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

Preparing to Teach this Lesson

Suggested Activities

Lesson 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)

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.

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.

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.

Did the principal's deletion of the articles violate the students' rights under the First Amendment?

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.

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.

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."

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.

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."

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