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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

On the eve of the twentieth century, turmoil was brewing in the

Ottoman Empire, and by 1915 a young Turkish movementTalaatawent
to war with the Armenians that were joining the Allies and rising up
against Ottoman rule. While historians agree that approximately 1.5
million Armenians were killed by the Turks during this time, many contest
the notion that these killings constituted genocide. This issue recently
became the subject of a heated debate within the Massachusetts Public
School System when the Massachusetts School Board compiled materials
pertaining to human-rights issues to be used as a guide for high school
teachers and students. This guide referred to the Armenian Genocide as
a factual matter, prompting members of the Turkish community to invoke
their First Amendment right to Free Speech by requesting a guide that
portrayed a more objective study of history. This Comment argues that the
First Circuit erred when it decided that First Amendment rights were not
implicated in this matter. As a result, the First Circuit jeopardized a fixed
star in our constitutional constellation, and now that star is falling.

* 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

enocide is an effort intended to destroy, in whole or in part, a

national, ethnical, racial or religious group by killing members of
the group.1 The majority of the western world recognizes that the
massacre of Ottoman Armenians by the Turks in the early part of the
twentieth century falls within this definition.2 However, many countries
and reputable scholars dispute this conclusion.3 When the Massachusetts
School Board compiled materials pertaining to genocide and human rights
issues as a guide for high school teachers and students and referred to the
Armenian Genocide as a factual matter, many members of the
community were displeased.4 Consequently, the Guide was amended to
include a more objective study of history.5 Shortly thereafter, political
officials in Massachusetts, concerned about the security of their political
offices instead of educational suitability, pressured the school board to
remove the contra-genocide references.6 Invoking their First Amendment
right to free speech, students, parents, and teachers of a local school district
brought action against the school board alleging that the removal of the
contra-genocide perspective was unconstitutional.7 The plaintiffs focused
on the notion that a fixed star in our constitutional constellation is that

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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no official . . . can prescribe what shall be orthodox in politics,

nationalism . . . or other matters of opinion, and thus, the contra-genocide
perspective should not have been removed from the materials. 8
On appeal, the First Circuit held that the plaintiffs First Amendment
rights were not implicated because the materials in question were
curricular in nature and, therefore, a form of government speech.9
Additionally, the First Circuit relied upon a general rule of deference that is
given to state and local school boards in operating public schools.10 This
Comment argues that the First Circuit erred in disregarding established
precedent that precludes its holding11 and that the school board and the
Government engaged in viewpoint-based discrimination in violation of the
First Amendment.12 Further, by virtue of the First Circuits inaction, the
court jeopardized the fixed star in our constitutional constellation,
threatening core First Amendment principles upon which this country is
based.13
Part I of this Comment provides background of law including the First
Amendment, the government-speech doctrine, the implications of the First
Amendment in public schools, and relevant case law. Part II discusses the
district courts and the First Circuits opinions in Griswold v. Driscoll. Part
III argues that the First Circuit erred in declining to apply established
precedent and explains why that case law remains good law today. Part IV
argues that the Guide is not government speech and does not fall outside
the confines of First Amendment scrutiny. Part V argues that when the
school board removed contra-genocide references from the school board
materials, it engaged in unconstitutional viewpoint discrimination. Finally,
Part VI argues it is the judiciarys duty to protect the plaintiffs First
Amendment rights.
I.

Background
A. The First Amendment

The First Amendment states: Congress shall make no law

respecting . . . or abridging the freedom of speech . . . .14 The First

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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Amendment is the indispensable condition[] of nearly every other form of

freedom.15 The First Amendments Free Speech Clause guarantees all
citizens the fundamental right16 to freedom of speech and, thus,
protection against interference from the Federal Government, as well as
from the states under the Fourteenth Amendments Due Process Clause.17
1.

Content and Viewpoint-Based Speech

The First Amendment was fashioned to assure unfettered interchange

of ideas for the bringing about of political and social changes desired by
the people.18 Accordingly, the First Amendment bars the government
from dictating what the public sees, reads, speaks, or hears. 19 Government
regulations based on the content of speech are presumptively invalid,
unless they can pass strict scrutiny20 because governmental regulation of
the content of speech is more likely to interfere with the free exchange of
ideas than to encourage it.21 Thus, if a government regulation is not
narrowly tailored to serve a compelling state interest, the content-based
regulation is unconstitutional.22 A content-based regulation involves
government directives, which are motivated by what the message says. 23
Therefore, if the government regulates speech because it disagrees with the

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

Ashcroft v. Free Speech Coal., 535 U.S. 234, 245 (2002).

Ysursa v. Pocatello Educ. Assn, 555 U.S. 353, 358 (2009). Since content-based laws
generally trigger heightened scrutiny, if content-based laws are involved, they will most likely
be struck down. 1 RODNEY A. SMOLLA, SMOLLA AND NIMMER ON FREEDOM OF SPEECH 3:1
(2011).
20

21
22
23

Reno v. ACLU, 521 U.S. 844, 885 (1997).

Utah Educ. Assn v. Shurtleff, 565 F.3d 1226, 1229 (10th Cir. 2009).
1 SMOLLA, supra note 20, 3:3.

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message, then the regulation is content-based and unconstitutional.24

In contrast, content-neutral regulation involves restrictions that may
burden First Amendment expression but do not focus on the content of the
message itself.25 The distinction between content-based and content-neutral
regulation ultimately hinges on an inquiry into the justifications advanced
for the law.26
Viewpoint discrimination is a subset of content discrimination, in
which the government targets particular views, not just a particular subject
matter.27 Correspondingly, the state may not suppress speech where the
rationale for the restriction is disagreement with the underlying ideology
or perspective that the speech conveys.28 Viewpoint discrimination need
not be express; it is inferred where the government rejects something
because of a certain characteristic, while other things possessing the same
characteristic are accepted.29 This type of restriction leads to the implication
that what the government is really doing is shield[ing] an impermissible
motive.30
Today the Free Speech Clause is afforded a broad interpretation, 31 but
it is not without limits.32 For example, it does not embrace certain
categories of speech, including defamation, incitement, obscenity, and
pornography produced with real children.33 In the second half of the
twentieth century, the government increased its efforts to regulate speech
based on its content, prompting the Supreme Court to develop remedial

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

1 SMOLLA, supra note 20, 3:9.

See Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 87-88 (1st Cir. 2004) (holding that
statements by government officials on the reasons for an action can indicate an improper
motive, despite seemingly neutral justifications).
29 Id. at 87.
30 1 SMOLLA, supra note 20, 3:9 (quoting Ridley, 390 F.3d at 87).
31 See Anthony Lewis, Foreword: As All Life Is an Experiment, in THE BOUNDARIES OF
FREEDOM OF EXPRESSION & ORDER IN AMERICAN DEMOCRACY xix (Thomas R. Hensley ed.,
2001).
28

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

Ashcroft v. Free Speech Coal., 535 U.S. 234, 245-46 (2002).

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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.

The Government-Speech Doctrine

One such development is the government-speech doctrine, which

exempts the government from the confines of First Amendment
restrictions.36 A government entity has the right to select the views it
wishes to express37 because when the government speaks, eventually it will
be held accountable to the electorate and the political process for its
advocacy.38 The general rule is that [w]hen the government regulates
activities in the private sector, the First Amendment applies in full force.39
However, the [g]overnment can, without violating the Constitution,
selectively fund a program to encourage certain activities it believes to be
in the public interest, without at the same time funding an alternative
program which seeks to deal with the problem in another way.40 For
example, when the government appropriates . . . funds to promote a
particular policy of its own it is entitled to say what it wishes.41 The
government-speech doctrine has also been acknowledged in the public
school setting concerning matters of curriculum.42 When the governmentspeech doctrine is employed, the government may make content-based
decisions and support or oppose various viewpoints. 43 However, this does
34 ARTHUR D. HELLMAN ET AL., FIRST AMENDMENT LAW: FREEDOM OF EXPRESSION AND
FREEDOM OF RELIGION 381 (2d ed. 2010).
35 Randolph P. Bezanson & William G. Buss, The Many Faces of Government Speech, 86 IOWA
L. REV. 1377, 1381 (2001). Recent First Amendment claims have included the right to receive
information, the right not to speak, the right of corporations and organizations to speak, and
the right to speak (or not to speak) arising out of a message attributed to an individual or
group. Id.
36

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

Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541 (2001).

HELLMAN ET AL., supra note 34, at 777.
40 Rust, 500 U.S. at 193.
41 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995); see Rust, 500
U.S. at 193; HELLMAN ET AL., supra note 34, at 800.
42 See Rosenberger, 515 U.S. at 833; Chiras v. Miller, 432 F.3d 606, 614-15 (5th Cir. 2005)
(noting that when selecting textbooks for the curriculum, the state is speaking, not the author);
see also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (finding students freespeech claim exempt from First Amendment scrutiny because the claim was covered by the
curriculum, which the school has the right to prescribe).
39

43

See Rust, 500 U.S. at 193-94 (noting that the government has the authority to select and

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not necessarily mean that government speech is without any restraints. 44

3.

The First Amendment in Public Schools

Generally, federal courts may not intervene in the resolution of

conflicts regarding the daily operation of school systems because public
education in our Nation is committed to the control of state and local
authorities.45 Therefore, state and local school boards generally have
broad discretion in the management of school affairs. 46 Central among
these discretionary powers is the authority to establish public school
curricula which accomplishes the states educational objectives.47
Decisions concerning curriculum are a form of government speech that is
generally immune from First Amendment scrutiny.48
Nevertheless, not every aspect of public school is curricular and subject
to this general rule.49 Thus, when First Amendment rights are implicated in
the extracurricular domain of public schools, federal courts must prohibit
or reverse actions by state or local officials.50 For instance, the Supreme
Court has held that the action of the local authorities in compelling the
flag salute and pledge transcends constitutional limitations on the
governments power and violates the First Amendment. 51 In another case,
the Court enforced the First Amendment when a public school refused to
teach evolution, because a state may not tailor education principles to any
religious sect or dogma.52 The Supreme Court has also decided that the
First Amendment protects students from teacher infringement on their
right to free and unrestricted expression.53 Building upon these

fund partial speech).

44 E.g., Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 460-61 (2009) (For example,
government speech must comport with the Establishment Clause.).
45 Epperson v. Arkansas, 393 U.S. 97, 104 (1968); Chiras, 432 F.3d at 611 (No single
tradition in public education is more deeply rooted than local control over the operation of
schools . . . . (quoting Milliken v. Bradley, 418 U.S. 717, 741 (1974))).
46 Campbell v. Saint Tammany Parish Sch. Bd., 64 F.3d 184, 187-88 (5th Cir. 1995)
(cautioning that school boards must balance their traditional broad discretion with the
recognition that students do not shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate. (quoting Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503, 506 (1969))).
47 Chiras, 432 F.3d at 611 (citations omitted).
48 Griswold I, 625 F. Supp. 2d 49, 54 (D. Mass. 2009).
49 See KATHLEEN M. SULLIVAN & GERALD GUNTHER, FIRST AMENDMENT LAW 296 (3d ed.
2007).
50
51
52
53

See, e.g., Epperson, 393 U.S. at 106-07.

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
Epperson, 393 U.S. at 106-07.
Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966) (holding that students enjoy free

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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

Id. at 856, 858-59.

Id. at 860.
See id. at 860-61.
Pico, 457 U.S. at 872.
Id. at 871-72 (quoting W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).
See id. (citation omitted).
Id. at 869.

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school districts duty to inculcate community values.64

Justice Blackmun concurred with the plurality, arguing that precedent
requires that the government must have sufficiently compelling reasons to
suppress exposure to ideas.65 If educators intentionally . . . eliminate all
diversity of thought, the school will strangle the free mind at its source
and teach youth to discount important principles of our government as
mere platitudes66 while allowing state-operated schools to become
enclaves of totalitarianism.67 Ultimately, Justice Blackmun conceded and
accepted the standard laid down by the plurality.68
II. Griswold v. Driscoll
A. Setting the Stage
Chapter 276 of the Acts and Resolves of 1998 required the
Massachusetts State Board of Elementary and Secondary Education
(Board) to formulate recommendations on curricular material on
genocide and human rights issues in order to provide guidelines for
teachers in the school system.69 The statute suggested several potential
topics, including the Armenian [G]enocide.70 The statute also required
the Board to consult with practicing teachers, educational executives, and
experts knowledgeable in genocide and human rights issues. 71 The Boards
recommendations were to be available to all school districts on an advisory
basis.72
In compliance with the statute, the Commissioner of Elementary and
Secondary Education of Massachusetts, David Driscoll, circulated a draft of
the Massachusetts Guide to Choosing and Using Curricular Materials on
Genocide and Human Rights Issues73 (Guide) to Board members.74 Driscoll

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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included the Armenian Genocide background information in the draft,

which stated that the Muslim Turkish Ottoman Empire destroyed large
portions of its Christian Armenian minority population in the latenineteenth and early-twentieth centuries.75
In response to this draft, a local Turkish cultural group asked Driscoll
and the Board to revise the Guide to include a more objective study of
history.76 Consequently, several changes were made to the Guide,
including the deletion of background material and the addition of
resources arguing the contra-genocide perspective.77 This draft was voted
on and accepted by the Board on January 26, 1999.78
Subsequently, the Board revised the Guide again, after receiving a
strong reaction from the Armenian community who took issue with the
contra-genocide material79 and in response to pressure from government
officials requesting reintroduction of the Armenian Genocide references.80
A modified version of the Guide included only one reference to the Turkish
point of viewthe website of the Turkish Embassy.81 After this revision,
the Board took the position that their authority under the statute simply
required them to address the Armenian Genocide, not to debate the details
of a historical event.82 The current version of the Guide includes the
Armenian Genocide as a history and social science frameworks topic.83

74

Griswold II, 616 F.3d at 54.

GUIDE I, supra note 73, at 39; Griswold II, 616 F.3d at 54.
76 See Letter from Erkut Gml, President, The Turkish Am. Cultural Socy of New Eng.,
Inc., to David Driscoll, Interim Commr, Mass. Dept of Educ. (Jan. 19, 1999) (expressing
concern that presenting only one side of the Turkish-Armenian controversy would do an
injustice to all students and discourage critical thinking about the subject).
77 Griswold II, 616 F.3d at 55.
78 Id.
79 Griswold I, 625 F. Supp. 2d 49, 53 (D. Mass. 2009).
80 See Letter from Steven A. Tolman, Senator, Commonwealth of Mass., to Dr. John Silber,
Chairman, Mass. Bd. of Educ. (Feb. 5, 1999) (requesting reintroduction of appendices
pertaining to the Armenian Genocide).
75

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

Complaint, supra note 7, at 21.

Defendants Reply Memorandum of Law in Support of Their Motion to Dismiss,
Griswold I, 625 F. Supp. 2d 49 (D. Mass. 2009) (No. 05 CA 12147 MLW), 2006 WL 1033086.
85

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

Griswold I, 625 F. Supp. 2d at 59.

See id. at 61, 63-64. The district court also found that Pico was a product of a forum
analysis, which the First Circuit did not address. See Griswold II, 616 F.3d at 53.
89 Griswold I, 625 F. Supp. 2d at 59.
90 Id. The district court also opined that Griswold and the other plaintiffs failed to assert
they had been denied access in school to the contra-genocide websites that were removed
from the Guide, reasoning that students do not have a right to receive information. Id. at 60.
The First Circuit did not question the right to receive information. See Griswold II, 616 F.3d at
59.
88

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The First Circuit decision, written by Justice Souter, affirmed the

district court but the reasoning was slightly different.91 First, Justice Souter
distinguished between Pico and the present matter based upon an
administrative nuance in the fact patterns of the cases.92 Justice Souter also
distinguished Pico from the present matter on the grounds that the Guide
constitutes curriculum, while the subject books in Pico were extracurricular
in nature.93
Secondly, Justice Souter focused on Picos express reservation of
curricular autonomy, free from review by a court for viewpoint
discrimination.94 He opined that this is supported by the governmentspeech doctrine, the general rule of deference to state and local school
boards in operation of public schools, and the public schools role in the
preparation of individuals for participation as citizens in society. 95

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

See Griswold II, 616 F.3d at 58.

Id.
95 Id. at 58-59.
96 Cf. Marks v. United States, 430 U.S. 188, 193-94 (1977) (opining that when judges assent
to a plurality position, this constitutes the holding of the Court and provides the governing
standards for future case law). In Pico, four Justices dissented from the pluralitys decision.
457 U.S. at 854-55.
94

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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concurred in the judgments on the narrowest grounds.98 In Pico, Justice

White, concurring on the narrowest grounds, 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,99 implying that depending
on the facts, removal of library materials may violate the First
Amendment.100 Justice White did not reject the pluralitys decision that the
First Amendment limits school officials discretion to remove books from a
school library absent reasons relating to educational suitability. 101
While the Supreme Court has had three decades to renounce Pico, it
has instead solidified and reaffirmed the pluralitys decision, rendering it
applicable law today.102 In the absence of an express divergence by the
Court, lower courts have relied on Picos plurality; thus, construing Picos
implications as meaningless would upset the judicial process. 103 Indeed,
every other circuit court in the country has recognized the Pico test and
either applied it or distinguished it based on the facts of the case. 104 Even in

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

Pico, 457 U.S. at 883 (White, J., concurring in the judgment).

See Brief for the American Civil Liberties Union of Massachusetts as Amicus Curiae
Supporting Plaintiffs-Appellants and for Reversal at 10-11, Griswold II, 616 F.3d 53 (1st Cir.
2010) (No. 09-2002).
100

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

Pico, 457 U.S. at 868-71.

Richard J. Peltz, Pieces of Pico: Saving Intellectual Freedom in the Public School Library, 2005
BYU EDUC. & L.J., no. 2, 2005, at 103, 136.
109 See Right to Read Def. Comm. v. Sch. Comm. of Chelsea, 454 F. Supp. 703, 714 (D. Mass.
1978) (holding a school committee does not have absolute discretion to remove books from a
108

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Guide should be viewed as a virtual school library, and is extracurricular

in nature, it is subject to First Amendment scrutiny and the governmentspeech doctrine does not apply.110
A school library is a place where teachers and students freely
inquire . . . study . . . [and] evaluate, to gain new maturity and
understanding.111 One of the essential purposes of the school library is to
develop scholarship because new discoveries can be made in every field of
education.112 This is particularly true in the social sciences where very few
principles are accepted as absolutes, thus critical thinking about these
topics should be encouraged.113 Critical thinking, however, cannot
successfully develop or thrive in an atmosphere where students are
apprehensive or distrustful.114 As a result, students learn to rely on the
school library as a place to test or expand upon ideas presented to [them]
in or out of the classroom.115 It is this voluntary opportunity at selfeducation and optional individual enrichment that is the defining
characteristic of a school library. 116 This precept is consistent with the broad
educational mission of public schools but not necessarily with the
compulsory nature of curriculum-based learning.117
In contrast, curriculum is defined by its obligatory, regulatory
nature.118 For instance, a school newspaper publication is classifiable as
part of the school curriculum if it is a product of the homework assigned as
school library).
110 See id.
111 See Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957); Silano v. Sag Harbor Union
Free Sch. Dist. Bd. of Educ., 42 F.3d 719, 723 (2d Cir. 1994) (recognizing that school libraries
are places where students voluntarily may inquire at their leisure); Minarcini v. Strongsville
City Sch. Dist., 541 F.2d 577, 581 (6th Cir. 1976) (noting that a library is a storehouse of
knowledge created for the benefit of the students).
112 See Sweezy, 354 U.S. at 250 (stating if teachers and students cannot freely develop
scholarship and ideas our civilization will stagnate and die); Right to Read, 454 F. Supp. at
715.
113 Sweezy, 354 U.S. at 250.
114 Id.
115 Right to Read, 454 F. Supp. at 715 (holding that a school does not have an absolute right
to remove books from a school library because it is a mighty resource in the marketplace of
ideas (quoting Minarcini, 541 F.2d at 582)).
116 See Bd. of Educ. v. Pico, 457 U.S. 853, 868-69 (1982); see also Sweezy, 354 U.S. at 250; Peltz,
supra note 108, at 136.
117 Pico, 457 U.S. at 869.
118 See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 269 (1988) (holding that a school
newspaper that was a part of the curriculum was not protected under the First Amendment);
Silano v. Sag Harbor Union Free Sch. Dist. Bd. of Educ., 42 F.3d 719, 723 (2d Cir. 1994)
(recognizing curriculum consists of required material for students, whereas library resources
are available for voluntary and leisurely viewing).

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part of regular classroom activity. 119 Regular classroom activity is activity

that is under a teachers control.120 Further, activities may fairly be
characterized as part of the school curriculum so long as they are
supervised by faculty members and designed to impart particular
knowledge or skill to student participants. 121 However, not every aspect of
school is curricular.122
While the functions of a library and educational curriculum overlap, 123
as Pico and other cases have recognized, the library must be preserved,
consistent with the intentions that animated its founding.124 It is a place
for extracurricular learning based upon the principle of voluntary
inquiry and self-education.125 The principle and theory behind the
importance of the school library is not premised on the librarys form, but
rather its function.126
Here, the fact that the Guide was not bound in a hard cover and placed
on a shelf in the school library is not conclusive of its classification. 127
Functionally, the Guide is equivalent to a book in a school library because
the Board posted it on the Massachusetts Board of Educations website,
making it available for student viewing.128 Designed as a resource, it was
available for further exploration into matters not fully covered in textbooks
or regular classroom curriculum.129
Aside from its availability, the purpose of the Guide was not to
provide mandatory material required to be covered in the classroom;

119

See Hazelwood, 484 U.S. at 269.

Id. at 261.
121 See id. at 270.
122 SULLIVAN & GUNTHER, supra note 49, at 296.
123 See Hazelwood, 484 U.S. at 268-70 (holding curricular activities need not occur in the
traditional classroom setting to qualify as curricular if the activity was a regular classroom
activity and under the teachers control); Peltz, supra note 108, at 107 (explaining that the
school library could serve as a curricular adjunct for students).
124 Peltz, supra note 108, at 107; see Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577,
581 (6th Cir. 1976) (noting a school library is a privilege for students and must not be subject
to those who wish to winnow the library for books the content of which occasioned their
displeasure or disapproval).
125 Peltz, supra note 108, at 107.
126 See Bd. of Educ. v. Pico, 457 U.S. 863, 869 (1982).
127 See infra notes 128-129 and accompanying text.
128 See Griswold II, 616 F.3d 53, 59 (1st Cir. 2010).
129 E-mail from Susan Wheltle, Instruction and Curriculum Servs., Mass. Dept of Educ., to
Erkut Gml, President, The Turkish Am. Cultural Socy of New Eng., Inc. (Feb. 19, 1999)
(noting that the contra-genocide perspective will be included so high school students will
have access to the many bibliographies and other resources on history and current events they
offer).
120

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instead, it consisted of recommendations for teachers and students for

further study and inquiry. 130 Like a library, the Guide permitted students
to roam without restriction, outside the hours of structured classes, to
explore, investigate, and discover material not covered in the
curriculum.131 To be sure, the Board designed the Guide not to impart
particular knowledge, but instead to promote individual investigation into
important and challenging topics.132 Therefore, the extra material was
available to students as optional enrichment, to be used in conjunction with
or as a supplement to curricular materials. 133 Since the Guide was more like
a virtual school library, rather than part of the curriculum, the governmentspeech doctrine is not applicable.134
V. The Board Engaged in Unconstitutional Viewpoint Discrimination.
Driscoll and the government officials involved in creating the Guide
engaged in viewpoint discrimination prohibited by the First
Amendment.135 The district court opinion concedes that the contragenocide references were removed in response to political pressure that
the Armenian community put on elected and appointed officials.136
Political pressure from constituents was the catalyst for the deletion of the
contra-genocide materials; a state senator and the governoralarmed
about the security of their political officesrequested Driscoll to change
the Guide.137
In 2000, Armenian-Americans outnumbered Turkish-Americans by a
six-to-one ratio in Massachusetts.138 Further, the Armenian National
Committee for Eastern Massachusetts endorses candidates for elected
office, while no Turkish-American organization endorses candidates for
political office in Massachusetts. 139 Thus, government officials censored the
130

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

Griswold I, 625 F. Supp. 2d 49, 54 (D. Mass. 2009).

See id. at 56.
138 Brief of Amicus Curiae Turkish American Legal Defense Fund at 7, Griswold II, 616 F.3d
53 (1st Cir. 2010) (No. 09-2002).
139 See id. at 9; Armenian Natl Comm. of Mass., Massachusetts Governor Candidate Scores
100% on ANC Questionnaire, ARMENIAN NATL COMMITTEE OF AM. (Oct. 24, 2006), http://
137

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contra-genocide material because, from their perspective, an angry

electorate endangered the security of their political office.140 The
presumption that viewpoint discrimination is per se unconstitutional
requires the government to refrain from this sort of censorship.141
Suppression of this kind threatens the continued vitality of free speech and
is prohibited by the First Amendment.142
Just as viewpoint discrimination prohibited removal of library books in
Pico, viewpoint discrimination prohibits removal of the contra-genocide
materials in Griswold.143 Since the school officials did not base their
decisions to amend the Guide (extracurricular material) upon educational
suitability, but instead upon political motivations, the officials should have
been prohibited from editing the Guide to exclude the contra-genocide
references.144 Thus, the Boards removal of the contra-genocide materials
crossed the line established in Pico.145 Removal of this perspective from the
Guide based on politicians power, rather than on educational merit,
violates the fundamental tenets of First Amendment jurisprudence.146
VI. It Is the Judiciarys Duty to Protect Griswolds First Amendment
Rights.
It is well settled that when a law conflicts with the Constitution it is the
judiciarys duty to interpret the Constitution, rectify the conflict, and
pronounce what that law is.147 While it is true that states and local school
boards are generally afforded discretion in operating public schools,
federal courts must intervene in the resolution of conflicts that sharply

anca.org/press_releases/press_releases.php?prid=1005 (discussing an Armenian National

Committee of Massachusetts Candidate Questionnaire used to rate those in political office by
their propensity to favor or disfavor Armenian-American issues).
140 Cf. Ridley v. Mass. Bay Trans. Auth., 390 F.3d 65, 87 (1st Cir. 2004) (noting that when it
comes to viewpoint discrimination improper motives may be inferred from the
circumstances).
141

16A AM. JUR. 2D Constitutional Law 476 (2d ed. 2009).

Id. The government violates the First Amendment when it regulates speech based on a
speakers particular belief. Id.
142

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

See Yudof, supra note 143, at 541.

See Amato v. Wilentz, 753 F. Supp. 543, 553-54 (D.N.J. 1990) (Viewpoint refers to ones
opinion, judgment or position on that topic.).
147 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78 (1803) (It is emphatically the
province and duty of the judicial department to say what the law is.).
146

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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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discussion would be futile and the greatest menace to freedom is an inert

people,159 a government that censors viewpoint removes a safety valve for
dissent from the people.160 Thus, the First Circuits decision is precarious
because
it is hazardous to discourage thought, hope and imagination . . .
fear breeds repression . . .repression breeds hate . . . hate menaces
stable government [and] the path of safety lies in the opportunity
to discuss freely supposed grievances and proposed remedies;
and that the fitting remedy for evil counsels is good ones. 161

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,

supra note 31, at xxiii.

407