 She sent me that, expressed her regrets that she is gonna have to leave our meeting after her presentation, because she is in court tomorrow and needs to be ready for her hearing. Next up will be Peter Teachout, who is a professor of law at Vermont Law School, where he has worked since 1975 and teaches constitutional law among other subjects. His expertise has been frequently tapped by Vermont's legislature and the judiciary, which has sought his testimony and advice on issues including flag desecration legislation, redrafting the state constitution and gender neutral language and civil union legislation. He is in the 1960s, served in the US Army in the Department of Intelligence and is a graduate of Amherst College, the University of Sussex in England and Harvard Law School. Rebecca Turner is and I'm sorry, professor Teachout will be presenting on the right to protest under the First Amendment. Rebecca Turner is the supervising attorney of the Appellate Division of the Vermont Defender General's Office. She has been an appellate defender in Vermont for 14 years and represents children, adolescents, parents and indigent adults on appeal before the Vermont Supreme Court. Before coming to Vermont, Rebecca represented individuals facing deportation in the Washington DC area. She is a graduate of Oberlin College and the University of New Mexico Law School. And tonight, Rebecca is gonna be talking about free speech issues that come up in the criminal justice system particularly with respect to interactions with law enforcement. Leah Ernst will be our last presenter this evening and she is a legal director of the Vermont chapter of the American Civil Liberties Union. She joined the ACLU as a staff attorney in 2015 after clerking for a couple of federal judges and working at a criminal defense firm in Michigan and as a fellow with the Massachusetts ACLU. She's a graduate of Swarthmore College, University of Wisconsin-Madison and the University of Michigan Law School. And so we're hoping tonight will be an opportunity for an interactive presentation. We're gonna cover a lot of ground among our panelists and then we try to reserve about 20 minutes at the end of the presentation for Q and A. So there is a, you will see in the Zoom function there is a Q and A option in there and you can submit your questions through that and then at the end of the presentations we'll go and address them and if for some reason the technology isn't working or we're having trouble figuring it out we can just speak up and ask your questions that way. If all else fails I will ask questions. So we'll do the best we can with our technological limitations here. And so I think with that I will turn it over to Rachel to start our presentation this evening. I am not getting audio. Thank you. You'd think after a year and a half now of Zoom would remember to do that. So thank you all for coming and listening to this. Tonight we're gonna be talking about the First Amendment to the US Constitution. So I'm gonna talk broadly about what the Constitution is, what the First Amendment is and very broadly what it means to us in our lives. So first of all, don't seem to be able to move my PowerPoint screen. Can you all see the PowerPoint now? I cannot see it. Sorry about this. And while we're waiting I realize I forgot to introduce Leah's topic and Leah will be talking tonight about the free speech rights of students. We got your PowerPoint back up now Rachel. Thank you. All right, so we're gonna be starting very basic. What is a constitution? So a constitution is the supreme law of the land. It is the law that other laws can't violate. It is a law that government officials can't violate. It is a set of restrictions on the government. So tonight we're going to be talking about the First Amendment. So the First Amendment has basically six parts. And it says that first, Congress shall make no law respecting an establishment of religion. Congress shall make no law prohibiting the free exercise of religion. The government can't abridge the freedom of speech. And that's really the core of what we're gonna be talking about tonight. Although as you'll see some of these freedoms or maybe all of them are interrelated. So for example, when you hear professor teach out talking about the right to protest, you'll notice that the right of freedom of speech of the people to assemble to petition, they're all interrelated. So First Amendment also prevents the government from abridging the freedom of the press of the people to peaceably assemble and of the people to petition the government for redress of grievances. So it looks pretty simple, right? Not too much there. Okay, so you may have guessed. It's a little bit more complicated than it looks. So people have been duking it out for centuries about what these few words mean and they're continuing to duke it out. And the way that we are fighting it out about what these words mean is through lawsuits, through lawsuits against the government. And when you hear us talk tonight about what freedom of speech means in reality, the way that we've figured that out is through lawsuits, through courts telling us what freedom of speech actually means in reality. All right. So now we are gonna get into what those words freedom of speech actually mean. And I'm gonna talk about first what freedom of speech means and then who has a right to freedom of speech and then some limitations on the right to free speech or in other words, when the government can put restrictions on your right to free speech. All right, what does freedom of speech mean? Freedom of speech generally means that the government can't stop you from saying what you wanna say, writing what you wanna write, expressing yourself through actions instead of words. And freedom of speech also means that the government generally can't stop you from receiving information. So it's important to pause for a moment on that word, the government, because as you'll remember, the constitution is a set of restrictions on the government. So to kind of illustrate what this freedom of speech applies to and what it doesn't, think about if you and some friends start a book group and you say, all right, we are going to have no politics talk in our book group. That isn't violating anyone's freedom of speech because none of you is government. But if the government said no one can get together in groups and talk politics, that would probably violate the freedom of speech. So freedom of speech doesn't just mean freedom to say what you wanna say. It also means that the government can't tell you what to say because that violates your freedom to say what you wanna say. And I think Leah is actually gonna be talking more tonight about what that freedom from being told what to say means. All right, so now we know that freedom of speech generally means freedom to say what you wanna say, write what you wanna write, express yourself through actions instead of words or with words. Who has these freedoms? And the answer is everyone. The First Amendment protects everyone in the U.S. It protects adults, it also protects kids. And Leah is gonna be talking more about the First Amendment in schools and we'll learn that kids do have First Amendment rights although they in some circumstances are more limited than the freedom of speech that adults have. Freedom of speech also doesn't just apply to citizens, non-citizens, people visiting the U.S. also have freedom of speech. All right, so earlier I told you that the First Amendment generally means that you can say what you wanna say. And now we're gonna get into what generally means. So there are a few sort of categories of limitations on the freedom of speech which also means there are few categories of sort of reasons why the government can restrict speech or how it can restrict speech. So the three that I'll be talking about first, not all speech writing or expressive conduct is protected by the First Amendment. The government can also within reason restrict when, where and how you speak and express yourself. And the government has more power to regulate speech in certain areas like schools and government workplaces than it has to regulate the public at large. So let's look more at that first category. So since the very beginning of the First Amendment, courts have held that there are some kinds of speech that have so little social value that the government can restrict them. And as you'll see when we go through these categories, they're really limited. So the government can't restrict speech just because it's offensive or hurtful. These categories of exceptions from First Amendment protection are quite limited. So the first is true threats. And that means that if you seriously convey a threat to someone else and they would perceive it as a serious threat, then that might be outside of First Amendment protection. That could be the sort of thing that the government could criminalize. So if you tell someone I'm going to kill you in a way that makes them think you're going to kill them, that might be a true threat. But if you say I'm going to kill you if you leave your socks on the floor one more time, you probably wouldn't think that was a true threat or I hope so. So that would still be speech that you can make without that is protected by the First Amendment. All right, so the second category is incitement to imminent lawless action. And this is also a really narrow category. This means advocacy of law breaking in a way that is likely to get other people to break the law. So it's more than to note that the First Amendment actually protects advocacy of law breaking that can be protected speech. But if you are directing someone else to break the law in a manner likely to actually get them to break the law, that can be excitement to imminent lawless action that wouldn't be protected. The next category is speech integral to criminal conduct. So maybe think conspiracy to commit a crime. The next category is obscenity. And obscenity is a category that the courts really struggle with. It basically means sexually explicit material that is extremely offensive, has no serious literary, scientific, political merit. And as I said, courts really struggled to figure out where that line is because the First Amendment is interpreted broadly and courts do want to live up to the intention of the First Amendment to protect as much speech as possible. So the next categories of speech that might be outside the protection of the First Amendment are defamation, fraud, so the government can restrict you from defaming people or saying fraudulent things. Turning to that next category of limitations. The government can within reason restrict when, where, and how you speak or express yourself through actions. And to think about how this applies. The government probably can't tell you that you can never protest, but it can within reason tell you that you have to get a permit, that you can't be over a certain noise level maybe or that you can only protest within certain hours. So that's the sort of restrictions that the government can put on just when, where, and how you express yourself even though the government has far less power to tell you what to say or what not to say. All right. The final category is that the government has more power to regulate speech in certain areas like schools and government workplaces than it has when it's just regulating the public at large. And again, we're gonna get into schools more later, but generally the government has a little bit more power to regulate students speech in school or related to school than it has to, just regulate the public speech. And when you're a government employee and you're at work, the government can restrict your speech more than it can restrict the general public's. So with that, I hope that gives you sort of a foundation for understanding the more specific areas of the First Amendment that we're going to talk about tonight. And I will turn it over to Professor Tichot to tell us about the Freedom to Protest. Thank you, Rachel. Let me see if I can pull up my slide show. I've got to, it's not working yet. Okay, share the screen, here we go. Now, if I, okay, Ben, help me out here just a little bit there. How about, is that gonna work? So if you open the PowerPoint and then press the share screen and select the PowerPoint, you should be able to do it. But if you're having trouble, I can open it up on my computer. Okay, hold on. So I'm gonna open it up, there. I'm looking, there it is. Okay, whoops. Now I've lost the share screen symbol though. So I have to come back here and try this. Can you see the PowerPoint or not? Hello? No, I can't see it. Would you like me to pull it up on, try to pull it up on my computer? Sure, go ahead. There, we've got it now, okay. Now are you gonna have to move it or can I move it? I think I will have to move it. So you'll have to tell me when to. Okay, so why don't we get started? Thank you very much, Rachel. Very nice and helpful overview. I'm gonna see now if I can put a little flesh of real world experience on some of the bare bones that you presented in terms of your overall outline. So my task tonight is to introduce the constitutional right to protest, which is one of our first amendment rights. Okay, Ben, if you could, okay. And the right to protest is based in the First Amendment under some of the provisions that Rachel mentioned. Congress shall make no law abridging freedom of speech or of the press or of the right of the people peaceably to assemble. That's the core in the text of the First Amendment itself. Ben, okay, next slide. So I'm gonna make four basic points in my part of the presentation tonight. First, the right to protest has deep roots in the American experience and it goes way back to the American colonial experience. Second, I'm gonna identify some of the basic First Amendment ground rules elaborating on what Rachel has introduced. Then I wanna stress that when we're talking about the right to protest and First Amendment freedoms, what is sauce for the goose is sauce for the gander. That is the First Amendment protects not just our right to protest, but also protects the right to protest by those with whom we fundamentally disagree and whose views we find deeply offensive. And then finally, I'll speak briefly about recent bills that have been introduced aimed at discouraging protest activity. Next slide. Here we go. So right to protest roots in the colonial experience, we all know about the objection of the colonists to being taxed without representation. Next slide. One form that protests took which we're all familiar is the Boston Tea Party. I don't wanna suggest there's anything slightly constitutional or would have been anything slightly constitutional. It was done on a private ship. It involved the destruction of property not at all constitutionally protected but it was a form of protest in which the colonists engaged to protest against English tax policy. Next slide. In fact, during the revolutionary period pre-revolutionary period and the colonial period the primary form that protests took took the form of freedom of the press. It took the form of revolutionary pamphlets which were very effective in identifying grievances and in stealing the American public or the colonials to prepare for revolution. Next slide. One of the interesting things that reflects that fact that freedom of the press was the primary form of expressing protest was that when the first state constitutions are made in the period following the Declaration of Independence nine of the original 13 state constitutions protected freedom of the press but only one Pennsylvania protected freedom of speech which gives you some sense that protested primarily the form of these troublemaking pamphlets. Very different today. Today the right to protest is primarily protected by protection of freedom of speech and the right to peaceably assemble. Next slide, please. So I will tell you I teach a course on First Amendment law and we spend almost an entire semester dealing with the complexities of freedom of speech free speech jurisprudence. So this is very simple but there are three basic ground rules that I would like to stress. The first is that there's an absolute right on our part to engage and protest activity in what's called a public forum on the streets, sidewalks and parks. Government cannot prohibit us from doing so they have to allow us to protest. Second, following up on what Rachel said, those however, we have a right to protest in those public forums but they can be subject to reasonable time, place and manner regulations. Rachel mentioned, for example, that a municipality could prohibit protesting with a loud soundtrack at two o'clock in the morning in a residential area. So the freedom to participate in protest activity on streets, sidewalks and parks can be subject to reasonable time, place and manner regulations. For example, you can protest using streets and sidewalks but you cannot obstruct pedestrian or vehicle traffic without being subject to possible regulatory control. The final point or the final basic point here is the regulations must be content neutral. That means government can't favor one kind of speech over another kind of speech. That is the absolute fundamental requirement of our First Amendment law which has profound significance in terms of both Supreme Court jurisprudence and in terms of the protection of protest activity. Next slide. So, second basic point I wanna make is the First Amendment protects not just our right to protest but also the right to protest by those holding views that we consider hateful and dangerous. Let's take a couple of examples from recent experience. Next slide. We're all familiar with the protests that followed the death of George Floyd and the Black Lives Matter protests more generally. And those have been widespread, not just in this country but abroad as well. Next slide. However, the same right to protest has to be given to groups, ultra-right groups such as the group that engaged in the protest against the removal of Confederate statutes in Charlottesville in August of 2017. They have to be peaceable but the right to protest is given without regard to the content of the speech in which people engage or the activity that they are protesting. Next slide. A few famous right to protest cases to illustrate the point. Next slide please. One of the most famous cases to come before the court in the 70s was a case called Cohen versus California. Cohen was opposed to the draft. You can see a picture of him here burning his draft card. He walked around town and into a courthouse wearing a leather jacket with the words fuck the draft on the back. He was arrested and charged with breach of the peace but the court said, and Rachel made this point that offensive speech, the use of expletives like fuck are protected speech in our system and the court upheld his right to express himself in a very dramatic and offensive way in this by using this particular form of expression. Next slide please. Another famous case involving anti-war protests is Texas versus Johnson, 1989. Johnson burned an American flag in a crowd in which people were chanting red, white and blue. We spit on you. He was charged under a Texas law that prohibited the desecration of the American flag and the court said that is not content neutral because it only prohibits certain kinds of destruction of the American flag. That is destruction when it expresses disrespect for the flag and for what it stands. And the court said his conviction could not be upheld for having burned the American flag because the statute under which he was convicted was not content neutral. Next slide please. Another example, a very famous example not a Supreme Court case, but a federal court case involved a proposed march by a group of American Nazis out of Chicago in the community of Skokie, Illinois which was a community that was composed of a large number of survivors of the concentration camps in Germany. Skokie tried to prevent the march from happening and the courts held they could not prevent the march from happening. They couldn't require, for example, a bond that it would be impossible for this group to pay. They couldn't prevent the march from happening. As it turned out, the group finally decided not to march in Skokie. They marched in Chicago neighborhood instead and the numbers of protesters protesting the march outnumbered by the hundreds, the marchers themselves. So that illustrates sort of the example of the way the American First Amendment system works. You've got a right to express your views no matter how offensive, but we respond not by throwing you in jail, not by censoring your speech but through counter-protest and reasoning and ridicule. Next slide, please. Another famous case involved is the case of Brandenburg versus Ohio, a group of Ku Klux Klan members gathered on a hilltop and burned a cross. The leader of the Ku Klux Klan, Brandenburg made comments, very racist. He called for blacks and Jews to be expelled from America but he did not engage in what Rachel described as actual advocacy of imminent lawless action. He engaged, however, in speech that was racist and offensive in the deepest possible sense. Nonetheless, because he did not advocate actual imminent lawless action, the court said the speech was protected and his conviction under an Ohio breach of peace statute was overturned. So one more slide, please. The final concrete example I wanna give of the extent to which the right to protest includes the right to protest on grounds that I think most of us find deeply offensive, cruel, just almost inexcusable is the case involving this young man, Snyder, Corporal Snyder was killed in action in Iraq at his funeral, the Westboro Church engaged in a protest. They actually traveled around from military funeral to military funeral in this country protesting. They believed in their religion that the reason the United States was engaged in war and why people were being killed was because the US condoned homosexuality. So these were the kinds of signs that the group carried. Now they were assembled on a public street in a public forum and they had been given permission to assemble there. It was a little bit of distance from the funeral ceremony itself but certainly not very far away. Their protest was put on TV the night after and Phelps, who was the head of this church was sued for having slandered and libel this kid and in defamed him, malicious, intentional hurt and the court overturned it saying because this was a demonstration on a public street about a public issue, it was protected under our First Amendment. So those three examples, I think really illustrate the extent to which the United States Supreme Court has gone to protect speech that we considered deeply offensive in every possible way on the belief and under the assumption that in this country we don't prohibit offensive speech, we find other by criminalizing people who engage in it, we find other ways to respond and condemn it. Next slide, please. Kind of interesting case from today's New York Times, a woman in New Jersey was not fond of President Biden and she has posted the following signs on her property, her private property. This involves a somewhat different issue because it's not a public street or sidewalk but it's her own private property. And you can see she uses some very offensive expletives in the signs she used. Neighbors complain, these little kids are gonna be walking past those signs. We don't know what the result will be but if you look at some of the past jurisprudence you'll say the use of expletives like the word fuck is protected under the First Amendment. So she may have a right to use that word. Now, can the town do anything about it? Yes, it can. It can regulate signage on private property but it has to do so with content-neutral regulations like signs, you can only have one sign or the sign can only be so big. Those might be upheld but to criminalize these signs because they involve swear words I think might raise some important constitutional questions. Next slide please. We're getting close to the end. So this is my last point. There have been a number of recently introduced bills in a number of states aimed at discouraging protest activity primarily in response to the protest activity that followed the death of George Floyd. But also things like the pipeline dispute. So what sorts of these are just a few examples. If you trespass on private property such as fossil fuel sites, pipeline sites to protest that isn't constitutionally protected and it triggers a three year minimum jail sentence. That's one proposal. Another proposal is to limit the liability for drivers who hit protesters who are blocking streets. There've been several instances in which that has happened. In Charlottesville it happened and a young woman was killed by a driver who just deliberately ran his vehicle into those who were protesting the right-wingers who originally were protesting the removal of Confederate statutes. Some states are considering imposing heavy vines for obstructing emergency vehicles. You can criminalize obstructing emergency vehicles but imposing heavy vines when you do so obviously is a disincentive to engaging in sit-downs in the face of traffic. And then finally, some states have adopted measures that impose harsh penalties on those who participate peacefully in demonstrations where violence or destruction of property subsequently occurs. Last slide. So some of these new laws can be challenged on constitutional grounds. That last one in particular can be and has been challenged on constitutional grounds and they may be overturned but the outcome is uncertain. And in the meantime, bills like these tend to discourage people from participating in the peaceful exercise of their right to protest. Thank you. That's the end of my presentation and now we will go to Rebecca. Thank you very much, Professor. Thanks, Professor Tichot. That was helpful. And again, welcome everyone who's here. My name is Rebecca Turner and I am going to focus my points tonight on First Amendment and the police and specifically to focusing on the attempts and actuality of the government passing laws and enforcing laws that criminalize speech and what are the effects of that on society. And so I wanted to just sort of highlight some of the points that Rachel and Professor Tichot laid out as a beginning of this topic and bring it into these points here. And as they both talked about previously, like it is the starting place for what is protected speech under the First Amendment is that there is a presumption that that speech is protected unless, unless the speech falls within extremely limited number of historically recognized and narrowly defined exceptions. As Professor Tichot has highlighted in his discussion on First Amendment and its application on protesters, First Amendment does not just get triggered and protect speech based on the value of the speech. We know clearly that political speech falls within core protections of the First Amendment. But what happens when that speech is not political or that speech is arguably valueless or in the case of the Snyder-Westboro Church case that Professor Tichot just talked about, not just valueless but hurtful causing emotional trauma and pain for others to hear and experience. And so that is the world I operate in as an appellate defender where I represent people who have been charged with speech crimes. And I wanted to share my perspective on how that plays out. So specifically we know that political speeches is the easy one and that's clearly protected and cannot be punished by the government. So what other speech cannot be punished? We know from how these decisions work their way up to the US Supreme Court or final arbiter on the question of the scope of the constitutional protections of the First Amendment. We know that the First Amendment can extend to protect lies so falsely may be protected. We know that insults, profanity, that are offensive speech but is hurtful, harmful, right? We know that that has been upheld as protected speech. We know specifically that bigoted racist speech is included in that violent speech, again, could be protected and certainly speech that is of no value. Professors teach us a slide there of the burning American flag highlights the point that it's not just spoken words that are protected by the First Amendment but it is communicative expression beyond words spoken and that is an important protection provided by the First Amendment because it's a recognition that how we communicate goes well beyond the words said but that message is conveyed by conduct, by the emotive intent behind what is expressed. So what does that mean? Not just actions that people understand to have certain meanings like burning the flag, burning books but also honking horns has been interpreted as speech protection by the First Amendment and others and other things like that. So if those are areas that are covered and protected by the First Amendment, look, Rachel brought to the forefront certain categories of speech that are not protected by the First Amendment. If they're not protected by the First Amendment then they may be punished criminally at least to the extent that they don't violate the First Amendment. And now she talked about those categories as being called true threats, fighting words, sanity, incitement of imminent unlawful violence. Again, these terms of art, these legal terms of art are rape and subject to interpretation by attorneys and going up to the courts and people on this panel have been litigating the meanings and extent of these categories of unprotected speech for purposes of whether or not the government can punish including imprisonment for words or a community of speech spoken. So let's take that even further and ground this. So how and what type of speech have I seen subject to criminalization in Vermont or elsewhere in the United States? Right now, what is popular, of course, communicating by text, attaching photos, what has become known as sexting. Again, what is clearly communicative messaging and where are the lines across into criminalizing it whether it's child pornography or disseminating of decent or offensive materials? Again, the question is interpretation of how these are regarded, how they are charged, how they are argued, how the defense attorney representing the person responds and how the court ultimately decides it. Again, on through appeal. We are seeing bullying cases or school threat cases, which involve again a lot of postings from social media. Again, what constitutes speech, fantasy, artistic expression even in terms of songwriting which includes a lot of violent threatening lyrics arguably and what constitutes a true threat? Again, that narrowly defined category of unprotected speech that can be criminalized. Again, those crank calls are cases where I have seen allegations of those occurring translated into criminal charges, disorderly conduct or criminal threatening statutes or crimes involving stalking. False, we talked about whether or not the First Amendment protects lies and we have a very prominent U.S. Supreme Court decision, Alvarez which upheld the person's right to falsely claim some honors in the military that he actually did not have. We also have a crime of providing false information to a police officer. False information oftentimes is conveyed by speech. So the battlegrounds are drawn there in terms of what falsity can be constitutionally punished, what cannot. Again, these rounds where it isn't clear at all where the lines are or clear from my perspective, but Ben Battles who I may be on the other side of a case may see how it falls clearly within an accepted protected speech category. Another example that I recently was considered and rejected by the Vermont Supreme Court just this month, not squarely on First Amendment grounds, but again involving speech in the word spoken. And in that instance, it was about urging another person to tell the police to go away. And those words spoken were in large part the basis of the obstruction of justice charge. And that worked its way up. There was challenges on the First Amendment grounds that the government could not punish such language. The Supreme Court did not have to address that issue, dismiss the conviction on other grounds. That it wasn't inherently threatening. Again, implicating the First Amendment true threats question was where the word spoken true threats under that conception and as understood under the First Amendment. Profanity insults, we've heard Professor Teachout talk about that, about how the US Supreme Court has confirmed time and time again that mere use of profanity isn't enough to bring it into unprotected First Amendment territory. And yet we still continue to see prosecution and charges in Vermont involving cases where profanity is used. And specifically in instances where it is where citizens encounter and interact with law enforcement. And while it may not be in a formal protest parade or even a less formal protest of signage in your front yard, but where we are at the front lines of litigating defending people and protecting their First Amendment rights is on the very question of how much you can directly challenge through word spoken encounters with law enforcement. Again, we see a lot of that coming specifically with use of profanity, repeated use of profanity. Does that change the First Amendment analysis? Does it change the fact that it's to law enforcement? We know, again, this has been litigated through the federal courts that your First Amendment protections remain. Again, when we just look at the word spoken. We can talk about this or if there is more interest I'm sensitive to the time, but of the moment there is a lot of interest and questions as to the role of criminalizing hate speech or hate crimes or hate crimes that involve crimes that are based only on word spoken. And so for purposes of that narrow question, here it raises fundamental First Amendment challenges. Can pursuit of sentence enhancement statutes which are what hate crimes are. They seek to enhance the penalties of underlying crimes based on allegations that they were motivated by hate towards a certain class or a group of people. And there that directly implicates First Amendment because what you're getting at is again when the speech is involved in the underlying conduct what ideas are being punished? Are you punishing based on hateful, hurtful thoughts? Again, we know that that can't happen under US Supreme Court precedent, but then in what instances may it be permitted? And these questions have gone all the way up to the US Supreme Court. And so I think, and have been in the context and have been upheld in certain instances that it is okay. Upheld where you can punish more severely crimes that are committed and motivated by hate where there is that malicious intent and where there is some physical harm involved. I sketch these examples out to sort of highlight the complicated and currently unfolding areas in this field. And I think to highlight that it is a fight and it's a fight to understand where these lines are drawn as to where it is constitutionally permissible to criminalize and punish speech. And those fights gone because from my perspective, at least those outer boundaries of where the First Amendment protections are drawn are tested by representation of people who find themselves charged with crimes and come into the court systems and have to challenge these cases. I think that one of the things that we haven't yet talked about is why do we have these values? What do we gain by having the First Amendment interpreted so broadly as to include protecting otherwise value-less or hurtful speech? And I think that it's worth remembering that there is not maybe just one value that is achieved by that, but several, right? The First Amendment and as the founders of our federal and state constitution inherently came down on the side of was including these as fundamental liberty interests for the individual to ensure what protections of individual autonomy, right? The fundamental rate to self-expression is so important in inherent in our system of governance as to be an area where the government just cannot intrude. I think that is absolutely a long-recognized value that we have under the First Amendment. I think another critical value that the First Amendment protections provide is bigger than just the individual liberty rights, right? But it ensures it's for the good of our society that it ensures that we don't have censorship of ideas even unpopular ones and even one spoken and believed by the minority of people and it provides important critical checks on our government. And so I think that whether or not any person agrees with how a court interprets the application of the First Amendment, wondering, scratching at it, why we could tolerate such otherwise hurtful or valueless speech, I think it's critical to remember and come back to these underlying principles to why we have the First Amendment. And to me is one of the most important and critical rights that we have in our constitution. I think that's all I have been for now unless there are any questions. So it looks like there's one. Yeah, well, I think we're gonna save the questions for everybody for the end, but thank you very much for that presentation. And I know I have some questions I wanna ask and hopefully others do too. And with that, we'll turn it over to Leah Ernst. Thank you, Ben and thank you, Rebecca and Professor Teachout. I just wanna state at the beginning that as Rachel noted, our constitution is a restriction on government actors. So private schools and private school students will not be subject to the same analysis that I'm just going to discuss now. This relates to public school students only. Our Supreme Court, the United States Supreme Court has very famously said that public school students do not shed their constitutional rights of freedom of speech or expression at the schoolhouse gate. But it's also said that the constitutional rights of students are not automatically co-extensive with the rights of adults in other settings. So what that means is students have First Amendment rights, but not all the rights you might have when you're outside of the school setting. And in applying sort of that distinction, the Supreme Court has been considerably more willing to curtail student speech rights than the examples that Professor Teachout and Rebecca described just dealing with non-school, non-student settings. And the basic operating principle here is that these First Amendment rights must be applied so as to be consistent with the special characteristics of the school environment. And we'll get into a little about what those special characteristics are by way of walking through a line of sort of the landmark cases that sketch out the boundaries of where student First Amendment rights begin and end. And we'll ask the basic question here. So, given that they're not co-extensive with the free speech rights elsewhere, what regulation of student speech is permissible? And the answer to that depends in part on where the speech occurs and in part on what it's about. So the first of the landmark cases we're gonna look at is called Tinker v. Des Moines Independent Community School District. It's a 1969 case from the United States Supreme Court. And in that court, in that case, excuse me, the court held that schools can regulate speech that would materially and substantially disrupt the work and discipline of the school or that would collide with the rights of other students. So in this case, a number of students were wearing black armbands to school in protest of the Vietnam War. And the administration decided that any student wearing one would be asked to remove it and if they refused to do so would be suspended. The plaintiff students continued to wear the armband and refused to remove it and were ultimately suspended. And in that instance, the United States Supreme Court said the school had violated their First Amendment rights because there was no evidence of any such disruption of the work of the school or of those students' actions colliding with other students' rights. And I'm gonna read a short passage here just because I think in the First Amendment cases, the Supreme Court tends to or has often exhibited some of its most flowing and sort of inspirational language that we see when the court is going about examining various of our rights. So if you'll forgive me, I'll read just a short passage here. The court said, undifferentiated fear for apprehension of disturbance is not enough to overcome the right to freedom of expression. Any debauchery from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken in class in the lunch room or on the campus that deviates from the views of another person may start an argument or cause a disturbance. But our constitution says we must take this risk and our history says that it's this sort of hazardous freedom, this kind of openness that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious society. So there the court is putting its finger on exactly those values that Rebecca was discussing that the First Amendment protects. So that was 1969. The next major case in this line of inquiry came in 1986 in a case called Bethel School District Number 403 versus Fraser. Here the court says schools can regulate speech when that speech is lewd, vulgar or plainly offensive and the speech could undermine the school's educational mission and the speech is unrelated to trying to express a political viewpoint. So it's a pretty narrow test. It must meet all three of these criteria in order for the school to regulate speech. And this rule applies at least in the classroom setting and in official settings, assemblies, excuse me and other school sponsored venues. So speech that would definitely be protected if used by an adult in public, such as much of the speech that Professor Teachout talked about could result in discipline if said by a student in school. Both Rebecca and Rachel mentioned obscene speech that could be prohibited in public or in the school but the speech need not reach that high bar of obscenity in order for a school to restrict it. So in this instance, it was in a high school and there was an assembly held to give speeches in support of student council elections. And one student gave an extremely lewd speech nominating another student. The entire speech referred to his candidate of choice in terms of an elaborate graphic and sexual metaphor. The student was given a three-day suspension and the Supreme Court said that the school did not violate the student's First Amendment rights there because it fit all three of those categories. It was plainly lewd and offensive. It undermined the school's educational mission and so far as there were younger students there exposed to the speech that was inappropriate in that setting and wasn't geared towards the purpose of that assembly was electing the representatives of the class and the student wasn't expressing a political viewpoint by choosing this sexual metaphor to describe his chosen candidate. And the court really looked at the fact that schools not only have the right but it essentially believed the schools have an obligation to teach students the boundaries of socially appropriate behavior and that instilling in students the fundamental values necessary to the maintenance of a democratic policy system including to save this favoring offensive and threatening speech was the very work of the schools. So that was 1986 and then just two years later we have the case of Hazelwood versus Puhlmeyer and here the court drew a distinction between speech that was just the students own speech versus speech that could reasonably be interpreted as being the school's speech. So speech in a student newspaper that was part of the school curriculum, for example would could possibly be imputed to the school itself and not the student. And since it's the school's speech the school has greater ability to control it. So this applies to school sponsors like newspapers, yearbooks, plays things that essentially could be said to be part of the school curriculum itself whether or not they happen in the classroom. So long as they're supervised by faculty and designed with an educational mission in mind designed to impart particular skills or knowledge. So in this instance, the speech in question it was two articles that had been proposed to go in the school newspaper and it was written and edited by students for a journalism class with a faculty instructor. One was about the students experience with pregnancy and the other was about the impact of divorce on students and the school was worried that in the first instance the students would be identifiable and that there were references to sex and birth control that were inappropriate for younger students. And with the divorce article the school worried that a student who was identified by name had said very negative things about his father about in the court and his conduct leading to and in the course of this divorce and the school thought the parents should have a chance to at least respond or give consent to its publication and there was insufficient time to do so. So the principal eliminated the articles from the paper and once again, the Supreme Court held that the school did not violate the student's First Amendment rights. And the reason is that the schools have authority to control speech because they're wanting their goal is that the participants in taking part in that activity here at the school newspaper was to teach them lessons and it was expressly designed to teach them how do you write a school newspaper? How do you check your sources? How do you call people for comment who are discussed in the article? And none of those things happened here and so the court said that that was okay. So here, the school doesn't have to show that the speech would substantially interfere with its work or impinge other students' rights. They did need not show that the language is lewd or plainly offensive. It could restrict speech that demonstrates poor grammar and writing. It could restrict speech that was based on inadequate research or that showed bias or prejudice or was unsuitable for immature audiences. So in this category of speech which could reasonably be thought of as the school's own speech, the schools do have considerable leeway to restrict what speech might be imputed to the school itself. And then we get to 2007 in a strange little case called Morris v. Frederick where the court essentially carved out a free speech restriction specifically based on the subject matter and viewpoint. And that was when the speech could reasonably be regarded as encouraging illegal drug use. And the court said this restriction is okay because of, again, we're looking at the special nature of the school environment and also the dangers posed by illegal drug use. The facts in this case, it was a high school sanctioned and supervised event. It was watching the Olympic torch relay go by a group of students on for a 14 foot long banner that said, bong hits for Jesus. They were told to take it down, all but one student complied. The administration confiscated the banner and suspended the student for 10 days. And again, the court held that that was okay under the First Amendment. This is a very, very rare example of the Supreme Court allowing the government to discriminate on the basis of a speaker's viewpoint because it's very likely that this case is only limited to speech that promotes illegal drug use rather than speech that opposes illegal drug use or speech that or political speech talking about whether the war on drugs has been successful or whether the government should legalize medical marijuana. All those things are still in the category, the subject matter of drug use or drugs, but it's very unlikely the school will be able to limit that speech. And here for the Supreme Court to say, you can restrict speech that expresses one view on a topic, but not speech that expresses that opposing view on that topic is highly unusual. And it's likely that this case, if the Supreme Court were asked in a similar case on different facts, it's very likely it might come to a different conclusion. It also noted that the Fraser rule I talked about that the lewd or plainly offensive speech could be restricted, that would not have allowed this here because this speech wasn't lewd, it wasn't plainly offensive within the meaning of Fraser. So that meant that the court was creating a brand new rule that applies only to this speech promoting drug use. And then the last in this line of cases came out just this year, it had been a subject of some confusion and lack of clarity is what is the ability of schools to restrict speech that happens off campus and outside of school hours. And this is particularly relevant in the era of social media because students are constantly in communication with each other outside of school and outside of school hours, but the social media makes its way into the school. And so the question asked of the court is, are students speech rights in school the same or different from their rights when they're engaging in speech outside of the school context? So just this term, not very long ago at all, the Supreme Court said, you know what, there are special characteristics that allow schools greater authority to restrict speech in school. And those special characteristics don't entirely evaporate the minute that the student leaves school, but they're nowhere near as strong outside of school. So what happened in this instance is that a high school student did not make the varsity cheer team was very upset about this off campus and outside of school hours. And the court made much of the fact that this happened in a place called the Coco Hut. So they kept referring to the speech of the Coco Hut. She posted on Snapchat a message that used vulgarity and criticized the school and the cheerleading team. For those who don't know, Snapchat allows you to post a message to people who are your friends on Snapchat and then it disappears after 24 hours. So she posted an image of herself and her friend with their middle fingers raised and the caption, fuck school, fuck softball, fuck cheer, fuck everything. Someone had captured the image and it eventually made its way to the cheer coach and she was suspended for a year from cheerleading. The court of appeals said, you know what? As soon as the student leaves school, all those special characteristics disappear and they have the full panoply of First Amendment rights that anyone else does. The Supreme Court didn't go quite that far and they listed several examples of speech that could call for school regulation even if they happen off campus based on the effect they would have on campus. So these are things like serious and severe bullying, threats, failure to follow rules concerning lessons or writing papers or using computers. So there are several categories of speech that might generate some degree of permissible regulation off school but it's a pretty small set. And the court didn't wanna set a bright line rule because they said, look, every case is gonna be unique on its back. There are so many variations. So what we're gonna do is give you some guidance and here are three things that should counsel against regulating off campus speech. One is that the school, when a student is in school, the school is operating in what's called in local parenthesis. They're acting in the shoes of the parent with respect to the obligation to protect, guide and discipline the students. And that's just not nearly as true off campus. Second, if schools can generally regulate off campus speech and on campus speech, that means all of the student's speech can be regulated and that's just an untenable burden on the right to speech. And the school has an interest in protecting the expression of unpopular opinions. Just as Rebecca talked about, schools are nurseries of democracy and this speech even up unpopular is it a very important part of your education learning how to express unpopular views, how to respond to unpopular views. And if all of that is shut down, that will be a significant abridgment both of the First Amendment right and the democratic ideals that it supports. I see we're running just a touch over, Ben may I take just one or two more minutes? Yeah, certainly. So, Rachel mentioned there's the right to speak, but there's also the right not to be forced to speak. And so I'm gonna talk very quickly about compelled speech or coerced speech. In 1940, the Supreme Court said it was okay to require students to salute the flag and recite the Pledge of Allegiance. The students who were challenging this were Jehovah's Witnesses who objected on religious grounds. And in the immediate aftermath of this decision, school districts in 31 states made the Pledge Mandatory. More than 2,000 Jehovah Witness students were expelled and it launched a period of extreme violence against Jehovah's Witnesses. One state to adopt such a rule was West Virginia. It made the salute and Pledge Mandatory. And if you refuse, you were expelled until you complied and your time out of school was deemed an unlawful absence. So you would be subject to delinquency proceedings and the parents could be prosecuted and given a fine and jail time. So that president lasted just three years. It was just untenable. The results were horrible. And so three years later, the court said, no, no, no, you cannot compel. You can require students to learn things but you cannot force them to profess a belief in something. So you can teach them the Pledge but you can't force them to recite the Pledge, for example. And I'll end with another one of these very inspirational Supreme Quotes. This is from the Barnett case. If there is any fixed star in our constitutional constellation, it is that no official high or petty can prescribe what shall be orthodoxy in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act to their faith therein. And this language has been repeated in almost every First Amendment case that followed it. It is the fixed star of First Amendment litigation just as much as it is of our constitutional constellation. And with that, I will turn it back to Ben. Very well, thank you very much, Leah. That was a very interesting discussion and obviously, as the case this year showed, it's a very live area of constitutional law. We have one question right now from the audience, which I think is a very interesting one. Is art considered free speech? And perhaps I'll let Professor Teach-Out take the first stab at this one. And then perhaps I'll note, as I turned the question over to him, that arguments that have been made, I think in the anti-discrimination context, there was a case of a cake baker that was up at the Supreme Court several years ago. And I think his case continues to be in the news who refused to bake a cake for a same-sex marriage and made an argument that his cake design was protected speech under the First Amendment, among other arguments. So Ben, do you want me to respond initially? Yeah, if you would. Well, let's take the general question, is art considered protected speech? And the answer to that is yes. There are a couple of instances. One involved, it wasn't a Supreme Court case, but involved federal courts, involved the photography of a guy named Robert Maples Thorpe, who depicted interracial pairs engaged in sometimes sadomasochistic performance. The question was whether or not that constituted obstinate. You see, it was a given that it was protected. The only question was, is this a type of expression that falls outside the protection of the First Amendment? And the court said since it was not technical obscenity and since it was a work that was of serious artistic value, it was protected by the First Amendment. Another example involves, I don't know if this is really art and some members of the court questioned whether it was art involved topless or nude dancing, whether that's protected by the First Amendment. And the court said there's a sufficient element or at least the majority of the court has found that there was a sufficient element of artistic self-expression and nude dancing in bars to be worthy of at least an element of First Amendment protection. So the general answer is yes, artistic expression is protected by the First Amendment. Now that becomes a more difficult question when you're saying here's the baker who refused to bake a cake that included decoration celebrating same-sex marriage when his religion was strongly opposed to that. That involves a clash of values. And it might be more difficult, but at least the basic proposition is yes, artistic expression without any political content at all protected within the sphere of free speech. If I may just add to that the general test for whether conduct counts as speech is, did you mean by that conduct to express a message and was it reasonably likely that the recipient would understand that you were expressing a message? And so using that test, things like giving the middle finger, honking your horn to warn, or flashing your lights to warn a police ahead, honking your horn at a protest, sometimes even the clothes you wear or how you wear your hair, these things in particular contexts have all been recognized as speech acts that are within the First Amendment's protections. And this is a little outside the scope of this presentation, but in copyright law, there's a doctrine called the Fair Use Doctrine, which allows people to actually copy another person's work. There's a case that happened at the, it was in the federal purist court recently where Andy Warhol took a photograph of Prince, the musician and basically copied and painted on it and made it look like a Warhol. And the question was whether that was fair use or copyright infringement and fair use, meaning you could do it without liability. And that doctrine of fair use has been categorized as sort of a First Amendment safety valve from intellectual property law. So that's another, yeah, I guess, implicit recognition that the First Amendment does protect art. Can I throw in my two cents too on it? Yeah. Yes, it definitely protects art. And all of you have already raised specific instances and cases. I just wanted to throw a recent one on the table, the US Supreme Court's decision in Mattel v. Tom, I think, or Tom, I think it's Tom, 2017. Again, art in this instance coming into play as the raising First Amendment questions is the attempt by this Asian-American rock band named the Slants attempting to trademark, register their name federally, whether that could be approved. And it was not, it was rejected as being federally, inherently racist and offensive, irrespective of the reasons why the band chose their name, what have you. And so that case one made its way up to the US Supreme Court and then the US Supreme Court again, so that that was error to reject based on that basis that to reject it based on government valuation of what was deemed offensive and not offensive speech, partly to the First Amendment, even if it were racist. Again, just this very consistent holding of what it is. So artistic expression for sure. And I also want to just add that in this realm what is deemed artistic, what is deemed a threat. This is an area where there's a lot of room for subjective differences of opinion where people's cultural backgrounds, their exposures or life experiences, their individual biases, racial biases come into play in terms of deeming what is, now what do we think is art? What is offensive? But in the criminal context, what's true threat or sanity that can be subject to criminal penalty. So I don't know if there is something we haven't talked about yet, which is that not only is the risk here about censorship, chilling speech, why we need it, the values waiting, but I think there's also a risk to selective and discriminatory enforcement of what is deemed protected and unprotected speech that we haven't yet touched upon and how that plays out with disparate effects on certain communities. That's sort of risk of selective enforcement as it would give rise to if people in person in the context talk about the chilling effect that government regulation might have. So I wanted to go back to you Rebecca briefly to touch on something that you talked about in your presentation about hate speech. Cause I think that is an area that a lot of people really struggle with as to how can our law allow some of these actions? And I know cases have come up that, you know, also people on this panel have been involved with it in various capacities, the situations that in all ended in cases, but I guess I would ask, you talked about hate speech enhancement or hate crime enhancements being upheld based on a recognition of the unique harm that a criminal act directed as a specific group has both for members of that group and the community more generally. And I guess the question I had is if that justification is constitutionally sufficient for hate crime enhancement, it seems like you could make the same argument for punishing hate speech. And I was, I guess I'd like to hear your response to that. The response to being that it has been upheld? Well, hate crime enhancements as you mentioned like for an enhanced penalty have been upheld as, you know, even if the, I mean, I think in those situations, you know, probably evidence that it was in fact a hate crime, you know, it was probably speech related. And I guess your thoughts on that justification, do you think that justification is sufficient in your view for the enhanced penalty? And it seems like that justification could also apply to hate speech as presenting a unique harm that might be worthy of criminal sanction. Got it. Now I appreciate that clarification. I think this isn't a really important subject you're bringing up and as a defender and as someone who's biracial Pacific Islander descent so much of what we're hearing about targeted violence towards historically marginalized people, whether it's law enforcement, violence or others, it hits close to home. So what I think is, when I think about hate crimes and your point, which is that there have been in some instances cases leaking its way all the way up to the United States, United States Supreme Court that have upheld it as constitutionally sound under the First Amendment. I think that it's interesting to look at those cases in a different light, not just that it was legally upheld, but that it's interesting to look at even more details as to the race of the individuals involved in those cases. We cite frequently Mitchell v. Wisconsin, Dawson v. Delaware, these are US Supreme Court cases that have considered these difficult questions where hate crime enhancements were sought by the prosecution and imposed effectively lengthening the term of imprisonment served. So it's not that it was in itself a separate crime, it's just they were subject to greater time in jail for offenses that were being motivated by hateful thought. And when we unpackage that, it's interesting to look at Mitchell v. Wisconsin, the hate crime enhancement was used against a black man. He was the defendant in that case, and he challenged that the hate crime enhancement shouldn't be applied in his instance. And that it was, he was charged and convicted of committing a hate-motivated crime against a white man. And there the US Supreme Court said no, that was permissible. In another challenge of the hate crime statute, the constitutionality of it under the First Amendment, Dawson v. Delaware, they struck down the defendant's death sentence, death penalty sentence in that case, as violating the First Amendment. Again, death penalty was imposed there based on the hate crime statute. What's interesting there is that the defendant was white and he was a member of a white supremacist gang in prison. Again, when we start reading these cases, sort of a fresh anew, right, presently, and see where these legal holdings come out of when we really be closely, who were the racial backgrounds of the players? Who were the complainants? Who were the defendants? How are these hate crime statutes being used and where are the courts upholding these? I think gives us even more important context of whether or not we think that that's enough to say we're good to go. And my point to that is, I think that there are fundamental concerns here where I think that from looking at where police arrests or community reports hate crimes to police, what cases police respond to, what they don't, what individual cases do prosecutors decide to charge and pursue, what sentences do courts actually impose with the hate crime statutes? And looking at how that actually impacts and affects the individuals involved, meaning do hate crime enhancements actually make us safer from hate crimes themselves? I think that's the fundamental crest question and goal of punishing. So I think that gets into bigger questions, right? Bigger questions. Do longer times and longer terms in imprisonment actually make us safer? Well, we know that there are studies showing that they do not do. Does it actually, it actually may increase, it certainly doesn't deter, because longer sentences have been shown to not deter people from engaging in similar conduct. If it doesn't deter, then we're not preventing future crimes involving hate, right? Instead, what we are doing is sort of perpetuating mass incarceration and the problems of that that are not just the problems where the person serving times in jail, but trickle down to the entire family, right? And so I think that if you're asking me, do I see any value of using and upholding hate crime enhancement statutes for the larger purpose of solving, I think what is presumably the goal, which is to sort of eradicate or stop hate, I think that it does not solve that. And so that even if there are select cases where it's been upheld in the first, by the US Supreme Court, I think that those are probably very narrow exceptions that don't apply certainly to pure speech crimes, that there were other aggravating factors involved, physical violence and harm, right? Clearly supported malicious intent to commit those crimes based on an underlying hate. So long answer to your question, but very complicated area. I certainly don't think it's the way to go. I think it causes much more problems than it solves. Thank you for a very thoughtful response. And you see we're slightly over our limit, but I wanted to ask Leah one question as well, and about, you talked about some of these recent cases, the Morris case, which was the Boeing hits for Jesus case and the cheerleader case. And I was wondering if you saw any sort of unifying theme coming out of those cases or it sounds like it's just kind of setting a stage for case by case balancing of interest in this area. Yeah, I mean, I think it's a very good question. I think the lower courts are sort of left to figure it out on their own. The court has been pretty clear in each of these cases that it was deciding the case before it and on the facts before it and wasn't stating a broader rule, like a template that you could just apply to the next set of facts and know how it comes out. I think they set forth factors that ought to be considered. And I think lower courts are coming to wildly divergent opinions on how they apply to a new set of facts on their face. Like Morris is a very narrow, very narrow exception. Speech advocating illegal drug use, how other courts apply that. If there's speech advocating underage drinking, does that fall within Morris or did the dangers posed by illegal drugs pose a uniquely dangerous circumstance that justifies this narrow exception that is different than other types of speech? And unfortunately, I think, and interestingly in oral argument during the cheerleader case, Justice Breyer and several of the other justices were very visibly and audibly concerned about how they were going to write this opinion. I don't want to write a treatise on the First Amendment. They very clearly wish they didn't have this case at all because they didn't know how they wanted to direct lower courts. And ultimately they didn't give especially clear guidance. Well, thank you. And yeah, and thank all of you. Professor Ticha, Rebecca, and Leah and Rachel who had to leave early, as I mentioned before, for participating today. It's been a very interesting conversation and thanks for all those who joined us and we hope it was informative and... Thanks for organizing, Ben. Yeah, thank you, Lynn. Thank you. Take care, everyone. Bye-bye.