This Teaching Guide is part of a series. Each of the four total teaching guides speaks to one aspect of the history of free speech. Although they work together to tell different parts of this history, it is not necessary to teach all of the guides or to teach them in a certain order. Each guide is a self-contained lesson.
(A PDF version of this teaching guide is also available for download-see left) 

Other guides in the series:
Free Speech Teaching Guide 1: The Birth of the Modern First Amendment: How Oliver Wendell Holmes Changed His Mind
Free Speech
Teaching Guide 2: Brandenburg v. Ohio (1969): Defining and Arguing Hate Speech 
Free Speech Teaching Guide 4: Mandel v. Kleindienst (1972): Censorship via Visa

Recommended for:

• 11th Grade US History
• 12th Grade Government
• Undergraduate History

Table of Contents

Guide Introduction:
This introductory essay provides historical context on the First Amendment, government secrecy, and the rights of leakers and the press. Drawing attention first to more recent examples of these issues, the essay then introduces the 1971 Pentagon Papers leak which segues into a teaching activity on the topic.

Classroom Activities:
Exercise 1: Ellsberg's Memoir. A guided reading of an excerpt from Daniel Ellsberg’s memoir and an introduction to the Supreme Court case. Guiding Question: What’s the line between the government’s national security interest and the right of the public to know what the government is doing?
Exercise 2: Classifying Government Secrets. Small group, then whole classroom activity to help students understand the government classification process.
Exercise 3: Debating the Ellsberg Outcome. A discussion with students about the impact of the Pentagon Papers including the still unresolved legal questions around national security and free speech. Guiding Question: How does democracy operate amongst ambiguity and competing priorities?

Appendix:
Image of Pentagon Papers Cover
Excerpt of Ellsberg Memoir

Guide Introduction

        In the first and second guides in the Free Speech Teaching Guides series, we explored how speech that might cause a crime became increasingly protected under the First Amendment because it became harder to prove that speech, on its own, was harmful. But what if someone leaks a national security secret to the press? Is that sufficiently harmful or sufficiently criminal to allow censorship to protect the secret? This legal issue is inseparable from the question of how information gets classified as a “secret” in the first place. This guide explores the relationship between secrecy and the First Amendment by exploring two interrelated legal problems: the rights of leakers and the press to publish secret information; and the bureaucratic process by which information is classified as secret in the first place.
       These issues are at the heart of recent conflicts about whistleblowers and classified information – individuals like Chelsea Manning and Edward Snowden have faced jail time for sharing secrets with the public. The need to protect national security secrets has become a frontline of free speech debates. Introducing students to these topics can seem daunting because the law is complicated and confusing – one Supreme Court justice famously noted that the relevant sections of the Espionage Act are “singularly opaque.” (These are different sections of the same WW1-era law that we looked at in Free Speech Teaching Guide 1 and they remain on the books today.)
       My approach to teaching this subject at the introductory level is to focus less on the intricacies of the law than on the political and moral issues raised by the place of secrecy in a democracy. Can the government keep secrets to keep us safe? Or does the public have a right to know what its government is doing? Who gets to decide? The Pentagon Papers case provides an excellent case study to get students debating these questions.

Classroom Exercise 1: Ellsberg's Memoir

Contents:
Overview
Memoir Excerpt, Questions, and Takeaways
Visual Aids
Concluding Concepts

Overview:
The Pentagon Papers were a 7,000 page, 47-volume history of America’s policy in Vietnam that had been prepared, in secret, by the U.S. government in the late 1960s. Included in this history were the many ways that the U.S. government had lied to the American public about the origins and conduct of the Vietnam War. They were stamped “Top Secret” and very few people had access to them. Included below is a photo of the document’s cover page.
One of the people who had access to the document was Daniel Ellsberg, a former marine with a Harvard PhD, who had worked in the highest levels of the U.S. government. At first, he was a believer in the American war in Vietnam. In the included excerpt of Ellsberg’s memoir, he wrote powerfully about the ways that access to secret information was intoxicating.
This excerpt can be assigned for pre-class or homework reading or can be done as an in-class exercise. Regardless of modality, the set of questions included in this exercise will help students engage with the source. Finally, the Concluding Context will explain how this case quickly became central to national decisions regarding the rights to free speech and public knowledge.

Exercise Steps:

1. Read the Framing Essay and Overview of this exercise yourself and use both to introduce students to this topic.
2. Have students read the excerpt of Ellsberg’s memoir either as homework or in class.
3. Based on the reading, ask questions and guide conversation.
4. Draw on the provided Concluding Context to explain how the Pentagon Papers incident played out politically and legally as far as rights of the press.

Memoir Excerpt, Questions, and Takeaways:
This source can be either a pre-class reading assignment or an in-class exercise. In either case, here are three questions to ask students:

1. Why does Ellsberg think that there are relatively few leaks of secret information in the U.S.?
2. How does Ellsberg describe the way that having access to secrets made him feel?
3. Is this attitude toward state secrets democratic? Explain your reasoning.

The key takeaways for students are:

1. That while secrets do leak, it’s surprisingly rare.
2. That these leaks are rare largely because there is a glamour to having access to inside material, it makes you feel more important and knowledgeable than outsiders, and thus less likely to leak. Elsewhere in Ellsberg’s memoir, he writes that “the incredible pace and the inside dope made you feel important, fully engaged, on an adrenaline high much of the time. Clearly it was addictive.”
3. That members of the intelligence community also take seriously their need to protect the national security.
4. Ellsberg thinks this attitude is paternalistic and undemocratic — an opinion that students can debate and discuss.

[See Appendix for Image of Pentagon Papers Cover and Excerpt of Ellsberg's Memoir]

Visual Aids:
By the late 1960s, Ellsberg had become disillusioned about the war. He had seen too much on tours in Vietnam; he had become inspired by the anti-war movement. In class, I show some images of Ellsberg to show his political evolution: 

Daniel Ellsberg seated at desk, May 8, 1956. Daniel Ellsberg Papers (MS 1093). Special Collections and University Archives, University of Massachusetts Amherst Libraries

Daniel Ellsberg holding a rifle in front of bunker, ca. 1965. Daniel Ellsberg Papers (MS 1093). Special Collections and University Archives, University of Massachusetts Amherst Libraries

United States. Joint Chiefs of Staff. Daniel Ellsberg Joint Chiefs of Staff temporary identification card, July 1, 1965. Daniel Ellsberg Papers (MS 1093). Special Collections and University Archives, University of Massachusetts Amherst Libraries

Wikimedia Commons

Concluding Context:
In 1969, Ellsberg decided that the public had a right to know the secret history he had read in the Pentagon Papers — he hoped disclosing that history would help end the war. In secret, he began smuggling the papers out of the office every night to photocopy them. In 1971, he gave a copy to the New York Times and then to the Washington Post. After vigorous internal debates about whether it was legal to publish these stolen and secret documents, both newspapers began running stories in June.

The Washington’s Post internal deliberations about whether to run the story are dramatized in the 2017 movie, The Post – Showing the movie to students would be a way to expand this guide to discuss the ethical obligations of journalists when it comes to publishing secret documents.

The Nixon administration’s response was extreme. They went to court to try to prevent the newspapers from publishing any more stories from the Pentagon Papers, claiming that every disclosure risked harming America’s national security. But blocking a newspaper from publishing is a heavy-handed form of censorship, known as prior restraint. And so the newspapers understandably argued that their First Amendment rights were being threatened. These questions were so fundamental, the stakes so urgent, that the case was heard by the Supreme Court less than two weeks after the first publications from the Pentagon Papers.
The rushed process produced a confusing decision. Rather than one clear majority decision, each of the justices issued their own opinion. Taken together, the court had ruled, six votes to three, that prior restraint of the Pentagon Papers was unconstitutional. Only in very particular cases, when the information published was likely to “inevitably, directly, and immediately cause” serious harm to the national security – something like “imperiling the safety of a [troop] transport already at sea” – could one justify prior restraint. The government could not show this level of harm in the Pentagon Papers case, and so the press could publish. (In fact, this bar is so high that it has never been met.) But the array of opinions left open some important questions, such as whether the newspapers could be punished for publishing state secrets after the fact, even if they could not be blocked from publishing them in the first place.  
       And because the decision was about the right of the newspapers to publish state secrets, it said nothing about whether Ellsberg had a right to give the Pentagon Papers to the newspapers in the first place. He was also on trial, facing 115 years in jail for giving secret information to unauthorized persons (a violation of a section of the Espionage Act). In response, he claimed a right to inform the public about government misconduct, arguing that just because a document was stamped secret didn’t mean that its disclosure would actually harm the nation’s security. In fact, he had not turned over every section of the Pentagon Papers to the press – he had only turned over those sections he believed to be wrongly classified.
The trial of Ellsberg should have been an important case, one that clarified whether government employees could claim a First Amendment right to disclose classified information to the public. Did the simple fact that a document was stamped secret mean that its disclosure posed an actual threat to national security?
To grapple with this question, students need to know how secrecy works. How does a government document become a secret? In the U.S. the process of defining secrets is guided by the classification system, which is established by Presidential order.
The first such order was passed by Harry Truman in 1951; at the time of the Pentagon Papers, the classification rules in place where those established by President Eisenhower in 1953 (seen in Exercise 2).

Exercise 2: Classifying Government Secrets

Contents:
Overview & Exercise Steps
Executive Order 10501, Annotated
Hypothetical, Alternative Executive Order
Scenarios
Debate & Conclusions

Overview & Exercise Steps:

• To explore how different classification standards can shape the practice of classification, divide the class into small groups.
• Each group will be given one of two sets of classification orders:
  • One half of the groups will be given the actual classification instructions in use at the time of the Pentagon Papers case (Executive Order 10501).
  • The other half of the groups will be given a fictional, revised set of instructions which ask the classifier to pay more attention to the public’s right to know.
    • Note: While reformers have called for these sorts of changes over the years, no classification order has ever looked like this.
• The purpose of this exercise is to allow students to see how seemingly small changes in classification orders could change the process of stamping secrets – and so we are using a hypothetical set of orders to illustrate the point.
• Give the groups scenarios with which to test their classification instructions.
• End by encouraging students to debate the issue of classification and lead a concluding discussion.

Executive Order 10501, Annotated:
Link to Executive Order 10501

       “WHEREAS it is essential that the citizens of the United States be informed concerning the activities of their government; and
       WHEREAS the interests of national defense require the preservation of the ability of the United States to protect and defend itself against all hostile or destructive action by covert or overt means, including espionage as well as military action; and
         WHEREAS it is essential that certain official information affecting the national defense be protected uniformly against unauthorized disclosure:
         NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and statutes, and as President of the United States, and deeming such action necessary in the best interests of the national security, it is hereby ordered as follows:
       Section 1. Classification Categories: Official information which requires protection in the interests of national defense shall be limited to three categories of classification, which in descending order of importance shall carry one of the following designations: Top Secret, Secret, or Confidential. No other designation shall be used to classify defense information, including military information, as requiring protection in the interests of national defense, except as expressly provided by statute. These categories are defined as follows: ...

• The previous order under Truman had a fourth category - "restricted" - which this order abolished.  It seems to have made little difference - classifiers simply made more use of the "confidential" stamp.
  In reality, as the above photo from 1957 reveals, many different secrecy stamps and designations were adopted in the 1950s

        (a)  Top Secret: Except as may be expressly provided by statute, the use of the classification Top Secret shall be authorized, by appropriate authority, only for defense information or material which requires the highest degree of protection.  The Top Secret classification shall be applied only to that information or material the defense aspect of which is paramount, and the unauthorized disclosure of which could result in exceptionally grave damage to the Nation such as leading to a definite break in diplomatic relations affecting the defense of the United States, an armed attack against the United States or its allies, a war, or the compromise of military or defense plans, or intelligence operations, or scientific or technological developments vital to the national defense.
       (b)  Secret: Except as may be expressly provided by statute, the use of the classification Secret shall be authorized, by appropriate authority, only for defense information or material the unauthorized disclosure of which could result in serious damage to the Nation, such as by jeopardizing the international relations of the United States, endangering the effectiveness of a program or policy of vital importance to the national defense, or compromising important military or defense plans, scientific or technological developments important to national defense, or information revealing important intelligence operations. ...

• My goal in teaching students how these orders work is to emphasize the subjective quality of these tests.
• The difference between the levels is vague, despite the effort to bring clarity by examples. What is a disclosure that would cause "serious damage to the Nation" as opposed to "exceptionally grave damage"? How much does it help to say that the former would "jeopardize the international relations of the US" whereas the latter would lead to a "definitive break in diplomatic relations"?
• For teachers who have also taught Free Speech Teaching Guides 1 and 2, you can note here that we are back in the world of predicting tendencies - trying to assess the likely outcome of information disclosures.

        (c)  Confidential: Except as may be expressly provided by statute, the use of the classification Confidential shall be authorized, by appropriate authority, only for defense information or material the unauthorized disclosure of which could be prejudicial to the defense interests of the nation.
       Section 2. Limitation of Authority to Classify: The authority to classify defense information or material under this order shall be limited in the departments and agencies of the executive branch as hereinafter specified….
       Section 3. Classification: Persons designated to have authority for original classification of information or material which 
requires protection in the interests of national defense under this order shall be held responsible for its proper classification in accordance with the definitions of the three categories in section 1, hereof. Unnecessary
classification and over-classification shall be scrupulously avoided.”

• Note here the warning against over-classification. Even in the early 1950s, it was widely understood that over-classification was a major problem. One Defense Department study concluded that 90% of classified documents had been classified unnecessarily.
• But such warnings have not been effective in reducing over-classification. Nixon's defense secretary later conceded that 95% of the Pentagon Papers, all of which were classified Top Secret, did not need to be classified at all.
• The problem is that this warning has no enforcement mechanism.  Classifiers are not instructed to actively weigh the public right to know in making a classification decision - when deciding they are instructed to think only about potential harms.

Hypothetical, Alternative Executive Order:

In determining whether to classify information, you must weigh the public’s right to know about its government’s policy – if the secrecy poses a greater risk to American democracy than the risk to national security posed by disclosure, then the material should not be classified. Wherever possible, to maximize the amount of information available to the public, only the most specific level of information should be segregated and classified secret. Illegal acts should never be classified. These categories are defined as follows:
              (a) Top Secret: Except as may be expressly provided by statute, the use of the classification Top Secret shall be authorized, by appropriate authority, only for defense information or material which requires the highest degree of protection. The Top Secret classification shall be applied only to that information or material the defense aspect of which is paramount, and the unauthorized disclosure of which could result in exceptionally grave damage to the Nation such as leading to a definite break in diplomatic relations affecting the defense of the United States, an armed attack against the United States or its allies, a war, or the compromise of military or defense plans, or intelligence operations, or scientific or technological developments vital to the national defense.
            (b)  Secret:  Except as may be expressly provided by statute, the use of the classification Secret shall be authorized, by appropriate authority, only for defense information or material the unauthorized disclosure of which could result in serious damage to the Nation, such as by jeopardizing the international relations of the United States, endangering the effectiveness of a program or policy of vital importance to the national defense, or compromising important military or defense plans, scientific or technological developments important to national defense, or information revealing important intelligence operations.

              (b)  Secret:  Except as may be expressly provided by statute, the use of the classification Secret shall be authorized, by appropriate authority, only for defense information or material the unauthorized disclosure of which could result in serious damage to the Nation, such as by jeopardizing the international relations of the United States, endangering the effectiveness of a program or policy of vital importance to the national defense, or compromising important military or defense plans, scientific or technological developments important to national defense, or information revealing important intelligence operations.

              (c)  Confidential: Except as may be expressly provided by statute, the use of the classification Confidential shall be authorized, by appropriate authority, only for defense information or material the unauthorized disclosure of which could be prejudicial to the defense interests of the nation.

         Section 2. Limitation of Authority to Classify: The authority to classify defense information or material under this order shall be limited in the departments and agencies of the executive branch as hereinafter specified….
         Section 3. Classification: Persons designated to have authority for original classification of information or material which  requires protection in the interests of national defense under this order shall be held responsible for its proper classification in accordance with the definitions of the three categories in Section 1, hereof. Unnecessary
classification and over-classification are as serious a threat to American democracy as under-classification. Classification decisions will be audited, and over-classifiers will face disciplinary proceedings.

Scenarios:
Give each group three scenarios and ask whether they would classify them based on their instructions. Here are three that I use; you can develop others, of course: 

1. The government is secretly providing weapons to an ally that is using them to fight a regional war against a nation hostile to the US. The government credibly believes that the ally would lose the war without the weapons; that the public would not support the use of US weapons in the war; and that disclosure would therefore threaten the ally’s standing and the balance of power in the region. Should the existence of the weapons program be classified?
2. The government has a program to monitor social media for threats of terrorism. It believes the disclosure of the program would impair the effectiveness of the program. Should the existence of the program be classified?
3. The government has a program of placing undercover operatives in a number of foreign nations. It wants to classify the existence of the program, as well as the names of the agents and the particular countries in which they will be placed. What should be classified?

Conclusions:

        Students should see that applying the standards of the Eisenhower order makes it very easy to justify classification; the fictional version of the orders introduces many more questions.  For instance, in scenario three, I would think that the groups using the fictional second set of orders would be tempted to only classify the names of the officers and perhaps some of the operational details; groups using the Eisenhower order would want to classify the entire program.
        I often pause here to let students debate whether it is better to be extra-cautious and deferential to national security concerns – the government does have an obligation to protect its citizens, after all – or whether transparency is more important.
       To wrap up the discussion, I suggest that this is an important debate for all citizens to have an opinion about; but the point of this lesson is simply that the classification orders can have a big impact on how classification decisions are made.
       And that is leaving to one-side the institutional pressures that Daniel Ellsberg discussed in his memoir. If you add those pressures to the bias created by the classification standards, students can see how easy it is to over-classify. Imagine working late in the afternoon on a stressful, difficult national security matter – would you prefer to take the risk that disclosing information poses no potential risks? Or would it be easier to stamp it classified, better safe-than-sorry?

Exercise 3: Debating the Outcome of the Ellsberg Case

Contents:
Exercise Steps
Questions & Debate
Conclusion

Exercise Steps:

1.  Review the Overview & Context below for yourself.  
2. Provide students with Overview & Context.
3. Either all together or in groups, have students respond to questions and debate this topic.
4. Connect this topic to the present with the Conclusion and any further discussion.

Context:
        Part of what the Ellsberg case could have done was clarify whether it is illegal to disclose all classified information to the public, or only properly classified information. This is a difficult debate – because you don’t necessarily want any one government employee to decide they know what should and shouldn’t be classified. But it also seems extreme to say that once a document is classified, the public has no right to it, even if it wouldn’t actually pose a harm to national security.
        In the end, the Pentagon Papers case shed no new light on these issues because it was thrown out of court. Richard Nixon had formed a small group in the White House to deal with the problem of “leaks” like Ellsberg’s. One of them told his mother-in-law that he was fixing leaks in the White House, and she said it was nice to have a plumber in the family – the group took the name “the Plumbers” as an in-joke. In an effort to discredit Ellsberg in the press, the Plumbers broke into the office of Ellsberg’s psychiatrist. Later, after the Plumbers had broken into the Watergate hotel during the 1972 election, and the whole Watergate scandal became a national fixation, the break-in at Ellsberg’s psychiatrist also came to light. The judge threw Ellsberg’s prosecution out of court for government misconduct. Ellsberg went free, but the laws of secrecy and leaking were not put to the test.
        The result is that the basic classification scheme continues to operate in much the same fashion as it did in the 1960s. Subsequent presidents have tinkered with these orders – Presidents Carter, Clinton and Obama, for instance, instructed classifiers to err in the direction of under-classification when in doubt; President Reagan urged over-classification when in doubt – but none have required proactive consideration of the public’s right to know.
        Was this a satisfying outcome to the Pentagon Papers affair?  Richard Nixon didn’t think so: “the son-of-a-bitching thief [Ellsberg] is made a national hero and is going to get off on a mistrial. And the New York Times gets a Pulitzer Prize for stealing documents…. what in the name of god have we come to?” [I often put this quote on an overhead].
        Others thought the outcome reflected a balancing act – the government retained some ability to punish leakers, and thus to keep information secret in the interests of national security. But the press had the right to publish, and thus to inform the public. Alexander Bickel, a law professor who represented the New York Times in the Pentagon Papers case, described this as a “game theory” of the First Amendment – a contest between the press and the government over who got to control what information the public learned.
        One problem with this balancing act is that it requires a leaker to risk punishment to inform the press in the first place. Can we trust that people will be motivated to speak out in face of such threats? In 1971, Ellsberg was asked how he felt about facing 115 years in jail for leaking government secrets. “Wouldn’t you go to jail to help end the war?” was his famous response.

Questions & Debate:
Ask students to debate whether this is a healthy state of affairs for a democracy. The following questions could be built out to include more hypotheticals:

1. Would students be willing to face jail to inform the public?
   1. For what sort of crimes?  To end a war, to stop an abuse of power, to reveal corruption?
   2. Is the risk worth the reward?
      1. What if the paper chooses not to publish?
      2. Do they believe that releasing government documents actually would change public opinion? Or do they think people are so committed to their beliefs that new information wouldn’t change their mind?
2. Do they trust the judgement of an individual government employee to make the decision about which secrets can be revealed? What if that employee thinks the public has a right to know, but they get this wrong, or inadvertently reveal a vital secret?
   1. Ask students how many Americans they think have security clearances?
      1. In reality, it is more than 4 million. Should each and all of them have the right to make decisions about what should be disclosed?
   2. Does it matter if Ellsberg wasn’t acting alone? In reality, he was working with a group of antiwar activists, who helped him smuggle the documents to the press, and who helped him go underground to avoid arrest. They represented a much broader antiwar movement which was very opposed to the war; Ellsberg was, in many ways, taking his moral cues from this broader social movement. Does that change how you think about his act of moral conscience?
   3. Is it enough that the source takes the secret to a journalist, and asks the journalist to decide if the information is safe to disclose?
      Is that better than simply putting information online?

Conclusion:
During the War on Terror, a number of government insiders have, like Ellsberg, released secret information to the public. Chelsea Manning, Edward Snowden, Terry Albury, Daniel Hale and others have faced Espionage Act charges and have not been able to claim either that the material they released was improperly classified, or that the public had a right to know. Many of them served jail time for their disclosures. The newspapers that published their leaks, meanwhile, did not face any effort to bar them from publication, or to criminally prosecute them. The balancing act created by the Pentagon Papers case lives on.

Appendix

(Both items are also available in the pdf download of this teaching guide- see left)

Image of the Pentagon Papers Cover:

Excerpt of Ellsberg Memoir:

        “Even within the executive branch, self-discipline in sharing information—lack of a ”need to tell”—and a capability for dissimilation in the interests of discretion were fundamental requirements for a great many jobs. There was an abundance of people who, like John and me, could and did meet those requirements adequately. The result was an apparatus of secrecy, built on effective procedures, practices, and career incentives, that permitted the president to arrive at and execute a secret foreign policy, to a degree that went far beyond what even relatively informed outsiders, including journalists and members of Congress, could imagine.
       It is a commonplace that “you can’t keep secrets in Washington” or “in a democracy,” that “no matter how sensitive the secret, you’re likely to read it the next day in the New York Times.” These truisms are flatly false. They are in fact cover stories, ways of flattering and misleading journalists and their readers, part of the process of keeping secrets well. Of course eventually many secrets do get out that wouldn’t in a fully totalitarian society. Bureaucratic rivalries, especially over budget shares, lead to leaks. Moreover, to a certain extent the ability to keep a secret for a given amount of time diminishes with the number of people who know it. As secret keepers like to say, “Three people. can keep a secret if two of them are dead.” But the fact is that the overwhelming majority of secrets do not leak to the American public. ...

        This is true even when the information withheld is well known to an enemy and when it is clearly essential to the functioning of the congressional war power and to any democratic control of foreign policy. The reality unknown to the public and to most members of Congress and the press is that secrets that would be of the greatest import to many of them can be kept from them reliably for decades by the executive branch, even though they are known to thousands of insiders.
       As one of those insiders I had no particular objection to this. I shared the universal ethos of the executive branch, at least of my part of it: that for the Congress, the press, and the public to know much about what the president was doing for them, with our help, was at best unnecessary and irrelevant. At worst, it was an encouragement to uninformed (uncleared), short-sighted, and parochial individuals and institutions to intervene in matters that were too complicated for them to understand, and to muck them up. This sounds paternalistic to the point of being antidemocratic, and so it was. (And is: I doubt that this has ever changed.) But we’re talking foreign policy here, and national security matters, in which we didn’t see that people without clearances had any really useful role to play in the nuclear cold war era. It was in the national interest, as we saw it, simply to tell them whatever would best serve to free the president from their interference. ...
        Even when I regarded the administration’s policy as inadequate or misguided, as I often did on nuclear matters, I saw little hope for improvement by Congress, with its committees generally headed by conservative southerners. Once I was inside the government, my awareness of how easily and pervasively Congress, the public, and journalists were fooled and misled contributed to a lack of respect for them and their potential contribution to better policy. That in turn made it easier to accept, to participate in, to keep quiet about practices of secrecy and deception that fooled them further and kept them ignorant of the real issues that were occupying and dividing inside policy makers. Their resulting ignorance made it all the more obvious that they must leave these problems to us.
       There was one more feature of our environment within the executive branch that contributed to a disregard of the opinions or criticisms of outsiders, that made it hard to listen to or learn from them. Perhaps the most startling discovery on entering the government at this level form having been a consultant was the unrelenting pace of the work. I’ve already described the almost inconceivable amount of information and demands for information pressing on you.”

This Teaching Guide is part of a series. Each of the four total teaching guides speaks to one aspect of the history of free speech. Although they work together to tell different parts of this history, it is not necessary to teach all of the guides or to teach them in a certain order. Each guide is a self-contained lesson.
(A PDF version of this teaching guide is also available for download-see left) 

Other guides in the series:
Free Speech Teaching Guide 1: The Birth of the Modern First Amendment: How Oliver Wendell Holmes Changed His Mind
Free Speech Teaching Guide 3: The Problem of National Security Secrets
Free Speech Teaching Guide 4: Mandel v. Kleindienst (1972): Censorship via Visa

Recommended for:

• 11th Grade US History
• 12th Grade Government
• Undergraduate History

Table of Contents

Guide Introduction:
This introduction briefly previews the how this guide will cover Brandenburg v. Ohio 1969 and why that case is useful in teaching students about the basic legal principles of free speech in the United States.

Classroom Activities:
Exercise 1: How to read a court case. A structured guide on how to explain the case to students and facilitate classroom conversation. Includes a link to the original case and relevant Constitutional Amendments.
Exercise 2: Thinking about free speech principles, not politics. A full-class group activity on the white board. What makes some forms of speech so "harmful" that they fall outside of the First Amendment's protection?
Exercise 3: What's the harm in hateful speech? An exercise intended to invite and address questions of how violence is defined. It includes questions alongside arguments in favor of either restricting or tolerating speech.

Appendix:
Excerpt of the Supreme Court's 1969 decision in Brandenburg v. Ohio to refer to during the Classroom Activities. The entire source (external) is linked here.

Guide Introduction

        This case from the late 1960s, about the right of Ku Klux Klan members to call for racial violence, marks an important turning point in the law of free speech.  The court firmly and finally rejected the notion that one could be punished for publicly advocating for a crime – closing the books on the long period in which left-wing advocacy for revolution had been criminalized.  And it announced a new rule that was very protective of even the right to advocate for crime – a rule that still guides the law today, and that embodies, for many commentators, the essence of modern free speech law.
       The case is therefore a good one to teach to show students the basics of free speech law.  It is also a short decision issued by a unanimous court (rather than being signed by one judge, the decision was issued per curiam, or for the court, normally a sign that it is non-controversial). Leaving out the two concurrences, the decision runs for only about five pages, and its reasoning is fairly straightforward. It thus serves as a useful case to teach students how to read a supreme court decision.

This teaching guide includes:

1. A structured guide to explaining the case to students
2. A classroom exercise on the value of tolerating hateful speech
3. A classroom exercise to think about the harms of hateful speech

Note: there are links throughout this guide to the end of the document where an appendix houses excerpts of the Supreme Court decision and an external link to the entire resource.

Classroom Exercise I: How to read a court case

Contents:
Overview
Introduction & Context
Hypotheticals
Final Context & Wrap Up

Overview:
This exercise will introduce students to the Brandenburg case itself and help them begin to grapple with its main debates. It works best as a whole classroom activity, although the reading may be assigned as homework to be reviewed before class. The goal of this lesson is for students to be able to draw connections between Brandenburg and the relevant constitutional amendments, as well as understand the complexity of free speech logic as seen in the case. 

Introduction & Context:
        The place to begin is by having students read the decision and asking them to identify the facts in the case. This can be assigned as homework or conducted as a guided reading in the classroom. In clear prose, the court outlines the essential facts on pp.444-447 of the decision. The key details for students to grasp are that Clarence Brandenburg was a member of the KKK in Ohio, and late in the June of 1964 he was filmed at a meeting of about a dozen Klansmen making racist statements and suggesting that if the U.S. continues to “suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” He then proposed marching on Washington DC on July 4.
       The next question is how Brandenburg was charged.  The court tells us in the opening sentences of its decision – he was convicted under an Ohio Criminal Syndicalism statute for advocating the “duty, necessity or propriety” of crime or violence.  The law dated from 1919, one of a series of state laws – 20, the courts tells us on p.447 – passed during the First Red Scare in an effort to criminalize revolutionary socialist and anarchist parties.
       So what question is the Supreme Court answering in this case? Whether the Ohio Syndicalism law is constitutional, or whether it violates Brandenburg’s First and Fourteenth Amendment rights (p.444). The First Amendment issue is straightforward – he was sentenced to jail and fined for his speech. 
        But you might want to explain the 14th Amendment piece to your students, particularly if it is a more advanced class, or if you have spent time discussing federalism. The First Amendment says only that “Congress shall make no law”– in the 19th century, it was understood that it did not apply to state laws, like the Ohio law in question here, it only applied to the federal government. (To the extent that one wanted to challenge state laws, you had to rely on whatever bills of rights were included in state constitutions.) But beginning in the 1920s, the Supreme Court began to hold that the First Amendment did apply to the states – they did so by ruling that the 14th Amendment’s guarantees of “due process” included the First Amendment right to free speech and free press, and thus that the First Amendment applied to state as well as federal laws. This process is known as incorporation. One needn’t get into this with students unless they are curious – the upshot is that there is no discrete 14th Amendment issue at stake in this case; the 14th Amendment is being cited as a way to activate the free speech issues.
       And what did the Supreme Court rule? In the final paragraph, the court outlines that the law is unconstitutional, because it punishes “mere advocacy.” This, it suggests, is too broad. In the highlighted section on p.447, the Court argues that previous decisions have made clear that you can only bar advocacy of crime if it the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Find the text of the First Amendment Here

Find the text of the Fourteenth Amendment Here

        This is known as the Brandenburg test, and it still guides the law today. The idea is that if someone is advocating that a crime should be committed, then that should be protected speech unless the crime is likely to be committed right away. Only in that case is it appropriate to criminalize speech to prevent the crime from happening, to treat the speech as causing the crime in some direct sense.  In all other cases, if a crime is committed, we hold the person committing the crime accountable. We give the speaker wide latitude to express their point of view to encourage full expression; and we trust that people are not easily persuaded to commit crimes. Rather than run the risk of repressing politically valuable speech, we trust in the deterrent power of the criminal laws. And we trust, too, that in the interim between the speech and the criminal act, there is plenty of time for individuals to reconsider and there is plenty of time for others to speak out against committing the crime.

Hypotheticals:
To illustrate this point, I use a little sequence of hypotheticals:

• If I hate a building on campus – I think it is named for someone whose politics I abhor; I find it aesthetically awful; I have some other extreme gripe – and I say it should be torn down, does that meet the standard?
  • Students should see that it doesn’t, and for obvious reasons – it is not directed to inciting lawless action, that action is not imminent, and it is not likely to produce the action. And by calling for destruction in this more abstract way, I am expressing the strength of my political feelings about the building.
• What if I say someone should dynamite it overnight in a few months, over the school break?
  • That is explicitly directed to a crime, but is neither imminent nor likely, and so doesn’t meet the standard.
• But what if there is a protest outside the building, I have a megaphone, and I tell the crowd to smash the building right now?
  • Well, if the crowd is angry, and the crime looks likely to happen, and I am explicit that I want the crowd to break the law, I might have a problem. But as students should see, this is a very hard standard to prove, and so the Brandenburg test is very protective of free speech.

At this point, I normally need to clarify that this is about public advocacy for law-breaking. Conspiring to commit a crime is an entirely different matter – we don’t consider it a matter of free speech because it is done privately. There are no communicative benefits to the planning of the crime – there is no risk that we will chill public discussion or critique or the venting of anger – and so the same First Amendment issues do not arise. Conspiring to commit a crime is, of itself, a crime.

Final Context & Wrap Up:
        The final question to explore is how did the court get to this conclusion? It reviewed a series of previous cases in which it had ruled on criminal advocacy cases, and distilled from them its test, which had not previously been stated so plainly. The cases are listed on 447-448, and two things are important to draw out. The first is that there was a case on the books from 1927 – Whitney v. California – in which the law in question was very similar to the Ohio law (they were passed around the same time). In that case, the Supreme Court ruled that it was constitutional to punish a woman – Anita Whitney – for joining an organization – the Communist Party – that advocated revolution.  The decision was part of a long sequence of cases in which the Court had ruled that it was constitutional to criminalize Communist speech. This approach led to McCarthyism and the Second Red Scare. In the Dennis case in 1951, the Supreme Court ruled that it was constitutional to send 11 Communist Party leaders to jail for “conspiring to advocate” revolution – for teaching that revolution is an ultimate end-goal of the Communist movement (a decision that falls far short of the test established in Brandenburg!).
        But, and this is the second piece of context to provide, over the late 1950s and early 1960s, as the fears of the McCarthy period cooled, the Court began to rethink these decisions, and to outline new tests that protected much more speech. These are the cases cited on 447-448, and which form the basis for the test newly elaborated in Brandenburg. And making that the standard required also overturning the Whitney decision from four decades earlier – an example of how the law evolves, and earlier precedent is overturned.
      That explains the internal logic of the case. The remainder of class can be devoted to asking students to work through how they think about this decision. Normally, students find themselves quite uncomfortable with the fact that the Court has ruled in favor of a KKK member, and that it seemed to treat the case as the culmination of its tortured relationship with Communist speech rather than confronting directly the fact that this was a Klansman advocating racial violence.

The following two exercises can be useful for helping students work through these questions. 

Classroom Exercise II: Thinking about free speech principles, not politics

Contents:
Overview
Context & Questions

Overview:
To help students grapple with the complexity of the Brandenburg case, I provide them with information about who his legal team was and what their motivations were for representing him. Included in this exercise is an interview with one of Brandenburg’s lawyers and a series of questions I find useful in prompting student discussion about this complicated topic.

Context & Questions:
        Take students to the top of the case and ask them to identify the lawyers representing Brandenburg. The first lawyer named is Allen Brown – he was a Jewish lawyer for the American Civil Liberties Union (ACLU). The other lawyers were also civil libertarians, including the fourth name: Eleanor Holmes Norton. Norton worked for the ACLU at the time, and later went on to serve for decades as Washington DC’s congressional representative. These were not, in other words, lawyers who shared Brandenburg’s politics. Here is a short clip of Norton explaining her role in the case:

Link to Video: C-SPAN- Supreme Court Landmark Case Brandenburg v. Ohio

       I ask students what they think of Norton’s idea that she has a duty to defend the speech of speakers who would not defend her speech? There is no easy answer to this question, which will be deeply personal to individual students – the key is just to let students begin to work through their ideas about the importance of neutrality in speech rights.
      I often pose some additional questions to prompt more discussion. Do students share Norton’s concerns about governments deciding which sorts of speech to prosecute? Do they share her faith that a “free for all” will produce a decent outcome? Do they share her faith that courts will apply neutral principles to protect all speech? Is it smart politics for liberals like the ACLU to defend groups that would not respect their rights? Or is it naïve?

Classroom Exercise III: What's the harm in hateful speech?

Contents:
Overview
Toleration Arguments
Restriction Arguments

Overview:
       Students can be surprised to see that nowhere in the Court’s opinion does the court discuss Brandenburg’s speech as hateful or racist speech. As it seeks to assess whether Brandenburg’s speech might cause a harm that would justify punishment, the court focuses exclusively on the harm that the specific violence Brandenburg advocates – “revengeance” after the July 4 march – might actually come to pass. This is because of the Ohio law under which Brandenburg was charged (making it illegal to advocate crime) – and underlining this point can be a useful moment to discuss with students the Supreme Court’s role as an appeals court, limited to hearing the specifics of the cases that come before it.
        But what if there had been a law barring Brandenburg’s speech because it was racist? Many other countries have hate speech laws, which criminalize speech because it is racist or derogatory. The U.S. does not; American free speech law protects the right to say even racist or hateful things.
        The facts of Brandenburg offer an opportunity for students to think through how they feel about this controversial free speech question. As with Exercise II, the goal is not to lead students to a “correct” answer, but to help them understand some of the ways that the arguments have been made, and to begin to develop their own philosophies of free speech.

Toleration Arguments:
         The arguments for tolerating even hateful speech flow from Eleanor Holmes Norton’s perspective on free speech that we looked at in Exercise II; they also flow from the idea of a “marketplace of ideas” that was established in the 1919 Abrams v. United States case, which is dealt with in the Free Speech Teaching Guide 1 In short, they are that that any standards that could be established will be vague and open to abuse, that there is much risk in allowing governments to pick and choose which speech to censor, and that there are benefits to society for allowing the airing out of controversial ideas – where they can be critiqued, rebutted, and, where necessary, debated – rather than driving them underground, where they may gain the mystique of “secret knowledge.”
       The arguments against tolerating such speech require identifying harms that would be sufficient to justify censorship. In Brandenburg, the Court measured the likelihood that Brandenburg’s speech would cause the sort of mob violence on July 4 that he called for; the court found that such an outcome was not sufficiently imminent, likely, and explicit to punish the speech. But that is not the only harm one could imagine wanting to regulate.
Next, I provide two important examples of such arguments for restricting racist speech to avoid different types of harm.

Restriction Arguments:
       An argument could be made that racist speech can lead to crimes in a more general sense, by heightening racial animosity, and degrading the status of some members of the community so much that they seem legitimate targets for violence. Brandenburg was decided in 1969, but the case began with Brandenburg’s speech 1964 at a time when the conflict over civil rights was causing very real political violence: in the September before Brandenburg’s speech, for instance, a splinter group of the Ku Klux Klan bombed the 16th Street church in Alabama, killing four Black girls. One obviously cannot hold Brandenburg himself accountable for these crimes – they happened before his speech – but do students think that censoring hateful, violent speech like his would make such crimes less likely? And what about the risks of such censorship? And is it sufficient that bombing is outlawed?
       The second argument, as made by philosopher Jeremy Waldron, argues that the harm of hate speech is not that it will lead to crime, but that hateful speech is, of itself, an attack on the dignity of particular groups of people and denies them of full inclusion in the political community. Whether or not this sort of speech leads to a crime, Waldron suggests, this is itself harmful enough to justify censorship. After all, it is illegal to defame individual people under U.S. law – though in the case of individual libel charges there are complex rules intended to balance this principle with the First Amendment; and any similar group defamation law would need to be similarly complex. But one can ask students whether the sorts of statements Brandenburg made in the footnote on p.446 are sufficiently harmful to the respect and status of members of the community that they fall outside the protections of the First Amendment. 
       In Brandenburg, the court did not consider these issues. But thinking about the case in these contexts helps students better understand the stakes of the free speech questions involved and also helps them think about how the court identifies the harms it analyzes in its decisions.

Appendix

Available in the PDF version of this guide, downloadable on the left of this page. 

This Teaching Guide is part of a series. Each of the four total teaching guides speaks to one aspect of the history of free speech. Although they work together to tell different parts of this history, it is not necessary to teach all of the guides or to teach them in a certain order. Each guide is a self-contained lesson.
(A PDF version of this teaching guide is also available for download-see left) 

Other guides in the series:
Free Speech Teaching Guide 1: The Birth of the Modern First Amendment: How Oliver Wendell Holmes Changed His Mind
Free Speech Teaching Guide 2: Brandenburg v. Ohio (1969): Defining and Arguing Hate Speech 
Free Speech Teaching Guide 3: The Problem of National Security Secrets

"Male Immigrants at Ellis Island," Library of Congress

Recommended for:

• 11th Grade US History
• 12th Grade US History
• Undergraduate History

Table of Contents

Guide Introduction:
This introduction briefly previews the topics included in this guide that spans the twentieth century and ends with a 1972 Supreme Court Case.

Classroom Activities
Exercise 1: "The unrestricted dumping-ground" (1903). A guided analysis of a 1903 political cartoon with annotations and questions. Why was immigration a heated debate in the early twentieth century?
Exercise 2: Who gets a Visa? A close reading of an excerpted 1984 article with guiding questions, notes, and class discussion options. Why deny visas?
Optional Exercise: Visa Waivers. Ask students to consider the more complicated reality of the visa law. How did waivers work and did they undermine political exclusion?

Framing Essay
Scholarly Context: How do visa laws and the First Amendment connect? An introduction to the Mandel Supreme Court case.
Annotated Decision: Notes on the Mandel SCOTUS decision for context or to help guide a close reading.
Key Takeaways: Concluding connections between immigration law and free speech law and prompts for class discussion.

Guide Introduction

        Throughout the 20th century, the U.S. government has denied visas to individuals because of their politics: anarchists in the early 20th century, communists in the Cold War, those it deemed advocates of terrorism in the 1990s and early 2000s. In the first half of 2025, the Second Trump Administration began seeking to deny visas to students and others engaged in pro-Palestinian advocacy during the war in Gaza.
        To be denied a visa means either that you can’t enter the country, or that you can be deported. Governments claim that this use of the visa regulations is simply a part of their control over immigration policy – they have a right to determine who can enter the country. Critics and civil liberties activists argue that it is a form of censorship, one that should be barred by the First Amendment. The relationship between visa laws and free speech was most closely examined in a 1972 case Mandel v. Kleindeinst. The case is also significant because it focused on a neglected aspect of the right to free speech – not the rights of the speakers to say what they want, but the rights of listeners and audiences to hear what they want.
        This guide traces the history of ideological visa denial to explore the intersection between immigration law and the right to free speech. It includes:

1.  An overview of the history of visa denial in early 20th century, which allows students to assess historical fears of radical immigrants through the close reading of a political cartoon.
2. A discussion of the denial of visas to communists and alleged radicals in the Cold War, through a classroom exercise and discussion of an excerpted newspaper article.
3. An assessment of the role of the First Amendment in challenging visa restrictions through a close reading of a Supreme Court decision in 1972.

Classroom Exercise I: "the unrestricted dumping-ground" (1903)

Contents:
Overview
Annotated Cartoon
Questions for Students & Extended Context

Overview:
       The first efforts to exclude radicals from the United States came in 1903, when Congress passed a law barring anarchists from entering the country. This was a response to the assassination of President McKinley in 1901, which played into widespread anxieties that radical ideologies and crime were being brought to the country by immigrants. This 1903 cartoon captures the mood. The following pages include my annotations, as well as questions I use.

1. Have students examine the cartoon individually or in groups.
2. Invite students to share what they notice and ask more specific questions to guide conversation. This should mimic a close reading.

For the Printable Image See: linked source

Image Source Here

Annotations:

• McKinley assassination
  • McKinley (or McKinley’s ghost) is depicted in the top-left.
  • Leon Czolgosz, the gunman, was born in Detroit, but was the child of immigrants.
  • The cartoon, however, suggests the threat of anarchism is coming from immigrants, a widespread assumption at the time. “There is no such thing as an American anarchist,” said one newspaper column.
• Both the container label “direct from the slums of Europe daily” and the title of the cartoon advocate for immigration restriction.
• Depiction of Immigrants
  • McKinley and Uncle Sam are depicted as white, compared to the darker-skinned immigrants. At the time, most concern was about immigration from the south and east of Europe – groups that would later be considered white, but which were then treated as distinct races.
  • Immigrants are drawn to be animalistic, communicating an idea that they were less human and more threatening than white Americans.
• Politics & crime:
  • Three migrants at the bottom are labeled “socialist,” “anarchist,” and “mafia,” associating socialists and anarchists with crime. The socialist carries a gun labelled “murder;” the anarchist a knife labelled “assassination,” further associating these political ideologies with violence.
  • There were radical leftists committed to political violence at the time. One wing of the anarchist movement, for instance, engaged in what it called “propaganda by the deed” – symbolic acts of political violence. Between 1880 and 1910, anarchists assassinated heads of state in Austria, Italy, Greece, France, Spain, Russia (twice), and Portugal – as well as McKinley in the U.S.
  • While many radical leftists rejected political violence, this cartoon suggests they were all criminals.

By the early Cold War, the bar on anarchists entering the country remained, and had been expanded to include Communists and advocates of communist revolution. The visa had also become a more powerful bureaucratic instrument. During World War I, for the first time the U.S. began requiring all visitors to the U.S. to receive a visa, which allowed a new degree of oversight and examination of applicants. A new Visa Division was created in the State Department to do this work.

Questions for Students:

1. How are immigrants depicted?
2. What is this cartoon arguing?
3. Would immigration restriction be a useful remedy to the problems revealed by McKinley’s Assassination? What would have to be true for it to be effective for this purpose? What other remedies might be available?

Classroom Exercise II: Who gets a Visa?

Contents:
Overview
Excerpted Newspaper Article
Guiding Questions, Notes, & Class Discussion

Overview:
       A close reading of a later news article brings the topic of immigration and citizenship closer to the modern day for students. This exercise is centered around an excerpted 1984 newspaper article that discusses some individuals who were denied visas as well as efforts to reform the law. The article, like the cartoon in exercise 1, thus reveals some of the political dynamics involved.
        The next page includes some reading questions (as well as additional notes I might add), followed by a question for in-class discussion.

Excerpted Newspaper Article:
Kristin Helmore, “Would William Shakespeare get a Visa?” Christian Science Monitor, May 30, 1984.
       WALK into any bookstore in the United States and the works of Nobel Prize-winners Gabriel Garcia Marquez of Colombia and Pablo Neruda of Chile will be easily available. Anyone who wants to can buy Mexican novelist Carlos Fuentes's works or those of Italian writers Alberto Moravia and Dario Fo. And the titles of books by English novelist Graham Greene are almost household words in this country. Yet each of these acclaimed writers, and many others as well, has on at least one occasion been denied an entry visa to visit the United States.
        The law responsible for this policy is a section of the McCarran-Walter Immigration and Nationality Act of 1952, which some people would like to change. A bill has been introduced in Congress to do just that.
        ''Section 28,'' as it is called, empowers consular officials to refuse non-immigrant visas to foreigners who are or have been members of ''communist'' or ''anarchist'' organizations, as well as those who merely ''write, publish . . . circulate, display, or distribute . . . any written or printed matter advocating or teaching opposition to all organized government.'...
       The exclusion of writers from the US on ideological grounds can take place for a number of specific reasons. According to data collected by PEN, an international association of writers with offices in 55 countries, Gabriel Garcia Marquez was denied entry to the US from 1963 to '71 because of his affiliation with the leftist news agency La Prensa. Since that time, he has been granted entry only on presentation of a formal letter inviting him to a specific event. Last month, Mr. Garcia Marquez was denied entry into the US to speak at a meeting in New York on US policies in Latin America. Finally, in late April, he was granted a multiple-entry visa for one year.
        Pablo Neruda, the late Chilean poet and diplomat, was denied entry on the basis of his membership in the Chilean Communist Party. This ruling was waived on two occasions, in 1966 and '72, as a result of petitions put forward by PEN. ...
       Since 1961, Carlos Fuentes, the Mexican author and politician (who virtually grew up in Washington where his father was Mexican ambassador), has either been denied a visa to the US or issued restricted visas, even though he has been invited on numerous occasions to make public appearances under the auspices of respected institutions. He has received an honorary degree from Harvard University and was recently a visiting scholar at Princeton University. ...
        ''It's a scandal and a hateful thing for a democracy to perpetuate this kind of exclusionary policy,'' [novelist William] Styron said. ''It allows the United States to be branded as a bigoted nation filled with hysteria about communism.'
        Both Arthur Miller and John Irving raised the specter of McCarthyism. ''I doubt strongly that this law could have been passed before 1952, the wildest time of McCarthyism . . . but it's hung on the books because most people aren't aware of it,'' Mr. Miller said.
        ''I hope it's clear that we would improve our national character by ridding ourselves of these vestiges of McCarthyism which shame us today,'' Mr. Irving said.
        Carolyn Forche remarked, ''I am puzzled as to why my government is afraid of a free exchange of ideas. I would hope that my country and its institutions are strong enough to endure freedom of expression.' ...
        Support for the existing law was recently expressed on ABC's ''Nightline'' by Roy Cohn, counsel in the early 1950s to the Senate's Permanent Investigations Subcommittee headed by the late Joseph R. McCarthy: ''This law is aimed at people who present a threat to national security. Under various circumstances they should not be let in. They have access to courts where their visa denial can be overruled.' ….
        Opposition to Section 28 of the McCarran-Walter Act has a long history. In 1952, President Harry S. Truman vetoed the act, remarking, ''Seldom has a bill exhibited the distrust evidenced here for aliens and citizens alike.'
        Congress overrode Mr. Truman's veto."

Guiding Questions, Notes & Class Discussion:

1. Who are some individuals who have been denied visas?
   1. Besides those named in the article, some famous individuals (though perhaps not famous to students today) include Charlie Chaplin, Pablo Picasso, Dorris Lessing, Nazim Hikmet, Czeslaw Milosz, C.L.R. James.
2. What law was used to deny their visas?
   1. The 1952 Immigration and Nationality Act consolidated all previous immigration laws – including the Anarchist Exclusion Act of 1903 and an Internal Security Act of 1950.
   2. It was passed over Truman’s veto – a place to discuss the veto power with students if you think appropriate.
3. Why do civil liberties groups want to reform the law?
   1. Beyond discussions of the impact of the law on the individuals involved, I make sure to draw student attention to William Styron’s argument that the law makes America look bigoted and intolerant.
4. Why does Roy Cohn say we need such a law?
   1. How does this perspective complicate or affirm students’ thoughts on this debate?

Class Discussion:

• Do students think denying visas under this law is a good or a bad thing?
• Do they agree that there are national security grounds under which someone should be denied entry to the country? Do those grounds extend to political beliefs?
  • If you have used the other Free Speech Teaching Guides that cover Schenk v. US and Brandenburg v. Ohio, this is an opportunity to discuss what "harm" the law is intended to prevent.

Optional Exercise: Visa Waivers

        The visa law had a waiver process. If you were denied a visa because you were a member of a communist party, the Attorney-General could issue a “waiver” – letting you into the country just this time.

If students are opposed to the law, you can ask them if this waiver process is enough to satisfy them?

        There was some dispute over how frequently this process was delayed, and how many waivers were granted. But many were granted waivers. However, an additional concern was that the Attorney-General could attach conditions to the waiver – saying visitors could not travel to certain areas, or engage in certain types of activities. (we will see an example of these conditions in the Mandel case).

Framing Essay

Scholarly Context:
       How did these visa laws intersect with the First Amendment? They are clearly a form of punishment for political speech. As early as 1903, an anarchist being deported under the anarchist exclusion law claimed that his First Amendment rights were being violated. The Supreme Court ruled that foreigners could not claim First Amendment rights to stay in the country. As we discussed in the guide, Schenk v. U.S. (1919): The Birth of the Modern First Amendment, this was typical of the narrow way that the Supreme Court protected First Amendment rights before the mid-twentieth century. And in 1945, in a case concerning an attempt to deport an Australian labor leader, the Supreme Court said that noncitizens in the U.S. have the same First Amendment rights as citizens. Of course, in the early 1950s, American citizens didn’t have the right to advocate for Communism, and so many communists were deported in the McCarthy period, just as many Americans citizens were jailed. Today, the standards would be different.

Find the text of the First Amendment Here

       But what about the rights of the foreigner to enter the country? Here, courts have rejected the notion that foreigners can claim a First Amendment right to come into the U.S. if the U.S. has a law that would exclude them. The Supreme Court has ruled that the right to determine who can and can’t enter the country is what it calls the “Plenary Power” – part of what it means to be a government of a nation-state is the right to choose who can enter the country, and no court can interfere with those decisions.
        That has meant that foreigners can’t claim a First Amendment right to enter the country (they can claim such a right if they are being deported after entering, though the law is complex in this area.) But in the late 1960s, a group of university professors tried a different strategy to challenge the visa laws. They had invited Ernest Mandel, a Belgian Marxist theorist, to come to their campuses to give talks and engage in debates. Mandel was denied a visa because he advocated world communism.

Note (if you discussed the waiver program earlier):
       Mandel had been given waivers to enter the country in 1962 and 1968. But in 1969 he was denied a waiver. This was because 1) in 1968 he spoke at more universities than his waiver granted, and 2) after one of these talks, students auctioned posters to send money to French protestors – which violated a condition attached to Mandel’s waiver that he not speak at events where funds were raised for political causes. Mandel had not been told that these conditions were attached to his waiver. This can be a place to return to your discussion of the waiver program, to see if these details change or reinforce students’ earlier attitudes.

Annotated Decision:
       Mandel, as a foreigner, couldn’t claim his First Amendment rights were violated by his exclusion from the country. But the university professors argued that their rights were violated by his exclusion from the country – they wanted to listen to him, to talk to him, to meet with him. A lower court agreed with them, ruling that Mandel’s exclusion violated the First Amendment. The government appealed to the Supreme Court, which ruled 6-3 that Mandel’s exclusion was constitutional. Here’s what the Supreme Court said, along with some notes I use to teach the decision:

The decision text:
"The case…comes down to the narrow issue whether the First Amendment confers upon the appellee professors, because they wish to hear, speak, and debate with Mandel in person, the ability to determine that Mandel should be permitted to enter the country or, in other words, to compel the Attorney General to allow Mandel's admission. ….
The Government also suggests that the First Amendment is inapplicable because appellees have free access to Mandel's ideas through his books and speeches, and because 'technological developments,' such as tapes or telephone hook-ups, readily supplant his physical presence. This argument overlooks what may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning. While alternative means of access to Mandel's ideas might be a relevant factor were we called upon to balance First Amendment rights against governmental regulatory interests—a balance we find unnecessary here in light of the discussion that follows in Part V—we are loath to hold on this record that existence of other alternatives extinguishes altogether any constitutional interest on the part of the appellees in this particular form of access."
Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case 1889, and in Fong Yue Ting v. United States (1893), held broadly…that the power to exclude aliens is 'inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government.' ...

In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under § 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address or decide in this case.”

Annotations:

• ["This argument overlooks what may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning."]
  • The Government was claiming that the professors could speak to Mandel just as easily by telephone, and so his presence was not necessary. The court is skeptical of this claim.
    • In the era of zoom, do students think there is any benefit to in-person conversation? or is online discussion good enough?
• ["Recognition that First Amendment rights are implicated..."]
  • The Supreme Court concedes here that there is a First Amendment right to hear Mandel. There are a number of other cases in the period which emphasize that the right to speak matters not for the speaker, but for the audience - that the First Amendment is important for its role in preserving a broader culture of debate and exchange.
  • Many students will think only about the rights of the speaker, so this is an important place to slow down and demonstrate how many more rights are involved.
• ["The Chinese Exclusion Case 1889, and in Fong Yue Ting v. United States (1893)..."]
  • These are important late nineteenth century cases which established the Plenary Power. Congress passed the Chinese Exclusion Act in 1882, barring Chinese entry to the country. In these legal cases, courts said that they could not overrule political decisions made by Congress as to who could enter the country.
• ["facially legitimate and bona fide reason..."]
  • This is a very deferential standard. In other first amendment cases, the Supreme Court has carefully scrutinized the government's rationale for a law, to make sure it isn't a cover for political discrimination. But here, the court says explicitly that if the government offers a justification that seems reasonable, the courts will not look any closer, or consider the First Amendment.
  • In dissent, Justice Marshall was very critical of this approach:
    • "I do not understand the source of this unusual standard. Merely 'legitimate' governmental interests cannot override constitutional rights. Moreover, the majority demands only 'facial' legitimacy and good faith, by which it means that this Court will never 'look behind' any reason the Attorney General gives. No citation is given for this kind of unprecedented deference to the Executive nor can I imagine (nor am I told) the slightest justification for such a rule."
• ["What First Amendment or other grounds may be available for attacking exercise of..."]
  • This is an ambiguous final sentence, which can be used to help students understand the difficulty in working out how much precedent a given case is setting.
  • This sentence seems to leave open the possibility that there are some instances of visa denial which would raise First Amendment concerns - those in "which no justification whatsoever is advanced." But under what circumstances would a justification fail to be "facially legitimate and bona fide"?
  • The Court has never revisited the visa denial process, so the meaning of these sentences remains unresolved.

Key Takeaways:

• Visa denial is at the crossroads of two discrete fields of the law: immigration law and free speech law.
  • In immigration law, courts have been very deferential to the power of the government to decide who can enter the country; in free speech law, courts have been very skeptical of government claims that it needs to regulate debate and discussion.

Do students think cases like Mandel’s – or more recent cases, if there have been some in the news – are better treated as First Amendment or immigration cases? Or do they think that these two areas of the law should be combined?

• This can be an interesting place to leave the class discussion – asking students both to consider their own values in this complex area, and also to show them how the answers to legal questions are often shaped by the ways that courts and lawyers sort them into different doctrinal domains.

Introduction: How to Use this Guide

Organization

• Sources are sorted into four thematic sections, arranged chronologically.
• Each section begins with an overview and index of sources.
• Primary sources are curated alongside questions, videos, and podcasts to help contextualize each source.

Links

• Many sources are linked to their hosting websites (external to this site).

Environmentalism in the Progressive Era & WWI (c. 1890-1920)

Overview

The primary source documents and videos in this section illustrate the growing environmental ethos evident in the early twentieth century, from the Progressive Era through Wold War I.

The Progressive Era, spanning roughly from 1890-1920, can be understood as a period of reform movements formed in response to rapid industrialization, urbanization, and commercialization. Among these reform movements were two early environmental movements known as preservationism and conservationism. Preservationists believed that natural landscapes should be left exactly as they were, and conservationists sought to maintain natural resources in order for them to be best used and enjoyed. John Muir was known as the most prominent preservationist, whereas Gifford Pinchot was known as the most prominent conservationist.

This growing environmental ethos continued into World War I, as Americans conserved and rationed resources in order to support the war effort. Through their participation in garden clubs and local victory gardens, American women and children on the home front used agricultural practices to support soldiers abroad.

The sources in this section exemplify the many perspectives among Americans fostering connections to the environment in the early twentieth century.

Sources

• Essay: Gifford Pinchot, 1890 (Excerpt) 
  • 6-12 Video: Mira Lloyd Dock: A Beautiful Crusade
• Legislative Summary of the Bill to Establish the National Park Service, 1916
  • 6-12 Video: Brigadier General Charles Young
• “Everybody Plant a Garden,” Richmond Times-Dispatch, April 22, 1917
• “Yule Exhibits in Portsmouth,” Virginian-Pilot, December 11, 1941
• Will you have a part in Victory? 1918 Poster
• The Gardens of Victory, Poster
  • Victory Gardens Video

Excerpt: Gifford Pincho Essay, 1890

Link: https://dp.la/primary-source-sets/environmental-preservation-in-the-progressive-era/sources/919

Background:

• Gifford Pinchot (1865-1946) was known as the “father of American forestry.”
• He was an influential Progressive Era conservationist who advocated for the protection of natural resources in the United States.
• This 1908 Essay discusses issues of deforestation, the over-extraction of coal and other minerals, and the negative effects of monopolies on natural resources.
• Pinchot calls for a “New Point of View” regarding the environment, and he appeals to doing so for future generations and the United States as a nation.

Discussion Questions: 

• Which natural resources do you think Pinchot is referring to?
• What might Pinchot mean by a “critical point” in history?
• In what ways might this relate to industrialization?

Extension Video:

Mira Lloyd Dock: A Beautiful Crusade (Link to Web)

Annotation/Discussion Questions:

• How might Dock’s experiences growing up in an industrializing city influenced her career trajectory?
• What were some of the environmental hazards
  Harrisburg faced due to industrialization?
• What were some of the argument Dock made for cleaning up Harrisburg? How might her trip to Europe have influenced her arguments?
• How might public parks have helped industrializing cities?
• How might Harrisburg’s city beautiful movement have influenced movements in other cities, as well as city parks in our own time?

1916 Congressional bill to establish the National Park Service & NPS Video

Link: https://dp.la/primary-source-sets/environmental-preservation-in-the-progressive-era/sources/913

Background:

• President Woodrow Wilson established the NPS
  into law through the 1916 “Organic Act.”
• Congress proposed a bill to establish the NPS in response to the growing national ethos toward conservation coming out of the Progressive Era.
• This Congressional report summarizes the bill,
  highlighting the utility behind the creation of the
  NPS under the Secretary of the Interior.

Annotation/Discussion Questions:

• In the first paragraph, the report summarizes the main purposes behind the foundation
  of the National Park Service. What are they?
• Which department will manage the NPS? Why do you think Progressive Era Americans wanted the federal government to oversee parks? How might this fit into broader Progressive Era reforms?
• How does Congress distinguish the difference between the National Parks and the National Forests?

Extension Video:

Brigadier General Charles Young Link: https://home.nps.gov/seki/learn/historyculture/young.htm

Background:

• First Black National Park Super Intendant of Sequoia National Park
• Prolific military career despite segregation of US armed forces

Link to Supplementary Lesson Plan, NPS: https://home.nps.gov/articles/000/-h-our-history-lesson-fit-for-service-colonel-charles-young-s-protest-ride.htm

"Everybody Plant a Garden," Richmond Times-Dispatch, April 22, 1917

Annotation:

• As a newspaper, this was intended for a wide audience and was published just weeks after the US declared war on Germany during WWI. Victory Gardens were encouraged as a way to help with food shortages and rations during the war. Gardening also gave people something to do and a way to participate that would ease anxieties about the war, food, and the threat of inflation.
• While Garden Clubs were primarily run by women, men and children were also encouraged to join so the whole family could be involved.
• War took millions of men away from their jobs which included agriculture and transportation. Imports of goods from other countries including fertilizer also slowed or stopped. With decreased home grown food and decreased imports of foreign food, shortages occurred  which caused increased prices and hoarding.
• The bank invested in the Garden Club in support of the war effort and the local economy.

Discussion Questions:

• Why might the Bank sponsor a Garden Club? For what reasons might the government have encouraged victory gardens?
• What benefits do you think victory gardens provided?
• What do you need to start a Victory Garden? Can everyone do it? (knowledge, tools)

"Yule Exhibits in Portsmouth," Virginian-Pilot, December 11, 1941

Annotation:

• As a newspaper, this was intended for a wide public audience. The date reveals that this Yule Exhibit was held the weekend after the attack on Pearl Harbor.
• A Federation of Garden Clubs through the County indicates that Garden club work was important to the government. Even on the local level, there was institutional support of the war effort.
• This exhibit attempted to make conservation interesting
  to a wide audience by connecting it to Christmas, and
  hoped to encourage families to reduce waste and decorate using recycled materials at home. Reducing
  waste was important during war time when money and
  resources were scarce.
• All of the club’s leaders were women which shows that
  conservation was seen as a “women’s activity.” Garden
  Clubs provided women leadership opportunities. Also note that they were all listed by their husbands’ names.
• Garden Clubs were often made exclusive to only wealthy
  white women. This article shows that in spite of
  segregation, Black women organized their own Garden
  Clubs and advocated for conservation.

Extension Videos:

Smithsonian Gardens: https://www.youtube.com/watch?v=TtrlcLslK5w

Discussion Questions:

• How might Garden Clubs connect to politics?
• Why was gardening an “acceptable” way for women to become activists and professionals?
• What were gender roles of the time? How did this work stay within or reject them?

Will you have a part in Victory? 1918

Link: https://www.loc.gov/item/2002712327/

Annotation:

• This was published by the National War Garden Commission, a temporary department created to encourage gardening during WWI.
• Dressed in the American flag, this woman, beautiful and innocent looking, represents the country. She appears delicate and yet powerful, but ultimately worthy of
  protection. She walks with a purpose and sows seeds that presumably will allow the nation to win the war. This imagery is often used for America or American ideals (think Statue of Liberty). The image conjures an emotional attachment to the nation, but also inspires women to join her in the garden or farm fields.
• “Every Garden a Munition Plant” communicates that growing food is just as important as manufacturing guns and ammunition.

Discussion Questions:

• How is this similar to or different
  from other propaganda images?
• Why might America be depicted in
  this way? Where have we seen
  something similar?
• Why do you think the painting/image
  was made to look this way?
• Who is the audience for this image?

The Gardens of Victory

Gardens of Victory Video

Link: https://www.youtube.com/watch?v=uBg1ND5X3tA

Annotation:

• This film was made by the United States Office of Civil Defense. It shows the wartime need for vegetable gardens. It advertises that people can get instructions from the government on how to plant a successful garden. The film also says that people benefit from being in the sun and feeling involved in the war effort.
• In both of these sources, every member of the family is shown participating in the garden. The poster is not just focused on a wife or mother, in fact she is in the back. This family also does not appear to be wealthy which suggests Victory Gardening is for everyone.
• “Our food is fighting,” is similar to the WWI Poster that said “Every Garden, a Munitions Plant.” Food is seen as just important as military material and action.

Discussion Questions:

• Do you think this video would have been helpful to people? Why?
• What are some of the benefits victory gardens provided?
• How is this poster similar to or different from other propaganda images?
• Do you see any similarities or differences between these sources and victory garden material from WWI?

The Great Depression & The New Deal (c.1929-1945)

Overview

The sources in this section chronicle the environmental aspects of the Great Depression and the New Deal. This period can be studied for both its environmental disaster and federal initiatives toward conservation and reforestation.

In the early 1930s, as the Great Depression wreaked havoc on the economy, the Dust Bowl hit in the Great Plains and the eastern US. The Dust Bowl became known as the largest human caused environmental disaster in US history and is largely attributed to the poor use of agricultural lands as well that were intensified by a long drought in the region. The disaster would lead to mass migration from the Great Plains to Wester states, including California. Primary source photographs, an interview, and a PBS video illustrate the toll the Dust Bowl had on the environment and the people living there.

President Franklin Roosevelt’s New Deal ushered in a series of federally funded programs to alleviate financial burdens of the Great Depression, while also focusing on environmental projects. Notably, the Civilian Conservation Corps (CCC) employed young men to work on conservation initiatives and reforestation projects. Their work would benefit the National Park Service, as well as State Parks around the country.

Sources

• The Dust Bowl & The Great Depression
  • Photo: Arthur Rothstein, “Abandoned farm in the dust bowl area, Oklahoma,” April 1936, Farm Security Administration.
  • Photo: Dorothea Lange, “Migrant Mother: Birth of an Icon,” Nipomo, 1936.
  • Video: A Man-Made Ecological Disaster
  • Interview with Flora Robertson, 1940
• Civilian Conservation Corps & the New Deal
  • Video: Zion National Park Ranger Minute
  • NPS, Civilian Conservation Corps Article
  • Video: Civilian Conservation Corps | Oregon Experience, Oregon Public Broadcasting

The Dust Bowl and the Great Depression

Background:

• In the early 1930s, extreme drought hit the Great Plains. For decades, farmers in the region had been over-plowing and depleting the soil through a lack of crop rotation.
• The drought, combined with high winds, caused massive
  dust storms that blew across the plains, further stripping topsoil.
• Along with environmental damage, the Dust Bowl caused
  further economic hardship and health issues.
• The Dust Bowl would also cause a mass migration of
  farmers out of states like Oklahoma, Texas, and Arkansas
  and to California as they searched for better opportunities.

Discussion Questions:

• Describe what you see in the photo.
• Read the caption:
  • Who took this photo and when?
  • Where is this located?
  • Why do you think this photo was taken?
  • Why might this photo have historical significance?
• Taken together, how do these two photographs provide different perspectives of the Dust Bowl and the Great Depression (eg. environmental, migration, childhood)

Extension Videos:

A Man-Made Ecological Disaster

Link: https://www.pbslearningmedia.org/resource/ecological-disaster-ken-burns-dust-bowl/ken-burns-the-dust-bowl/

Interview with Flora Robertson, 1940

Link: https://history.iowa.gov/history/education/educator-resources/primary-source-sets/dust-bowl/interview-flora-robertson-about

Discussion Questions:

• When was this interview recorded and where is Flora located?
• How did Flora take to protect her from the dust storms?
• Why might Flora have waited to move to California?
• How does a personal account of the Dust Bowl add to your understanding of what happened?

Segregation and Jim Crow in the Environment

Overview

In the early twentieth century, Jim Crow segregation relegated Black Americans to separate and often unequal environmental spaces. In spite of this, Black Americans had robust relationships to the environment through recreation, and commercial or personal ownership.

The sources in this section highlight the specific ways outdoor spaces were segregated through law and social custom. The sources also reveal how Black Americans maintained connection to the outdoors despite the segregation they actively fought, creating spaces of joy and environmental connection for their communities. By exploring these not so distant stories, students will also be able to consider what effects of environmental segregation and racism are still present today.

Sources

• Ownership and Segregation of Beaches
  • Photo: “YWCA camp for girls. Highland Beach, Maryland,”
    1930, Scurlock Studio Records, Box 41, Archives Center,
    Smithsonian National Museum of American History.
  • Newspaper: “Police on Guard at Wade-In,” Chicago Tribune, July 9, 1961
  • Video: “Five Minute Histories: Carr’s Beach,” Baltimore Heritage, August 25, 2023.
• “African Americans and the Great Outdoors,” National Park Service, Digital Project and Map

Ownership and Segregation of Beaches

Annotation:

• Incorporated in 1922, Highland Beach was the first African American municipality in Maryland. It was also the first African American Summer Resort in the Country.
• Many very wealthy African Americans including Mary Church Terrell and Charles Douglass.
• In the late 1800s and early 1900s, most beaches and coastal properties were owned by Black people, particularly formerly enslaved folks and their descendants because the weather and sandy soil made the land less valuable. In the 20th century, predatory white land developers started trying to take these properties and monetize them as segregated beaches and resorts.
• The car and clothing hint at when this was taken, and reveal the presence of Black people in outdoor spaces, specifically beaches, long before desegregation.
• This photo is of a YWCA camp for girls. Recreation, specifically in the outdoors, was not limited to just boys.

Annotation:

• Wade-ins were just like sit-in protests happening at lunch counters during the civil rights movement. Instead of sitting down in restaurants, activists were visiting the beach and swimming in the ocean.
• Many of the beaches where wade-ins occurred, including Rainbow Beach, were not legally segregated, but were “segregated by custom,” meaning that only white people had been welcome there for many years, they were dangerous places for Black people to go.
• Wade-ins advocated for integration. Many communities ended up getting designated Black beaches rather than equal access to all beaches.
• The police are facing the group of protestors. This stance indicates that the protestors were seen as the threat of violence rather than the racist mob.
• Although no violence was reported, ten people were arrested for “unlawful assembly.” This charge is meant for people who enter a space illegally or who threaten public safety. Since there was no legal segregation of Rainbow Beach, neither one of these things was the case.

Discussion Questions:

• What or who do you see in these photos?
• When do you think these photos were taken?
• Why do you think the photos were taken?
• Did anything in the photos surprise you?
• What questions do you have for the photos?

The Environmental Movements of the 1960s and 1970s

Overview

By the 1960s, decades of industrialization, resource over-extraction, and use of harmful chemicals had taken a noticeable environmental toll. The sources in this section explore the environmental movements of the 1960s and 1970s and pieces of federal legislation passed in response to the growing popular movement to protect the environment.

By the early 1960s and 1970s, what had been a burgeoning environmental movement grew into the mainstream as activists and scholars alike noticed an intensifying environmental crisis. Some key issues included deforestation, air and water pollution, and species extinction. A few key moments in this growing environmental movement include: the fight against DDT, made popular by Rachel Carson’s Silent Spring; the first Earth Day in 1970; and the American Indian Movement’s March to Wounded Knee in 1973. Important pieces of legislation include the Wilderness Act (1964), Clean Air Act (1970), the Endangered Species Act (1973).

Sources

• "DDT is good for me-e-e," Advertisement, Time Magazine, June 30, 1947
  • Podcast: "DDT: The Britney Spears of Chemicals"
• Rachel Carson, Silent Spring, excerpts
  • American Experience: Rachel Carson Video
• Earth Day and March to Wounded Knee
  • Walter Cronkite, Earth Day CBS News Broadcast, April 22, 1970
  • "World Pilgrimage: Wounded Knee," Poster, April 22, 1970
  • Podcast: Throughline, "The Force of Nature"
  • Video: PBS, "The American Indian Movement and Wounded Knee"
• Environmental Movement: Legislation
  • Complete Text of the Wilderness Act (Teaching Version)
  • Endangered Species Act of 1973
  • Video: PBS Learning Media, "Birth of the Clean Air Act"
  • Video: US Fish and Wildlife Service, Endangered Species Act 101

"DDT is good for me-e-e," Advertisement, Time Magazine, June 30, 1947 

(see https://digital.sciencehistory.org/works/1831ck18w)

Background

• Created by the Penn Salt Chemicals company
• Published in Time Magazine, June 1947
• Touts the multiple uses and benefits of DDT for different audiences, including commercial farmers and in the home.
• Dichloro-diphenyl-trichloroethane (DDT) was developed in the late nineteenth century, but became commercially available by the 1940s.
• The US military initially used DDT to stop the spread of diseases, like malaria, that spread through insects.
• DDT became commercially available in the 1940s as a pesticide that everyday Americans and famers could use to keep insects off of crops.
• Rachel Carson’s Silent Spring has been credited with exposing the harms of DDT on human, animal, and plant health.
• The movement against DDT can be seen as one of the main signifiers of the modern environmental movement, which had already started to take shape by the early 1960.

Discussion Questions

• What kind of document is this? (Is it a newspaper article, an advertisement, a letter, etc.)
• Who created this document?
• Who might the intended audience be for this document?
• Choose three of the photographs and text blurbs. What do these sections argue?
• Taking the document as a whole, what do you think the argument of this document is?
• Given what has been discussed about DDT, how might this document be misleading?

Extend: "DDT: The Britney Spears of Chemicals" Podcast, https://digital.sciencehistory.org/works/1831ck18w.

• What were some of the initial uses of DDT?
• When did the public start to question the use of DDT and why?
  • What are some of the different interpretations of when the public started doubting the use of DDT?
  • How did the Polio epidemic sway public opinion on DDT?
• Where do we see discourses surrounding uses of chemicals and safety in today’s media?

Excerpts: Rachel Carson’s Silent Spring, 1962, Chapters 1 & 17

(see https://www.uky.edu/~tmute2/GEI-Web/GEI/GEI10/GEI%20past/GEI08-Global%20Env%20Issues/GEI%20lecturse/carson_silent-spring.pdf).

Background

• Rachel Carson’s Silent Spring was published in 1962.
• Carson’s work exposed the dangers of DDT to the public, spurring an already growing environmental movement.
• Carson was born in Springdale, Pennsylvania (near Pittsburgh) in 1907, and died in 1964 after a battle with cancer.
• Carson was one of the foremost nature writers of the twentieth century.
• For more on Rachel Carson see: https://pabook.libraries.psu.edu/literary-cultural-heritage-map-pa/bios/carson__rachel_louise.

Video Source: American Experience on Rachel Carson https://www.youtube.com/watch?v=SeJNRaE11A0. 

Questions

• Carson’s introduction spells out a “before” and “after.” How does she describe the natural landscape like before?
  • How does she describe the condition of nature after?
• What is the cause of this change, according to Carson?
• Why might Carson have called her book Silent Spring?
• What is Carson’s call to action?
• How does Carson appeal to broad audiences beyond the scientific profession?
• How would you describe Carson’s philosophy behind humanity’s relationship with nature?
• Do you think Carson’s observations and solutions are still relevant today? If so, how? 

The First Earth Day & March to Wounded Knee, 1970 & 1973

Walter Cronkite, Earth Day CBS News Broadcast, April 22, 1970, https://www.youtube.com/watch?v=WbwC281uzUs.

March to Wounded Knee: Earth Day World Pilgrimage Poster, 1973, Library of Congress, https://www.loc.gov/item/2016648085/. 

Background

• The growing popular movements aimed at environmental protection led to a major moment in 1970 with the first Earth Day.
• Senator Gaylord Nelson of Wisconsin is credited with organizing the first Earth Day, wherein activists from across the country, protested the environmental degradation caused by unchecked industrial pollution.
• The American Indian Movement (AIM) used Earth Day as a focal point of the 73-day Wounded Knee occupation in 1973.
  • AIM protested the US government’s broken promises and exploitation of American Indian land and human rights. Activists protested on the site of the 1890 Wounded Knee Massacre.

Cronkite Broadcast Questions

• What are some of the environmental issues Earth Day might have remedied?
• Who participated in the first Earth Day?
  • Why might Cronkite have said Earth Day “failed?”
• What role do the media play in shaping public awareness and action on environmental issues?
• How do you think the environmental movement has evolved since 1970?
  • In what ways do you think it has succeeded, and where do challenges remain?

March to Wounded Knee Poster Questions

• Who created this poster, and when?
• Why was this poster made?
• What is on the poster, and what might these symbols represent?
• How might the goals of Earth Day align with those of AIM?

Extension Podcast and Video

• NPR Throughline Podcast, "The Force of Nature," https://www.npr.org/2021/04/19/988747549/earth-day-1970.
• PBS Video: "The American Indian Movement at Wounded Knee," https://www.pbslearningmedia.org/resource/ush22-soc-aimwoundedknee/the-american-indian-movement-and-wounded-knee-we-shall-remain-wounded-knee/.

Environmental Movement: Legislation 

Background

The growing social and cultural movements throughout the 1960s and 1970s helped push both state and federal legislatures to pass a series of laws to combat air and water pollution, and curb species extinctions. Legislation including the Clean Air Act (1963, 1970), the Wilderness Act (1964), and the Endangered Species Act (1973), provided federal support for the conservation and protection natural environment. These acts, along with the creation of the Environmental Protection Agency (EPA) in 1970, formed the backbone of modern environmental policy, as the federal government began to take a more active role in environmental protection efforts. 

Sources

• Complete Text of the Wilderness Act, 1964, https://www.nps.gov/subjects/wilderness/upload/W-Act_508.pdf/ .
• Endangered Species Act of 1973, https://www.fws.gov/sites/default/files/documents/endangered-species-act-accessible_7.pdf/.
• PBS Video: "Birth of the Clean Air Act," https://www.pbslearningmedia.org/resource/birth-of-the-clean-air-act-video/ecosense-for-living/. 
• Fish and Wildlife Service Video: "Endangered Species Act 101," https://www.youtube.com/watch?v=Y6wJpGO8j4Q.

Introduction: How to Use this Guide

Organization

• Sources are sorted into four thematic sections, arranged chronologically.
• Each section begins with an overview and index of sources.
• Primary sources are curated alongside questions, videos, and podcasts to help contextualize each source.

Links

• Many sources are linked to their hosting websites (external to this site).

Environmentalism in the Progressive Era & WWI, c. 1890-1920

Overview

The primary source documents and videos in this section illustrate the growing environmental ethos evident in the early twentieth century, from the Progressive Era through Wold War I.

The Progressive Era, spanning roughly from 1890-1920, can be understood as a period of reform movements formed in response to rapid industrialization, urbanization, and commercialization. Among these reform movements were two early environmental movements known as preservationism and conservationism. Preservationists believed that natural landscapes should be left exactly as they were, and conservationists sought to maintain natural resources in order for them to be best used and enjoyed. John Muir was known as the most prominent preservationist, whereas Gifford Pinchot was known as the most prominent conservationist.

This growing environmental ethos continued into World War I, as Americans conserved and rationed resources in order to support the war effort. Through their participation in garden clubs and local victory gardens, American women and children on the home front used agricultural practices to support soldiers abroad.

The sources in this section exemplify the many perspectives among Americans fostering connections to the environment in the early twentieth century.

Sources

• US Forest Service Video, "Gifford Pinchot Birthday Card"
• National Parks Service Video, "Happy Birthday National Park Service!" 
• National Parks Service Video, "Brigadier General Charles Young, Early Park Superintendent."  
• "Everybody Plant a Garden," Richmond Times Dispatch, April 22, 1917.
  • Political cartoon, J.N. Darling, in the New York Tribune, 1919.
• "Yule Exhibits in Portsmouth, Virginia Pilot, December 11, 1941.
  • Smithsonian Gardens Video.
• "Will you have a part in Victory?" 1918, poster.
• "The Gardens of Victory," poster.
  • Victory Gardens Video.

US Forest Service, "Gifford Pinchot Birthday Card" 

Link: https://www.youtube.com/watch?v=WgFlbQiG3j0.

Background:

• Gifford Pinchot (1865-1946) was known as the “father of American forestry.” He was an influential Progressive Era conservationist who advocated for the protection of natural resources in the United States.

Discussion Questions:

• The Grey Towers National Historic Site commemorates Pinchot. 
• What does commemorate mean?
• How might physical sites commemorate people?
• Why might the Forest service want to tell Pinchot’s story?
• What is scientific forestry?
• Why might Pinchot have wanted to bring forestry to the United States?
• What kinds of local and national political influence did Pinchot garner?

National Parks Service Video, "Happy Birthday National Park Service!" 

Link: https://www.nps.gov/media/video/view.htm?id=F4CA333A-E487-498D-BB0A-4E3D3729B9B7. 

Background:

• President Woodrow Wilson established the NPS into law through the 1916 “Organic Act.”
• Now, there are sixty-three National Parks across the country, serving millions of people each year. 

Discussion Questions 

• What do you think of when you hear “National Parks”?
• What is a Park Ranger?
  • Where do the Park Rangers in this video work?
• List some of the National Parks described by these Park Rangers.
  • Do any of these places surprise you?
• If you could make a site you know a National Park, which site would you choose? Why?

Brigadier General Charles Young, Early Park Superintendent

Link: https://home.nps.gov/seki/learn/historyculture/young.htm.

Background:

• Brigadier General Charles Young was the first Black National Park Superintendent of Sequoia National Park. He had a prolific military career despite segregation of US armed forces and the larger discrimination he faced in Jim Crow America.
• See the guide supplementary guide for more teaching resources: https://home.nps.gov/articles/000/-h-our-history-lesson-fit-for-service-colonel-charles-young-s-protest-ride.htm.

“Everybody Plant a Garden,” Richmond Times-Dispatch, April 22, 1917.

Background

• As a newspaper, this was intended for a wide audience and was published just weeks after the US declared war on Germany during WWI. Victory Gardens were encouraged as a way to help with food shortages and rations during the war. Gardening also gave people something to do and a way to participate that would ease anxieties about the war, food, and the threat of inflation.
• While Garden Clubs were primarily run by women, men and children were also encouraged to join so the whole family could be involved.
• War took millions of men away from their jobs which included agriculture and transportation. Imports of goods from other countries including fertilizer also slowed or stopped. With decreased home grown food and decreased imports of foreign food, shortages occurred which caused increased prices and hoarding.
• The bank invested in the Garden Club in support of the war effort and the local economy.

Political cartoon, J.N. Darling, in the New York Tribune, 1919

Link: https://virginiahistory.org/learn/victory-gardens.

Discussion Questions:

• What do you see?
• How might Cabbage Worms “enemy plotters” like our enemies in war?
• Who do you think this cartoon is for?

“Yule Exhibits in Portsmouth,” Virginian-Pilot, December 11, 1941. 

Background

• As a newspaper, this was intended for a wide public audience. The date reveals that this Yule Exhibit was held the weekend after the attack on Pearl Harbor.
• A Federation of Garden Clubs through the County indicates that Garden club work was important to the government. Even on the local level, there was institutional support of the war effort.
• This exhibit attempted to make conservation interesting to a wide audience by connecting it to Christmas, and hoped to encourage families to reduce waste and decorate using recycled materials at home. Reducing waste was important during war time when money and resources were scarce.
• All of the club’s leaders were women which shows that conservation was seen as a “women’s activity.” Garden Clubs provided women leadership opportunities. Also note that they were all listed by their husbands’ names.
• Garden Clubs were often made exclusive to only wealthy white women. This article shows that in spite of segregation, Black women organized their own Garden Clubs and advocated for conservation.

Smithsonian Gardens Video

Link: https://www.youtube.com/watch?v=TtrlcLslK5w. 

Discussion Questions

• Are the photos you see in this video in Black and White?
• What might that mean?
• What are some reasons people have gardens today?
• What are some reason why people had gardens back then?
• Why is gardening good?
• Why is reducing waste good?
• What did the women in Garden Clubs do besides garden?
• How might Garden Clubs have benefited communities?

Will you have a part in Victory? 1918

Link: https://www.loc.gov/item/2002712327/

Background

• This was published by the National War Garden Commission, a temporary department created to encourage gardening during WWI.
• Dressed in the American flag, this woman, beautiful and innocent looking, represents the country. She appears delicate and yet powerful, but ultimately worthy of
  protection. She walks with a purpose and sows seeds that presumably will allow the nation to win the war. This imagery is often used for America or American ideals (think Statue of Liberty). The image conjures an emotional attachment to the nation, but also inspires women to join her in the garden or farm fields.
• “Every Garden a Munition Plant” communicates that growing food is just as important as manufacturing guns and ammunition.

Discussion Questions:

• What do you see? What do you wonder about this image?
• Why is the woman dressed in an American flag?
• Is this similar to other propaganda images?
• Why was food important during the war?

The Gardens of Victory Video

Link: https://www.youtube.com/watch?v=uBg1ND5X3tA

Discussion Questions:

• What do you notice about this video?
• When do you think this video was made? Why?
• What are some reasons why people have gardens today?
• Why might people have had gardens back then?
• What is a ration?
• Do you have questions about the video?

The Great Depression and the New Deal (c. 1929-1945)

Overview

The sources in this section chronicle the environmental aspects of the Great Depression and the New Deal. This period can be studied for both its environmental disaster and federal initiatives toward conservation and reforestation.

In the early 1930s, as the Great Depression wreaked havoc on the economy, the Dust Bowl hit in the Great Plains and the eastern US. The Dust Bowl became known as the largest human caused environmental disaster in US history and is largely attributed to the poor use of agricultural lands as well that were intensified by a long drought in the region. The disaster would lead to mass migration from the Great Plains to Wester states, including California. Primary source photographs, an interview, and a PBS video illustrate the toll the Dust Bowl had on the environment and the people living there.

President Franklin Roosevelt’s New Deal ushered in a series of federally funded programs to alleviate financial burdens of the Great Depression, while also focusing on environmental projects. Notably, the Civilian Conservation Corps (CCC) employed young men to work on conservation initiatives and reforestation projects. Their work would benefit the National Park Service, as well as State Parks around the country.

Sources

• The Dust Bowl & The Great Depression
  • Photo: Arthur Rothstein, “Abandoned farm in the dust bowl area, Oklahoma,” April 1936, Farm Security Administration.
  • Photo: Dorothea Lange, “Migrant Mother: Birth of an Icon,” Nipomo, 1936.
  • Video: A Man-Made Ecological Disaster
  • Interview with Flora Robertson, 1940
• Civilian Conservation Corps & the New Deal
  • Video: Zion National Park Ranger Minute
  • NPS, Civilian Conservation Corps Article
  • Video: Civilian Conservation Corps | Oregon Experience, Oregon Public Broadcasting

The Dust Bowl and the Great Depression

Background:

• In the early 1930s, extreme drought hit the Great Plains. For decades, farmers in the region had been over-plowing and depleting the soil through a lack of crop rotation.
• The drought, combined with high winds, caused massive
  dust storms that blew across the plains, further stripping topsoil.
• Along with environmental damage, the Dust Bowl caused
  further economic hardship and health issues.
• The Dust Bowl would also cause a mass migration of
  farmers out of states like Oklahoma, Texas, and Arkansas
  and to California as they searched for better opportunities.

Discussion Questions:

• What do you see in these photos?
• What people and objects do you see?
• When do you think these photos were taken?
• Why do you think the photo was taken?
• How might the Dust Bowl have affected women and children?
• How might the Dust Bowl have affected the environment?

Civilian Conservation Corps & the New Deal

National Park Service Ranger Minute Link: https://www.youtube.com/watch?v=zPvnXG8qSTs

National Park Service CCC Article Link: https://www.nps.gov/articles/the-civilian-conservation-corps.htm

Oregon Public Broadcasting CCC Video (28 min) Link: https://www.youtube.com/watch?v=6ZArEDEVo4s

Analyzing Photographs & Discussion Questions:

• What do you see in these photos?
• What people and objects do you see?
• When do you think these photos were taken?
• Why do you think the photo was taken?
• How did the Civilian Conservation Corps help people? How did it help the earth?
• Would you join the CCC? Why or why not?

Segregation and Jim Crow in the Environment

Overview

In the early twentieth century, Jim Crow segregation relegated Black Americans to separate and often unequal environmental spaces. In spite of this, Black Americans had robust relationships to the environment through recreation, and commercial or personal ownership.

The sources in this section highlight the specific ways outdoor spaces were segregated through law and social custom. The sources also reveal how Black Americans maintained connection to the outdoors despite the segregation they actively fought, creating spaces of joy and environmental connection for their communities. By exploring these not so distant stories, students will also be able to consider what effects of environmental segregation and racism are still present today.

Sources

• Ownership and Segregation of Beaches
  • Photo: “YWCA camp for girls. Highland Beach, Maryland,” 1930, Scurlock Studio Records, Box 41, Archives Center, Smithsonian National Museum of American History.
  • Newspaper: “Police on Guard at Wade-In,” Chicago Tribune, July 9, 1961

Ownership and Segregation of Beaches

Annotation:

• Incorporated in 1922, Highland Beach was the first African American municipality in Maryland. It was also the first African American Summer Resort in the Country.
• Many very wealthy African Americans including Mary Church Terrell and Charles Douglass.
• In the late 1800s and early 1900s, most beaches and coastal properties were owned by Black people, particularly formerly enslaved folks and their descendants because the weather and sandy soil made the land less valuable. In the 20th century, predatory white land developers started trying to take these properties and monetize them as segregated beaches and resorts.
• The car and clothing hint at when this was taken, and reveal the presence of Black people in outdoor spaces, specifically beaches, long before desegregation.
• This photo is of a YWCA camp for girls. Recreation, specifically in the outdoors, was not limited to just boys.

Annotation:

• Wade-ins were just like sit-in protests happening at lunch
  counters during the civil rights movement. Instead of sitting down in restaurants, activists were visiting the beach and swimming in the ocean.
• Many of the beaches where wade-ins occurred, including Rainbow Beach, were not legally segregated, but were “segregated by custom,” meaning that only white people had been welcome there for many years, they were dangerous places for Black people to go.
• Wade-ins advocated for integration. Many communities ended up getting designated Black beaches rather than equal access to all beaches.
• The police are facing the group of protestors. This stance indicates that the protestors were seen as the threat of violence rather than the racist mob.
• Although no violence was reported, ten people were arrested for “unlawful assembly.” This charge is meant for people who enter a space illegally or who threaten public safety. Since there was no legal segregation of Rainbow Beach, neither one of these things was the case.

Discussion Questions:

• What or who do you see in these photos?
• When do you think these photos were taken?
• Why do you think the photos were taken?
• Did anything in the photos surprise you?
• What questions do you have for the photos?

The Environmental Movement of the 1960s and 1970s

Overview

By the 1960s, decades of industrialization, resource over-extraction, and use of harmful chemicals had taken a noticeable environmental toll. The sources in this section explore the environmental movements of the 1960s and 1970s and pieces of federal legislation passed in response to the growing popular movement to protect the environment.

By the early 1960s and 1970s, what had been a burgeoning environmental movement grew into the mainstream as activists and scholars alike noticed an intensifying environmental crisis. Some key issues included deforestation, air and water pollution, and species extinction. A few key moments in this growing environmental movement include: the fight against DDT, made popular by Rachel Carson’s Silent Spring; the first Earth Day in 1970; and the American Indian Movement’s March to Wounded Knee in 1973. Important pieces of legislation include the Wilderness Act (1964), Clean Air Act (1970), the Endangered Species Act (1973).

Sources

• “DDT is good for me-e-e” Advertisement, Time Magazine, June 30, 1947.
• Rachel Carson’s Silent Spring
  • Video: Rachel Carson and the Origin of Scientific Environmentalism
• Earth Day & March to Wounded Knee
  • Walter Cronkite, Earth Day CBS News Broadcast, April 22, 1970
  • “World Pilgrimage: Wounded Knee,” Poster, April 22, 1970.
  • Video: PBS, “All About Holidays: Earth Day”
• Environmental Movement: Legislation
  • Video: Endangered Species Act Overview, U.S. Fish and Wildlife Service

"DDT is good for me-e-e," Advertisement, Time Magazine, June 30, 1947

Link: https://digital.sciencehistory.org/works/1831ck18w

Background:

• Dichloro-diphenyl-trichloroethane (DDT) was developed in the late nineteenth century, but became commercially available by the 1940s.
• The US military initially used DDT to stop the spread of diseases, like malaria, that spread through insects.
• DDT became commercially available in the 1940s as a pesticide that everyday Americans and famers could use to keep insects off of crops.
• Rachel Carson’s Silent Spring has been credited with exposing the harms of DDT on human, animal, and plant health.
• The movement against DDT can be seen as one of the main signifiers of the modern environmental movement, which had already started to take shape by the early 1960s.

Annotation:

• Created by the Penn Salt Chemicals company
• Published in Time Magazine, June 1947
• Touts the multiple uses and benefits of DDT for different audiences, including commercial farmers and in the home.

Discussion Questions:

• What kind of document is this? (Is it a newspaper article, an advertisement, a letter, etc.)
• Who created this document?
• Who might the intended audience be for this document?
• Choose three of the photographs and text blurbs. What do these sections argue?
• Taking the document as a whole, what do you think the argument of this document is?
• Given what has been discussed about DDT, how might this document be misleading?

Rachel Carson's Silent Spring

Rachel Carson and the Origin of Scientific Environmentalism Video Link: https://www.youtube.com/watch?v=GCYEElzrK64

Discussion Questions:

• What were some of Carson’s “unique talents”?
• How did Carson communicate her findings to the public, and why might her message have been important?
• Why might Carson’s writings appeal to us today?

The First Earth Day & March to Wounded Knee, 1970 & 1973

Background:

• The growing popular movements aimed at environmental protection led to a major moment in 1970 with the first Earth Day.
• Senator Gaylord Nelson of Wisconsin is credited with organizing the first Earth Day, wherein activists from across the country, protested the environmental degradation caused by unchecked industrial pollution.
• The American Indian Movement (AIM) used Earth Day as a focal point of the 73-day Wounded Knee occupation in 1973.
  • AIM protested the US government’s broken promises and exploitation of American Indian land and human rights. Activists protested on the site of the 1890 Wounded Knee Massacre.

Walter Cronkite, Earth Day, CBS News Broadcast, April 22,1970. Video Link: https://www.youtube.com/watch?v=WbwC281uzUs

Discussion Questions:

• What are some of the environmental issues Earth Day might have remedied?
• Who participated in the first Earth Day?
  • Why might Kronkite have said Earth Day “failed?”
• What role do the media play in shaping public awareness and action on environmental issues?
• How do you think the environmental movement has evolved since 1970?
  • In what ways do you think it has succeeded, and where do challenges remain?

Discussion Questions:

• Who created this poster, and when?
• Why was this poster made?
• What is on the poster, and what might these symbols represent?
• How might the goals of Earth Day align with those of AIM?

PBS, All About Holidays: Earth Day Video Link: https://www.youtube.com/watch?v=YuhpygdNmcQ&feature=youtu.be

Video: Endangered Species Act Overview, U.S. Fish and Wildlife Service, https://www.youtube.com/watch?v=9OAIlM1EFHc.