George Mason University Antonin Scalia Law School

Student Testimonial

I first became involved with the Liberty & Law Center by participating in the Liberty & Law Reading Group as a 1L. I decided to participate in the reading group for several reasons. One reason is that I wanted to engage in more critical evaluation of a text than is typical in 1L courses. Another reason is that I wanted to become more familiar with ideas behind the interaction of liberty and law. Participating in the reading group fulfilled both of these desires. One of the participating professors started every semester by saying that the reading group is not meant to be Bible study for libertarians; it is meant to be a place to engage critically with texts about liberty and law. Sessions usually involved participants collectively trying to make sense of passages that were particularly opaque or that contrasted with typical understandings of the law. By participating in the reading group, I was exposed to works by Friedrich Hayek, Randy Barnett, and Richard Epstein. All of these authors challenge the typical modern legal paradigm, often in ways I had not previously considered. Even though I do not fully agree with every author, I benefited from exposure to their arguments. The readings expanded my thinking and, hopefully, made me less likely to fall into a trap of lazy, clichéd thinking.

I also participated in the Liberty & Law Center’s Discussion Over Division program. That program involves discussions about controversial political issues, either through one-on-one discussions in which participants can choose their own topics or through roundtable discussions with dedicated topics. I really enjoyed these discussions and looked forward to them every year. Part of my enthusiasm comes from a simple enjoyment of politics and policy, but another part stems from the program providing an outlet to discuss positions freely. Although many legal issues discussed in class often have political overtones, discussion is still in the context of a law class. One’s positions, for the most part, need backing from a statute or court decision. In the Discussion Over Division program, we had more freedom to bring in philosophical, economic, or even just personal reasons for a position. Besides the enjoyment I got from participating in the program, I think it was also useful preparation for a future career as a lawyer. Although the discussions were mostly non-legal and were not truly adversarial, I still had to explain my position to someone who was not inclined to agree. As someone who wants to work in public interest law, and therefore might have to communicate with non-jurists such as the media and the public at large, I am glad I got at least a little experience explaining my positions without needing to cite to case law.

In my final year of law school, I had the privilege of participating in the Free Speech Clinic. The clinic counts towards the Public Interest Litigation and Advocacy Concentration, which I pursued. The clinic provided me with hands-on experience in an area I would like to work one day. I got experience researching potential free speech cases and drafting complaints. Through the clinic, I was able to apply in a very real way principles I had discussed a bit more abstractly in other classes. That is only half the benefit of being in the clinic, though. The first half of class was usually devoted to covering a topic with a guest speaker. Guest speakers included practicing attorneys and people who participated directly in famous cases we read. I feel much more confident in pursuing a public interest career because of my participation in the clinic.

Brennan VanderVeen, Public Interest Litigation Program Alumnus and Student Participant

This Week in 1969: Street v. New York

By Madison Breshears, 1L Research Assistant

On a summer afternoon in 1966, Sidney Street was listening to the radio in his Brooklyn apartment when he heard James Meredith had been shot.[1] The well-known civil rights leader had been hit by a sniper’s bullet in Mississippi during his lone march through the South. Street recalled saying the words “they didn’t protect him” to himself as he approached his bureau. Street, an African American World War II veteran and bronze star recipient, removed his neatly folded 48-star American flag from its drawer and carried it down to a nearby intersection. He laid a piece of paper on the sidewalk before placing the still-folded flag down and igniting it with a match.[2]

When police arrived on the scene, a small group had gathered around Street and his smoldering flag. When asked whether it belonged to him, Street responded, “Yes; that is my flag; I burned it. If they let that happen to Meredith, we don’t need an American flag.”[3] Street was subsequently charged with violating a New York statute making it a misdemeanor to publicly mutilate, deface, defile, defy, trample upon, or cast contempt upon an American flag either by words or acts.[4]

Flag burning became a subject of popular and legal controversy in the 1960s. Following numerous flag burnings in protest of the Vietnam War, Congress enacted the Flag Protection Act of 1968, the first flag protection act of general applicability.[5] During the 20-year life of the Act, the Supreme Court confronted the flag burning issue only three times—one of which was the case of Mr. Street.[6] After numerous appeals, all of which upheld his conviction, [7] the Supreme Court granted certiorari, and the argument was heard on October 21, 1968.[8]

Street v. New York is often forgotten among the flag burning cases heard by the Supreme Court. This is likely because the Court declined to consider the constitutionality of flag burning in its opinion. Nevertheless, the Court ruled in Street’s favor, finding that the statute’s speech restrictions violated the First Amendment.[9] The Court reasoned that Street’s conviction may have rested on his words, “we don’t need an American flag,” or his act, setting fire to the flag on the street, or some combination of the two. Because the New York statute prohibited both, the majority found that it was impossible to determine which, the words or the act, were the basis for the conviction.[10] Since the speech-based theory of criminal liability violated Street’s First Amendment rights, the judgment was reversed.[11]

Chief Justice Warren’s dissent in Street harshly criticized the majority.[12] Warren believed that the primary constitutional question of the case was unambiguously flag burning, and he insisted that the majority had skirted its responsibility in failing to rule on the issue.[13] Notwithstanding Warren’s objections, for the next two decades, the Court would continue to pursue a strategy of obfuscation when confronted with flag desecration statutes. In 1975, for instance, the Court held in Spence v. Washington that the placement of a peace sign on the flag was an independent expression protected by the First Amendment, but once again failed to decide on the constitutionality of the flag desecration statute the case had implicated.[14]

The Court did not answer the flag burning question directly until 1989 when it delivered its opinion in Texas v. Johnson. In Johnson, the Court held that flag burning constitutes symbolic speech and therefore is protected by the First Amendment.[15] Analyzing the communicative nature of the act, the Court concluded that the First Amendment protected flag burning and other conduct that was intended to convey a particular message.[16] The Court also held that state interests in preserving the integrity of national symbols and preventing breaches of the peace were not sufficiently compelling to overcome the competing interest in free expression.[17]

Thereafter, Congress quickly passed the Flag Protection Act of 1989 to mitigate the impact of Johnson’s precedent. The Act attempted to shift the focus of the statute to protect the broad physical integrity of the flag rather than proscribe its intent-driven desecration.[18] Congress’s effort, however, was rendered null when the Court struck it down in 1990 in its ruling in United States v. Eichman.[19] Eichman held that national interest in maintaining respect for the flag was not sufficient to outweigh the restriction upon free expression implicit in the statute.[20]

Flag burning has remained a hotly debated issue despite the Court’s conclusive decision in Eichman. The notion of amending the Constitution to prohibit flag burning has long been popular among Americans; surveys have suggested that as many as 56% of Americans support the idea.[21] This public support may help explain the many historic attempts by Congress to pass such amendments, though, as of yet, none have succeeded.[22] Critics of the current state of the law point out that a strict, textualist interpretation of the First Amendment protects “speech” and “press” but distinctly lacks protection for “expression.”[23] Richard Posner insists “nothing in the text of the Constitution, or in the eighteenth-century understanding of freedom of speech, supports the proposition that prohibiting the burning of the flag infringes free speech.”[24]

On the other hand, originalists note the sixteenth and seventeenth-century conflation of symbolic and verbal expression with regard to laws like libel, obscenity, and blasphemy.[25] Proponents of protections for flag burning suggest that the meaning of “speech and press” at the founding connoted a broad and well-understood reference to expression.[26] Supporters of this view further point to the abundance of symbolic political demonstrations during the founding era—colonists protested the Stamp Act, for example, by adorning a “liberty tree” with effigies of demons and politicians, including the British Prime Minister, which were later paraded around town, beheaded, and set on fire.[27] Surely, they reason, a culture which so frequently employed such tactics for political and social purposes would have viewed symbolic expression as entitled to as much, if not more protection as they did speech and press.[28]

Flag burning is a particularly confounding enclave of First Amendment philosophy, even for those who might consider themselves free-speech absolutists. For many, flag burning flies in the face of deeply held sentiments of national unity, respect for military service, and constitutional values currently interpreted to protect its practice. Street v. New York demonstrates how far First Amendment protection has come since 1969, despite seemingly little consensus being reached regarding its interpretation.


[1] Street v. New York, 394 U.S. 576, 578 (1969).

[2] Id.

[3] Id. at 579.

[4] Id.

[5] John R. Luckey, Flag Protection: A Brief History and Summary of Recent Supreme Court Decisions and Proposed Constitutional Amendments, C.R.S., 1 (2009).

[6] Id.

[7] 394 U.S. at 579.

[8] Id.

[9] Id. at 578-79.

[10] Id. at 590.

[11] Id.

[12] 595 (Warren, J., dissenting).

[13] Id.

[14] Luckey at 1.

[15] Texas v. Johnson, 491 U.S. 397 (1989).

[16] Id. at 404.

[17] Id. at 410.

[18] Luckey at 2.

[19] 496 U.S. 310 (1990).

[20] Id. at 318.

[21] Public Support for Constitutional Amendments on Flag Burning, Gallup (2006).

[22] Luckey at 3.

[23] Eugene Volokh, Symbolic Expression and the Original Meaning of the First Amendment, 97 Geo. L.J. 1057, 1057 (2009).

[24] Id. at 1058.

[25] Id. at 1059.

[26] Id.

[27] Id. at 1060.

[28] Id.

This Week in 1919: Frohwerk v. United States

By Madison Breshears

The politics of wartime have never been conducive to the protection of individual liberties. Still, conflict provides an illuminating stress-test for the condition of a nation’s commitment to its self-proclaimed values—excavating and laying bare critical questions about the democratic conscience that may have otherwise remained unexamined.

It was not until the unprecedented hostilities of the First World War that the United States contended explicitly with the theoretical frontiers of its First Amendment.[1] Several freedom of speech cases were heard by the Supreme Court in its wake, among them, Frohwerk v. United States,[2] decided this week in 1919.

Petitioner Jacob Frohwerk was indicted under the Espionage Act of 1917 for drafting twelve articles that were published in the German-language publication, the Missouri Staats Zeitung, in which he criticized American motivations for entering World War I and venerated the German state. In one of the articles, Frohwerk was said to have drawn “a picture, made as moving as the writer was able to make it, of the sufferings of a drafted man, of his then recognizing that this country is not in danger and that he is being sent to a foreign land to fight in a cause that neither he or anyone else knows anything of, and reaching the conviction that this is but a war to protect some rich men’s money.”[3] For this and several other articles in a similar vein, he was indicted on thirteen counts for attempts to cause “disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States.”[4]

The Court declared that there was no specific intent requirement for the crime of treason and conspiracy—indeed there was no indication that Frohwerk had intended to distribute the paper among draftees or military personnel, and no showing that a bona fide insurrection or conspiracy was ever initiated or planned.[5] Nevertheless, the Court affirmed his conviction under the Espionage Act and denied that the conviction violated freedom of speech, expression, or the press.[6] Justice Oliver Wendell Holmes, in the unanimous opinion of the Court, wrote “…the First Amendment, while prohibiting legislation against free speech as such, cannot have been, and obviously was not, intended to give immunity for every possible use of language.”[7]

Americans who learn of it today often meet the outcome of this case with surprise, or even outrage. The contemporary conception of the American ethos is inextricable from a sweeping and robust view of our rights to free speech and expression, especially in political matters like the one dealt with in Frohwerk. To reconcile the case, it is useful to know that popular perception of democracy changed between the two world wars—after World War II it was common to insist that free expression was a prerequisite for democracy.[8] But from the founding until the 1920s, American democracy was widely perceived as republican rather than pluralist. In this republican democratic system, individual liberty remained a cornerstone, but such liberties were necessarily subordinate to the common good when community interests were implicated.[9] While free expression was entitled to protection, courts frequently engaged in balancing tests against broadly construed societal interests, developing a ”bad tendency” litmus, which standardized the practice of penalizing speech that was perceived to have harmful consequences.[10] And, aided by a theory of constructive intent, courts further lowered the barriers to conviction by bypassing mens rea inquiries, finding presumptive intent where such negative outcomes were “natural and probable consequences” of the defendant’s speech.[11]

Such a seemingly subjective and flimsy test may strike laymen and free speech purists alike as an obvious invitation for abuse. But following the country’s formal entry into the war in 1917, then-president Wilson promptly sought to wield state power to suppress opposition—explaining, in a statement that would shock our modern sensibilities, “censorship…is absolutely necessary to the public safety.”[12] A year after the Espionage Act was first passed, Congress effortlessly amended it to widen its scope.[13] The Sedition Act, as it would come to be called, criminalized “disloyal, profane, scurrilous, or abusive” statements directed at the government, Constitution, flag, or armed forces, or which in any way interfered with the collection of war bonds.[14] Over 2,000 prosecutions were initiated by the Department of Justice under the Espionage and Sedition Act, and convictions were secured in over half. Penalties could be as severe as a twenty-year prison sentence.[15] The Sedition Act was repealed by Congress in 1920, having never been ruled unconstitutional by any court. Frohwerk was convicted under the provisions of the Espionage Act alone—the decision has never been overturned.[16]

The decision in Frohwerk v. U.S. is emblematic of a unique moment in our nation’s history, one in which a relatively new democratic republic was subjected to a stringent test of its then-experimental principles of law and justice. The decision provides stark contrast and useful perspective on how dramatically our legal priorities with respect to freedom of expression have shifted. The case should also compel those who value a broad interpretation of First Amendment rights to reflect on the gap that remains between who we think we are, and who our legal history suggests we might be.

[1] Stephen M. Feldman, Free Speech, World War I, and Republican Democracy: The Internal and External Holmes, 6 First Amend. L. Rev. 192 (2008).

[2] Frohwerk v. US, 249 U.S. 204 (1919).

[3] Id. at 207.

[4] Id. at 205.

[5] Id. at 209.

[6] Id. at 210.

[7] Id. at 206.

[8] Feldman, 195.

[9] Feldman, 196.

[10]  Id.

[11] Id. at 197.

[12] Id. at 201.

[13] Id.

[14] Sedition Act of 1917, Pub. L. No. 65-150, 40 Stat. 553 (1918) (repealed 1920).

[15] Feldman, 202.

[16] Frohwerk, 249 U.S. 204, 210 (1919).

Anniversary of Tinker v. Des Moines Independent Community School District

Anniversary of Tinker v. Des Moines Independent Community School District

By Madison Breshears

On this day in 1969, the Supreme Courtheld for the student petitioners in Tinker v. Des Moines Independent Community School District by a 7-2 majority. The opinion, delivered by Justice Fortas, remains among the most emphatic affirmations of students’ First Amendment rights.

“It can hardly be argued,” the Court famously wrote, “that either students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate.”[1] Evidently, however, such a claim was argued—certainly, by the school administrators in Des Moines, but also by large swaths of Americans who, during the height of the Vietnam War, struggled to adjust to, and often sought actively to suppress, the unprecedented and seemingly unyielding surge of youth activism which characterized their time.

The Kent State Massacre would occur only a year after the Tinker decision, and retrospectively, it makes the Iowa school district’s temporary suspension of Christopher Eckhardt, John Tinker, and Mary Beth Tinker—16, 15, and 13 respectively, for the donning of symbolic antiwar armbands, seem almost trivial. But the decision’s impact was an undeniable watershed, expanding free speech protections to campuses and classrooms, and, perhaps most significantly, guaranteeing the constitutional rights of children in a way that would have been difficult to imagine only years before.

John and Mary Beth Tinker were children of a Methodist minister, notably one who had been removed from his parish for attempting to racially integrate his services,[2] and who was active in the anti-war movement. Christopher Eckhardt’s mother was the president of the Des Moines Chapter of the Women’s International League For Peace and Freedom, and had previously participated in anti-war demonstrations in Washington, D.C.[3] On December 16, 1965, Mary Beth and Christopher wore black armbands to school to express their anti-war beliefs. John Tinker wore his for the same reason the next day. All three were suspended from school for violating the school’s prohibition of armbands, (supposedly, the school had caught wind of the students’ plan and had hastily created the rule to preempt controversy.) The children were informed they could not return to school with an armband and, accordingly, did not return until after New Year’s Day, when the planned period to wear the armbands had ended.[4] The children and their parents then brought suit in federal district court, alleging that the school’s policy stood in violation of the First Amendment. Their case was dismissed, and an appeal to the eighth circuit affirmed the district court decision. The Supreme Court granted certiorari.

In its historic reversal, the Supreme Court set a new, narrow standard for limitations on student speech in public schools. In what would become a famous free speech litmus, the so-called “Tinker Test” required that public schools seeking to quash expression provide reasonable evidence that a student’s speech would create a “substantial disruption”[5] to school activities. If not, the school’s failure to allow such expression would run afoul of the First Amendment. The wearing of black armbands, the Court reasoned, was “pure speech,”[6] entitled to constitutional protections, and created no such substantial disruption.

In what may be its most important contribution to school free speech, the opinion thoroughly condemned the notion that mere, unsubstantiated “fear” or “apprehension” of disruption may qualify as sufficient grounds for a school to ban speech.[7] The Court went on to quite movingly articulate the rights of children in American life:

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school, as well as out of school, are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.[8]

The Tinker decision, however, has not set a trend of ever-expanding student speech rights as activists may have hoped. In reality, Supreme Court cases addressing school speech after Tinker have shown far more deference to schools—see, for example, Hazelwood School District v. Kuhlmeier[9] (1988), which confirmed a public school’s right to prevent certain material from running in its student newspaper,[10] and Bethel School District No. 403 v. Fraser[11] (1986), which held that a school may punish a student for making a lewd speech at an assembly. In 2007, in its most important case involving speech in public schools since Kuhlmeier, the Supreme Court held that a public school did not violate a student’s First Amendment rights when it suspended him for displaying a banner, which read “Bong Hits 4 Jesus,” at a school-sponsored event. The Court reasoned, departing from its standard in Tinker, that a public school may prohibit a student’s speech when it promotes illegal drug use. In his concurring opinion, Justice Thomas went so far as to say that Tinker should be thrown out entirely.[12] Justice Thomas is not alone in questioning Tinker’s legitimacy —further confusing the state of school speech laws, lower courts have only sporadically followed Tinker’s precedent, some behaving as if its narrow approach to speech regulation has been overruled.[13]

Nonetheless, Tinker remains, and it has laid the foundation for the freedom we have come to expect from our public schools. Quoting Justice Brennan’s opinion in Keyishian v. Board of Regents, the Tinker Court held that “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” The classroom, it states, is the epitome of the marketplace of ideas.

[1] Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).
[2] David L. Hudson Jr., Tinker After 50: A Historic Ruling Still Relevant After All These Years, Freedom Forum Institute, Jan 30 2019.
[3] Transcript of Oral Argument at 25, Tinker v. Des Moines Community School District, 393 U.S. (1969) (No. 21).
[4] Tinker, 393 U.S. at 504.
[5] Tinker, at 514.
[6] Tinker, 393 U.S. at 507.
[7] Tinker, at 508.
[8] Tinker, at 511
[9] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).
[10] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 276 (1988).
[11] Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 686 (1986).
[12] Morse v. Frederick, 551 U.S 393, 422 (2007).
[13] Erwin Chemerinsky, Students Do Leave Their Constitutional Rights at the Schoolhouse Gates: What’s Left of Tinker? 48 Drake L.R., 547 (1999).