When hatred speaks, we must speak back

Posted by John Bowen on Sep 11, 2017 in Blog, Ethical Issues, News, Scholastic Journalism, Teaching | 0 comments

Exploring the First Amendment on Constitution Day

by Kristin Taylor

In 2004, Senator Robert Byrd attached an amendment to a federal spending bill to create a new national observance: Constitution Day. This amendment required public schools and government offices “to provide educational programs to promote a better understanding of the Constitution.”

“I hope that kids understand that in this country, everything that we do in everyday life is touched upon by the Constitution of the United States,” he said in an interview. “It protects our liberties and it protects our freedom of speech. It protects our religion. It protects the freedom of speech so the newspapers can tell us the news every day.”

As a member of the Scholastic Press Rights Committee, it is especially important to me that students explore the First Amendment on Constitution Day, a critically important conversation to have in the face of today’s political climate and the rise of hate speech.

The 2017 Newseum’s State of the First Amendment survey showed an uptick in political speech this year — petition and assembly are two of the five freedoms, and almost half of those surveyed took advantage of them this year. It also showed overall agreement that a watchdog press is crucial, yet 22.5 percent of participants supported the claim that First Amendment freedom protection goes too far.

I suspect that number would be higher were the survey to happen today in the wake of Charlottesville and similar events.

Like many educators, I am troubled by the uptick in hate speech across the country and by white supremacists’ use of the term “free speech” to label rallies that are really about hatred. But as despicable as hate speech is, the Supreme Court recently reaffirmed, it is still protected by the First Amendment. It is not among the categories of unprotected speech defined by court cases over the years.

How can we face our students of color, our Jewish students or other students from marginalized groups and tell them that supporting the First Amendment means supporting the right of groups like the KKK or Nazis to spew this kind of hatred?

The American Bar Association has a good article to start the conversation. It outlines the difference between hateful speech and hateful acts using relevant court cases, and it defines libertarian and communitarian viewpoints on the issue. It also gives an example of how this played out on one college campus.

[pullquote]A more compelling question to ask our students is if they trust our government — and future governments — to decide what is offensive. Some European countries do, and this suggests that democratic societies can have reasonable, differing views on the matter. But others argue “the freer the speech, the stronger the democracy.”[/pullquote]

But I think a more compelling question to ask our students is if they trust our government — and future governments — to decide what is offensive. Some European countries do, and this suggests that democratic societies can have reasonable, differing views on the matter. But others argue “the freer the speech, the stronger the democracy.”

In my experience, my more liberal students are quick to say the government should ban offensive speech, and my more conservative students believe everyone is afraid to speak because of “political correctness.”

To even begin a meaningful conversation, students first need the facts, and Constitution Day is a great time to provide them.

I recommend starting by clarifying that the First Amendment is about how the government doesn’t have a right to censor or punish speech; it has no bearing on how private citizens, companies or employers choose to react. White supremacists’ constitutional right to speak will not shield them from counter-protests, public humiliation via social media or personal consequences, such as being fired by a private employer. Similarly, social media platforms owned by private companies such as Facebook or Twitter are not public forums set up by the government, so they have the right to censor any content they deem offensive.

This leads into the second point: the danger in giving the government the power to censor is that there isn’t a common understanding of “offensive.”

In a blog post explaining why the ACLU filed a lawsuit defending provocateur Milo Yiannopoulos’ speech, James Esseks, Director of the LGBT & HIV Project, expressed the deep divide between Yiannopoulos’ hateful speech and the ACLU’s core values: “Here at the ACLU, we vehemently disagree with Mr. Yiannopoulos’ views. We work hard, every day, with the very communities he targets, to fight for equal rights and dignity for all. We recognize that his words cause grievous pain to many individuals, their families, and their loved ones.”

However, he goes on to write, “Without free speech protections, all civil rights advocacy could be shut down by the people in power, precisely because government doesn’t agree with the ideas activists advance. That was true of the civil rights fights of the past, it’s true of the movements facing pitched battles today, and it will be true of the movements of the future that are still striving to be heard.”

Many people believe speech about such issues as abortion, gender identity or sexuality are offensive, Esseks argues, and “if First Amendment protections are eroded at any level, it’s not hard to imagine the government successfully pushing one or more of those arguments in court.”

[pullquote]This is the heart of the First Amendment — the question of whether we trust the government to regulate our speech and define what is offensive and what is not, or if we want to retain that freedom ourselves.[/pullquote]

This is the heart of the First Amendment — the question of whether we trust the government to regulate our speech and define what is offensive and what is not, or if we want to retain that freedom ourselves.

That said, student editorial boards are not “the government.” They can and should make ethical decisions about what to publish, and they have a right to refuse to publish hateful speech, though I would caution them to differentiate between “hate speech” and student opinions they dislike. They also have the right and the responsibility to act as ethical leaders who take informed positions in unsigned editorials.

The editorial board of the nationally award-winning Harbinger Online provides a great example of ethical leadership in response to hateful speech in their most recent editorial, “Burn the Eastonian.” The Eastonian is an underground student newspaper known for its “diabolical” and “abusive” attacks on and lies about students, teachers and administrators, and this editorial makes a compelling case to convince students to end this “most shameful tradition.”

This editorial demonstrates how punishment and censorship are seldom as powerful as more speech can be. According to the piece, this tradition has been going on for decades, despite threats of suspension, being banned from school activities or legal consequences (I assume for the libel, which is a form of unprotected speech).

These deterrents didn’t end the Eastonian last year, but the Harbinger’s passionate editorial might. By naming the problem, humanizing the victims, explaining the consequences — not just to the perpetrators if they get caught, but also to those defamed and to the reputation of the school — and providing examples of prominent students in the community who have pledged to take no part in the Eastonian, the Harbinger editorial board has shown the power of more speech in the face of hate.

Schools across the nation will celebrate Constitution Day on Monday, Sept. 18, this year.  I urge you to use this opportunity to bring to the surface difficult conversations about hate speech and the First Amendment.

In addition to the resources I’ve linked to in this blog, you should also check out the JEA Scholastic Press Rights Committee’s 2017 Constitution Day lessons.

Free speech?
Protests and the national anthem: FSW lesson

Posted by John Bowen on Oct 20, 2016 in Blog, News, Scholastic Journalism, Teaching | 0 comments

Title

Analyzing and creating meaningful discussion about free speech issues over protests during the national anthem

Description

Discussion on whether refusing to stand during the national anthem is an acceptable and effective form of protest have grown in recent months. This lesson enables students an opportunity to research and clarify their views as they share them with others.

Objectives

• Students will analyze legal and ethical aspects of the issue.
• Students will share their findings.
• Students will discuss what they find.
• Students will report their position on the issue using information gathered from research and discussions.

Common Core State Standards

Length

60 minutes for two days

Materials / resources

Access to internet resources on the issues of standing for the Pledge of Allegiance by citizens in and outside schools.

Access to the US Supreme Court decision in West Virginia State Board of Education v. Barnette.

Background on this issue:
The teacher would share these quotes introduce the assignment and to background the issue.

From Kentucky Governor Matt Bevin: ““I think it’s disgusting, frankly, I can appreciate the fact that people have freedom of speech, people can stand for, figuratively and literally, things that they choose to, but to use an opportunity to denigrate our nation’s flag — it’s not the flag and it’s not the national anthem itself, what it represents is the sacrifice of one and a half million Americans who died.”

http://mycn2.com/politics/bevin-calls-athlete-protests-during-national-anthem-disgusting

From the court decision: “If 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. If there are any circumstances which permit an exception, they do not now occur to us.”

“We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

Lesson step-by-step

Step 1 — introduction to the assignment and homework at the end of the session the day before (10 minutes)

The teacher should ask how many students are aware of the varied protests, in and outside of schools, against standing for the Pledge of Allegiance. The teacher would point out the introductory quotes as representative of the sides on this issue.

The class would discuss pros and cons of the issue before the teacher introduces the assignment: researching current events on the issue, examining legal and ethical positions on the issue and preparing a personal position statement either as a letter to the editor to local or national media or in a personal blog.

Stress that students can begin information gathering at home using live sources as well as digital ones.

Day 1 –

Step 2 — Research (15 minutes)

The teacher will remind students of the assignment and give them 15 minutes to add to and organize information they gathered the night before. Students should also begin to formulate a statement of personal position on the issue. Tell them they will be expected to discuss possible positions and arguments during the second 35 minutes.

Step 3 — Discussion (35 minutes)

Ask students to share information they gathered with others in the class. They could have made pro-con lists based on information they gathered and shared.

Then, students could use of PowerPoint, whiteboard or Google Docs to list possible positions and/or questions they might have about the issue. Such lists should be available for student use after class by them copying the lists and positions or having access to the Google Doc.

Focus during the discussion should be to verify information for possible positions, to clarify issues involved, to develop personal positions and support for them. Students should prepare annotated bibliographies for sources they used as a way for all to examine credibility and reliability.

Step 4 — Clarify assignment (10 minutes)

Reiterate the details and purpose of the assignment and ask students to have a draft of the statement of position or blog post for the next day’s class.

Day 2 –

Step 5 — Group coaching and editing (40 minutes)

Students should break into groups of three for peer coaching and position revision. The teacher can move from group to ask questions and offer suggestions as asked. The teacher should not edit student work but encourage peer coaching and editing. Final coaching and editing should enable all student work to be sent to or posted on designated media.

Step 6 — Final discussion and statement emailing or posting (10 minutes)

Conclude the assignment with final discussion and coaching. Assist students as necessary in the mailing and posting of their statement of position.

Step 7 — Assessment (10 minutes)

Have students discuss what they did, how others might react to their statements as well as what they learned about the issue and about issues surrounding it. They should also discuss how they might handle any responses they receive.

Differentiation

Option 1 – Additional media possibilities include broadcast personal statements, video statements or podcasts. Additional lessons could involve pro-con panel discussions or community forums to involve larger groups.

Option 2 – The teacher could organize the class to have a debate whether this form of speech should be allow in society and as a part of school activities. Discussion of the issue and positions on it could take place before the debate. After the debate, students could write a reflection on their views of the issue before and after the debate.

Extension

You could also work with students to assist them in using social media to discuss their experience and what they learned. Another lesson could focus on student reaction to and comment on this comment from Bevin: “If you’re a superintendent, if you’re a principal, if you’re a high school coach, step up, set an example,” Bevin said. “For us to allow everybody to be free range chickens, to not encourage them to know what they are doing and what the impact is and what the denigration of respect is something that is the responsibility of the adults to communicate to these young people.”

• Thanks to Jamie Miller, du Pont Manual High School, Louisville, Kentucky, for sharing information about the Kentucky governor’s quote.

Talking Points about student free expression

Posted by John Bowen on Sep 5, 2016 in Blog, Hazelwood, Law and Ethics, News, Scholastic Journalism, Teaching | 0 comments

Talking Points and terminology related to free expression legislation
With legislation giving students decision-making power over their student media comes questions about roles, purpose and standards. If the school cannot make content decisions who is responsible? What is the role of the adviser? Of students? If the adviser cannot control content, what guidelines will students follow and why?

The Student Press Law Center has said its goal for supporting free expression legislation is to approach the various New Voices Acts as comprehensive educational legislation that will benefit students at each stage of their development, while recognizing the differences between each educational environment.

[pullquote]“A core value of being a journalist is to understand the role of the press in a free society. That role is to provide an independent source of information so that a citizen can make informed decisions. It is often the case that this core value of journalistic independence requires a  journalist to question authority rather than side with authority. Thus, if the role of the press in a democratic society is to have any value, all journalists – including student journalists – must be allowed to publish viewpoints contrary to those of state authorities without intervention or censorship by the authorities themselves. Without protection, the freedoms of speech and press are meaningless and the press becomes a mere channel for official thought.”
– Judge Arthur Tarnow, Dean v. Utica Community Schools[/pullquote]

The Talking Points below, and the other materials in this package, might help clarify the importance of legislation protecting free speech and what the various terms – legal and educational – mean.

Points are used with permission from the Student Press Law Center, the Journalism Education Association’s Scholastic Press Rights Committee and JEA’s Principals and the Press initiative.

Talking points

• What do you mean that state legislation rolls back Hazelwood? Isn’t that illegal?

State legislation trumps Hazelwood because it adds to Constitutional guarantees of the First Amendment for all citizens, including students. In effect, it restores Tinker by rolling back Hazelwood.

A student editor of a school-sponsored publication in a state with these laws is entitled to both the protection of The First Amendment and the protection of the state law.  To put it another way, Hazelwood establishes the minimum level of high school press freedom that the First Amendment requires. No government official — federal, state or local — may act in a way, nor may lawmakers pass a law or policy, that provides individuals with less free speech protection than that required by the First Amendment, as interpreted in Hazelwood. Nothing, however, prevents state lawmakers from passing a law that requires school and government officials in their state to provide student journalists with more rights than the constitution requires.

• Aren’t the reasons for censorship in Hazelwood still censorable under this new legislation?

No. This legislation reverts to Tinker standards and unprotected speech: libel, material and substantial disruption, unwarranted invasion of privacy and obscenity.

• What are free and journalistically responsible student media?
Responsible student journalists strive for accuracy, completeness and balance to achieve and maintain credibility. The new legislation gives them a greater chance to achieve this practice.

Responsible scholastic journalists thoroughly gather and deliver coherent, accurate and complete content that serves their audience and its need to know – no matter what media platform they use.

Responsible students avoid unprotected speech — libel, unwarranted invasion of privacy, copyright infringement and obscenity – and language that causes a material and substantial disruption of the school day or advocates illegal use of drugs.

Students learn to pursue and act on those standards by making final decisions of content, without review or restraint by adviser or those outside the student media staff.

Administrators can improve their schools’ learning environment by providing open access to information and the freedom to choose topics and sources essential to communities’ various audiences. Responsible administrators empower their teachers to educate students on legal and ethical responsibilities, making prior review and censorship counterproductive and unnecessary.

As Bill Kovach and Tom Rosenstiel say in “The Elements of Journalism,” journalists’ first responsibility is to the truth, and their loyalty is to the citizens they report for.

“Journalism provides something unique to a culture,” the authors write. “Independent, reliable, accurate and comprehensive information citizens require to be free.”

• What if the school has existing policy and school administrators say the law does not apply to existing policy?

New legislation would likely win out over existing policy if the policy were contrary to the wording and intent of the legislation. Prior review, however, might still be allowed so long as administrators or school officials just reviewed and did not demand change or make changes. Prior review, though, would have to be severely limited in terms of time. Read and return by the end of the school day is reasonable.

The SPLC’s Frank LoMonte said, “The (Illinois) legislation doesn’t say speech can be prohibited if the speech violates school policies – it says you can prohibit speech that incites students to violate district policies. I’m sure what they had in mind was stuff that incites people to violate disciplinary rules (truancy, tardiness) that are not actually ‘illegal.’” If a school were to ever actually say, ‘We have a school policy against criticizing the principal’ and tried to override HB 5902 on those grounds, we would gladly challenge it.

• What happens if an adviser is ill-prepared to properly guide students to make the “right” content choices?

We would urge advisers to make use of the myriad of materials available to them from multiple sources. The Student Press Law Center, The Freedom Forum, the national and regional scholastic press associations and the Journalism Education Association all have teaching and background resources. The Scholastic Press Rights Committee also urges advisers to work with students to design a journalistically  and educationally sound mission statement for student media, an editorial policy designating student media as public forums, journalistically responsible ethical guidelines that have clear processes students will follow.

All this is not just adviser and student responsibility. School boards and administrators also have an obligation to ensure advisers have adequate access to teaching materials and educational opportunities, including professional organization membership and workshops for teacher/adviser and students.

The reason we have professional organizations like JEA is to better prepare teachers, who may not be trained in journalism, for this important work. Just as some coaches may not have formal training to coach, student media advisers sometimes must learn on the job. This is not a reason to deny students the opportunity to have their voices heard by imposing administrative control over content, which only suppresses critical thinking and halts civic engagement; rather, it is a reason to encourage excellence and to support student responsibility by providing access to resources and training.

• How much is this going to cost schools?
Absolutely nothing. In fact, it might save districts money in the long run by protecting them from legal liability.

• Why shouldn’t students be subject to censorship? After all, commercial journalists are subject to editing.
Editors of commercial media news are not employed by the government; the work they edit is work-for-hire. Student journalists are not employed by the school. School administrators are, in fact, government officials. The First Amendment was crafted to protect U.S. citizens from government censorship. Student speech is protected by the First Amendment, as long as it is lawful and does not cause a “substantial disruption” of the educational process.

The Student Press Law Center provides the legal definition of what is considered, by law, to be “unprotected speech.”

Commercial journalists do not seek permission from their primary sources to publish information and, in fact, have a longstanding tradition of not letting sources see stories before publication. Administrators are primary sources for student journalists. The temptation to censor can be irresistible for administrators, especially in cases when they do not agree with the subject matter or fear that content might reflect poorly on them and their schools.

• Why should we limit the censorship authority of administrators over student media produced on school time with school resources?
Allowing genuine student media outlets that provide students with a meaningful voice on issues that truly matter to them can be a threatening idea to those used to controlling the message. However, we have a First Amendment because, as a nation, we decided that free and independent media play a vital role in our democracy – even if they sometimes are messier than state-controlled media. The fact that student media is produced using school resources does not empower administrators to dictate content. Advisers and administrators are responsible for teaching students so they can make informed content choices.

Fortunately, a number of administrators don’t look upon their student media as adversaries or threats. Instead, they view independent student media as important school assets. They see the value in providing students with forums to express their concerns, and recognize the educational opportunities provided by strong, well-supported student journalism programs.

• Are schools liable for content in student media?
There has never been a reported court decision where a public school or school district has been held legally responsible for content in student media. This legislation ensures that school districts and school administrators are protected from lawsuits. With this law, students would be legally responsible for content in their media – not school officials or school departments.

• Does this legislation give students the right to publish whatever they want?
No. This law does not protect unlawful speech – the same categories of speech that every journalist must avoid (libel, material that invades a person’s legal right to privacy, obscenity as to minors, etc.). The law also imposes an additional category of speech restriction specific to schools: High school students cannot publish speech that would materially and substantially disrupt normal school activities. This establishes a meaningful balance between administrative authority to maintain a safe and effective learning environment and student free speech rights.

• What about the questionable stories published in student media?
Such incidents have occurred, but they are certainly the exception rather than the rule. The majority of student media outlets practice journalism in a responsible manner.

The ability to cover important issues without censorship, promotes a safe and healthy school environment. Students don’t just complain about the cafeteria food. They confront real issues, especially those which are relevant to teens. While it may make administrators uncomfortable, students often cite real safety concerns in their schools. They may cite the need for repairs that have been ignored, especially those that are outside the public view to which students have access, such as locker rooms, student bathrooms and most classrooms. They often bring about change as a result of their vigilance, courage and honesty. The greater good of the students and staff superaedes the reluctance of administrators to hide the truth. They need to be held accountable by the public for not securing a facility properly. Often, board of education members will discover something that they all have read only in the school newspaper, and will investigate the matter once the conditions are exposed.

• What effects do free student media have on the school climate?
School communities need and deserve stories that reflect the authentic student experience. Giving students a voice actually can help guard against disruptive and potentially dangerous behavior by shedding light on issues of concern and empowering the powerless. In fact, coverage of sensitive and important issues often can effect positive change.

• Is there anything, legally, student journalists cannot print?
Yes. The First Amendment does not cover all forms of speech. According to the First Amendment Center, there are essentially nine types of unprotected speech: obscenity, fighting words, defamation (includes libel, slander), child pornography, perjury, blackmail, incitement to imminent lawless action, true threats, solicitations to commit crimes. For more information, click here.

• What does research report about student learning when they control student media?
A 2015 survey of more than 900 Kansas and Missouri high school journalists indicated students felt more confident about being an engaged and productive citizen where:
• School support of First Amendment protection empowers students
• Faculty and students respect and listen to each other fosters civic journalism
• Lighter teacher control yields greater student confidence
• More practice and experience creates confidence in promoting their involvement
• This matters because empowered student journalists said they felt they would be more critically involved in citizenship responsibilities.

Study results can be found at civicsandjournalists.org

Student free expression resources

Posted by John Bowen on Sep 5, 2016 in Blog, Law and Ethics, News, Scholastic Journalism, Teaching | 0 comments

• Comments from an administrator on the importance of student free expression
• SPRC Foundations package (mission, policy, ethics, manual)
• JEA Adviser Code of Ethics
• Press Rights Minute
• Seeking to cure the Hazelwood Blues
• Constitution Day lessons and activities

Apply for First Amendment Press Freedom Award recognition

Posted by John Bowen on Sep 20, 2015 in Blog, News, Scholastic Journalism, Teaching | 0 comments

by John Bowen
With the recognition and celebration of  Constitution Day, applications are now available for this year’s First Amendment Press Freedom Award (FAPFA).