Professional Documents
Culture Documents
2/1/2012 3:00 PM
Comment
A Falling Star in Our Constitutional
Constellation: Why the First Circuits
Decision in Griswold v. Driscoll
Undermines Fundamental First
Amendment Principles
ABIGAIL ADAMS*
ABSTRACT
* Candidate for Juris Doctor, New England Law | Boston (2012). B.A., Philosophy, The
College of Wooster (2005). I would like to thank my family and friends for the generous love
and support they provided me during the writing process. I would especially like to thank my
father, John Adams, for his edits, feedback, and encouragement. I would also like to thank my
undergraduate adviser, Professor Henry Kreuzman, because working with him on my
undergraduate thesis helped me realize my passion for writing.
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INTRODUCTION
1 Convention on the Prevention and Punishment of the Crime of Genocide art. 2, Jan. 12,
1951, 78 U.N.T.S. 277.
2 See Raffi Sarkissian, The Armenian Genocide: A Contextual View of the Crime and Politics of
Denial, in THE CRIMINAL LAW OF GENOCIDE: INTERNATIONAL, COMPARATIVE AND CONTEXTUAL
ASPECTS 1, 6 (Ralph Henham & Paul Behrens eds., 2007). The authors discussion of the legal
principles at issue does not reflect her opinion regarding the historical facts of the underlying
subject matter. The author realizes the historical underpinnings of this subject are delicate and
sensitive for many people around the world.
3 Compare SAMANTHA POWER, A PROBLEM FROM HELL: AMERICA AND THE AGE OF
GENOCIDE 9 (2002), and 1 MARK LEVENE, GENOCIDE IN THE AGE OF THE NATION-STATE: THE
MEANING OF GENOCIDE 70-73 (2005) (recognizing an Armenian genocide), with BERNARD
LEWIS, WHAT WENT WRONG?: WESTERN IMPACT AND MIDDLE EASTERN RESPONSE 61 (2002)
(neglecting to mention the Turkish-Armenian conflict in its entirety while discussing the
history of the Middle East, but noting the Ottoman Empire was defeated and occupied by
the 1920s). This sensitive subject transcends the margins of scholarly articles and carries
relevance in many aspects of society. See Megan Angelo, Kim Kardashian, an ArmenianAmerican, Is Outraged to Find Herself on the Cover of Cosmo in Turkey, BUSINESS INSIDER (Apr. 11,
2011), http://articles.businessinsider.com/2011-04-11/entertainment/30085932_1_kimkardashian-armenians-cover.
4 See generally Griswold v. Driscoll (Griswold I), 625 F. Supp. 2d 49, 55-57 (D. Mass. 2009).
5 Griswold v. Driscoll (Griswold II), 616 F.3d 53, 55 (1st Cir. 2010).
6 Griswold I, 625 F. Supp. 2d at 54.
7 Complaint and Jury Demand at 21, Griswold I, 625 F. Supp. 2d 49 (No. 05 CA 12147
MLW), 2005 WL 5936543.
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Background
A. The First Amendment
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943); see Complaint, supra note 7,
at 21.
9 Griswold II, 616 F.3d at 56.
10 Id. at 58-59.
11 See infra Part III.
12 See infra Part V.
13 Barnette, 319 U.S. at 642.
14 U.S. CONST. amend. I. In its entirety, the First Amendment states: Congress shall make
no law respecting the establishment of religion, or prohibiting the free exercise thereof; or
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abridging the freedom of speech, or of the press; of the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances. Id.
15 Palko v. Connecticut, 302 U.S. 319, 327 (1937); see RUSSELL L. WEAVER & DONALD E.
LIVELY, UNDERSTANDING THE FIRST AMENDMENT 11 (3d ed. 2009).
16
Regan v. Taxation with Representation of Wash., 461 U.S. 540, 547 (1983).
Gitlow v. New York, 268 U.S. 652, 666 (1925) (recognizing that freedom of speech is
protected by the First Amendment and is among the fundamental personal rights and
liberties protected by the due process clause of the Fourteenth Amendment from impairment
by the States). Justice Cardozo considered freedom of speech and thought fundamental
and a matrix in our society. Palko, 302 U.S. at 327; see KATHLEEN M. SULLIVAN & GERALD
GUNTHER, CONSTITUTIONAL LAW 742 (16th ed. 2007).
18 Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2732 (2010) (quoting Roth v.
United States, 354 U.S. 476, 484 (1957)) (internal quotation marks omitted); see Hill v.
Colorado, 530 U.S. 703, 787 (2000) (Kennedy, J., dissenting) (Laws punishing speech which
protests the lawfulness or morality of the governments own policy are the essence of the
tyrannical power the First Amendment guards against.).
17
19
21
22
23
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24
Id.
JEROME A. BARRON & C. THOMAS DIENES, FIRST AMENDMENT LAW 28 (4th ed. 2008).
26 1 SMOLLA, supra note 20, 3:3. This type of censorship interferes with the fundamental
right the First Amendment was designed to protect. See Christopher M. Kelly, Note, The
Spectre of a Wired Nation: Denver Area Educational Telecommunications Consortium v. FCC
and First Amendment Analysis in Cyberspace, 10 HARV. J.L. & TECH. 559, 574 (1997) (stating that
content-based regulations are exactly the type of intrusion that the First Amendment was
designed to avoid).
25
27
32
See Utah Educ. Assn v. Shurtleff, 565 F.3d 1226, 1229 (10th Cir. 2009) (holding that
government content-based regulation of speech is only permitted if it is narrowly tailored to
serve a compelling state interest).
33
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doctrines.34 Thus, new Free Speech Clause claims have emerged, requiring
the Supreme Court to further define the First Amendments margins.35
2.
See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467-68 (2009).
See Rust v. Sullivan, 500 U.S. 173, 193-94 (1991) (upholding a federally funded family
planning programs restriction on abortion-related speech because when the government
appropriates public funds to establish a program, it is entitled to broadly define that
programs limits); see also United States v. Am. Library Assn, 539 U.S. 194, 211 (2003).
37
38
43
See Rust, 500 U.S. at 193-94 (noting that the government has the authority to select and
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principles, the Supreme Court found in Board of Education v. Pico that the
school library is also a place in which there are First Amendment
protections.54
In 1976, the Board of Education of Island Trees Union Free School
District in New York sought to remove nine anti-American, antiChristian, anti-Sem[i]tic, and just plain filthy books from the districts
school libraries in accordance with their moral obligation[] to protect the
children of their school system.55 After much debate, the board ultimately
issued a final removal order of the nine books. 56 Five students challenged
the removal order under the Free Exercise Clause of the First Amendment,
and the district court granted summary judgment in favor of the board.57
The United States Court of Appeals for the Second Circuit reversed the
judgment of the district court and remanded the action for a trial on the
merits of the case.58 The board appealed to the U.S. Supreme Court.59
Justice Brennan, writing for Justices Marshall and Stevens, expressed
the view that summary judgment was precluded because the schools
motive regarding the removal of school library materials is in dispute. 60
Even though school boards have broad discretion in the management of
school affairs, the Court concluded that this discretion excludes school
boards preferences of what shall be orthodox in politics, nationalism . . .
or other matters of opinion.61 Thus, if the schools motive is based upon
political reasons rather than educational suitability, the schools actions
are unconstitutional.62 Justice Brennan also distinguished curricular from
extracurricular material, finding library books to be in the regime of
voluntary inquiry and extracurricular in nature.63 A school district
possesses a greater level of discretion in curricular matters because of the
exercise rights at school as long as they do not materially and substantially interfere with the
requirements of appropriate discipline in the operation of the school).
54
See Bd. of Educ. v. Pico, 457 U.S. 853, 872 (1982) (plurality opinion).
Id. at 856-57 (alteration in original) (quoting Pico v. Bd. of Educ., 474 F. Supp. 387, 390
(E.D.N.Y. 1979)).
56 Id. at 857-58. Prior to ordering the book removal, the board appointed a Book Review
Committee consisting of parents and staff members of the district. Id. at 857. The Committee
recommended that five of the books be retained and two be removed from the library. Id. at
857-58. They failed to come to an agreement on two others. Id. at 858. The board rejected the
Committees recommendations. Id.
55
57
58
59
60
61
62
63
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64
Id.
Id. at 877 (Blackmun, J., concurring).
66 Pico, 457 U.S. at 879 (quoting Barnette, 319 U.S. at 637).
67 Id. at 877 (quoting Tinker v. Des Moines Sch. Dist., 393 U.S. 503, 511 (1969)).
68 Id. at 875-76. Justice White concurred in the judgment and explained that he would have
been more confident in joining Justice Brennan if he had not engaged in an overly-broad
analysis of the issue at hand. See id. at 883 (White, J., concurring). However, he acknowledged
that he was not inclined to disagree with the Court of Appeals, which had remanded the
action for a trial on the plaintiffs allegations, implying that depending on the facts, removal of
library materials may violate the Constitution. Id.
69 1998 Mass. Acts 1154; see also Griswold II, 616 F.3d 53, 54 (1st Cir. 2010).
70 1998 Mass. Acts 1154.
71 Id.
72 Id.
73 See MASS. DEPT OF EDUC., MASSACHUSETTS GUIDE TO CHOOSING AND USING CURRICULAR
MATERIALS ON GENOCIDE AND HUMAN RIGHTS ISSUES 2, 4 (Drft. 1999) [hereinafter GUIDE I].
65
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74
81 See MASS. DEPT OF EDUC., MASSACHUSETTS GUIDE TO CHOOSING AND USING CURRICULAR
MATERIALS ON GENOCIDE AND HUMAN RIGHTS ISSUES 23 (1999) [hereinafter GUIDE II].
82 Letter from David Driscoll, Commr of Educ., Commonwealth of Mass., Dept of Educ.,
to Bonnie Joy Kasian, Member, Bd. of Trs., Assembly of Turkish Am. Assns, and Erkut
Gml, President, The Turkish Am. Cultural Socy of New Eng., Inc. (Aug. 31, 1999).
83
GUIDE II, supra note 81, at 3 (The study of . . . the Armenian Genocide . . . often causes
students and teachers to question why such atrocities occurred, whether they could occur
elsewhere, and how they might be prevented.).
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B. Procedural History
Students, parents, teachers, and the Association of Turkish Americans
(plaintiffs) filed suit against the Board, Driscoll, and the Massachusetts
Department of Education (defendants), alleging that the removal of the
contra-genocide references abridge[ed] [their] constitutional right to enjoy
the opportunity to receive speech without viewpoint discrimination
practiced by the government unrelated to educational suitability.84 The
defendants moved to dismiss the complaint on the grounds that the
government-speech doctrine barred the plaintiffs claims, that Pico was
factually distinguishable and carried little precedential value, and that the
statute of limitations had expired.85
The district court allowed the defendants motion to dismiss on the
merits of the case.86 First, the court found that the Guide is a part of the
school curriculum, a form of government speech, and exempt from First
Amendment scrutiny.87 Additionally, the court held that reliance on Pico in
this instance is unpersuasive for several reasonsnamely that Griswold is
distinguishable from Pico, and Pico does not carry precedential value.88
Additionally, the court held that separation of powers in our federal
form of government prohibits federal courts from intervening in the
resolution of conflicts arising in the daily operation of school systems, even
if constitutional rights are implicated.89 According to the district court,
there were no circumstances in the instant case making it necessary or
proper for federal courts to prohibit or reverse action by state or local
officials.90
84
86 Griswold I, 625 F. Supp. 2d at 58. The district court also found the plaintiffs lacked
standing. Id. The First Circuit later held that the outcome of the standing claim was dependent
upon whether the plaintiffs had a cognizable claim. See Griswold II, 616 F.3d 53, 56 (1st Cir.
2010).
87
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ANALYSIS
III. The District Court Erred in Declining to Apply Pico.
Pico, though a plurality decision, in its narrowest interpretation, placed
constitutional limitations on school officials discretion to remove books
from a school library.96 This holding and its constitutional implications
remains good law today.97 When a fragmented court decides a case, the
holding of the court may be viewed as that position taken by those who
91 Griswold II, 616 F.3d at 56-58. Justice Souter, Retired Associate Justice of the Supreme
Court of the United States, was sitting by designation. Id. at 54. On January 18, 2011, the U.S.
Supreme Court denied certiorari and let the First Circuit decision stand. Griswold v. Driscoll
(Griswold III), 131 S. Ct. 1006 (2011).
92 Griswold II, 616 F.3d at 57-58. In the present case, Driscoll altered the Guide, an action
which was within his authority; in contrast, a superior official administered the book removal
in Pico after it was approved by the board. Id. at 58. This Comment will not discuss this
distinction; Justice Souter does not cite authority for this proposition and Pico did not hold a
superior officials actions were a prerequisite to its holding. See Bd. of Educ. v. Pico, 457 U.S.
853, 869 (1982).
93
97
See, e.g., Nurre v. Whitehead, 130 S. Ct. 1937, 1939 (2010) (Alito, J., dissenting from a
denial of certiorari) (using Pico as authority for the proposition that school speech may not be
censored simply because some people find that speech distasteful).
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98 Marks, 430 U.S. at 193; see also Berkolow, Much Ado About Pluralities: Pride and Precedent
Amidst the Cacophony of Concurrences, and Re-Percolation After Rapanos, 15 VA. J. SOC. POLY & L.
299, 300-02 (2008) (noting that even though a plurality opinion may lead to ambiguity
regarding legal applications, this does not necessarily render inapplicable law).
99
101
See Campbell v. Saint Tammany Parish Sch. Bd., 64 F.3d 184, 189 (5th Cir. 1995).
See Nurre, 130 S. Ct. at 1939 (Alito, J., dissenting) (citing Pico as valid authority); Natl
Endowment for the Arts v. Finley, 524 U.S. 569, 584 (1998) (recognizing educational
suitability is required in order to censor extracurricular materials); Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U.S. 819, 833 (1995) (elaborating on the government-speech
doctrine within the context of public schools and ultimately determining that the state may
choose educational content as long as it is curricular in nature, leaving the Pico test
unchanged).
102
103 State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (noting that reconsidering decisions of the
U.S. Supreme Court must be approached with the utmost caution because stare decisis is an
important policy that promotes and fosters consistency, reliability, and integrity in the judicial
process).
104 ACLU of Fla. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1207 (11th Cir. 2009)
(questioning Pico, but conceding that the Pico test is that school officials may not remove
books from library shelves simply because they dislike*+ the ideas contained in those books
and [seek] by their removal to prescribe what shall be orthodox in politics[, nationalism,
religion,] or other matters of opinion (quoting Pico, 457 U.S. at 872)); Chiras v. Miller, 432
F.3d 606, 619 (5th Cir. 2005) (recognizing and distinguishing Pico because Pico addressed the
removal of an optional book from the school library, not the selection of a textbook for use in
the classroom); Rossignol v. Voorhaar, 316 F.3d 516, 522 (4th Cir. 2003) (citing Pico for the
proposition that the First Amendment protects the right to receive information); Monteiro v.
Tempe Union High Sch. Dist., 158 F.3d 1022, 1027 & n.5 (9th Cir. 1998) (finding Pico to be
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some of the narrowest applications of Pico, courts have found the school
boards motivation for the censorship the controlling factor when
modifying materials in the extracurricular realm. 105 Additionally, even the
First Circuit opinion that distinguished the Guide on curricularextracurricular grounds refrained from calling Pico into question.106 Thus,
concerning extracurricular material such as in a school library, the
government is bound by Pico; removing materials for reasons other than
educational suitability violates the First Amendment. 107
IV. The Guide Does Not Amount to Government Speech.
Lower courts have consistently distinguished the public school library
from the classroom, recognizing that the public school library is an
extracurricular setting, whereas the classroom is an inherently curricular
space.108 Since the government-speech doctrine is not implicated when
library activities are involved, similarly, other extracurricular activities fall
outside the limitations of the government-speech doctrine.109 Because the
particularly helpful and that students First Amendment right of access to information is
violated when schools remove books from [a] library in [a] content-based manner);
Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680, 686 (7th Cir. 1994) (citing Pico to explain
that a school boards broad discretion in matters relating to school affairs must comport with
First Amendment principles); Kreimer v. Bureau of Police, 958 F.2d 1242, 1254 (3d Cir. 1992)
(citing Pico for recognition that the school library is a place for voluntary inquiry and
study); Serra v. U.S. Gen. Servs. Admin., 847 F.2d 1045, 1051 (2d Cir. 1988) (Pico held that
books could be removed from the school library if they were . . . educationally unsuitable.);
Fowler v. Bd. of Educ., 819 F.2d 657, 662 n.5 (6th Cir. 1987) (recognizing Pico, but holding it is
inapplicable because it does not apply to curricular materials); Bystrom v. Fridley High Sch.,
822 F.2d 747, 759 n.3 (8th Cir. 1987) (using Pico for the proposition that school officials may
not remove books from [a] school library when motivated by an intent to deny access to
ideas); Bell v. Little Axe Indep. Sch. Dist., 766 F.2d 1391, 1401 (10th Cir. 1985) (questioning
Pico, but distinguishing it from the facts of the case), abrogated by Memphis Cmty. Sch. Dist. v.
Stachura, 477 U.S. 299 (1986); Gregg v. Barrett, 771 F.2d 539, 549 (D.C. Cir. 1985) (recognizing
Pico for authority that the government should not single out particular types of speech for
censorship).
105 See, e.g., ACLU of Fla., 557 F.3d at 1202, 1206-07 (holding that school boards may remove
books from school libraries if they contain incorrect or mistaken material, but the First
Amendment and Pico prohibit the removal of library books if the motivation is not based on
educational suitability).
106 See Griswold II, 616 F.3d 53, 56 (1st Cir. 2010) (The library metaphor, if accepted, would
subject the decision to remove the references to contra-genocide material to First Amendment
review under [Pico+.).
107
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119
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403
See GUIDE I, supra note 73, at 2 (This Guide . . . offers recommendations for locating
and selecting . . . materials on genocide and human rights issues, and guidelines for teaching
such materials.); GUIDE II, supra note 81, at 1 (restating same purpose as GUIDE I).
131 Peltz, supra note 108, at 107.
132 See E-mail from Susan Wheltle, supra note 129.
133 See id.
134 See supra text accompanying note 110.
135 See generally 1 SMOLLA, supra note 20, 3:9 (Viewpoint discrimination *happens when+
the government targets not just subject matter, but the particular views taken on subjects by
speakers.).
136
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143 See Mark G. Yudof, Library Book Selection and the Public Schools: The Quest for the
Archimedean Point, 59 IND. L.J. 527, 543 (1984).
144 See id.; cf. Bd. of Educ. v. Pico, 457 U.S. 853, 872 (1982) (holding that officials may not
remove books from school library shelves simply because they dislike the ideas contained in
those books).
145
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implicate basic constitutional values. 148 Since [t]he very purpose of a Bill
of Rights was to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials and
to establish them as legal principles to be applied by the courts, the
district court and the First Circuit dishonored the First Amendment by
declining to protect the plaintiffs First Amendment rights.149 The role of
public schools in the preparation of individuals for participation as citizens
is even more reason for meticulous protection of constitutional freedoms of
the individual.150 For if the law prescribes to blatant political orthodoxy,
then youth will be taught to discount important values of government as
mere platitudes.151
Further, the judiciarys role is of the utmost importance because
without it the channels of political change are closed. 152 Although generally
citizens must rely on the power of the people to elect and, if they wish,
change their representatives as the means to hold them accountable for
decisions concerning the content of the curriculum,153 ones right to free
speech may not be submitted to a vote and must not depend on the
outcome of elections.154 The First Circuit should have taken into account
that the Founding Fathers of this country recognized the possibility of
occasional tyrannies of governing majorities,155 because they amended
the Constitution to guarantee free speech.156
Since Griswolds First Amendment rights are implicated, this is exactly
the type of situation where the judiciary must intervene. 157 This
intervention is not premised on whether the Turkish-Americans or the
Armenian-Americans are correct, but is premised on the central value
embodied in the First Amendment: [S]uppression of opinion is wrong,
whether or not the opinion is true . . . .158 Since without free speech . . .
148 Compare Griswold I, 625 F. Supp. 2d 49, 59 (D. Mass. 2009) (recognizing the broad
discretion of school boards), with Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (Our courts . .
. have not failed to apply the First Amendments mandate in our educational system where
essential to safeguard the fundamental values of freedom of speech and inquiry and of
belief.).
149 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).
150 See Bd. of Educ. v. Pico, 457 U.S. 853, 864-65 (1982).
151 See Barnette, 319 U.S. at 637.
152 SULLIVAN & GUNTHER, supra note 17, at 378.
153 Griswold I, 625 F. Supp. 2d at 54-55.
154 Barnette, 319 U.S. at 638.
155 Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring).
156 Contra Griswold II, 616 F.3d 53, 57-58 (1st Cir. 2010).
157 See Bd. of Educ. v. Pico, 457 U.S. 853, 863-66 (1982).
158 SULLIVAN & GUNTHER, supra note 17, at 744. See generally THOMAS I. EMERSON, THE
SYSTEM OF FREEDOM OF EXPRESSION 6 (1970) (noting that the First Amendment represents an
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CONCLUSION
The First Amendment was enacted to protect the people from
infringement by the government regarding matters relating to freedom of
speech.162 First Amendment jurisprudence has established that this also
includes ones right to receive speech.163 This right transcends the
schoolhouse gate in matters within the extracurricular domain.164 In this
protected realm, the government may not engage in viewpoint
discrimination, and it is the duty of the judiciary to protect this right. 165
Accordingly, the First Circuit should have applied established precedent
and required that the contra-genocide materials be included in the Guide,
instead of jeopardizing fundamental principles of the First Amendment:
the fixed star in our constitutional constellation.166 The result is
perilousfor now the fixed star is falling.167 The First Circuit should have
considered that the First Amendment presupposes that right conclusions
are more likely to be gathered out of a multitude of tongues than through
any kind of authoritative selection. To many this is, and will always be,
folly . . . but we have staked upon it our all.168
essential process for advancing knowledge and discovering truth); JOHN STUART MILL, ON
LIBERTY 31-41 (Thomas G. Barnes et al. eds., 1992) (arguing that society cannot discover the
whole truth unless ideas and beliefs come into contact with opposition and error).
159
Whitney, 274 U.S. at 375 (remarking that public discussion is a fundamental principle
of the American government).
160 SULLIVAN & GUNTHER, supra note 17, at 746.
161 Whitney, 274 U.S. at 375.
162 U.S. CONST. amend. I.
163 Bd. of Educ. v. Pico, 457 U.S. 853, 867 (1982).
164 See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969).
165 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); see also Amato v. Wilentz, 753 F.
Supp. 543, 554 (D.N.J. 1990).
166
167
168
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
See id.
United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943); THE BOUNDARIES
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OF FREEDOM OF EXPRESSION,
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