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The preamble and first page of the U.S. Constitution.
Image courtesy of American Memory at the Library of Congress.
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Subject Areas |
History and Social Studies
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U.S. History - Civics and U.S. Government |
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U.S. History - Civil Rights |
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U.S. History - Colonial America and the New Nation |
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Time Required |
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Lesson 1: Time will vary depending on the book chosen to read to the class; however, the book could be read during the usual read-aloud time.br>
Lesson 2: 1 class period or less
Lesson 3: 1 class period or less
Lesson 4: 1 class period
Lesson 5: 1 class period
Lesson 6: 1 class period for groups to prepare their statements; 1 class period for presentations; additional class periods if you choose to synthesize a class code for playground speech.
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Skills |
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collaboration
brainstorming
critical thinking
problem solving |
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The First Amendment: What's Fair in a Free Country?
Introduction
Young people have a profound sense of the
importance of fairness. "It's not fair" is often used as a one-size-fits-all argument
when a child feels victimized. In situations where the child has an interest in
protecting his or her actions, "It's a free country!" is often the argument of
choice. On the other hand, children are very sensitive about speech and policies
they consider to have a negative effect on their well-being. Almost every day
on the playground, the difficult issues surrounding our right to free speech and
our responsibility to avoid harming someone else with our speech are debated with
as much emotion — if not as much impact — as they have been in the courts,
legislatures, and meeting halls of this land. Balancing rights and responsibilities
is difficult, even for the Supreme Court. This lesson demonstrates to students
that freedom of speech is an ongoing process.
Learning Objectives
After completing the lessons in this unit,
students will be able to - Summarize the contents of the First Amendment
- Give
an example of speech that is protected by the Constitution and speech that is
not protected by the Constitution.
Guiding Question: How does the right to free speech conflict with our responsibility
to consider the rights of others? How is the First Amendment interpreted differently
in different contexts? Under what conditions is some speech limited and other
speech protected?
Preparing to Teach this Lesson - Review the First Amendment to the
Constitution. The text of the Bill of Rights is available at the EDSITEment resource
the Avalon
Project at Yale Law School:
Amendment 1 Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the government for a redress
of grievances.
- Obtain background information about the First
Amendment:
- Familiarize yourself with each lesson
plan. Download and duplicate as necessary the case studies in Lesson
4 and Lesson 5.
- As you lead discussions in this lesson, use the terminology you want students
to understand. For example, talk about speech that may be "limited" and
speech that is "protected."
- This unit is one of a series of complementary
EDSITEment plans for intermediate-level students about the foundations of our
government. Consider adapting them for your class in the following order:
- The
Digital Classroom, available through EDSITEment, offers a series of worksheets
for analyzing primary source documents, including written documents and photographs,
that you may wish to use or adapt to help students in reviewing the materials
presented in this unit.
- Cases on the docket of the Supreme Court,
as well as past cases, can be studied using the EDSITEment resource Oyez,
Oyez, Oyez: Supreme Court WWW Resource. The site allows searches by subject,
title, citation, and date. With each case is a very brief abstract that summarizes
the basic issues.
Suggested ActivitiesLesson
1: Names Can Hurt Me Lesson
2: Banning Speech on the Playground? Lesson
3: But Speech Is Protected Lesson
4: Can You Say That? Lesson
5: Can You Not Say That? Lesson
6: Back on the Playground Again Extending
the Lesson
Lesson 1 Names Can Hurt Me
Introduce the theme of this lesson by reading aloud to the class —
presumably during your regular read-aloud time — or by reading with the students
a book or story which revolves around the concept of free speech. Here are some
examples: - Burnett, Karen Gedig. Simon's Hook:
A Story About Teases and Put-downs. Illustrated by Laurie Barrows. GR Publishing,
1999. (Reading level: Ages 4-8; Paperback, 40 pages, illustrated edition; ISBN:
0966853016)
- Kinsey-Warnock, Natalie. The
Night the Bells Rang. Illustrated by Leslie W. Bowman. Cobblehill, Dutton,
1991. (Reading level: Grades 4+; ISBN 0-525-65074-1; Recommended by Carol
Hurst's Children's Literature Page, a link from the EDSITEment-reviewed Internet
Public Library)
- Moss, Marissa. Amelia
Takes Command. Pleasant Company Publications, 1999. (Reading level: Ages
9-12; Paperback, 40 pages; ISBN: 1562477889)
- Swope, Sam. The
Araboolies of Liberty Street. Illustrated by Barry Root. (Out of print,
but should be available through most libraries; recommended by Carol
Hurst's Children's Literature Page, a link from the EDSITEment-reviewed Internet
Public Library)
Encourage discussion about the
book you choose. What behaviors among the characters are in conflict? Is it clear
who's right and who's wrong? Tell the students that one important goal
for this unit is that they work out some ground rules to improve the atmosphere
on the playground.
Lesson 2 Banning Speech on the Playground?
Discuss problems on the school playground. (If more appropriate substitute
a discussion of problems that occur in the school cafeteria or hallways, at bus
stops or other locations where students gather.) What sorts of problems are occurring
out there? (Note to the teacher: It is important
here that students focus on the rules and abstract principles; they should not
use specific names or situations, which might turn the lesson into a "tattle-tale"
session.) Brainstorm suggestions that might make recess more pleasant and that
would discourage problem behavior. Remember, this is brainstorming. Accept all
appropriate answers. If issues of speech arise, continue the conversation
by posing a hypothetical question, such as, "Should a student be forbidden from
telling another student that his/her hat is ugly?" In the course of the discussion,
act as devil's advocate. Is it okay to say the hat is ugly to protect your friend
from teasing? Is it okay to say the hat is ugly if the speaker has been hurt in
the past by something the hat-wearer said? Is it wrong only if you're trying to
hurt the feelings of the hat-wearer? How would you know the person was being hurtful
on purpose? Do speakers have the responsibility to keep their opinions to themselves
or the right to speak their minds? Is it the hat-wearer's responsibility not to
be hurt by such criticism? Is it more important to have the freedom to say whatever
you want or to protect others by being careful about what you say? Give
students time to write down their suggestions for ground rules about speech on
the playground. This could be worked on individually or in small groups. Challenge
students to limit their statements to 45 words (the length of the First Amendment)
or less.
Lesson 3 But Speech Is Protected
Undoubtedly, some of the brainstormed suggestions in Lesson
2 represented an attempt to limit speech (e.g., "You're not allowed to...").
What does The Constitution have to say about free speech? Read the First
Amendment to the Constitution aloud to the class and help students understand
what it is saying about freedom of speech: Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress
of grievances. Spend some time reviewing the various clauses and
sections of the First Amendment before moving on. Have students read
the article The
New United States of America Adopted the Bill of Rights December 15, 1791,
available on America's
Library, a link from the EDSITEment resource American
Memory. The Bill of Rights states there can be no law "abridging
the freedom of speech." The wording seems to suggest that all speech is protected
from rules Congress might pass. Does that mean anyone can say anything at any
time? The Constitution also guarantees to "establish justice, insure
domestic tranquility, provide for the common defense, promote the general welfare,
and secure the blessings of liberty to ourselves and our posterity." What if what
one person wants to say disturbs the general welfare or someone else's tranquility?
That conflict, the center of most free speech issues, will be explored in
the remainder of this unit.
Lesson 4 Can You Say That?
As you begin this lesson, remind the class that for a case to reach the
Supreme Court there must be such good arguments on both sides that questions remain
even after the decisions of lower courts have been made. It's the job of the students
to figure out what arguments may have been used on both sides of this case. Then
students will be asked to take a stand and to reveal what they think the Supreme
Court decided. After everyone has taken a stand, reveal the actual outcome of
the case. Distribute or read to the class the following summary of Hazelwood
School District v. Kuhlmeier (1988) from the EDSITEment-reviewed Oyez,
Oyez, Oyez: 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 ... 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 be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood
East students brought the case to court. Also share with students
the following facts from FindLaw
a link from the EDSITEment resource Oyez,
Oyez, Oyez: The principal objected to the divorce article because
the page proofs he was furnished identified by name (deleted by the teacher from
the final version) a student who complained of her father's conduct, and the principal
believed that the student's parents should have been given an opportunity to respond
to the remarks or to consent to their publication. Believing that there was no
time to make necessary changes in the articles if the paper was to be issued before
the end of the school year, the principal directed that the pages on which they
appeared be withheld from publication even though other, unobjectionable articles
were included on such pages. Finally, ask students the question presented
to the court (from the EDSITEment resource Oyez,
Oyez, Oyez): Did the principal's deletion of the articles violate
the students' rights under the First Amendment? Help the class make
two separate lists, showing arguments they think may have been made on either
side of the case. Some points to consider: What rights (if any) should students
have to publish what they wrote in the student newspaper? Should there be a school
policy against certain student writings? Why shouldn't the principal have been
allowed to cancel that page in the student newspaper? Why should he have been
allowed? Is it fair that some articles got cut from the newspaper, even though
they had nothing to so with the case? Is it fair that the divorce article could
be cut even though the students were reporting facts? Does it make a difference
that the students were not trying to hurt anyone's feelings? Would it be fair
to the parents involved to have their story printed in the school newspaper?
Then, using a secret ballot, have students vote which side they think won
the case. Give volunteers the opportunity to explain why they voted as they did.
Finally, reveal the outcome of the case in your own words or by sharing the
conclusion (from EDSITEment resource Oyez,
Oyez, Oyez): Conclusion
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. So not all speech is protected; the school can
refuse to sponsor offensive speech and any speech for legitimate educational reasons.
Encourage discussion of the decision.
Lesson 5 Can You Not Say That?
In this lesson the class will consider two related cases, the Gobitis
case and the Barnette case, each involving
a compulsory flag salute in school. The decision in the Barnette
case superceded the Gobitis decision. In the
end, the Supreme Court limited the power of the school and supported a student's
right to refuse. Minersville School District
v. Gobitis was decided on June 3, 1940. The question the court had to answer
was, "Does the mandatory flag salute in the Minersville School District infringe
on liberties protected by the First and Fourteenth Amendments?" Share with the
class the information in this abstract
of the case from the EDSITEment resource Oyez,
Oyez, Oyez: Supreme Court WWW Resource. Further
detail is available on FindLaw,
a link from the EDSITEment-reviewed Oyez,
Oyez, Oyez. Facts of the Case
Lillian and William Gobitis were expelled from the public schools of Minersville,
Pennsylvania, for refusing to salute the flag as part of a daily school exercise.
The Gobitis children were Jehovah's Witnesses; they believed that such a gesture
of respect for the flag was forbidden by Biblical commands. Share
the letter written by 10-year-old Billy Gobitis to the Minersville School Directors,
which explains the case (a digital copy of Billy
Gobitis' letter to the school board is available through the EDSITEment-reviewed
website American Memory).
Should Billy have the right not to say
the Pledge because of his religion? Aren't we all Americans no matter what our
religion? Everybody else has to say the Pledge! Is that fair? But we do have religious
freedom in this country. What are the arguments on either side of this case? What
do students believe was the eventual opinion of the court? Everyone should vote,
in a secret ballot. Allow volunteers to discuss their votes. Then, share the actual
outcome, from the EDSITEment resource Oyez,
Oyez, Oyez: Conclusion In
an 8-to-1 decision, the Court declined to make itself "the school board for the
country" and upheld the mandatory flag salute. The Court held that the state's
interest in "national cohesion" was "inferior to none in the hierarchy of legal
values" and that national unity was "the basis of national security." The flag,
the Court found, was an important symbol of national unity and could be a part
of legislative initiatives designed "to promote in the minds of children who attend
the common schools an attachment to the institutions of their country." Discuss
the outcome of the case with the class. Now, have students look at another
Supreme Court cases involving children, West Virginia
State Board of Ed. v. Barnette, decided on June 14, 1943. The question
before the court in that case was, "Did the compulsory flag-salute for public
schoolchildren violate the First Amendment?" Share the information from the abstract
of the case available on the EDSITEment resource Oyez,
Oyez, Oyez: Supreme Court WWW Resource. Further
detail is available on FindLaw,
a link from Oyez, Oyez,
Oyez. Facts of the Case
The West Virginia Board of Education required that the flag salute be part of
the program of activities in all public schools. All teachers and pupils were
required to honor the flag; refusal to salute was treated as "insubordination"
and was punishable by expulsion and charges of delinquency. In the
Gobitis case, the court had declared "National
unity … the basis of national security,' …" and that authorities have "the
right to select appropriate means for its attainment" (FindLaw).
The arguments on either side of this case were virtually the same as they were
in the Gobitis case. In fact, the school policy,
in this case, had been developed with careful attention to the Gobitis
case. Don't we have to teach young people our American values? What possible harm
can there be in saluting the flag? But Jehovah's Witnesses believe the Bible tells
them it is wrong to salute any object. Shouldn't they be able to follow what their
religion tells them? What are the arguments on either side of this case? What
do students believe was the eventual opinion of the court? Everyone should vote,
in a secret ballot. Allow volunteers to discuss their votes. Then, share the actual
outcome, from the EDSITEment resource Oyez,
Oyez, Oyez: Conclusion In
a 6-to-3 decision, the Court overruled its decision in Minersville
School District v. Gobitis and held that compelling public schoolchildren
to salute the flag was unconstitutional. The Court found that such a salute was
a form of utterance and was a means of communicating ideas. "Compulsory unification
of opinion," the Court held, was doomed to failure and was antithetical to First
Amendment values. Writing for the majority, Justice Jackson argued that "[i]f
there is any fixed star in our constitutional constellation, it is that no official,
high or petty, can prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens to confess by word or
act their faith therein." Discuss the outcome. Notice, once again,
that three judges disagreed with the majority opinion. Interpretations
of the Bill of Rights frequently change. And that's the point. James Madison,
a strong supporter of the Bill of Rights, declared that no government can be perfect,
and "that which is the least imperfect is therefore the best government." What
did he mean? What's the use of a document so open to interpretation?
Lesson 6 Back on the Playground
Again
In this unit, the students have looked at speech not intended
to harm anyone (the student newspaper) that was not protected. They have also
read about a student whose refusal to say the Pledge of Allegiance was protected.
Culminate the lesson by returning to the opening discussion. Would the class proceed
now with banning certain speech on the playground, or are there alternative solutions?
In small groups, students should write their proposals for dealing with playground
problems. Solutions can involve any or all of the following: rules, suggestions
for dealing with teasing, ideas for consequences, systems for mediation between
those involved, reorganization concepts for the playground such as new activities
or ways to organize activities, and so on. What can you come up with that's as
fair as possible? These suggestions should be shared with the class. Once again,
attempt to keep proposals under 45 words. Perhaps some student suggestions
can be formally adopted. If desired, the class can work with the various group
suggestions and attempt to synthesize them into one set of procedures for the
playground.
Extending the Lesson - Set up a role-playing situation to
test the students' suggestions or the entire system designed by the students at
the culmination of the unit. Pose a problem. For example, let's say "Billy" told
"Michael" he couldn't play in the touch football game he was organizing. According
to the system designed by the class in Lesson
6, can he do that? What if Michael still believes it's unfair despite the
rules?
Students can play the parts of Billy and Michael, as well as their
legal team. Stage a "replay" of the incident in class. Some students will then
be witnesses. Let a few students testify as experts. Appoint an odd number of
judges to decide the case. Make sure the student lawyers are aware of sound arguments
on both sides of the issue. The final decision must reflect only whether or not
the system designed by the students is fair, as opposed to whether or not what
Billy did is "nice." If the law is "constitutional" and it allowed such behavior,
then that behavior is deemed acceptable even if it isn't fair.
- Some
students may appreciate studying the Supreme Court case Brandenburg v. Ohio (1969), involving hate speech that was deemed protected.
Print out and distribute to the students involved the Brandenburg
v. Ohio - Abstract on the EDSITEment-reviewed website Oyez,
Oyez, Oyez: Supreme Court WWW Resource. (Note: "Syndicalism" is a radical
political movement that conspires to incite change through the use of actions
such as strikes and sabotage. A Per Curiam opinion is a judgment decided without
the justices needing to retire to discuss it.) For more information,
look at a more
complete record of the entire case available on FindLaw,
a link from the EDSITEment-reviewed resource Oyez,
Oyez, Oyez: Supreme Court WWW Resource. Note to the teacher: Please be aware
that this record contains explicit references to offensive racial epithets; the
abstract cited above, not this longer document, should be distributed to the class.
In this case, a Ku Klux Klan leader requested to be videotaped by a local
television station as he gave a speech to his supporters in which he said many
terrible things about various people. Ohio had previously passed a state
law that made it illegal to deliver a speech recommending "crime, sabotage, violence,
or unlawful methods of terrorism as a means of accomplishing" change in our government.
The law also said it was illegal to gather "with any ... group ... formed to teach
... the doctrines of criminal syndicalism." The question to be decided in the
case was, is such a law constitutional? Did Ohio's law violate Mr. Brandenburg's
right to free speech as protected by the First (and Fourteenth) Amendment?
Help the class make two lists, each containing arguments they think may have
been made on either side of the case. Why should Mr. Brandenburg have the right
to say the things he said in his speech? Why should it be against the law for
Mr. Brandenburg to say those things? Make it clear that believing Mr. Brandenburg
had the right to say what he did is not the same as agreeing with what he said.
(There's certainly nothing illegal, for example, in saying that 2+2=5 even though
most people would disagree.) Then, using a secret ballot, have students
vote which side they think the Supreme Court judged to be correct. If the law
was constitutional, then Mr. Brandenburg had no right to say what he said. If
the law was unconstitutional, then he had the right to say what he said. Was the
law constitutional? If desired, give students the opportunity to explain
why they voted as they did and/or to discuss the issues of the case.
Reveal the outcome: Mr. Brandenburg won the case, and the state law banning his
speech was declared unconstitutional. If you wish, give students the opportunity
to react to the court's decision. Mr. Brandenburg was saying very unpleasant things.
Is it fair that he be allowed to say the unpleasant things he said? Why did the
court decide he was not using "fighting words"? (The words were not directed at
any specific individual. Those present were all there voluntarily. Mr. Brandenburg
did not call for any specific illegal action.) Students who studied
Hazelwood
School District v. Kuhlmeier should discuss whether it is fair that the right
of the KKK to disseminate racist speech was upheld, while the free speech of well-intentioned
students was curtailed!
- Students may be interested in the Bill
of Rights and its origin. An additional kid-friendly source of information is
Ben's
Guide to U.S. Government for Kids, a link from the EDSITEment resource Internet
Public Library. Another source of information is Treasures
of Congress, an online exhibit of the EDSITEment-reviewed website The
Digital Classroom.
- Students may be interested in writing
protest letters as Billy Gobitis did. For more information, see the EDSITEment
lesson I'm
Gonna Sit Right Down and Write Someone a Letter.
- Students
can track cases on the docket of the Supreme Court through the EDSITEment resource
Oyez, Oyez, Oyez: Supreme
Court WWW Resource. They can also look up cases by subject. With each case
is a very brief abstract that summarizes the basic issues.
- Students
may be interested in researching the Civil Rights Movement, during which participants
were largely protesting laws on the books at the time. Some EDSITEment resources
with relevant information include We
Shall Overcome: Historic Places of the Civil Rights Movement and Martin
Luther King, Jr..
Selected EDSITEment Websites -
American Memory Project Library of Congress
http://memory.loc.gov/
- America's
Library
http://www.americaslibrary.gov/ -
The Avalon Project at the Yale Law School
http://www.yale.edu/lawweb/avalon/avalon.htm
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The Digital Classroom National Archives and Records Administration
http://www.archives.gov/digital_classroom/index.html
- The Internet Public
Library
http://www.ipl.org -
Ben's Guide to U.S. Government for Kids
http://bensguide.gpo.gov/3-5/citizenship/rights.html
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The Big Picture: The Constitution
http://dailynews.yahoo.com/full_coverage/yahooligans/constitution
- The Bookhive
http://www.bookhive.org/ -
Carol Hurst's Children's Literature Site
http://www.carolhurst.com/index.html
- Encarta
http://encarta.msn.com/default.asp -
Martin Luther King, Jr.
http://www.stanford.edu/group/King/
- Oyez, Oyez, Oyez: Supreme
Court WWW Resource
http://www.oyez.org/oyez/frontpage -
FindLaw
http://www.findlaw.com/ -
We Shall Overcome: Historic Places of the Civil Rights Movement
http://www.cr.nps.gov/nr/travel/civilrights
Other Resources: Recommended
Reading from The
Bookhive - Clements, Andrew. The Landry
News. Simon & Schuster, 1999. (Number of pages: 120-160; Book Audience:
Grades 4-6)
- Miller, William. Richard Wright
and the Library Card. Illustrated by Gregory Christie. Lee & Low Books,
Inc., 1997. (Number of pages: under 40; Book Audience: Grades 4-6)
Recommended
Reading from the Learning Page of American
Memory - Fritz, Jean. The Great Little
Madison. N.Y.: G.P. Putnam and Sons, 1989.
- Fritz, Jean. Shh!
We're Writing the Constitution. Pictures by Tomie dePaola. N.Y.: The Putnam
& Grosset Group, 1987.
- Spier, Peter. We the
People: The Constitution of the United States of America. N.Y.: Doubleday,
1987.
Other Information
Standards Alignment
- NCSS-10
Civic ideals and practices. Citizenship in a democratic republic. more
- NCSS-5
Individuals, groups, and institutions. more
- NCSS-6
Power, authority, and governance. more
- NCSS-8
Science, technology, and society. more
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