Teaching What Free Speech Means
December 24, 2020
Recent news stories showing university students loudly heckling both tenured professors and visiting speakers point to a disturbing disregard for free speech protections. A Brookings Institute survey suggests this stems from ignorance. The survey found a majority of undergraduates did not know that speech they deem offensive is constitutionally protected. Half said “it’s okay to shout down a speaker whose views they don’t agree with.” Nearly one of five believe “it is acceptable for a student group opposed to a speaker to use violence to keep him from speaking.”
A failure of civics education in high school sets students up for this confusion, as teachers in Ashbrook programs realize. When Professor Joseph Fornieri (Rochester Institute of Technology) was invited to teach a summer residence course in Ashbrook’s Masters program on “Free Speech in War, Hate, and On Campus,” an eager group signed up. “The First Amendment understanding of speech is complex, and I realized there was a lot more to learn,” said Candee Collins, an American history and dual credit government teacher for Kilgore College at Pine Tree High School in Texas.
The American Founders, understanding their own Revolution to have been kindled through speech and the press, considered free speech the ground of all other freedoms. Yet free speech “has never been considered absolute,” Fornieri said. During the nation’s first century, most speech restrictions were justified as necessary to national defense or civil order. Teachers in the course discussed the controversies provoked by these laws.
When the Supreme Court began hearing challenges to speech limits in the early 20th century, their opinions articulated tests for determining whether speech deserved Constitutional protection. Each teacher in Fornieri’s course studied one landmark case, presenting its key points to the class. Do leaflets urging resistance to the draft during wartime represent a “clear and present danger” (as they were judged to do, in the case of Schenck v. United States)? Is a Klansman’s speech advocating violence a “direct incitement” to “imminent lawless action” (as was ruled not to be the case in Brandenburg v. Ohio)? Is flag-burning a form of “symbolic speech” protected by the first amendment (as justices ruled in Texas v. Johnson)?
More recently, the Court has ruled on limits to speech thought to threaten vulnerable minorities. Teachers studied one such ruling issued only days before the course, in Matal v. Tam. An Asian American rock group had attempted to trademark their band name, The Slants, and been denied. “They wanted to reclaim an offensive term and rock and roll it back” in the face of bigotry, Fornieri said. The Court ruled unanimously that such speech was protected.
Questions about “offensive” speech remain unsettled on university campuses, however. As the final exam in the course, Fornieri presented teachers with a hypothetical case: the firing of a university professor accused of “hate” speech—in particular, allegedly offensive remarks that could have created a hostile environment for students. Teachers were tasked with writing three opinions on the case: a majority opinion, a concurrence, and a dissent.
To prepare for the exam, the teachers formed study groups and discussed the hypothetical case in light of the precedents. “It was as if we conducted our own certiori conferences,” said Collins, referring to the meetings in which Supreme Court justices review potential cases to decide which to hear. “We sat around a dining table in the student apartments, with our books and notes open on the floor.” After the groups adjourned for the night—often at 1 am—each teacher continued thinking, perhaps writing part of an opinion by the next morning. “We weren’t sleeping very much,” Collins said.
Midweek, Fornieri joined the teachers in one large study session, addressing legal issues the teachers weren’t sure about. Traditionally, the term “hostile environment” implied a situation in which the plaintiff faced “a true threat.” Hate speech is not in itself excluded from first amendment protection, Fornieri explained. “The Court has made very clear that it cannot make a principled distinction based on the content of the speech.”
“I think we all reached the same conclusion,” said Robin Deck, who teaches at Catholic High School for boys in Baton Rouge. Judging by the precedents, the majority on the Court would conclude the professor could not be removed from his job. Deck was somewhat surprised at what she had learned. “Personally, I still feel speech should have consequences. I’m not a free speech absolutist.”
Given the high value that Ashbrook programs place on conversation, the teachers’ concern that speech remain civil and respectful is not surprising. Moreover, in the high school setting, teachers and administrators, acting in loco parentis, can legally sanction speech in ways that universities may not. Yet, as Kimberly Grosenbacher, who teaches at Samuel V. Champion High School in Boerne, Texas, said, “Fornieri’s class helped me understand that we need to have more conversations about things that may make us uncomfortable, as long as we respect the two sides to every issue.”
Classroom debate has become more challenging in the era of social media. As texting and Twitter displace face-to-face conversation, students lose verbal dexterity, and can become defensive if their views are challenged. Deck asks students to journal their ideas before beginning discussion, to give them time to think. She also finds that her MAHG study has furnished her a calm response when students misunderstand history. “I say, ‘That’s interesting, but that’s not how the Founders would have seen it.’ Then I cite a primary document.”
She finds ways to model civil discussion. She shares a classroom with a teacher who formerly practiced law. Between classes, she poses questions to him: ‘I’ll say, ‘The students are upset about the NFL protests during the national anthem. Here are the cases I would use to support the players’ right to kneel; what cases would you use to argue they can be made to stand up?’ Students see us modeling civil discourse, and they learn that the issue is much more nuanced than they thought,” Deck says.
Like other teachers in Ashbrook programs, Deck understands that both civil conversation and education become possible when students realize they have a lot yet to learn.