIR CARE AT SCHOOL. NOW, WHAT LIMITS ARE THERE AS TO
WHAT SCHOOLS CAN TELL YOU TO DO OR NOT TO DO IN THE AREA OF YOUR
OWN FREE SPEECH RIGHTS? CAN SCHOOLS CONTROL THAT, DO YOU
THINK, AND SHOULD THEY? RIGHT HERE. – SCHOOLS ARE NOT
A PUBLIC FORUM. THEREFORE THEY DON’T HAVE TO
HOLD UP THE FIRST AMENDMENT TO THE SAME DEGREE AS PUBLIC
FORUMS DO. SO SOMETIMES STUDENTS MAY HAVE A LOWER LEVEL OF THE FIRST
AMENDMENT APPLIED TO THEM IN SCHOOL THAN THEY WOULD
OUTSIDE OF SCHOOL. – DOES THE FACT THAT STUDENTS
ARE UNDER THE AGE OF 18 WEIGH IN THAT DECISION AS WELL? YES? – NO, THE AGE DOESN’T REALLY
MATTER. IT’S ACTUALLY BECAUSE YOU’RE IN
THE SCHOOL AND YOU’RE IN A GOVERNMENT BUILDING WHICH
IS TAKING THE PLACE OF THE PARENT, IS BECAUSE
YOUR SPEECH CAN BE LIMITED. – LOOK AT WHAT WE HAVE
IN THE ARMY. LET’S SUPPOSE WE’RE ALL IN
THE ARMY, AS I ONCE WAS. IT WAS RATHER INTERESTING.
I’M GLAD I WAS. AND SO I DON’T LIKE
THE INSTRUCTOR. IN FACT, HE MADE ME GET UP
AT 5:00 IN THE MORNING. AND THEN I HAVE TO RUN
FOR QUITE A WHILE. IT WASN’T ALL THAT PLEASANT.
AND SO I’M GOING TO GET EVEN. AND I WRITE A PIECE OF PAPER
HERE WHICH SAYS, WHAT A REAL JERK I THINK HE IS. AND I CIRCULATE IT TO PEOPLE WHO
THINK IT’S VERY FUNNY BECAUSE I HAD PUT IT IN THIS
VERY ENTERTAINING WAY. DO YOU THINK THAT HE CAN
DISCIPLINE ME? – I THINK HE CAN ONLY BECAUSE
IT’S THE MILITARY. AND I THINK THAT IN PLACES LIKE
THE MILITARY OR PRISONS, THE PLACE IN WHICH YOU’RE IN– – OR SCHOOLS. – OR SCHOOLS. THESE ARE PLACES, LIKE OUR GOVERNMENT
INSTITUTIONS, THEY CAN RESTRICT YOUR SPEECH. – WHAT IF IT’S NOT THE MILITARY? – WELL, IF IT’S, LIKE, SAY,
A PUBLIC PARK OR SOMETHING AND YOU’RE JUST DISTRIBUTING
ON THE STREET, THEN IT WOULD BE FINE BECAUSE THE PLACE IS IN
THE PUBLIC REALM. – BUT I WAS JUST THINKING, I
HAVE A LOCKER IN THIS BUILDING WHERE I KEEP MY GYM CLOTHES. AND SUPPOSE I DISCOVERED ALL MY
COLLEAGUES SEARCHING MY LOCKER. THEY WOULDN’T DO THAT.
BUT NONETHELESS, I MEAN, PROBABLY I HAVE SOME RIGHT TO
PRIVACY IN THE LOCKER. – IN THE LOCKER, SURE. – YEAH, YEAH. WHAT ABOUT
THE 3 YEAR OLD? – I THINK IN TERMS OF, LIKE,
CRITICIZING– – THE 3 YEAR OLD’S LOCKER.
– OH, THE 3 YEAR OLD’S LOCKER? – YEAH. AT THE DAY CARE CENTER. – I THINK THE 3 YEAR OLD WOULD
ALSO HAVE A RIGHT TO PRIVACY… – YOU THINK? WELL, I DON’T KNOW.
– I THINK SO BECAUSE I THINK– – I’M MIXED UP. WE HAVE A 3 YEAR
OLD WITH A LOCKER IN THE ARMY. I’M GETTING MIXED UP NOW. [LAUGHTER] – ALL RIGHT. GO AHEAD. – BUT THERE WAS A POINT THAT I
WANTED TO NOTE FOR THE RECORD. WE LET IT GO BY. I THINK IT WAS
THE GENTLEMAN IN FRONT WHO INDICATED THAT YOU DIDN’T
THINK THERE’S A DIFFERENCE IN BEING UNDER 18 YEARS
AND OVER. DO YOU THINK HIGH SCHOOL
STUDENTS HAVE THE SAME RIGHTS OF SPEECH AS COLLEGE STUDENTS? JUNIOR HIGH SCHOOL STUDENTS
THE SAME AS– – YES. YOU. – NO. BECAUSE WE’RE UNDERAGE AND WE’RE IN A GOVERNMENT-FUNDED
BUILDING WHILE COLLEGES ARE MORE
PRIVATELY FUNDED. WE DON’T HAVE THE SAME RIGHTS OF
SPEECH AS OPPOSED TO IN COLLEGE, WHERE THEIR SPEECH IS VERY
UNLIMITED. THEY CAN SAY ALMOST ANYTHING
THEY WANT TO SAY. – WELL, I’LL THINK ABOUT THAT. – WELL, DOES IT HAVE SOMETHING
TO DO WITH AGE, DO YOU SUPPOSE? – I THINK IT DOES.
– YES. – I THINK THEY SUSPECT THAT
A CERTAIN AGE, YOU BECOME VIABLE TO EXPRESS
YOUR FREEDOM OF SPEECH, THOUGH I DON’T THINK
THAT WAY AT ALL. – I WANT TO MARK THAT PLACE
FOR THE RECORD. I’D LIKE TO TALK ABOUT
THAT MORE. JUST BECAUSE I’M QUIET DOESN’T
MEAN I AGREE. YEAH. – BUT I DO THINK IT CHANGES IF
WHAT YOU’RE SAYING IN COLLEGE IS AGAINST WHAT THE COLLEGE IS
TRYING TO–THE MESSAGE THAT THE COLLEGE
IS TRYING TO GIVE OUT. IF THE COLLEGE HAS
AN ANTI-ALCOHOL POLICY, THEY’RE NOT GOING TO ALLOW
YOU TO, YOU KNOW, DRINK OR DO WHAT YOU WANT BECAUSE
THAT’S AGAINST THEIR POLICY. SO IT DOESN’T MATTER IF YOU’RE
IN A PUBLIC FUNDED SCHOOL OR IN COLLEGE. YOU STILL CAN’T DO
EVERYTHING THAT YOU WANT TO DO. – WELL, COULD THE COLLEGE
STUDENT HAVE A PROTEST SAYING COLLEGE STUDENTS SHOULD
BE ABLE TO DRINK AT 18? – THEY COULD HAVE A PROTEST
BECAUSE YOU’RE ALLOWED TO HAVE A PROTEST, BUT IT DOESN’T MEAN
THAT YOU’RE ACTUALLY DRINKING AT THIS PROTEST.
AS LONG AS YOU SAY YOU WANT TO BE ABLE TO DRINK,
THAT’S PERFECTLY FINE. THAT’S YOUR FREEDOM OF SPEECH TO
BE ABLE TO SAY THAT YOU WANT TO DO THIS AS LONG AS YOU
DON’T ACTUALLY BREAK THE RULES. – DO YOU THINK A COLLEGE CAMPUS
SHOULD HAVE THE SAME OR MORE GENEROUS RIGHTS
OF PROTEST THAN A JUNIOR HIGH SCHOOL? – I THINK THAT–I GUESS IT COULD
BE MORE GENEROUS BECAUSE YOU’RE
OVER THE AGE OF 18 AND NO ONE’S RESPONSIBLE FOR YOU
ANYMORE. YOUR PARENTS AREN’T THERE. THE COLLEGE CAN’T ACTUALLY BE
YOUR PARENT OR REPRESENT YOU, LIKE AS A PARENT WOULD. SO I THINK IT IS DIFFERENT. – WHAT AGE DO PEOPLE
GET TO VOTE? AT 18, YOU’RE CONSIDERED
AN ADULT FOR VOTING PURPOSES. THAT PROBABLY MAKES
A DIFFERENCE, DON’T YOU SUPPOSE, IN YOUR RIGHTS OF FREE SPEECH?
I WOULD IMAGINE MAYBE SO. THERE’S A HAND BACK THERE. – I BELIEVE THAT IF YOU CAN DIE
FOR YOUR COUNTRY AT THE AGE OF 18, LIKE I’VE SEEN
SOME SOLDIERS IN IRAQ, I THINK THAT THAT MEANS SOCIETY
RECOGNIZES 18 AS A TURNING POINT AT WHICH YOUR VIEWS CARRY
MORE WEIGHT. AND THUS I BELIEVE THAT COLLEGE
HAS A WIDER RANGE OF FREE SPEECH THAN A HIGH SCHOOL WOULD SIMPLY
BECAUSE 18 IS LIKE A CUTOFF FOR SOCIETY.
AND SOCIETY RECOGNIZES YOU’RE A DIFFERENT INDIVIDUAL
WHEN YOU’RE 18 THAN YOU ARE WHEN YOU’RE 17.
AND THAT’S ACCORDING TO SOCIETY. – I SUSPECT YOU’RE RIGHT. – WE HAVE A GROUP OF STUDENTS. AND THEY THINK IT’S
A VERY FUNNY JOKE TO MEET IN THE HOUSE OF ONE
OF THEM AFTER SCHOOL TO DECIDE WHAT WAS THE WORST THING ANY OF
THEIR TEACHERS SAID THAT DAY AND THEN MAKE UP A WHOLE
NEWSPAPER ALL ABOUT THAT THING IN WHICH THEY THINK THERE’S
A LOT OF VERY FUNNY INSULTS AND VERY RUDE AND NOT VERY NICE
LANGUAGE EITHER. AND THEY CIRCULATE IT AROUND TO
ALL THEIR FRIENDS, WHO THINK THIS
IS ALL QUITE FUNNY. NOW, THE SCHOOL WANTS TO
DISCIPLINE THEM FOR DOING THAT. CAN IT DO IT? AND DOES IT MATTER
IF THE AGE OF THE STUDENTS IS 7 OR 28? – IN HIGH SCHOOL,
THE HIGH SCHOOL SERVES IN LOCO PARENTIS. SO THEY–ACT AS YOUR PARENT OVER THE COURSE THAT YOU’RE
UNDER THEIR CARE. HOWEVER, IN COLLEGE, YOU SERVE
AS AN INDIVIDUAL AND AS AN ADULT SO YOU ARE GIVEN FULL RIGHTS
AS THE AMENDMENT GRANTS AS A FULL CITIZEN
OF THE UNITED STATES. – WELL, I SEE IT AS YOU WERE
BORN WITH THE RIGHT. AND EVERYBODY HAS THE SAME
AND EQUAL RIGHTS. SEEING AS HOW IT IS
IN THE FIRST AMENDMENT AND IT IS HIGHLY IMPORTANT IN
A DEMOCRATIC SOCIETY, YOU SHOULD BE ABLE TO SAY WHAT
YOU WANT. I THINK THAT AGE
DOES NOT MATTER BECAUSE EVEN IF YOU’RE IN JUNIOR
HIGH AND YOU’RE IN COLLEGE, YOU ALL HAVE SOMETHING TO SAY. – WELL, NOW, LET’S LOOK AT
THE CASE LAW HERE. DO WE THINK THE SUPREME COURT
HAS SOME VOICE IN THAT? – UM, OF COURSE. – AND DID YOU LOOK AT ALL AT THE
“MORSE VS. FREDERICK” DECISION? – OH, YEAH. MM-HMM. – AND IN THAT CASE,
DID THE COURT UPHOLD THE ACTION OF THE PRINCIPAL IN SUSPENDING
A STUDENT FOR PUTTING UP A BANNER SUPPORTING
USE OF DRUGS? – YES. UM, I THINK IT’S MORE OF
LIKE WHAT YOU SAY AND IN THE TIME, IN THE MANNER
OF WHICH YOU SAY IT. PROMOTING DRUGS– – BUT DIDN’T THE COURT RELY
ON THE FACT THAT, “LOOK, THIS IS A HIGH SCHOOL.
AND THE SCHOOL CAN DISCIPLINE A STUDENT THAT ADVOCATES
DRUG USE WHILE IN THE SCHOOL. – YES. I THINK IT WAS MORE
OF NOT ACCORDING TO HIS AGE, BUT WHAT HE SAID AND THE FACT
THAT HE WAS PROMOTING DRUG USE, NOT EXACTLY HIS AGE. – BUT YOU CAN’T SAY, CAN YOU,
THAT UNDER THE CASE LAW OF THIS COURT THAT A HIGH SCHOOL
STUDENT HAS TOTALLY FREE REIGN TO SAY WHATEVER THE STUDENT
WANTS IN CERTAIN AREAS. – SEE, YOU’RE JUST AT THE STAGE
WHERE YOU’RE THE VICTIM OF THE EFFORTS TO TREAT YOUNGER
PEOPLE DIFFERENTLY BECAUSE YOU’RE SAYING, “WHY SHOULD I BE TREATED
DIFFERENTLY?” SO WITH YOUR IMAGINATION,
IMAGINE THAT YOU’RE TALKING– YOU NOW ARE 10 YEARS MORE AND YOU HAVE THESE LITTLE
CHILDREN WANDERING AROUND. AND THESE CHILDREN ARE SAYING THINGS YOU DON’T
WANT THEM TO SAY. AND YOU WANT TO PICK THEM UP
BY THE SCRUFF OF THE NECK AND SAY, “MY LITTLE FRIEND,
WE DON’T TALK THAT WAY AROUND HERE.” AND SUDDENLY YOU
WILL SEE THERE’S MORE TO BE SAID FOR CONTROL OF CHILDREN THAN YOU
THINK AT THE MOMENT UNLESS, OF COURSE, IT IS
YOUR GRANDCHILD, IN WHICH CASE HE CAN DO NO WRONG. [LAUGHTER] – I THINK IT ALL GOES BACK,
AS FAR AS FREEDOM OF SPEECH, ESPECIALLY IN SCHOOLS AND IN
COLLEGES. I THINK IT ROUTES BACK TO THE
AMOUNT OF DISRUPTION IT CAUSES AND THE AMOUNT OF,
IF YOU ARE PROTESTING OR IF YOU ARE HOLDING UP A SIGN
IN THE MIDDLE OF CLASS AS OPPOSED TO BEING PART OF
A CLUB THAT MAYBE IS, YOU KNOW, FOR A CERTAIN RELIGION OR FOR
A CERTAIN SEXUAL PREFERENCE OR SOMETHING LIKE THAT, AND YOU
HOLD A RALLY SOMEWHERE ELSE. I THINK IT REALLY IS A MATTER
THAT SCHOOLS ARE INSTITUTIONS THAT ARE SET THERE FOR OUR
EDUCATIONAL PURPOSES. AND IF YOU ARE, I GUESS,
INFRINGING UPON WHAT THEIR JOB IS, THEN THAT IS
WHERE IT REALLY COMES INTO PLAY. – I WANT TO KNOW WHAT YOU THINK
OF THE CONCEPT, THAT IF THE STUDENT IS SAYING,
“LOOK, WE KNOW THAT USE “OF MARIJUANA IS PROHIBITED IN
THIS STATE, BUT WE THINK THE LAW SHOULD BE
CHANGED.” NOW, IS THAT OK IN HIGH SCHOOL?
DO YOU THINK THE HIGH SCHOOL CAN PROHIBIT
THAT KIND OF SPEECH? – IT’S IMPORTANT TO LOOK
AT THE DIFFERENCE BETWEEN HAVING THE SCHOOL’S
AUTHORITY OVER THE STUDENTS AND THEN ALSO THE SAFETY
OF THE STUDENTS AND THE MESSAGE THAT IS BEING
PROMOTED. – WELL, THE EXAMPLE I GAVE,
CAN THE SCHOOL TELL THE STUDENT THAT THE STUDENT CANNOT SAY ON
A BANNER “WE HOPE THE STATE WILL ALLOW THE USE OF MARIJUANA,
NOT MAKE IT ILLEGAL”? DO YOU THINK THAT THIS COURT
WOULD HAVE HELD THE SAME WAY IN THE MORSE CASE IF THAT HAD
BEEN ON THE BANNER INSTEAD OF SAYING–WHAT WAS IT–
“BONG 4 JESUS” OR SOMETHING? – I THINK THAT, YEAH, THE RULING
WOULD HAVE BEEN THE OTHER WAY HAD FREDERICK’S SIGN READ
“LEGALIZE MARIJUANA,” OR SOMETHING TO THAT EFFECT
BECAUSE THE MAJORITY IN THE RULING STATED THAT
THE SIGN WAS NOT ALLOWABLE BECAUSE IT WAS ADVOCATING
ILLEGAL DRUG USE. AND IF FREDERICK HAD BEEN
ADVOCATING LEGAL DRUG USE, THEN I DON’T THINK THERE WOULD
HAVE BEEN A PROBLEM BECAUSE IT’S MORE OF
A POLITICAL STATEMENT. – ONE OF THE CASES YOU SHOULD
LOOK AT– AND THERE ARE TWO CASES–ARE THE HIGH SCHOOL
COMMENCEMENT SPEECHES. YOU’RE THE COMMENCEMENT SPEAKER
BECAUSE YOU HAD THE BEST GRADES OR YOU WON THE CONTEST. MAY YOU THEN SAY WHAT YOU LIKE? AND WE HAD SOME VERY
INTERESTING CASES ON THAT. AND THEY’RE DIFFICULT, AND THEY’RE
DIFFICULT CASES THAT YOU MIGHT LOOK AT. “LEE VS. WEISMAN”
IS ONE THAT OCCURS TO ME. – I WAS JUST WONDERING IF I
COULD ASK A CLARIFYING QUESTION ABOUT YOUR EARLIER PROPOSAL
ABOUT THE NEWSPAPER AND THE STUDENTS WRITING
THE OFFENSIVE NEWSPAPER. YOU SAID THAT THE STUDENTS WOULD
MAKE THE NEWSPAPER AT A STUDENT’S HOUSE AND THEY WOULD PASS IT OUT TO
THEIR FRIENDS. WOULD THEY PASS IT OUT TO THEIR
FRIENDS IN SCHOOL OR JUST– – NOPE. – SO THEY WOULD JUST PASS IT OUT
TO THEIR FRIENDS, TO THEIR OTHER FRIENDS
AT THEIR HOMES. AND YOU WERE ASKING WHETHER OR
NOT THE SCHOOL COULD STOP THEM? – YEAH. THE SCHOOL THINKS IT’S
A BAD IDEA FOR EDUCATION TO HAVE THE STUDENTS MEET IN THEIR
HOUSES AND PASS OUT A NEWSPAPER THAT CRITICIZES ALL THE TEACHERS
IN VERY RUDE, EXPLICITLY AWFUL, SLANGY–WELL, WE ALL UNDERSTAND.
OK! SO THEY SAY, “THIS IS PART OF OUR
DISCIPLINE.” AND WHAT I WANT TO SHOW YOU IS
MAYBE AGE MATTERS THERE. MAYBE IT MATTERS. AND I
DON’T KNOW THE ANSWER TO THAT. BUT THE REASON–LOOK AT WHAT
WE’VE BEEN DOING IN THE LAST HALF-HOUR OR SO. YOU’RE GETTING A LITTLE INSIGHT
INTO OUR JOB AS JUDGES. WE START WITH A PRINCIPLE. AND THE PRINCIPLE IS ONE WE CAN
PRETTY MUCH AGREE ON. THE CONSTITUTION SAYS, “CONGRESS
SHALL NOT ABRIDGE THE FREEDOM OF SPEECH.” THAT MEANS ALL GOVERNMENT, NOT
JUST CONGRESS. BUT IT DOESN’T SAY WHAT THE
FREEDOM OF SPEECH IS, DOES IT? SO THAT’S LEFT TO PEOPLE
TO WORK OUT. NOW, WE STARTED WITH WHAT I
THINK IS THE EASIEST PRINCIPLE BECAUSE IT’S THE MOST
WIDELY ACCEPTED, THAT THE WORST THING YOU CAN DO
BY WAY OF ABRIDGEMENT IS STOP SOMEBODY FROM TALKING BECAUSE YOU DON’T LIKE
WHAT HE SAYS. NOW, THAT’S CALLED HIS
VIEWPOINT, OR IT’S CALLED THE CONTENT
OR THE EXPRESSION OR THE POINT OF VIEW. NOW, IT’S EASIEST TO SAY, “WELL,
CERTAINLY THAT’S PROTECTED.” BUT EVEN THERE, YOU CAN FIND
SOME BORDERLINE CASES. AND NOW WE BEGIN TO MOVE AWAY
FROM THAT AND SAY, DOES IT MATTER IF
HE’S IN THE ARMY? DOES IT
MATTER IF HE’S IN HIGH SCHOOL? DOES IT MATTER IF
HE’S IN GRAMMAR SCHOOL? DOES IT MATTER
WHAT THE SUBJECT IS? DOES IT MATTER WHEN IT’S SAID? DOES IT MATTER
WHY IT’S SAID? DOES IT MATTER? DOES IT MATTER?
DOES IT MATTER? AND THESE ARE NOT JUST ASKED,
WHICH WE WERE DOING, TO MAKE IT DIFFICULT FOR YOU. THEY WERE ASKED BECAUSE THAT’S
WHAT HAPPENS IN A COURT THAT’S CONCERNED
WITH FREE SPEECH. WE GET ONE VARIATION
AFTER ANOTHER. AND WE HAVE TO DECIDE
WHAT THE PRINCIPLES ARE IN THESE VERY DIFFERENT
CIRCUMSTANCES. AND THAT ISN’T SO EASY BECAUSE
THE ONLY THING WE ALL AGREE UPON IS WHATEVER THE PRINCIPLE IS IN
THIS CASE, IT’S GOING TO BE THE SAME FOR
ALL SIMILAR CASES. – WELL, I THINK WE HAVE SEEN–
AT LEAST AT THIS COURT THAT IT DOES MATTER IF THE SPEECH IS
OCCURRING IN A PUBLIC SCHOOL OR A SCHOOL WHERE CHILDREN ARE
UNDER THE AGE OF BECOMING AN ADULT, UNDER 18, AND THAT THE SCHOOL DOES ACT
AS SUBSTITUTE PARENTAL AUTHORITY IN EFFECT WHILE A CHILD
IS IN SCHOOL. AND THE SCHOOL CAN SET CERTAIN
PARAMETERS OF BEHAVIOR FOR THE STUDENTS
THAT INCLUDE SPEECH. I THINK WE HAVE SEEN THE COURT
ACKNOWLEDGE SOMETHING TO THAT EFFECT,
BUT AT THE SAME TIME, THERE ARE DIFFERENT
CIRCUMSTANCES. AND IF ALL THE STUDENT IS SAYING
IS, “I THINK THE LEGISLATURE IN THIS STATE SHOULD
LEGALIZE MARIJUANA–” WE DIDN’T HAVE THAT CASE HERE,
BUT I SUSPECT THE RESULT MIGHT BE DIFFERENT THAN
A STUDENT SAYING, “NOW, EVERYBODY GO OUT AND SMOKE
MARIJUANA. WE KNOW IT’S ILLEGAL, BUT YOU
OUGHT TO DO IT.” SEE? TWO DIFFERENT THINGS,
AREN’T THEY? AND THE COURT
HAS RECOGNIZED THAT, AND PROBABLY PROPERLY SO. THE EXAMPLE THAT IS OFTEN GIVEN
IS THAT EVEN FOR AN ADULT, IT’S OK TO PROHIBIT PEOPLE FROM
YELLING “FIRE!” IN A CROWDED THEATER WHEN IT
ISN’T TRUE JUST TO STIMULATE EVERYBODY
PANICKING AND TRYING TO GET OUT. THAT CAN BE PROHIBITED. IT’S NOT
A FORM OF PROTECTED SPEECH IN OTHER WORDS. SO THERE ARE SOME LIMITS. AND THE QUESTION FOR THE COURTS
ALWAYS IS, WHERE DO WE FIND THOSE LIMITS AND HOW DO WE DEFINE
THE BOUNDARIES?

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