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Congress shall make no
law respecting an
establishment of religion, or prohibiting the free
exercise thereof, or abridging the freedom of
speech or of the press; or the right of the
people peaceably to
assemble, or to petition the government for
redress of grievance.
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First Principles
The First Amendment applies to all Americans. Our nation affirms
the truth of inalienable rights
for all, working for more than 200 years to make the ideals
expressed in the First Amendment a
reality in the lives of all Americans. These rights were so
important to early citizens and their
leaders, many states refused to ratify the Constitution of the
United States without the promise of
amendments that would protect individual rights.
Here are some “First Principles” to help you to interpret these
eloquent 45 words and understand
how they influence our daily lives.
1. The First Amendment affirms the freedom of the individual.
American government is based upon the concept that all human beings
are born with certain rights or
freedoms. The First Amendment guards these rights by prohibiting
the government from denying citizens
their rights. The government does not give us our rights. Its
role is to guard the rights that we already
have.
We, as individuals, have freedom of conscience. Religious
liberty, or freedom of conscience, protects the
beliefs of everyone, not just those of recognized faith
communities. We are free to worship —or not to
worship — as we choose. The government may not tell us what
church, synagogue, mosque or temple to
attend or whether, where and how we should pray.
As individuals, our ideas and beliefs are our own. We are free
to develop and express our thoughts.
Through our free press, we have access to a vast range of
information. We may criticize our government
if we see fit to do so. Judgments about ideas are for
individuals to make, not for government to decree.
The First Amendment guarantees we may associate with people and
join groups of our own choosing. We
may ask or lobby the government to correct certain wrongs or
support our beliefs.
2. Free expression is the foundation — the cornerstone — of
democracy. The First Amendment is based on the premise that people
who can freely share information (especially
about their government) will be informed and able to make sound
choices about what leaders to elect,
what forms of government they want, what laws to enact. The
freedom to exchange information about the
government enables people to seek alternatives to bad
government.
3. The First Amendment tells the government to keep its “hands
off” our religion, our
ideas, our ability to express ourselves. “Congress shall make no
law …” means that as far as possible the government may not
interfere with our
fundamental rights. The government may not pass laws that take
away our First Amendment freedoms or
that force us to express ideas — including religious beliefs —
that we do not embrace. But the First
Amendment is not absolute.
“No law” does not mean “absolutely no law.” For instance, human
sacrifice cannot be permitted in the
name of freedom of conscience. The Supreme Court has affirmed
that some limits must be placed on our
freedoms. The government, for example, may regulate the time,
place and manner, but not regulate solely
on the basis of the content of our beliefs, ideas, and
expressions. We may need to hold a permit before we
march in support of a particular cause, but we should not have
to worry about the government telling us
we have no right to believe in that cause or express that
idea.
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4. Other people have rights, too. The First Amendment is based
upon the conviction that all human beings have inalienable rights.
Our
commitment to rights is inseparably linked to our civic
responsibility to guard those rights for all others.
When faced with unpopular views or unrefined speech, members of
the public may ask, “Why doesn't the
government do something about that?” The answer? Neither
government nor a majority of the public has
the authority to stop an unpopular idea.
Because the First Amendment belongs to everyone — to each
individual — it encourages us to respect
the right of others to hold their viewpoints and religious
beliefs. The First Amendment protects minority
viewpoints and helps us to understand that limiting the rights
of some people may eventually limit the
rights of all.
5. When rights collide, government must balance them. Sometimes
the government plays a role in balancing our rights. When two
rights collide, tension and
controversy may result. What happens, for example, when a
person's right to a fair trial conflicts with our
right to learn if a fair trial is actually taking place through
accounts reported in our free press? What
happens when an individual’s right to personal privacy conflicts
with the free flow of information? The
government (through the courts) may make decisions that protect
both rights to the fullest extent possible.
In addition to knowing where government officials draw the line
when regulating expression, it is
important to understand who may and may not control what we say
or write or perform.
Public school administrators are government officials and, like
city officials, have both power and limits
regarding regulation of expression. Although students do not
give up their First Amendment rights when
they come to school, the United States Supreme Court has
determined that school officials may restrict
students’ rights if the administrators determine that exercising
those rights would interfere with the
school’s mission of educating its students. However, as
government officials, they may not control or
censor expression to the degree that a private organization or
family might. The First Amendment does
not apply to private school officials.
6. The First Amendment helps us make choices. In the
“marketplace of ideas,” we may choose which views to support and
which ones to reject. When all
ideas are allowed to flourish, we — as individuals — may decide
what ideas and concepts to question,
embrace or reject.
First Amendment advocates say it best: The antidote to
distasteful or hateful speech is not censorship, but
more speech.
Key Concepts
a. When people are able to choose freely among many different
competing ideas, they make better choices.
b. Exposure to competing ideas provides us with variety,
enriching our society. c. Individuals whose strongly held,
unpopular opinions are given an outlet may be less apt to
resort
to violence than if their ideas are suppressed.
d. Because many decisions in our society are made by the
majority, protection of minority rights ensures that the ideas of
smaller, less popular groups are not suppressed by the majority. In
time,
the majority may come to agree with these minority groups.
e. Citizens' ability to criticize the government helps prevent
the government from misusing its power.
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f. Symbolic speech — actions or objects that represent someone’s
thoughts, ideas or words — is a form of expression that is
generally protected by the First Amendment in the same fashion
as
words that are spoken.
g. Freedom of speech extends to statements with which we may
disagree, including those that are hateful, defiant and
contemptuous.
h. Speech cannot be prohibited because of undesirable actions
that may result from it. i. Government may not prohibit the
expression of an idea just because society finds the idea
itself
offensive or disagreeable.
j. In general, individuals cannot be punished by the government
if the reason for the punishment is the message or idea
expressed.
k. Citizens have a right to protest government policy. l.
Religious liberty, or freedom of conscience, is an inalienable
right. m. It is the duty of the government to guard and respect the
individual's freedom of conscience and
belief.
n. The Free Exercise Clause of the First Amendment provides that
government will neither advance nor inhibit religious
expression.
o. The only reasons for government to impose laws and
regulations are secular. p. No one will be coerced by government to
support or participate in any religion or in its exercise. q. The
precedent for the right to petition for a redress of grievances
originated in three English
documents: the Magna Carta, the Petition of Right and the Bill
of Rights (Declaration of Rights).
r. Individuals, citizens’ groups and corporations may request
remedy or complain to and about their government without fear of
punishment.
First Amendment Cases Involving Freedom of Speech & Press
for Students
Tinker v. Des Moines, 1968 Facts of the Case:
John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years
old, and Christopher Echardt, 16 years
old, decided along with their parents to protest the Vietnam War
by wearing black armbands to their Des
Moines schools during the Christmas holiday season. Upon
learning of their intentions, and fearing that
the armbands would provoke disturbances, the principals of the
Des Moines school district resolved
(passed a rule) that all students wearing armbands be asked to
remove them or face suspension. When the
Tinker siblings and Christopher wore their armbands to school,
they were asked to remove them. When
they refused, they were suspended until after New Year's
Day.
Question:
Does a prohibition against the wearing of armbands in public
school, as a form of symbolic protest,
violate the First Amendment's freedom of speech protections?
Conclusion:
The wearing of armbands was "closely akin to 'pure speech'" and
protected by the First Amendment.
School environments imply limitations on free expression, but
here the principals lacked justification for
imposing any such limits.The principals had failed to show that
the forbidden conduct would substantially
interfere with appropriate school discipline.
Decision: 7 votes for Tinker, 2 vote(s) against
Legal provision: Amendment 1: Speech, Press, and Assembly
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Bethel School District No. 403 v. Fraser, 1986 Facts of the
Case:
On April 26, 1983, 17-year-old Matthew Fraser, a senior at
Bethel High School in Bethel, Washington,
spoke to a school assembly to nominate a classmate for vice
president of the student government.
Students were required either to attend the assembly or go to
study hall. Prior to the assembly, Matthew
consulted three teachers about a short speech he proposed to
present. Two of the faculty said outright that
he should not deliver the speech because it was "inappropriate."
The text of the speech was filled with
sexual references and innuendoes, although it contained no
obscenities or vulgarities. On the day of the
assembly, Fraser delivered the speech with enthusiasm and
emphasis, and the "faculty and student body
were stunned." The speech was greeted by his classmates with
hoots, cheers, and lewd motions. Kuhlman,
the candidate nominated by Matt Fraser, was elected by a wide
margin.
On the day after the speech, Fraser was called to the office and
told that he "had violated the school's
disruptive conduct rule which prohibits 'conduct which
materially and substantially interferes with the
educational process…including the use of obscene, profane
language or gestures.'" At that first hearing
Fraser admitted that he had used sexual innuendoes in his
speech.
Fraser was suspended from school for three days, and "removed
from the list of students who were
eligible to make graduation remarks…" because school authorities
"no longer had confidence in his
judgment…." He ranked second in his graduating class at the
time. His parents appealed the school
district's disciplinary action. The Washington Supreme Court
upheld Fraser's right to free speech. The
school district then appealed to the Supreme Court.
Questions:
1. Was Fraser within his rights to make the speech?
2. What limits on speech are school districts permitted to make,
given their role in the educational and
civic development of students?
Conclusions:
The Court voted 7–2 to uphold the judgment of the school
officials. The school's rules and the
disciplinary action against Matthew Fraser were deemed
appropriate for a public school, as the speech
was disruptive to and contrary to the school’s educational
mission. Fraser's freedom of speech did not
extend to being permitted to make a lewd and suggestive speech
in school.
Decision: 7 votes for Bethel, 2 votes against.
Legal provision: Amendment 1: Speech, Press
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Morse v. Frederick, 2006 Facts of the Case:
At a school-supervised event, Joseph Frederick, who was across
the street and had called in sick for the
day, held up a banner with the message "Bong Hits 4 Jesus," a
slang reference to marijuana smoking.
Principal Deborah Morse took away the banner and suspended
Frederick for ten days. She justified her
actions by citing the school's policy against the display of
material that promotes the use of illegal drugs.
Frederick sued under 42 U.S.C. 1983, the federal civil rights
statute, alleging a violation of his First
Amendment right to freedom of speech. The District Court found
no constitutional violation and ruled in
favor of Morse. The court held that even if there were a
violation, the principal had qualified immunity
from lawsuit. The U.S. Court of Appeals for the Ninth Circuit
reversed. The Ninth Circuit cited Tinker v.
Des Moines Independent Community School District, which extended
First Amendment protection to
student speech except where the speech would cause a
disturbance. Because Frederick was punished for
his message rather than for any disturbance, the Circuit Court
ruled, the punishment was unconstitutional.
Furthermore, the principal had no qualified immunity, because
any reasonable principal would have
known that Morse's actions were unlawful.
Questions:
1) Does the First Amendment allow public schools to prohibit
students from displaying messages
promoting the use of illegal drugs at school-supervised
events?
2) Does a school official have qualified immunity from a damages
lawsuit under 42 U.S.C. 1983 when, in
accordance with school policy, she disciplines a student for
displaying a banner with a drug reference at a
school-supervised event?
Conclusion:
Yes and not reached. The Court reversed the Ninth Circuit by a
5-4 vote, ruling that school officials can
prohibit students from displaying messages that promote illegal
drug use. Chief Justice John Roberts's
majority opinion held that although students do have some right
to political speech even while in school,
this right does not extend to pro-drug messages that may
undermine the school's important mission to
discourage drug use. The majority held that Frederick's message,
though "cryptic," was reasonably
interpreted as promoting marijuana use - equivalent to "[Take]
bong hits" or "bong hits [are a good
thing]." In ruling for Morse, the Court affirmed that the speech
rights of public school students are not as
extensive as those adults normally enjoy, and that the highly
protective standard set by Tinker would not
always be applied. In concurring opinions, Justice Thomas
expressed his view that the right to free speech
does not apply to students and his wish to see Tinker overturned
altogether, while Justice Alito stressed
that the decision applied only to pro-drug messages and not to
broader political speech. The dissent
conceded that the principal should have had immunity from the
lawsuit, but argued that the majority
opinion was "[...] deaf to the constitutional imperative to
permit unfettered debate, even among high-
school students [...]."
Decision: 5 votes for Morse, 4 vote(s) against
Legal provision: Amendment 1: Speech, Press, and Assembly
http://www.landmarkcases.org/tinker/background2.html,
http://www.freedomforum.org/packages/first/Curricula/EducationforFreedom/supportpages/L08-CaseSummaryTinker.htm
http://www.phschool.com/atschool/supreme_court_cases/bethel.html
http://www.splc.org/knowyourrights/law_library.asp?id=52
http://www.oyez.org/cases/1960-1969/1968/1968_21/http://www.oyez.org/cases/1960-1969/1968/1968_21/http://www.landmarkcases.org/tinker/background2.htmlhttp://www.freedomforum.org/packages/first/Curricula/EducationforFreedom/supportpages/L08-CaseSummaryTinker.htmhttp://www.phschool.com/atschool/supreme_court_cases/bethel.htmlhttp://www.splc.org/knowyourrights/law_library.asp?id=52
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Hazelwood School District v. Kuhlmeier, 1987 (Press) Facts of
the Case:
The Spectrum, the school-sponsored newspaper of Hazelwood East
High School, was written and edited
by students. In May 1983, Robert E. Reynolds, the school
principal, received the pages proofs for the
May 13 issue. Reynolds found two of the articles in the issue to
be inappropriate, and ordered that the
pages on which the articles appeared, which also had other,
non-questioned articles on them, be removed
from the publication. Cathy Kuhlmeier and two other former
Hazelwood East students brought the case to
court.
Question:
Did the principal's deletion of the articles violate the
students' rights under the First Amendment?
Conclusion:
No. In a 5-to-3 decision, the Court held that the First
Amendment did not require schools to affirmatively
promote particular types of student speech. The Court held that
schools must be able to set high standards
for student speech disseminated under their auspices, and that
schools retained the right to refuse to
sponsor speech that was "inconsistent with 'the shared values of
a civilized social order.'" Educators did
not offend the First Amendment by exercising editorial control
over the content of student speech so long
as their actions were "reasonably related to legitimate
pedagogical concerns." The actions of principal
Reynolds, the Court held, met this test.
Decisions
Decision: 5 votes for Hazelwood School District, 3 vote(s)
against
Legal provision: Amendment 1: Speech, Press, and Assembly
http://www.landmarkcases.org/hazelwood/background3.html,
http://www.oyez.org/cases/1980-
1989/1987/1987_86_836/
http://www.landmarkcases.org/hazelwood/background3.htmlhttp://www.oyez.org/cases/1980-1989/1987/1987_86_836/http://www.oyez.org/cases/1980-1989/1987/1987_86_836/
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Now it’s time for you to put your knowledge to work. On the
following pages, there are hypothetical cases that present First
Amendment problems. Your job is to choose a
solution and tell my why you chose it. Each case is worth ten
(10) points: one (1) for your choice, and nine (9) for the
essay.
1. Check the decision you agree with. 2. Write a defense of your
choice on the back of each case. The defense must be in
paragraph format, citing the First Principle, Key Concepts,
and/or landmark court case to support your argument.
Case #1
Rumors are circulating that a high school football player has
been charged with assault. The
sports editor of the student newspaper verifies which player has
been accused and checks the
district’s eligibility policy. The player participated in five
games, after being charged with
assault. This is against district policy. The sports editor is
ready to write the article for the next
issue of the student newspaper.
It’s decision time. With whom do you agree?
You know the
Supreme Court cases
involving student
rights. Which apply
in this situation?
What would you do?
Do you publish? Do
you remove the
athlete’s name from
the article.?
1.____ The adviser to the newspaper who supports publication of
an
article that focuses on the district policy. He reminds
editors
that most professional journalists do not publish the names
of
minors who are accused of wrongdoing.
2.____ The principal who does not want the sports editor to
write an
article. He believes this story could hurt student athletes
from
the school who are hoping for athletic scholarships to
college.
If an article is written, the student’s name should not be
used,
he says. The newspaper should write more stories about
positive school activities and fewer hard-hitting stories.
3.____
The sports editor who wants to include the assault charges
and
the district’s policy in the student newspaper. He wants to
interview the football coach and use the student’s name.
Publication will stop the gossip and rumors, and all
students
will be given the same information about the incident.
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Case #2
Students who publish a personal online newspaper have written
articles that have expressed
opposition to a Catholic priest’s praying at a public school
assembly. The student journalists
have also written opinion pieces urging the U.S. Environmental
Protection Agency to force their
school to clean up a waste dump site. Administrators and
students at the school know of the Web
site, which is not sponsored by the school. The principal has
told student editors that he does not
consider their coverage fair or balanced.
The same student Web journalists report on their Web site that
during an advanced English class,
the teacher said her lesson was “watered down so the students
could handle the material.”
Students begin talking about the teacher’s comments after the
comments are reported on the
personal Web site. The editor of the online site, who is a
student in the teacher’s class, exchanges
verbal comments with the teacher after the teacher tells the
student that her comments were taken
out of context. The student is suspended for three days.
The teacher was, reportedly, disturbed when she saw coverage of
the conflict in the local media.
This is not the first time the Web newspaper has criticized the
school and its teachers. The
principal responds by blocking school computers from accessing
the students’ Web publication.
It’s decision time. With whom do you agree?
You know the
Supreme Court
cases involving
student rights.
Which apply in
this situation?
Would you
block access to
the Web site?
Do you think
the student Web
journalists have
been
irresponsible?
1.____ The principal who says that any good reporting done by
the
personal Web newspaper staff is lost in the cynical attitude of
the
editors. This online publication uses occasional profanity. He
says
that a publication that attempts to find the worst about its
community cannot be fair, balanced or accurate. The students
may
have the right to publish a Web newspaper, but the school does
not
have to provide access to it.
2.____ The Director of Guidance who says legal action should be
taken
against the students. She says the comments have been
defamatory.
The comments are destroying teachers’ reputations and making
it
difficult for them to relate to their current students, she
says.
3.____
The student editor who says that everything the online
newspaper
staff has reported can be documented. He has tape recordings
or
written interviews which include comments that three or more
students have made about teachers.
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Case #3
A high school junior creates a Web site on his home computer, on
his own time. Using vulgar
language, he is very critical of the administration, the
teachers and the approved Web site at his
school. Although his site is not intended to be accessed at
school, a classmate learns about the
site and shows it to the computer teacher. School administrators
suspend the student for 10 days.
He already has eight unexcused absence days and the district’s
absenteeism policy (that drop
students’ grades in each class by one letter grade for each
unexcused absence in excess of 10
days) means that he fails all his classes that semester.
The student files a lawsuit challenging the suspension as
violating his First Amendment rights,
claiming that the 10-day suspension and failing grades are
unfair penalties, especially since he
did not intend for students to view the site at school.
It’s decision time. With whom do you agree?
Hines, J. Education for Freedom. Retrieved February 2, 2008,
from Education for Freedom- Lesson Plans for
Teaching the First Amendment Web site:
http://www.freedomforum.org/packages/first/curricula/educationforfreedom/index.htm
1.____ The principal, who believes that the faculty and the
school have
been damaged by the vulgar references to them on the Web
site.
2.____ The student, who is concerned not only about his First
Amendment
rights, but about how his failing grades will affect his
admission
into a college of his choice.
3.____
A student at the school who considers the junior a
troublemaker:
“Too bad if the suspension drops his grades and makes him fail.
He
knew the school policy. He wouldn’t have eight unexcused
absences if he really cared about school and college. He could
have
written for the school Web site, but he wants to be a rebel.
He
deserves the punishment.” You know the Supreme Court cases
involving student rights. Which apply in this situation? What
would
you do? Would you remove your Web site from the Internet?
What
would you do about your unexcused absences?
http://www.freedomforum.org/packages/first/curricula/educationforfreedom/index.htm
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Okay – how well do you understand your rights?
20 Pts. (one point each)
1. TRUE FALSE In times of concern about national security,
rights and freedoms under the First Amendment have been abridged by
government officials.
2. TRUE FALSE Student-led religious clubs in public schools may
meet before or after school using school facilities.
3. TRUE FALSE A student in a public school may wear a large
cross necklace and a t-shirt that states “I love Jesus.”
4. TRUE FALSE Truth is a defense for libel.
5. TRUE FALSE Web page publishers do not need to operate under
press laws.
6. TRUE FALSE Student journalists can publish a photo from any
web page.
7. In fulfillment of an assignment to write a book report on any
book, a student chooses to present a book report on the Holy Bible
before her classmates. The student’s action is:
Constitutional Unconstitutional 8. The football coach leads his
team in prayer before the big game. The coach’s action is:
Constitutional Unconstitutional
9. A student wears a button in class that says, “Legalize
Marijuana.” The student’s action is:
Constitutional Unconstitutional 10. A student wears a button in
class that says, “Smoke Marijuana.” The student’s action is:
Constitutional Unconstitutional 11. A student wears a shirt in
class showing a marijuana leaf and the words, “Tastes Good!”
The student’s action is: Constitutional Unconstitutional 12. The
official student newspaper is censored simply because of the
position taken in an
editorial. This action is: Constitutional Unconstitutional 13.
The editor of the student newspaper writes a column in which he
calls the principal a
“jerk” for demanding the newspaper be submitted for the
principal’s prior review before publication. The editor’s action
is:
Constitutional Unconstitutional
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Multiple Choice Match the scenario to the correct category of
unprotected speech.
A Obscenity B Defamation C Expression intended and likely to
incite imminent lawless action D Fighting words / hate speech E
Unwarranted invasion of privacy F Deceptive or misleading
advertisements or those for illegal products or services G Clear
and immediate threats to national security H Copyright violations I
Expression on school grounds that causes a material and substantial
disruption of school activities
1. A protester gives a speech that reveals troop movements in
Iraq. __________ 2. A radio station advertises a radar detector
that has been declared illegal in states reached by its airwaves.
__________ 3. A student throws rocks at the fans of a rival soccer
team and incites other students to join in the brawl. __________ 4.
A disgruntled parent stands up at a parent-teacher meeting and says
that a popular teacher “must be constantly drunk” because students
can’t figure out his grading system. __________ 5. A local coffee
shop uses an official likeness of the Simpsons on its signs without
obtaining permission from Matt Groening or Fox TV. __________
The last page is just for your amusement
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Fake Bomb Defendant Cites 1st Amendment
By DENISE LAVOIE
BOSTON (AP) — A computer science student who unwittingly created
an airport bomb scare by
wearing a blinking circuit board attached to her shirt had a
First Amendment right to express
herself in that manner, her lawyer argued Friday.
Attorney Thomas Dwyer Jr. asked a judge to throw out the charge
against Star Simpson, 19, who is
accused of possessing a hoax device.
Assistant District Attorney Stephen Kerr said a jury should
decide whether Simpson intended to cause
fear by wearing a blinking device to an airport amid heightened
post-9/11 security.
East Boston District Court Judge Paul Mahoney took the motion to
dismiss under advisement and said he
would issue a ruling March 21.
Simpson, a Massachusetts Institute of Technology student from
Lahaina, Hawaii, had gone to Logan
International Airport last September to pick up her
boyfriend.
She was held at gunpoint and arrested by state troopers after an
alarm was raised over the battery-
powered device on her shirt, which had flashing lights and the
words "Socket to me" and "Course VI" (a
major at MIT) written on the back.
Dwyer said his client, who is studying electrical engineering
and computer science, didn't think her shirt
would scare anyone. He said she had worn it on campus without
alarming anyone.
"People make these objects part of their identity. It's a part
of their personal expression," he said. "They
are legitimate forms of First Amendment expression."
Dwyer also argued that state law does not clearly define what a
hoax device is. The charge carries a
penalty of up to 2 1/2 years and a $5,000 fine.
Kerr said that police officers who arrested Simpson determined
that a reasonable person would think
Simpson was wearing an infernal device, which includes bombs and
other explosives.
The terminal was not evacuated and flights were not affected.
But authorities expressed amazement that
someone would wear the device to the airport where two of the
jets hijacked in the Sept. 11 attacks took
off.
Her lawyer said she disconnected the battery to the flashing
lights after somebody at the airport told her
she shouldn't be wearing something like that.
Simpson did not say anything during the court hearing.
Boston had been the focus of another bizarre security scare
earlier last year when dozens of battery-
powered devices were discovered around the city. They turned out
to be a promotion for the Cartoon
Network. Prosecutors dropped charges against two men after they
apologized and performed community
service. Copyright © 2008 The Associated Press. All rights
reserved.