How Has the Court Balanced Free Speech/Press with National Security?

Just seven years after the ratification of the Bill of Rights, Congress enacted the Alien and Sedition Act of 1798. Whether this restriction on speech critical of government officials for the purported purpose of preserving national security (the real purpose seems to have been to maintain the poser of the Federalist Party) was unconstitutional was never determined for the law ended during Jefferson’s administration, and he pardoned those convicted under it. The first major interpretation of the meaning of "speech" under the first amendment took place over a hundred years later. If this lesson is infused into a chronological American history course, it should be included in the unit on World War I. Otherwise, students need to know that when the U.S. entered W.W.I in 1917, some Americans were opposed to our involvement. Many people believed that we should remain neutral since the conflict was taking place in Europe and did not seem to pose a direct threat to our country. Charles Schenck was among those who opposed our entry and the drafting of soldiers to fight in the war, and he sent mailings to draftees encouraging them to resist the draft. Congress, however, had enacted the Espionage Act in 1917 which outlawed efforts to obstruct the draft or enlistment process, and Schenck was convicted of violating the Act. The importance of the decision is that it contains Justice Oliver Wendell Holmes’ "clear and present danger" test, pointing out that even the most liberal minded advocate of free speech would have to agree that the first amendment could not be used to protect someone from falsely shouting fire in a theater. In addition Schenck, this lesson also contains New York Times v. U.S., the government’s unsuccessful attempt to halt further publication of Daniel Ellesberg’s classified research on Vietnam; this case provides a good contrast to Schenck, for both deal with the same general values conflict with differing results.

Students will be able to...

1. explain general conflicts that may arise between national security and freedom of speech and press;

2. discuss the facts, issue and decision in Schenck v. U.S.

3. develop and support their opinions on the Ellesberg dilemma.

4. develop and support their opinions on the case of New York Times v. U.S.

Handout 3A, "Schenck v. US (1919);" Handout 3B, "Mr. Ellsberg’s Values Conflict (1971);" and Handout 3C, "New York Times v. U.S.(1971)."

1-2 class periods

1. Briefly discuss with students the meaning of "national security" and whether the government should restrict our free speech and press if the country is at war. What are the dangers of unlimited speech and press during a war? What are the dangers of restrictions at such times?

2. Using Handout 3A, "Schenck v. U.S. (1919)," discuss the facts and issues with the class. Should the Supreme Court declare the Espionage Act of 1917 unconstitutional? Review the decision and Holmes’ opinion, emphasizing the "clear and present danger" test as an exception to the absolute wording of the first amendment.

3. State that during the Vietnam War there was another conflict between national security and free speech/press developed that led to a Supreme Court case. Briefly review Vietnam by asking students to name several videos that have included Vietnam. Use Handout 3B to introduce Daniel Ellesberg’s dilemma. If you wish, you may use the moral reasoning strategies as in lesson 2 or simply obtain several views as to whether Ellesberg should hand over the secret documents to the newspapers.

4. Point out that Ellesberg did turn over the top secret documents to The New York Times. Use Handout 3B to discuss New York Times v. U.S. (1971); explain "injunction" and discuss the facts and issue in this case. Obtain several opinions as to how the case should be decided, and then explain the court’s decision.

A Renzulli Type III would be to obtain volunteers to participate in a future debate on the topic, "National Security Is More Important than Freedom of Speech/Press." In addition to the cases in this lesson, students should research other cases on the Internet or other more recent situations involving this issue (e.g., Phil Agee, a former CIA agent, published , which may have resulted in the murder of some CIA undercover agents in Europe; the restrictions on press coverage of UFO’s and Area 51.)

Based on multiple intelligence theory.

Linguistic: Tell students that they work for the American Civil Liberties Union and they have been asked to prepare a memorandum explaining the meaning of "clear and present danger." In the memorandum, students should describe at least three actions that would fall under the clear and present danger rule.

Logical/Mathematical: Students should distinguish between important and unimportant information in both Schenck and New York Times v. U.S. Then have students discuss the reasoning and decisions in each of the cases and draw comparisons. Ask students if they can think of logical reasons for both the decisions in Schenck and N.Y. Times v. U.S.

Kinesthetic: Have students pretend that they are participating in an anti-war demonstration and must think of actions that would protest the war yet not violate the clear and present danger rule.

Spatial: Have students prepare a placard, poster or slogan that demonstrates their support or opposition for the recent bombing of Sudan and Afghanistan by the U.S. because of their involvement in terrorism. Discuss why people have a right to express their agreement or disagreement with the actions of the U.S. government.

Intrapersonal: Ask students how they would feel if they were in a crowd and heard somebody making statements opposing U.S. foreign policy and telling various groups to rise up against the government. Then ask students what they would have done.

Interpersonal: Select several students to engage in a protest against a school policy. The remainder of the class should observe the protest and be told that it is really happening. Conduct a whole class discussion about students’ reactions to the protest. Ask the class if any of the actions or words used during the protest presented a clear and present danger.