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 Close Up Foundation, which has been bringing high school students to Washington, D.C., for 30 years, will handle travel logistics. The foundation also will provide supervision and oversight of participants.

No. All scholars are required to participate in the entire conference. This is an inspiring opportunity to interact with distinguished journalists, visit newsrooms, tour Washington and share experiences with other Free Spirit Scholars.

Applicants must be U.S. citizens or permanent residents.

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.

Freedom of Speech (73)

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Yes, it does. If the student uses school computers to create his material, school officials have jurisdiction and more legal authority to regulate the expression. School officials would likely argue that they could censor such expression as long as they had a reasonable educational reason for doing so under the Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier. When students use school computers, they are also subject to the school’s acceptable-use Internet policy. Most schools have policies that set limits on students’ Internet usage.

No, public school students may not be compelled to recite the Pledge of Allegiance. In its 1943 decision West Virginia Board of Education v. Barnette, the U.S. Supreme Court determined that the First Amendment protects a student’s right not to engage in certain speech. The First Amendment generally prohibits the government from punishing people for engaging in certain speech. In Barnette, the high court extended the reach of the First Amendment to also prohibit the government from compelling speech.

The high court determined that a group of Jehovah’s Witnesses, who objected to the flag salute and mandatory pledge recitation for religious reasons, could not be forced to participate.

In oft-quoted language, Justice Robert Jackson wrote: “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.”

It has to do with distinguishing between protected freedom of speech and speech that is not protected. Most of the new laws passed by states require that for online communications to be considered “stalking,” they must constitute harassment of a person that places the person in reasonable fear for his or her safety. Courts have upheld stalking legislation that deals with threats because the First Amendment does not protect true threats. But some of the measures go beyond punishing true threats and proscribe “annoying” speech.

No, telemarketers cannot call consumers before 8 a.m. or after 9 p.m. Telemarketers who do call after these times have violated two federal laws that overlap somewhat — the Telephone Consumer Protection Act, and the Telemarketing and Consumer Fraud and Abuse Prevention Act. Both laws empower either state officials or individuals to sue for abusive telemarketing practices. Complaints can also be filed with the Federal Communications Commission and the Federal Trade Commission.

Yes. In most cases, participation in extracurricular activities is considered to be a privilege, not a right. As such, participants may be subject to additional or different rules than regular students. Lower courts and the U.S. Supreme Court have noted that participants in extracurricular sports, by electing to participate, subject themselves to these rules. In 1995, the Supreme Court decided a case in which it upheld drug testing for student athletes. In its opinion, the Court noted: “By choosing to ‘go out for the team,’ [student athletes] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally.” Vernonia Sch. Dist. 47J v. Acton, U.S. 646, 657 (1995)

One fairly recent case highlighting this issue was decided in a U.S. District Court in Missouri. In Hurt v. Boonville R-1 School District Case, No. 02-4267-CV-C-SOW (W.D. Mo. 2002), a high school student was not allowed to play in a basketball game, because he wore his hair in a type of braid called cornrows. This style violated the team coach’s grooming policy. Though calling the rule “stupid and dumb,” the judge deciding the case found no violation of constitutional or statutory rights and said that “high school coaches have discretion and authority to impose additional requirements on student athletes.”

Schools have great latitude to control the speech that occurs in a classroom and, in that setting, can probably prohibit the distribution of student publications altogether. Similarly, schools may impose any reasonable constraint on student speech in a school-sponsored publication such as the school newspaper.

Freedom of the Press (39)

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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.

Some states passed “right of reply” statutes to require newspapers that criticized candidates to give those candidates space to respond. In Miami Herald Publishing Co. v. Tornillo (1974), the U.S. Supreme Court said such statutes violated the First Amendment, because the government cannot compel a newspaper to publish information. “A responsible press is an undoubtedly desirable goal,” the Court said, “but press responsibility is not mandated by the Constitution, and like many other virtues, it cannot be legislated.”

No. HIPAA does not regulate what the press can report. But it does limit the kinds of information that hospitals and various government agencies can disclose.

Freedom of Religion (89)

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Although the words “separation of church and state” do not appear in the First Amendment, the establishment clause was intended to separate church from state. When the First Amendment was adopted in 1791, the establishment clause applied only to the federal government, prohibiting the federal government from any involvement in religion. By 1833, all states had disestablished religion from government, providing protections for religious liberty in state constitutions. In the 20th century, the U.S. Supreme Court applied the establishment clause to the states through the 14th Amendment. Today, the establishment clause prohibits all levels of government from either advancing or inhibiting religion.

The establishment clause separates church from state, but not religion from politics or public life. Individual citizens are free to bring their religious convictions into the public arena. But the government is prohibited from favoring one religious view over another or even favoring religion over non-religion.

Our nation’s founders disagreed about the exact meaning of “no establishment” under the First Amendment; the argument continues to this day. But there was and is widespread agreement that preventing government from interfering with religion is an essential principle of religious liberty. All of the Framers understood that “no establishment” meant no national church and no government involvement in religion. Thomas Jefferson and James Madison believed that without separating church from state, there could be no real religious freedom.

The first use of the “wall of separation” metaphor was by Roger Williams, who founded Rhode Island in 1635. He said an authentic Christian church would be possible only if there was “a wall or hedge of separation” between the “wilderness of the world” and “the garden of the church.” Any government involvement in the church, he believed, corrupts the church.

Then in 1802, Thomas Jefferson, in a letter to the Danbury Baptist Association, wrote: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”

The Supreme Court has cited Jefferson’s letter in key cases, beginning with a polygamy case in the 19th century. In the 1947 case Everson v. Board of Education, the Court cited a direct link between Jefferson’s “wall of separation” concept and the First Amendment’s establishment clause.

Yes, if the school allows other extracurricular (noncurriculum-related) groups. Although schools do not have to open or maintain a limited open forum, once they do, they may not discriminate against a student group because of the content of its speech.

The Equal Access Act (EAA), passed by Congress in 1984 and upheld as constitutional by the Supreme Court in 1990, makes it “unlawful for any public secondary school that receives federal funds and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.”

The EAA covers student-initiated and student-led clubs in secondary schools with a limited open forum. According to the act, “non-school persons may not direct, conduct, or regularly attend activities of student groups.”

A limited open forum is created whenever a public secondary school provides an opportunity for one or more “noncurriculum related groups” to meet on school premises during noninstructional time. The forum created is said to be “limited” because only the school’s students can take advantage of it.

Yes. Contrary to popular myth, the Supreme Court has never outlawed “prayer in schools.” Students are free to pray alone or in groups, as long as such prayers are not disruptive and do not infringe upon the rights of others. But this right “to engage in voluntary prayer does not include the right to have a captive audience listen or to compel other students to participate.” (This is the language supported by a broad range of civil liberties and religious groups in a joint statement of current law.)

What the Supreme Court has repeatedly struck down are state-sponsored or state-organized prayers in public schools.

The Supreme Court has made clear that prayers organized or sponsored by a public school — even when delivered by a student — violate the First Amendment, whether in a classroom, over the public address system, at a graduation exercise, or even at a high school football game. (Engel v. Vitale, 1962; School Dist. of Abington Township v. Schempp, 1963; Lee v. Weisman, 1992; Santa Fe Independent School. Dist. v. Doe, 2000)

Here are some questions that teachers and administrators should ask themselves when planning activities that may involve religious content (e.g., a holiday assembly in December):

Do I have a distinct educational or civic purpose in mind? If so, what is it? (It may not be the purpose of the public school to promote or denigrate religion.)

Have I done what I can to ensure that this activity is not designed in any way to either promote or inhibit religion?

Does this activity serve the educational mission of the school or the academic goals of the course?

Have I done what I can to ensure that no student or parent may be made to feel like an outsider, and not a full member of the community, by this activity?

If I am teaching about religion, am I balanced, accurate, and academic in my approach?

Recreating religious practices or ceremonies through role-playing activities should not take place in a public school classroom for three reasons:

1. Such reenactments run the risk of blurring the distinction between teaching about religion (which is constitutional) and school-sponsored practice of religion (which is unconstitutional).

2. Role-playing religious practices or rituals may violate the religious liberty, or freedom of conscience, of the students in the classroom. Even if the students are all volunteers, many parents don’t want their children participating in a religious activity of a faith not their own. The fact that the exercise is “acting” doesn’t prevent potential problems.

3. Simulations or role-playing, no matter how carefully planned or well-intentioned, risk trivializing, caricaturing or oversimplifying the religious tradition that is being studied. Teachers should use audiovisual resources and primary sources to introduce students to the ceremonies and rituals of the world’s religions.

The question of whether a religious display on government property is constitutional requires a multi-step analysis. First, one should ask, who is funding and erecting the display? If a private group wants to place a religious monument on public property, then a free-expression analysis should be conducted, looking into such things as the type of forum in question. If, as in this case, a government entity is attempting to post a religious document, then a separate line of questions must be raised.

Religious displays on public property can be legal, but they must pass constitutional muster by not violating the First Amendment’s establishment clause, which requires government “neutrality” towards religion. In deciding whether or not particular religious displays violate the establishment clause, courts look to two Supreme Court tests, the Lemon test and the endorsement test.

The Lemon test poses three questions: 1) Did the state actor have a secular purpose in posting the documents; 2) was the primary effect of the action to advance or promote religion; and 3) was there excessive entanglement between government and religion in the given activity? The government conduct must survive all three of these prongs if the action is to survive constitutional muster.

A more recent test that has gained popularity in the courts is the endorsement test. Justice Sandra Day O’Connor first outlined this test in her concurring opinion in the 1983 decision Lynch v. Donnelly, which involved a city-owned holiday display containing religious elements in a Pawtucket, R.I., park. This approach examines the following questions: Did the state actor subjectively intend to promote religion through its actions, and would the reasonable observer interpret the actions of the state as an endorsement of religion?

The elements of both tests should be examined before a government representative posts any religious documents or engages in other forms of religious expression.

Two cases decided in June 2005 by the U.S. Supreme Court illustrate how even the high court can reach very different conclusions in ruling on seemingly similar religious-display cases. Both McCreary County v. ACLU and Van Orden v. Perry involved displays of the Ten Commandments on public property. In writing for the 5-4 majority in McCreary, Justice David Souter used the Lemon test and determined that the Ten Commandments displays in the two Kentucky courthouses conveyed a religious message to the public, failing to satisfy the first prong of the Lemon test that the display must have a secular purpose. Therefore, the Court majority found the displays in McCreary were unconstitutional.

In Van Orden, which was decided on the same day as McCreary, the high court ruled that a Ten Commandments monument on the Texas State Capitol grounds was constitutional. Chief Justice William Rehnquist, in writing the plurality opinion for the Court, was quick in dismissing the Lemon test as the appropriate way to evaluate the case. (The vote was 4-1-4.) Instead, Rehnquist focused on the nature and setting of the monument. The monument was part of a larger display containing 17 monuments and 21 historical markers celebrating the “people, ideals, and events that compose Texan identity.” In determining that the monument was of a secular purpose, and therefore constitutional, Justice Stephen Breyer in his concurring opinion noted that because the monument had been on display for 40 years before being challenged, it “suggests more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect.”

Later that same year, the 6th U.S. Circuit Court of Appeals held in ACLU v. Mercer County that another Kentucky County courthouse Ten Commandments display was constitutional. In this case, a Mercer County resident had requested permission to hang a display titled “Foundations of American Law and Government” in the courthouse. The display included the Ten Commandments, Mayflower Compact, Declaration of Independence, Magna Carta, Star-Spangled Banner, Bill of Rights and other historical documents. The 6th Circuit affirmed the lower court’s ruling that because the Ten Commandments was part of an exhibit and was not, in any way, more prominently displayed than any of the other documents, the display had a secular purpose in educating the public rather than endorsing religion.

Freedom of Assembly (13)

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Generally, no. The Bill of Rights provides protection for individual liberty from actions by government officials. This is called the state-action doctrine. Private property is not government-owned. Restrictions on individuals’ free-speech rights on private property do not involve state action.

However, a few states have interpreted their own state constitutions to provide even greater free-speech protection than the federal Constitution offers. For example, the New Jersey Supreme Court has ruled that individuals have free-speech rights at privately owned shopping malls. Most state supreme courts that have examined the issue have disagreed. In April 2002, the Iowa Supreme Court refused to extend its definition of public property to include large, privately owned shopping malls.

A 2010 case, Snyder v. Phelps, involved whether a verdict assessing damages against the Westboro Baptist Church for a protest causing emotional distress to a soldier’s family violates the First Amendment.

In a somewhat related case, the Court in Frisby v. Schultz (1988) upheld a Wisconsin city ordinance banning picketing in front of private residences. “The type of picketers banned by the Brookfield ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an especially offensive way,” Justice Sandra Day O’Connor wrote for the Court. The Court has also decided a series of cases involving limitations on abortion protesters outside clinics. For example, in Hill v. Colorado (2001), a divided Court (6-3) upheld a Colorado law that imposed an 8-foot floating buffer zone between protesters and those entering and leaving abortion facilities.

 

A law discriminates on the basis of viewpoint if it singles out a specific point of view for regulation. Consider a protest at a military funeral in which demonstrators denigrated the soldier and offended family members. If government officials punished that protest but allowed a demonstration praising the deceased, a serious charge of viewpoint discrimination could be leveled, because only protesters advocating a specific type of message were targeted.

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.

Freedom to Petition (9)

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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.

Lobbyists try to persuade government officials either to support or oppose various policy issues. Therefore, lobbying can be considered a form of petitioning the government for redress of grievances, subject to protection under the First Amendment’s petition clause. Although there has not been a great deal of judicial analysis on First Amendment protections afforded to lobbying, the courts have carved out several parameters. First, the petition clause does not grant a lobbyist the absolute right to speak to a government official, nor does it grant a lobbyist the right to a hearing based on his or her grievances. In addition, the clause does not create an obligation for a government official to take action in response to a grievance. Finally, any statement made while a lobbyist petitions a government official does not receive greater protection than any other expression protected by the First Amendment.

A libel suit, whether involving online or off-line speech, is one of the ways a SLAPP suit could be disguised; anti-SLAPP laws would apply. However, not all libel suits are SLAPP suits. Anti-SLAPP laws would apply only if it were found that a suit was filed in response to or in retaliation for citizen communications with government entities or employees, or for speech to bring attention to an issue of public interest or concern.

In 2001, U.S. District Judge David O. Carter determined that California’s anti-SLAPP statute does apply to cyber-SLAPPs. (See Global Telemedia International Inc. v. Doe et al., 132 F. Supp. 2d 1261 (C.D. Cal. 2001))

In 2003, the Massachusetts Appeals Court cited that state’s anti-SLAPP statute in throwing out a libel lawsuit against a website operator whose posted statements suggested a town official was a Nazi. (See MacDonald v. Paton, 57 Mass.App.Ct. 290 (2003) and “State appeals court rules online libel suit was really SLAPP.”)

Other state anti-SLAPP statutes may also apply to online libel suits. See “Anti-SLAPP statutes: state summary” for a state-by-state list.

No. The right to such legal resources in prison falls under due process.

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.

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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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.

Harvard’s John Kotter has written that people don’t “Analyze, think, and change.” Instead, they “See, feel and change.” I think this curriculum has the potential to help people see the world through the eyes of others and feel how everyday actions, big and small, can have a profound impact for better or worse. But best of all, they get to create their own roadmap, not be handed one with every route pre-determined for them. After all, journalists love nothing more than ideas and solutions of our own creation. So, they’ll have the chance to do that in the Workplace Integrity modules. I’m confident it can work.

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.