FAQ

First Amendment Center (6)

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The Newseum Institute’s First Amendment Center does not provide legal representation and does not fund litigation. We’re a nonprofit organization focused on education and information about First Amendment issues.

No, you need a qualified attorney for that. Laws differ from state to state. Martindale, Findlaw and other online legal services offer ways to find lawyers by specialty where you live. However, the information posted on our site may help you and your attorney. Use the search engine for topics or terms that interest you.

The mission of the Newseum Institute’s First Amendment Center is to serve as a nonpartisan source of information, rather than as a participant in legal disputes. Therefore, the Center does not file amicus briefs.

No. We are an educational organization. We provide information and sometimes expert testimony that members of Congress or others may find useful, but we do not lobby.

Our website has a wealth of information that may be useful in your project. Search the site for your topic and other terms that interest you. If you quote or paraphrase our information, be sure to cite where you obtained it.

Yes, as schedules and duties permit, Newseum Institute’s First Amendment Center experts speak to groups and conferences or participates in programs. Generally, the inviting group must fund travel-related expenses for the First Amendment Center participant. The Center welcomes invitations to participate in nonpartisan, educational events about First Amendment issues.

Free Spirit (11)

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The deadline is Feb. 1, 2019. Applications must include the completed application, journalistic work, two essays, letters of reference, a high school transcript, and a color headshot photo. Incomplete applications will not be accepted.

Applications may be accepted beyond the deadline from select states that have an insufficient number of qualified applicants.

No. Applicants are not required to list SAT or ACT scores, because juniors typically don’t take the exams until spring. However, scores should be supplied if they are available.

Two essays with a maximum of 500 words each must be submitted with the application. First, applicants must explain why they want to pursue a career in journalism; and second, what characteristics make them a “free spirit.”

No. We require samples of writing, photography, audio, video or other media that were produced for publication or for classroom assignments.

All candidates will be notified by mail no later than mid-May 2019. Recipients will be required to sign an acknowledgment form to confirm their acceptance. Scholars’ names will be posted online in early June 2019.

Freedom of Speech (73)

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It depends. If the school has by policy or practice turned the school-sponsored publication into a public forum, or a place traditionally open to the free exchange of ideas, then the school has less authority to censor content. However, most school newspapers are not public forums, and because of a 1988 Supreme Court decision, school officials generally have broad leeway to censor school-sponsored publications.

In Hazelwood School District v. Kuhlmeier, the high court ruled that school officials can censor school-sponsored publications if their decision is “reasonably related to a legitimate pedagogical purpose.” This means school officials must show that they have a reasonable educational reason for censoring the material.

The high court gave several examples of material that could be censored based on a reasonable educational purpose, including material that is “ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.”

The court went so far as to say that under the Hazelwood standard, school officials could censor school-sponsored materials that would “associate the school with anything other than neutrality on matters of political controversy.”

Student advocates decried the Hazelwood decision as blatant censorship that would lead to a drastic reduction in students’ First Amendment rights. For this reason, several states passed so-called “anti-Hazelwood laws” that grant student journalists more protection. Arkansas, Colorado, Iowa, Kansas, Massachusetts, and Oregon passed such laws after the decision. (California already had a law protecting student journalists.)

Suppose a student is taking a drawing class. Part of it involves sketching a nude human body. If a student has a religious objection to observing or drawing unclothed models, he or she might ask to be exempted from that section of the class without damage to the course grade. Such an exemption may or may not be granted.

It stands to reason, under a doctrine established by the U.S. Supreme Court in its 1943 decision West Virginia v. Barnette, that no one may be compelled by a government actor to do something that will violate their conscience. Accordingly, it would seem that the same could be said for students who find religious or moral objections to certain practices normally required in a course of study — that they should be allowed to take on comparable tasks, modified to meet the requirements of their worldview.

A Mormon drama student at the University of Utah recently objected to “taking the Lord’s name in vain” and using “the f-word.” When she asked that she be allowed to change the words in class exercises and plays to which she was assigned, she was informed that her grade would suffer if she did so. In the resulting court case, the federal district court found that she could not exempt herself from the requirements of her studies and that if she desired to avoid those requirements, she had the option of choosing another major. The case has been appealed.

No. Private galleries are private spaces, and gallery owners and curators can show what they like. An artist whose work is rejected by a private gallery cannot legally assert a First Amendment claim.

The law itself spelled out an expedited process for handling the inevitable legal challenges to the law. A three-judge panel in the District of Columbia held hearings at which evidence of the impact of campaign contributions was introduced. After months of deliberation, the panel issued its ruling in May 2003. The panel, comprised of appeals court Judge Karen Henderson and district Judges Colleen Kollar-Kotelly and Richard Leon, produced more than 1,600 pages of mix-and-match opinions that upheld some provisions of the law but struck down others. Commentators generally agreed that because of its fractured findings and conclusions, the ruling did little to help the Supreme Court as it undertook its own assessment of the law.

Generally, schools may not censor underground student newspapers, because those papers are not school-sponsored. If the underground paper is not distributed on campus, school officials have no legal authority to regulate it.

Even if the papers are distributed on school grounds, the First Amendment imposes limitations on school officials’ ability to censor these publications because of content. Public school officials, however, may impose reasonable time, place and manner restrictions on the distribution of underground newspapers.

There are exceptions to the general rule of “no censorship.” If school officials can show that the publication caused or would likely cause a substantial disruption of school activities, they may be able to limit or even stop distribution. Or if school officials could show that the publication contained true threats, they may be able to restrict distribution.

A pressing issue regarding underground student newspapers is whether school officials have the power to require students to submit the papers for review before they can be distributed on school grounds. Courts are divided on whether such prior review policies violate students’ First Amendment rights, and the Supreme Court has not considered the issue.

This is called a “heckler’s veto.” The problem with it is that, far from advancing understanding, it inhibits it. Freedom of speech was guaranteed in the First Amendment so that a full range of ideas would be available on matters of public interest. The Supreme Court’s interpretation of the First Amendment as it pertains to public college campuses over the past 80-90 years is derived in part from J.S. Mill’s essay, “On Liberty,” in which he asserted that:

“… the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

Students are not allowed to drown out the lectures of a professor in the classroom without disciplinary action, because doing so disrupts the school’s academic purpose. Guest speakers are allowed on campus in order to offer different and broader perspectives, thereby addressing the school’s purpose. So, student speech that would drown out a controversial guest therefore can be prohibited.

However, institutions ideally will not simply silence students wishing to protest against a campus speaker. They may restrict student protesters to an appropriate forum, thus allowing both exercises of free speech to occur.

Freedom of the Press (39)

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As most famously described by Justice Oliver Wendell Holmes in Schenck v. United States, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Other types of speech by individuals also fall outside the protection against prior restraint, including fighting words and obscenity.

“There are two ways in which the government may attempt to restrain speech,” wrote scholar Henry Cohen in “Freedom of Speech and Press: Exceptions to the First Amendment” (Congressional Research Service, 2001). “The more common is to make a particular category of speech, such as obscenity or defamation, subject to criminal prosecution or civil suit, and then, if someone engages in the proscribed category of speech, to hold a trial and impose sanctions if appropriate. The second way is by prior restraint, i.e., to issue a court injunction against engaging in particular speech,” publishing the Pentagon Papers, for example.”

Media “ride-alongs” are allowed up to the point that law enforcement personnel enter a private residence. In Wilson v. Layne, the U.S. Supreme Court in 1999 held that police officers executing an arrest warrant violated the Fourth Amendment when they, without the homeowner’s consent, invited a reporter and photographer inside a home to witness the search for a fugitive. While the Court recognized that the inclusion of media representatives in such cases might serve general law enforcement aims, it held that such goals were insufficient to overcome the privacy protections fundamental to the Fourth Amendment.

Not from a First Amendment standpoint. The First Amendment limits what government in its various forms can do to restrict speech. Many individuals are subject to employment or other contracts that limit their right to speak freely. That’s a private matter.

The courts haven’t recognized that the news media have any constitutional guarantee of access to any particular scene. However, there are statutory rights in a few states and case law in others that protect press access from unreasonable restriction.

The courts have generally stood behind journalists who act reasonably in trying to get information — but courts have not protected those who blatantly disregard police orders. Courts have recognized under the First Amendment a press privilege to be left alone by the police, so long as the media do not unreasonably interfere with or obstruct police activity or risk their own personal safety. In Connell v. Town of Hudson, for example, a 1990 case in New Hampshire, a federal judge found that a news photographer had a First Amendment right to be at a car accident scene.

Under FCC rules, broadcast indecency is “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” By “contemporary community standards,” the FCC means the standard “of an average broadcast viewer or listener, and not the sensibilities of any individual complainant.”

It’s the Health Information Portability and Accountability Act, a federal health-privacy law that went into effect in 2003.

Freedom of Religion (89)

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Individuals do not forfeit First Amendment protections when they accept public-sector employment. Public employees also can speak about religious matters in the workplace to a certain degree, particularly if the speech is not communicated to the general public. However, the employer has a right to ensure that the employee’s religious speech does not disrupt office work or otherwise become distracting to other employees to the extent that it hinders productivity. Furthermore, no employee has the right to engage in religious harassment or create a hostile work environment. If the fellow employee tells his religious-minded co-worker to stop proselytizing, the co-worker should desist from further conversations on the subject.

Yes, but only if appropriate constitutional safeguards are in place. Remember, public schools must remain neutral among religions and between religion and nonreligion. For that reason, religious groups must refrain from proselytizing students during any cooperative programs with public schools. Participation or nonparticipation by students in such cooperative programs should not affect the student’s academic ranking or ability to participate in other school activities. In addition, cooperative programs may not be limited to religious groups, but must be open to all responsible community groups.

For more detailed guidelines, see “Public Schools and Religious Communities: A First Amendment Guide,” published by the American Jewish Congress, Christian Legal Society, and First Amendment Center and co-signed by 12 additional educational and religious organizations (1999).

Not necessarily. The Court’s holding was based on the fact that Nebraska’s practice did not seem likely to lead to an “establishment of religion.” Given a different set of facts, a majority of the justices might well have discerned such an unconstitutional establishment. For instance, courts are stricter in their application of the establishment clause when it comes to public schools, or other arenas where the government has the opportunity to influence a captive audience of impressionable youngsters. What seems clear from Marsh is that the Court is willing to defer to traditional practices that bear a religious element as long as they do not appear to coerce the unwilling or the highly impressionable into some form of religious participation or belief. The Marsh reliance on tradition and a failure to prove any establishing tendency could make a huge difference if the Supreme Court decides to hear a challenge to the constitutionality of the national motto (“In God We Trust”), or the wording of the Pledge of Allegiance.

Teachers must be alert to the distinction between teaching about religious holidays, which is permissible, and celebrating religious holidays, which is not. Recognition of and information about holidays may focus on how and when they are celebrated, their origins, histories and generally agreed-upon meanings. If the approach is objective and sensitive, neither promoting nor inhibiting religion, this study can foster understanding and mutual respect for differences in belief. Teachers may not, however, use the study of religious holidays as an opportunity to proselytize or otherwise inject their personal religious beliefs into the discussion.

The use of religious symbols is permissible as a teaching aid or resource, provided they are used only as examples of cultural or religious heritage. Religious symbols may be displayed only on a temporary basis as part of the academic lesson being studied. Students may choose to create artwork with religious symbols, but teachers should not assign or suggest such creations.

Guest speakers also can help teachers present the appropriate information, but only if they understand their role as informational, not devotional, in nature.

In addition, the use of art, drama, music, or literature with religious themes is permissible if it serves a sound educational goal in the curriculum. Such themes should be included on the basis of their academic or aesthetic value, and not as a vehicle for promoting religious beliefs. For example, sacred music may be sung or played as part of the academic study of music. School concerts that present a variety of selections may include religious music. Concerts should, however, avoid programs dominated by religious music, especially when these coincide with a particular religious holiday.

Cities have the right to zone specific areas for religious purposes, but they do not have the right to restrict the number of churches or religious institutions within their boundaries. Under RLUIPA, religious institutions are given some protection against zoning laws. Though the act does not completely exempt churches from zoning laws, officials must have a compelling interest in restricting a church or other religious institution from being built in a specific area.

Some fear that allowing an overabundance of religious institutions in a city will damage the economy because religious organizations are exempt from property taxes. Chris Hoene, a research manager for the National League of Cities, said some cities had become inventive in devising ways to collect money from churches. For example, some cities have begun to tax religious organizations’ profit-generating enterprises, including publishing and gift-shop sales.

The free-exercise clause of the First Amendment says the government may not prevent individuals from freely practicing their religious faith. Also, Title VII of the Civil Rights Act of 1964, the major federal anti-discrimination law that covers virtually all public and private employers with 15 or more full-time employees, generally prohibits an employer from discriminating against employees on the basis of race, color, sex, national origin or religion. Under Title VII, an employer must “reasonably accommodate” an employee’s religious practice unless doing so would create an “undue hardship on the conduct of the employer’s business.”

Congress didn’t define “reasonably accommodate” and “undue hardship,” so that was left to the courts. In the 1977 ruling Trans World Airlines v. Hardison, the Supreme Court said requiring an employer “to bear more than a de minimis (minimal) cost” to accommodate an employee’s religious practice is an undue hardship. In 1986, the Court ruled that an employer meets its obligation to reasonably accommodate an employee’s religious practice when it demonstrates that it has offered a reasonable alternative to work requirements interfering with faith. See Ansonia Board of Education v. Philbrook.

Freedom of Assembly (13)

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The U.S. Supreme Court held on Feb. 28, 2006, in a case involving anti-abortion protests, that federal extortion and racketeering laws cannot be used to ban demonstrations. Use of those laws against protesters also was opposed by unions and a variety of social activists. Many states currently are considering laws that would ban protests at funerals, but those bans would be based on different kinds of laws. The proposed state bans often set out time limits starting before and ending after funeral services, or map out physical distances to separate families from demonstrators.

As a general rule, the government cannot ban speech — including public protests — because of the protest’s “content,” or subject matter. Government can restrict the time, place and manner of the speech in order to meet a higher need, such as public safety. What a demonstrator might say without challenge at noon in the public square likely would have First Amendment protection, while that same speech at midnight under an apartment building window likely would not.

No. The government can limit such protests depending on several factors. First, violent protests are outlawed anywhere. The text of the First Amendment provides for “the right of the people peaceably to assemble.” The key word is “peaceably” — violent protesting is not allowed.

Second, not all government property is treated the same for First Amendment purposes. The U.S. Supreme Court has established the public-forum doctrine to examine whether certain types of public property are open to First Amendment expressive activity. These categories include traditional public forums, limited or designated public forums and nonpublic forums. Still other government property is not considered a forum at all.

First Amendment rights apply the most in a traditional public forum, such as a public park. In its 1939 decision Hague v. C.I.O. the U.S. Supreme Court explained: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”

The general rule is that government officials may not impose content-based restrictions on speech in a public forum. This means that city officials must not treat different persons and groups of persons differently on the basis of the content (and viewpoint) of their messages. The government can justify content-based speech restrictions only by showing that it has a compelling state interest in imposing them (such as safety or security concerns), and that it has done so in a narrowly tailored way. Even in a public forum, the government may impose reasonable time, place and manner restrictions that are content-neutral, leave open ample, alternative ways for expression and are narrowly tailored. This means that city officials could limit protests to certain hours of the day and perhaps certain locations. Again, the key terms are “reasonable” and “content-neutral.”

The next category is a limited or designated public forum (though some lower courts distinguish between limited and designated — see discussion in Speaking at public meetings section).

In a limited public forum (such as a meeting room on a public college campus that is frequently used by outside groups), the government designates the certain types of subject matter that can be discussed at the location. After the government has created such a forum, setting boundaries on classes of speakers or topics, the government must meet the standards of a traditional public forum; namely, restrictions on speech must be reasonable and viewpoint-neutral. The theory is that when the government opens a forum up to the public, it shouldn’t be able to skew discussions by over-regulating expression.

Still another category is the nonpublic forum, a place where the government has greater leeway for control, as restrictions on expression must only be reasonable and viewpoint-neutral. What this means is that the right to protest is often affected by the location and purpose of the government property where the protest takes place. In United States v. Grace (1983), the U.S. Supreme Court wrote that the “public sidewalks forming the perimeter of the Supreme Court grounds, in our view, are public forums and should be treated as such for First Amendment purposes.” The same protest rights would not apply inside the Supreme Court building or on the steps right outside the Court. In U.S. v. Kokinda (1990), the U.S. Supreme Court ruled that postal sidewalks were not public forums, writing that they do “not have the characteristics of public sidewalks traditionally open to expressive activity.” The Court clarified that “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.”

In sum, there is no unfettered right to protest on government property. Protests must be peaceable, and the government has the right to impose content-neutral, reasonable time, place and manner restrictions on expression. Furthermore, as the Supreme Court said in Kokinda, “the government’s ownership of property does not automatically open that property to the public.”

The government has greater power to regulate expression when it acts as a proprietor controlling its internal operations than it does as a sovereign lawmaker. This means that government officials could limit protests inside a courthouse because the government has important operations to conduct. It must be able to control its operations to carry out its functions. The government must be able to carry on its own speech and expression free from interference. Contrast this with the public sidewalks two blocks from a courthouse. Here, the government cannot argue that it is conducting its own internal operations. Speech restrictions there would implicate a forum analysis and trigger a higher degree of judicial scrutiny.

Simply attending peaceful meetings of an organization will not make a person guilty, even if other members of that organization commit lawless acts. Guilt can be shared only if the organization and its members have a common plan to break the law.

In most cases, yes. Most states consider shopping malls to be the private property of the mall owner. Just as with any piece of private property, owners can make rules regarding that property, including what is appropriate attire. Think of “No shirt, no shoes, no service.”

In 1976, the U.S. Supreme Court decided the case Hudgens v. National Labor Relations Board. This case involved a group of labor union members who were picketing inside a privately owned mall. The union members filed suit claiming, in part, that their First Amendment free-speech rights had been violated after they were asked to leave the premises or be arrested for criminal trespass. The court looked at past cases and found that the First Amendment does not prevent a property owner from restricting the exercise of free speech on private property, in this instance, the shopping mall. So, for example, if a mall shopper were asked to cover a shirt that the mall owners found to be offensive, the shopper would have to comply or leave.

New Jersey and California have found their state constitutions to provide more freedoms than the U.S. Constitution — meaning that in these states constitutional rights to free speech can prevail over the private-property interests of mall owners. See Pruneyard Shopping Center v. Robins (1980). However, most states that have addressed this issue have found in favor of property owners.

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Freedom of assembly is explicitly guaranteed in the First Amendment, securing the right of people to meet for any purpose connected with government. Freedom of association protects the activities and composition of such meetings. This right is not explicitly set out in the Constitution but is instead derived from fundamental privacy interests and the rights of speech, petition and assembly.

Any and every group is allowed to meet to discuss ideas and peaceably promote its point of view, even if that message is distasteful to others. Whether through parades, peaceful protests, picketing or simply sharing ideas, an organization formed for expressive purposes may engage in “group speech” to advance its mission. Freedom of association also protects the gathering of people for personal, private purposes, such as the meeting of family members.

Freedom to Petition (9)

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Historically, a petition was a written request stating a grievance and requesting relief from a ruling authority such as a king. In modern America, petitioning embraces a range of expressive activities designed to influence public officials through legal, nonviolent means.

The right to petition reaches back at least to the Magna Carta in 1215. The English Declaration of Rights in 1689 confirmed that subjects were entitled to petition the king without fear of prosecution.

Courts seldom address the petition clause in isolation, instead grouping it with other rights to free association and collective speech. The U.S. Supreme Court has noted that the right to petition at least provides the opportunity to institute nonfrivolous lawsuits and mobilize popular support to change existing laws in a peaceful manner.

No. The U.S. Supreme Court has incorporated the petition clause of the First Amendment as part of the 14th Amendment’s guarantees against the states. The petition clause applies equally to state and local governments and protects petitions directed to the judicial, executive and legislative branches.

The First Amendment does not mandate that the government consider the public’s petitions or actually provide any “redress.” At a minimum, the government must have a mechanism for receiving complaints and grievances from the public, even if only to file them without consideration. Of course, due process — the guarantee that justice will be administered fairly — would apply if a citizen’s “petition” took the form of a court case.

No, parties can attempt to file such suits, but the First Amendment’s petition clause guarantees the right of all interested parties to attempt to enlist the government on their side of an issue or dispute. The vast majority of the case law and commentary — both popular and scholarly — supports that right, and suggests that the remedy for dissatisfaction with the statements of another party is more speech directed toward government, not more litigation.

Students (4)

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It depends. If you attend a private school, the First Amendment will not protect you from any restrictions your school places on your right to protest. (The First Amendment prevents the government from punishing you for your speech. It doesn’t prevent a private organization for punishing you for your speech.)

If you attend a public school, you do have First Amendment rights, even at school. However, your rights are more limited than the rights of adults. Your school can punish you for taking part in a protest if it causes substantial disruption of school activities, or if it invades the rights of others.

This standard was established by the Supreme Court in a case called Tinker v. Des Moines Independent Community School District. The students in that case wore black armbands to school to protest the Vietnam War, and were suspended for refusing to take them off. The Supreme Court found that their First Amendment rights had been violated, because the armbands were considered a non-disruptive expression of their political point of view.

You may decide that you are willing to incur those penalties, but remember to consider alternative methods of advocacy and protest as well.  Sometimes civil disobedience–challenging the rules on matters of conscience and policy–is justifiable.  But sometimes there are several different ways to achieve the same goal.

This is may be a fire code violation–contact the proper authorities if you are concerned.

You may not be able to vote–but you have the First Amendment rights to speak, assemble, and petition.

Organizing marches and rallies can raise public awareness for your cause. Doing so off-campus and outside of school hours will be protected by the First Amendment.  Reach out and collaborate with as many people as possible–parents, teachers, school administrators, and members of your community–in order to have the greatest possible impact.

The right to petition means the right to ask for the laws that you want and speak out against the ones that you don’t want.  Contact your elected officials and tell them what you think.   Letters, phone calls, and personal interactions at town hall meetings have more of an impact than emails and tweets.  Contact your Senators and members of Congress, since they’re elected to serve you.  Don’t forget that state and local officials also make laws that impact you.  The My Reps website allows you to find and contact your federal, state, county, and local elected officials.  This guide by  former Congressional staffer Emily Ellsworth contains some very helpful tips on what you should say and do.

Parents (1)

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First, you may want to reach out to the school administrators and/or the school board and make your own voice heard on how you feel about this policy.

In giving advice or instructions to your children, you should consider the potential penalties but also discuss the underlying issues behind the walk-out.  You may wish to help your child with alternative forms of activism–for instance, by contacting your legislators on their behalf.  (After all, you have a vote.)

This could also be an opportunity to work collectively with other parents and your school leaders to organize a community discussion about the political issues, and also the on the the larger civic lessons surrounding free speech, protest, and representative democracy.

Teachers (1)

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If you’re caught between students motivated to join in protests, marches or other kinds of activities that are under the general heading of “free expression” [that is actual speech or expressive conduct] and your administration’s view of such actions as disruptive and therefore prohibited, perhaps you can strike a compromise between these groups  – a task that teachers’ lounge chatter daily confirms. How about leading your students in discussion about the history of protest in America, or the explore the various sides of what Supreme Court justices wrote in the “Tinker” court case.

While the 7-2 majority on the court supported student free speech rights – with some caveats – one justice wrote that the decision would usher in an entirely new era of “permissiveness” that it seems would wreck American public schools. To engage your students in a discussion, you can find review the basic information about the case and use this discussion guide from Newseum Education.

School Administrators (1)

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You first face the decision of whether to forbid the walk-out at all or to simply deal with the disruption caused by a walk-out.  (This decision might depend on whether you are considering the disruption caused by a 17-minute walkout versus that of an all-day walkout).  You then face the decision of whether or not to punish the participants.  Note that a punishment must be proportional to the misconduct committed.  Furthermore, if you decide to mark truant the students who participate in a walk-out, keep in mind that the punishment for them cannot be any more severe than the punishment for students who are truant for another reason.

Simply locking students into their classrooms in order to keep them from leaving may well be a fire code violation. Such a “lockdown” lacks the urgent “true threat” justification that a court might accept with regard to an active, dangerous incident in your building or near your location.

You should also consider that there may be another approach altogether. Given that we live in an age where there is much concern that young people don’t understand the Constitution or support free speech, punishing them for exercising it, even if the even if the Tinker decision gives school administrators that discretion, seems counterproductive. In the words of law professor Erwin Chemerinsky, “Schools cannot teach the importance of the First Amendment and simultaneously not follow it.”

This could be a teaching moment for your students and your community.  In cooperation with students, parents, and teachers, you may wish to organize a town hall meeting in which all sides surrounding the political issue or debate are head.  Newseum Ed’s Teaching Controversial Topics instruction guide provides tools and tips for educators on leading classroom conversations about sensitive topics.  

You can also use this as an opportunity to educate your students about how the First Amendment works and how far their rights extend.  You can start by introducing students to what the limits of free speech are, both inside of school and out of it, with discussion materials from Newseum Ed about what counts as a violation of the First Amendment and what you can and can’t say in school.

 

 

 

 

Lawyers (8)

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Yes, students do possess First Amendment rights at school.   The U.S. Supreme Court famously wrote in Tinker v. Des Moines Independent Community School District (1969) that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  However, the Court cautioned that students’ rights must be considered “in light of the special characteristics of the school environment.”

That is an excellent question.  The determination of what constitutes a “substantial disruption” is decided on a case-by-case basis.  The interruption of classes, threats to teachers, racially harassing conduct and significant race-based tension, fights or violent behavior on school grounds, the flooding of angry calls from parents, the canceling of school events, and emotional distress suffered by teachers have all been considered substantial disruptions within the meaning of the Tinker standard.

No, courts have stated that school officials do not have to wait for an actual disruption or riot.  The 9th U.S. Circuit Court of Appeals explained in Karp v. Becken (1973): “The First Amendment does not require school officials to wait until disruption actually occurs before they may act.”

This where the “reasonable forecast” part of the standard comes in play.   In Dodd v. Rambis (S.D. 1981), a federal district court judge reasoned that students’ distribution of leaflets urging fellow students to engage in another student walkout was substantially disruptive to school activities.  The judge explained: “The First Amendment does not require school officials to forestall action until disruption of the educational system actually occurs. Indeed, this is the very essence of the forecast rule.”

For example, in many cases involving Confederate flag garb, courts have reasoned that a significant amount of race-based tension at the school is enough to satisfy the “reasonable forecast of substantial” disruption standard.

Usually, courts find that student walkouts are substantially disruptive under the Tinker standard.  They focus on the fact that classes and class schedules are disrupted and the students who remain in school are distracted.

Furthermore, the 9th U.S. Circuit Court of Appeals in Corales v. Bennett (2009) reasoned that a high school’s anti-truancy policy was a “content neutral rule that furthers an important interest unrelated to the suppression of expression.”  The appeals court explained that the anti-truancy rule “furthers several substantial government interests, including enforcing compulsory education, keeping minors safe from the influences of the street, maximizing school funding based on attendance  and limiting potential liability for negligent failure to supervise a truant student properly.”

The other part of the Tinker test is sometimes called the “invasion of the rights” prong or “invasion of the rights of others” test.   The Court in Tinker explained that student speech is not protected by the First Amendment if it impinges on the rights of other students.  The Court has not explained the contours of this test.

However, lower courts have applied this test to prohibit student speech that sexually harasses other students or to student speech containing anti-gay themes.  For example, the 9th Circuit ruled in Harper v. Poway Unified School District (2006) that school officials could prohibit a student from wearing t-shirts containing Biblical verses condemning homosexuality. The appeals court explained: “Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn.”

Absolutely not.  U.S. District Court Judge Rodney Sippel expressed this well years ago in Beussink v. Woodland IV School District (E.D. Mo. 1998), writing “Disliking or being upset by the content of a student’s speech is not an acceptable justification for limiting student speech under Tinker.

In a case out of Tennessee, Giles County public school officials contended that a t-shirt with pro-gay and lesbian themes would be disruptive to the school. A review federal district court judge disagreed in Young v. Giles County (M.D. Tenn. 2015), writing that “[m]erely invoking the word ‘disruption’ falls far short of the showing that Tinker requires.”

Workplace Integrity Curriculum (7)

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It’s the product of both research and experience. I drew on the findings from the Power Shift Summit, EEOC data on harassment and discrimination, research on bias in decision making, contemporary writing on gender and diversity issues, and combined it all with my own experiences working with journalists and leaders who want to improve their cultures.

Let me answer that by providing a peek at the Facilitator’s Guide for the curriculum, where the learning objectives are laid out:

Format: The interactive program consists of three modules, designed to be taught in succession, as one complete event. Each session builds on the others.

Learning objectives: Participants who complete the workshop should be able to take away these skills from each of the modules:

  1. Critical Thinking: How to analyze common workplace exchanges related to harassment, discrimination and incivility — checking facts, providing context, identifying bias, surfacing assumptions and challenging logic.
  2. Courageous Conversations: How to better understand conflict and responses to it. How to speak proactively (introducing subjects) and reactively (responding to the words and actions of others) to ensure workplace integrity.
  3. Cultures of Respect and Trust: How to assess and improve your workplace culture.

I’ve spent a great deal of time helping newsrooms who want their cultures to be more investigative, multi-platform, digital-first, audience-centric, enterprising, collaborative or breaking-news focused. To do that, I developed a very practical analytical framework for assessing a culture, and exercises for staff to use to upgrade it. I built on that foundation to apply it to the Workplace Integrity curriculum. Now, newsroom teams will address “Cultures of Respect and Trust” — with both of those terms carefully defined and translated into daily choices and behaviors. We use a format that allows staff to work together in teams, under the guidance of a skilled facilitator who knows and loves journalism and journalists, and speaks the language of the newsroom.

The issues are complex and intertwined. Even if we magically ended sexual misconduct in workplaces tomorrow, we’d still be left with longstanding issues of inequality in pay and power — and even in respect. The curriculum aims to make these connections and discuss the intersections among gender, race and ethnicity, age, and power. It constantly challenges the participants to try to see every item we discuss from multiple perspectives, especially those different from their own. And, while it teaches people how to respond to improper workplace behavior, there’s an even bigger emphasis on how each of us, but especially leaders, has the opportunity to be proactive. “Courageous Conversations” will fail as a session if all it does is help victims push back or report wrongdoing. What it must also do is help us all find the words to propose solutions, take a stand, and embed the values of workplace integrity into our everyday communication.

The 2016 report of an EEOC task force reviewed research on traditional anti-harassment training and found scant evidence that it worked. It often made people defensive. The videos used could be corny or dated, and online versions of training could come off as a “box-checking” exercise. I know from my many years of teaching ethics and diversity that talking across differences, and raising issues of power and privilege, is hard work for humans. Framing it as compliance to company rules doesn’t set the table for candid, earnest and even painful conversations. But it is in those that we find the human insights that inform our minds and hearts. Whenever I’ve had success in helping organizations improve their cultures, it’s been through setting the table for conversations people wouldn’t otherwise have, and helping them see the world through others’ eyes in an open-minded atmosphere of trust. That’s the goal of the Workplace Integrity curriculum.

One of the most popular sessions I teach in leadership workshops is “Difficult Conversations.” I traditionally have the workshop participants share scenarios from their own experiences, and then I coach them on how to handle them. I’ve heard so many great case studies, and coached so many conversations, that I drew from that experience. The cases are nuanced and real. I intentionally crafted them in second-person voice. “You” are facing various proactive and reactive scenarios: proposing a change in intern onboarding, reacting to a powerful, talented and mercurial co-worker, responding to unwelcome physical contact, stepping in when a person is being harassed, and coaching a coworker who brings a concern to you. When “you” consider your options, we also ask “you” to consider how the case might play out differently for a variety of other “you’s” — who differ from you in multiple ways.

Power Shift Project (0)

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It’s the product of both research and experience. I drew on the findings from the Power Shift Summit, EEOC data on harassment and discrimination, research on bias in decision making, contemporary writing on gender and diversity issues, and combined it all with my own experiences working with journalists and leaders who want to improve their cultures.

Let me answer that by providing a peek at the Facilitator’s Guide for the curriculum, where the learning objectives are laid out:

Format: The interactive program consists of three modules, designed to be taught in succession, as one complete event. Each session builds on the others.

Learning objectives: Participants who complete the workshop should be able to take away these skills from each of the modules:

  1. Critical Thinking: How to analyze common workplace exchanges related to harassment, discrimination and incivility — checking facts, providing context, identifying bias, surfacing assumptions and challenging logic.
  2. Courageous Conversations: How to better understand conflict and responses to it. How to speak proactively (introducing subjects) and reactively (responding to the words and actions of others) to ensure workplace integrity.
  3. Cultures of Respect and Trust: How to assess and improve your workplace culture.

I’ve spent a great deal of time helping newsrooms who want their cultures to be more investigative, multi-platform, digital-first, audience-centric, enterprising, collaborative or breaking-news focused. To do that, I developed a very practical analytical framework for assessing a culture, and exercises for staff to use to upgrade it. I built on that foundation to apply it to the Workplace Integrity curriculum. Now, newsroom teams will address “Cultures of Respect and Trust” — with both of those terms carefully defined and translated into daily choices and behaviors. We use a format that allows staff to work together in teams, under the guidance of a skilled facilitator who knows and loves journalism and journalists, and speaks the language of the newsroom.

The issues are complex and intertwined. Even if we magically ended sexual misconduct in workplaces tomorrow, we’d still be left with longstanding issues of inequality in pay and power — and even in respect. The curriculum aims to make these connections and discuss the intersections among gender, race and ethnicity, age, and power. It constantly challenges the participants to try to see every item we discuss from multiple perspectives, especially those different from their own. And, while it teaches people how to respond to improper workplace behavior, there’s an even bigger emphasis on how each of us, but especially leaders, has the opportunity to be proactive. “Courageous Conversations” will fail as a session if all it does is help victims push back or report wrongdoing. What it must also do is help us all find the words to propose solutions, take a stand, and embed the values of workplace integrity into our everyday communication.

The 2016 report of an EEOC task force reviewed research on traditional anti-harassment training and found scant evidence that it worked. It often made people defensive. The videos used could be corny or dated, and online versions of training could come off as a “box-checking” exercise. I know from my many years of teaching ethics and diversity that talking across differences, and raising issues of power and privilege, is hard work for humans. Framing it as compliance to company rules doesn’t set the table for candid, earnest and even painful conversations. But it is in those that we find the human insights that inform our minds and hearts. Whenever I’ve had success in helping organizations improve their cultures, it’s been through setting the table for conversations people wouldn’t otherwise have, and helping them see the world through others’ eyes in an open-minded atmosphere of trust. That’s the goal of the Workplace Integrity curriculum.

One of the most popular sessions I teach in leadership workshops is “Difficult Conversations.” I traditionally have the workshop participants share scenarios from their own experiences, and then I coach them on how to handle them. I’ve heard so many great case studies, and coached so many conversations, that I drew from that experience. The cases are nuanced and real. I intentionally crafted them in second-person voice. “You” are facing various proactive and reactive scenarios: proposing a change in intern onboarding, reacting to a powerful, talented and mercurial co-worker, responding to unwelcome physical contact, stepping in when a person is being harassed, and coaching a coworker who brings a concern to you. When “you” consider your options, we also ask “you” to consider how the case might play out differently for a variety of other “you’s” — who differ from you in multiple ways.