INTRODUCTION TO THE FILM ................................................................................................. 2
INTRODUCTION TO FREEDOM OF EXPRESSION (about 00:00:01) ..................................... 2
MAJOR TOPICAL SEGMENTS OF THE FILM.......................................................................... 3
I. Ward Churchill: Words of Terror ............................................................................................ 3
II. Debbie Almontaser: A Word that Cannot Be Explained ........................................................ 5
III. Chase Harper’s T-shirt: The Right to Offend? ...................................................................... 6
IV. The Big Chill: Protest in an Age of Terror ........................................................................... 8
ADDITIONAL READING ........................................................................................................... 10
1

INTRODUCTION TO THE FILM
Shouting Fire is a 75-minute documentary covering various events involving the speech component of the
First Amendment to the US Constitution. Many of the incidents are quite topical; they have occurred in the last few years and have attracted some media attention. These include the segments with former
University of Colorado Professor Ward Churchill, former-principal Debbie Almontaser of the Khalil
Gibran School of New York City, and a public high school student in California who sought to challenge restrictions on free speech in public school. Others fall in the realm of very relevant history, of both the
US in general and the Amendment in particular. These include briefer references to the Alien and
Sedition Acts, the McCarthy era, American Nazis seeking to march in Skokie, Illinois, and the famous
Pentagon Papers case. (The historical segments are there to set the stage for modern cases potentially more meaningful to today’s audience.) Of course, the best use of this documentary would be to introduce the topic of free speech generally, show the video, and then have a class dedicated to discussion. Given the video’s length, this might take three or four class periods, depending on a school’s schedule. This guide is designed to narrow down the use of the film to a few segments most relevant to a class’s curriculum or a school’s geographic region, student body or even mission. To that purpose, times are provided next to the segments for ease of DVD use. One envisions using the film in a US History course, a class in legal rights, or an AP or regular Government course.
At the start, it is necessary to note that, as is appropriate and almost unavoidable in a truly meaningful documentary about free speech, there are occasional sections of this film that may offend. Early on, language likely unacceptable in your classroom (though no doubt heard in hallways and outside the school) is employed. There is, for example, a very brief clip of George Carlin’s famous ―Seven Words
You Can Never Say on Television‖ routine, which itself became a major First Amendment court case
( FCC v. Pacifica (1978 )). Racist language and hate speech appear in the introductory section, too, shown to illustrate speech at the edges. Most of this language shows up in the first ten minutes or so of the film.
Later, there are also references to topical events and issues that may bring emotional reactions from the students. The events of 9/11 and the issue of homosexuality are two examples. These are certainly appropriate in most public high school classrooms, but teachers still may want to be prepared. Of course, free expression means little if it does not include topics with which some people feel some discomfort.
As Professor Ward Churchill says in the film, ―If it comes at a price, it isn’t free.‖ What this documentary so movingly brings home to us is that we all pay a price—emotional and other—for individual free speech. As was once said of the dangers of a free press making errors that harm reputations: ―It’s the price we pay for the part that counts.‖
2

INTRODUCTION TO FREEDOM OF EXPRESSION (about 00:00:01)
We, and the film, begin with the touchstone of all free speech analysis:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
-Amendment One to the US Constitution
Potential issues for discussion
Why did the Framers of the Bill of Rights (members of the first US Congress) care so much about free expression? About free assembly? What values are at stake? What would the country look and be like if we removed the Amendment from the Bill of Rights? What is an absolute right? How are the rights listed in the Amendment not said to be ―absolute‖?
Here students should understand that the founding fathers had won their independence and right to selfgovernment through a variety of techniques that included protest gatherings and spoken and written criticism of British rule. Protests and demonstrations against the Stamp Act and other British laws considered burdensome by the colonists were essential to developing a consciousness of the need for freedom from colonial rule Thomas Paine’s Common Sense, published in 1775, is recognized by most historians as having moved public opinion in the direction of independence. Furthermore, expressing political opinions freely is essential to a true representative democracy. Free elections and representative government cannot exist if the people are not entitled to criticize their government, to express opinions about political candidates, and to gather to discuss and express views of their leaders. For example, in
Iran, the result of a recent presidential election is being questioned by the losing candidate and his supporters. The candidate has been told by the government not to encourage his supporters to rally, and peaceful public gatherings and criticism of the elections has been met with force by the state. Imagine if
Al Gore had been prevented from encouraging his supporters to act in some legitimate fashion after the
2000 elections, or if they had been arrested by police for rallying and for speaking their minds. (The last segment of Shouting Fire , covering a march in NYC at the time of the 2004 Republican National
Convention, may be relevant here.)
An absolute right guarantees a certain freedom or privilege regardless of the factual setting or situation.
Though there are few truly absolute rights, some come very close. For example, the right to trial by jury in a criminal proceeding and the right to have an attorney represent you there are very nearly absolute
(though habeas corpus can in extreme situations be suspended by Congress under the Constitution, as it was under the Patriot Act). Of course, ―Congress shall make no law‖ has not been read as an absolute guarantee. As First Amendment attorney Jack Sleeth says in the film: ―But Congress makes lots of laws respecting the freedom of speech, so we’re balancing here.‖ Much speech actually can be lawfully punished by government in this country: false speech that harms reputation (libel); threatening speech
(assault); speech intended to cause criminal activity (solicitation and conspiracy). The cases below offer students an opportunity to do the balancing Sleeth talks about themselves.
2

MAJOR TOPICAL SEGMENTS OF THE FILM
I. Ward Churchill: Words of Terror (at about 00:09:00)
Just before this segment, the film briefly profiles the Army-McCarthy hearings and the period of the hunt for communists in government.
Summary: Tenured Professor Ward Churchill of the University of Colorado, a state institution, made many statements right after 9/11 critical of the US and suggesting that the attacks on the World Trade
Center were neither random nor unprovoked. The most famous of these was his remark that there were
―little Eichmanns‖ working that day at the Towers, thereby analogizing what most people saw as innocent civilians to members of the Nazi machine. As a result of the media flare-up, Churchill was investigated by a University committee and fired for what the university stated were academic violations unrelated to
9/11. These included sloppy research and possible plagiarism. Many students protested the treatment of
Professor Churchill, and he himself filed a law suit for reinstatement.
The following might be helpful topics for discussion after showing the segment.
Potential issues for discussion
Professor Churchill can avail himself of the First Amendment arguments here because he is employed by a state institution. Were he a professor at a private college, he could not use the Constitution. What other arguments would then be available? How is free expression involved in the idea of scholarship, intellectual inquiry and the notion of the academy?
Why should the state and the taxpayers of Colorado have to pay for ideas to be taught if they find them repugnant or silly or not based in fact? There are two competing concepts in First Amendment law. One says that if the government pays the piper, it gets to call the tune. For example, a government employee may be prevented from expressing certain facts or ideas if they run counter to the government’s position.
In spending funds for birth control education, for instance, the federal government has been allowed to dictate the terms of that education, including silencing health care providers from speaking about the availability of abortion. On the other hand, it has been held that when the government creates a public forum, it may not allow or deny access to that forum based on political viewpoint. The National Mall is a famous physical forum where, say, the supporters of racial justice (recall Dr. Martin Luther King in
1963) and those of white supremacy have equal right to present their ideas. And what of less-physical fora? May a government agency like the National Endowment for the Arts base its granting of funds on the political views of the artist? Should the government be entitled to revoke funding when the art funded appears to criticize the administration? (In the nineties, a group of artists known as the NEA Four successfully sued to get grants from the NEA after they were denied based on factors that the courts ruled denied them their First Amendment rights. After this, Congress responded by no longer directly funding individual artists. See National Endowment for the Arts v. Finley.
)
Professor Churchill was ultimately dismissed for what one commentator in the film calls ―academic misconduct.‖ But people familiar with the case suggest that the alleged misconduct would not have been discovered had the university not been pressured to scrutinize Churchill after his inflammatory rhetoric.
Can what would seem to be constitutionally improper scrutiny of an individual be made acceptable by subsequent findings of alleged professional disqualification? (Churchill’s supporters also say that the
3

findings were themselves tainted.) As an analogy, most students know from television shows that if the police violate the Fourth Amendment rights of an individual, the result of that illegal search or seizure— even if that result is clear and convincing evidence of guilt—is generally excluded from evidence in a trial. Should that theory apply here? On the other hand, in a similar setting, the US Supreme Court had upheld what have been called pretextual stops. There, a police officer who pulls over a car for a very common violation of a traffic provision not because of that violation but, admittedly, because the officer had a hunch based on less-wholesome factors (age, race, gender, etc.) that more serious criminal activity may be afoot is not prevented from using evidence of that activity he finds as a result of the initial stop.
Is Professor Churchill’s situation more like acceptable pretext?
Professor Churchill’s comments came at a time of great fear in this country. History shows us that it is in such times that the First Amendment and other individual freedoms often suffer. The Alien and Sedition
Acts were passed during this young nation’s quasi-war with France. The Civil War saw President Lincoln suspend habeas corpus. The WW I era saw the passage of laws severely limiting the right to criticize the war, the start of the Palmer Raids and the first Red Scare in response to a successful communist revolution in Russia . And, of course, The Cold War of the post-WW II era begot loyalty oaths and communist hunts. So 9/11 seems no different. In another context, Judge Posner (shown extensively in the film) wrote a book entitled Not a Suicide Pact: The Constitution in a Time of National Emergency . Thus, he says, when the country is threatened with potential extinction, the government may act in extraordinary ways to save it. When and how can we distinguish between those extreme situations and the more ordinary disagreements that are a part of a diverse, free society? How can we allow the government to act in those ―extraordinary ways‖ and still maintain those parts of the national ideals which are essential to our being?
4

II. Debbie Almontaser: A Word that Cannot Be Explained (about 00:19:30)
Summary: After 15 years of working in the New York City public school system, Debbie Almontaser was asked in 2007 to head the Khalil Gibran International Academy. KGIA was a start-up public school two years in the making conceived with a bi-lingual program in Arabic and English. Once announced, the program and Almontaser gained much attention in certain conservative media outlets as charges were made that the school would have a religious (Islam) and political (―Islamo-fascist,‖ in the words of one conservative critic) agenda. Almontaser herself was caught up in the debate when an interview she gave to the press was used to make her views appear extreme. A t-shirt with the word ―Intifada‖ appeared for sale at an event she was peripherally involved in organizing, which added fuel to the accusations against her. As a result of the frenzy, Almontaser was forced to resign from KGIA. She, too, has filed a suit to get her job back.
The following might be helpful topics for discussion after showing the segment.
Potential topics for discussion
Several issues of free speech are embedded in this segment. One is freedom of the press. Should the New
York Post have the right to express its opinion by publishing pieces like ―City Principal is Revolting‖ in which it seems Ms. Almontaser’s views are not fully and fairly shown? Attorney Martin Garbus says, ―I was called to see whether or not she had a claim for libel, and I went through all the papers and she does not have a claim of libel. So yes, everything they said there is protected.‖ Students will need some help understanding the law of libel here. Although general libel law does not protect false statements of fact
(as falsehoods serve no value in a free society), opinions are different. Separating fact from opinion may be difficult. Furthermore, in the seminal case of New York Times v Sullivan (1964), the US Supreme
Court acknowledged that the publication of factual errors must sometimes be protected in order for the press to do its many jobs in a democracy. Thus, only statements made with ―actual malice,‖ that is, knowing falsity or reckless disregard for truth, are potentially actionable as libel, at least with respect to public officials or public figures. Clearly, Garbus is considering those standards when weighing the Post’s actions. Why do we protect speech that is inaccurate? What would happen if the press was held to an absolute standard of having to be factually correct about every statement at the risk of lawsuit? (Here the
First Amendment notion of the ―chilling effect‖ might come in handy. Speakers may overly self-censor when the risk of punishment for even slight or hard-to-uncover errors is great.)
What about remarks made by conservative commentators like David Horowitz? In this segment, we learn that some people immediately associate the Arabic language with Islam (though most Muslims in the world actually do not speak Arabic) and then the religion of Islam with an extreme political or terrorist movement. ―We know who Debbie Almontaser is,‖ says Horowitz, ―and we know the people behind her…They’re part of the Islamofacist crusade in this country.‖ Given libel law, does the First Amendment protect his speech here? Under what circumstances might Almontaser have a claim of libel against
Horowitz?
Another issue of course is Almontaser’s own speech and her dismissal. Under what circumstances does she have a claim against the City of New York? Was she forced to resign for her own beliefs? For her speech in comments to the press?
5

III. Chase Harper’s T-shirt: The Right to Offend? (about 00:44:00)
The lead-in (about 00:37:30) before this segment is a particularly touching and useful one. It focuses on
WW I pressures on free speech, on a personal aspect of Garbus family history and then extends to a profile of the episode of American Nazis seeking to march in Skokie, a significantly Jewish suburb of
Illinois. The episodes make clear that if free speech means anything, it means protecting even (and especially) those whose opinions we detest. Students could be asked about their ability, were they lawyers, to represent in a First Amendment case someone whose speech they find repellent. Jewish members and supporters of the American Civil Liberties Union (ACLU) faced just this question when they considered representing the Nazis in Skokie.
Summary: In response to a school-wide ―day of silence‖ proclaimed at his public high school to honor the rights of homosexuals, Chase Harper decided to express his religious beliefs in opposition to homosexuality. He created a t-shirt for himself on which he quoted from the New Testament:
―Homosexuality is shameful‖ and wore it to school on that day. Harper was asked by his teacher to remove the shirt or see a school administrator. He was ultimately suspended, threatened with expulsion, and questioned by a sheriff for his wearing of the shirt. Harper’s family filed suit and a federal judge determined the school district’s policy on hate speech did not violate the First Amendment.
As this segment focuses on a high school student, it is one especially recommended for use in the classroom. The following might be helpful topics for discussion after showing the segment.
Potential topics for discussion
All conversations about student freedom in the school context include the seminal 1969 case of Tinker v
Des Moines Independent School District in which Christopher and Mary Beth Tinker were banned by their school district from wearing black armbands with peace symbols in protest of War in Vietnam.
The oft-cited line from the opinion, that students do not ―shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,‖ has been a touchstone for subsequent constitutional analysis.
(Interestingly, most of the subsequent cases, while they cited this famous line, proceeded to allow schools to limit free speech, usually under the notion laid out in Tinker that disruption in the educational mission of the school need not be tolerated. See, most recently, Morse v. Frederick (2007) , in which the US
Supreme Court held that a student’s actions were not protected by the First Amendment when he held up a sign reading ―Bong Hits 4 Jesus‖ at an off-campus rally.) Why do students in the school setting not have the same First Amendment rights that we have in society in general? Where and how should we draw the line? Are high schoolers different from college students at a public university? What about middle-schoolers? What of Judge Posner’s comments in the film: ―I mean these are just kids, what do they have to contribute to the marketplace and ideas and opinions?‖
To what extent do you think Chase Harper’s situation triggers both freedom of speech and freedom of religion concerns? Should the fact that the line he used on his t-shirt came from the New Testament matter in a constitutional analysis? Is the line ―Homosexuality is Shameful‖ any different from
―Homosexuals are shameful‖ or ―I Do Not Support Homosexuality‖?
Harper says of school, ―it’s supposed to be a marketplace for ideas.‖ This is an allusion to a famous line from a classic dissent in Abrams v United States (1919) by Justice Oliver Wendell Holmes in which he
6

elegantly reasons ―that the best test of truth is the power of the thought to get itself accepted in the competition of the market.‖ In fact, the Supreme Court in Keyishian v Board of Regents (1967) agreed with Harper when it noted: ―The classroom is peculiarly the marketplace of ideas.‖ Yet some ideas offend. As it is also the particular duty of a school to make sure its members feel safe, how can a school balance these two competing interests? As ACLU Executive Director Donna Lieberman says, ―We don’t have the right not to be offended.‖ Is this different for students in school?
Harper’s situation is directly speech (in the form of writing, of course). There have been many situations in the last few years in which students have engaged in what is called symbolic speech. (The armbands worn by the Tinkers may fall into such a category.) Can a student wear an iron cross (often associated with Nazi Germany) to school? A swastika patch? A confederate flag? May a student carry a rope tied into a noose? What about a large, wooden cross? Many symbols are threatening to some individuals by their very nature. But some of those very symbols have more neutral connotations, or are even proud representations for others. Does the Confederate flag represent slavery and racism or simply southern pride? How can we regulate speech in schools while maintaining what lawyers call ―viewpoint neutrality‖?
In Texas v Johnson (1989) , the Supreme Court narrowly ruled that laws banning the burning of the
American flag violated the First Amendment. A lawyer in the case argued that he would fight for the right to wave the flag as he fights for the right to burn it. In fact, there may even be places and times in this country where watching the waving of the American flag can be painful or offensive. Might some
Native Americans see it as a symbol of their own history of oppression under the US government, for example? For students to truly experience the ―price‖ of the First Amendment, it can be very effective to engage your students in protected speech that falls at the edge. Depending, of course, on your administration and your school district’s rules, you may wish to expose them to offensive symbols or engage in a simulation of offensive speech.
In West Virginia State Board of Education v. Barnette (1943) , a case confirming the First Amendment right of students not to salute the American flag and to remain silent during the Pledge of Allegiance,
Justice Robert Jackson famously declared that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein." Does Poway High School’s ―day of silence‖ violate this famous statement of principle if those who disagree choose to express that disagreement in a seemingly non-disruptive manner?
7

IV. The Big Chill: Protest in an Age of Terror (about 00:59:20)
The lead-in before this segment addresses the famous Pentagon Papers case of the Vietnam War era in which the New York Times and Washington Post decided to publish the secret Government sponsored study about the Vietnam War.‖ It sets the stage concerning the need of the government to protect national security and, by extension, the security of individuals in the nation, say, after 9/11.
Summary: In response to the holding of the 2004 Republican National Convention in New York City, the War Resistors League, a pacifist organization, planned to march from the site of the World Trade
Center to the Convention Center. As the march got underway, police moved in, rounding up and arresting hundreds of peaceful demonstrators, and shutting down the event. The vast majority of prosecutions arising from these arrests were dismissed or ended in acquittal.
The following might be helpful topics for discussion after showing the segment.
Potential topics for discussion
As noted above, fear often becomes the justification for the suppression of rights. First Amendment rights in particular have been curtailed during times of fear. In Schenck v United States (1919) , Justice
Holmes famously wrote: ―The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.‖ In the Pentagon Papers case, a lawyer for the New York
Times noted to the trial judge that, three days after publication, ―The Republic still stands.‖ In other words, the danger to the nation of publication seemed at best theoretical. In what ways can New York
City contend that the march and the speech connected with it arguably created a clear and present danger?
Consider retired police officer Eugene O’Donnell’s comment: ―The problem is, what do you want the police to do, wait around until something happens…?‖ compared to United for Peace and Justice’s Leslie
Cagan’s remark that ―they justified all this in the name of providing security, that things could get out of hand. Well they weren’t out of hand…people were exercising their First Amendment rights to gather and to make their voices heard…‖ What criteria might we use to balance these two important interests?
Some theorists see the rights of speech and assembly as important outlets which allow pressure to be released from the system rather than have it build into violence. Others think such protests will themselves build toward violence. As ACLU Director Donna Lieberman notes: ―In a democracy, you have lawful protest instead of terrorism. It’s the safety valve for a democracy.‖
The ―clear and present danger‖ standard was updated in 1969 to a more rights-protected approach. In
Brandenburg v Ohio
, the Supreme Court wrote that ―the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.‖ The line between provocative speech and illegal acts is a difficult one to draw.
Recently, Dr. George Tiller, who performed late-term abortions, was killed in his church. Can strong denunciations of ―abortionists‖ as ―baby-killers‖ and comments by critics of choice that encourage people
8

to take action to rid the nation of ―this scourge‖ be seen as morally or legally connected to violence? In another recent episode, former Southern Baptist Convention Vice-President Wiley Drake admitted to making an ―imprecatory prayer‖ that President Barak Obama die and encouraging others to do the same.
"Imprecatory prayer is agreeing with God, and if people don't like that, they need to talk to God," he said.
Is this protected speech? Does it potentially create a danger of ―imminent lawless action?‖ Is there a difference if someone encourages prayer that Obama be assassinated or killed?
Most marches require a permit from the jurisdiction. This limitation of free assembly is based in the legal notion of ―reasonable time, place and manner‖ restrictions. For example, I can announce my support for a political candidate in a presidential election, but I should not be allowed to do so by bullhorn at 3 a.m. in a residential neighborhood. Likewise, large gatherings require advance notice so the police and other municipal services can be ready. Did the marchers seek and obtain a permit? May the jurisdiction deny such a permit on the basis of the standards discussed above? (Students may recall that Dr. Martin Luther
King wrote his famous ―Letter From Birmingham Jail‖ while being held for organizing a march without a permit, one that was denied to him unconstitutionally based on the nature of his protest.)
9

ADDITIONAL READING
Students captivated by the issues of free speech and the fight for individual rights may wish to read the following:
Make No Law by Anthony Lewis – Journalist Anthony Lewis masterfully writes for people of all ages.
This account of the history of the First Amendment and the Sullivan decision is fast-paced and very informative. Lewis places the decision into the broader context of American history as well as American jurisprudence.
The Courage of Their Convictions by Peter Irons – Students who are intrigued by the personalities involved in Supreme Court cases may wish to look into selected chapters of this book, which focuses on the lives of individuals who fought perceived constitutional wrongs all the way to the Supreme Court.
10