AoW#2: The First Amendment

The First Amendment

By David L. Hudson Jr., First Amendment Center research attorney
http://www.firstamendmentcenter.org/Speech/studentexpression/overview.aspx

THE FIRST AMENDMENT

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Public school students do not lose their constitutional rights when they walk through the schoolhouse doors. The U.S. Supreme Court has recognized that “students in school as well as out of school are ‘persons’ under our Constitution.” This means that they possess First Amendment rights to express themselves in a variety of ways. They can write articles for the school newspaper, join clubs, distribute literature and petition school officials.

But public school students do not possess unlimited First Amendment rights. Two legal principles limit their rights. First, as the Supreme Court has said, minors do not possess the same level of constitutional rights as adults. Second, the government generally has greater power to dictate policy when it acts in certain capacities, such as educator, employer or jailer. For instance, a school principal can restrict a student from cursing a teacher in class or in the hallway. However, the principal would have limited, if any, authority to punish a student for criticizing a school official off-campus.

This principle of greater government control applies broadly in the public schools. The paramount duty of public school officials is to educate children in a safe environment. As one federal court put it: “Learning is more important in the classroom than free speech.”

Today, many First Amendment struggles occur in the public schools. Here are some of the leading issues:

Speaking out in school:

The First Amendment protects the right of citizens to express themselves in a variety of ways. Public school students, as young citizens, may engage in many modes of expression — from the words they speak to the ideas they write and even the clothes they wear.

In the 1969 case Tinkerv. Des Moines Independent Community School District, the high court ruled 7-2 that school officials violated the First Amendment rights of three Iowa students by suspending them for wearing black armbands to school. The Supreme Court established a protective standard for student expression in Tinker, which says that school officials cannot censor student expression unless they can reasonably forecast that the expression will cause a substantial disruption of school activities or will invade the rights others.

Though public school students possess the right to free speech, they are not free to express themselves in an unlimited form or fashion. In 1986, the Supreme Court ruled in BethelSchool District No. 403 v. Fraser that school officials did not violate the First Amendment rights of a student suspended for giving a vulgar and lewd (i.e. sexually suggestive) speech before the student assembly.

Clothing, dress codes & uniforms:

Students often communicate through their clothing. But more and more schools are regulating what students may wear through dress-code and uniform policies. Proponents argue that they increase student attendance, instill discipline and ensure positive attitudes toward authority. They also say dress codes and uniforms make schools safer by making it easier to identify school visitors and intruders. Others contend uniforms reduce the peer pressure associated with wearing expensive clothes.

Those opposed to uniforms contend that they threaten students’ free-expression rights and parents’ liberty interests in rearing their children free from government intrusion. They also argue that dress codes and especially uniforms discourage individuality and critical thinking. The courts are divided in how they analyze dress codes, though the general trend has been to side with school districts. Teacher’s note: There has been no case brought before the Supreme Court regarding school uniforms yet, so this issue may be decided once and for all at a future date. For now, most lower courts have agreed with schools and have allowed them to enforce uniform policies.

Underground newspapers & off-campus speech:

Students generally may distribute their underground newspapers at school as long as they do not create a substantial disruption of school activities. School officials, however, can enforce reasonable regulations with respect to the time, place and manner of distribution. School officials have even less authority to regulate off-campus speech — particularly if that expression is never distributed at the school.

Cyberspeech:

Many students have turned to the Internet to express a variety of viewpoints, including criticism of school officials. The U.S. Supreme Court has said that speech on the Internet is entitled to the highest level of protection on par with (meaning: on the same level as) the print medium.

Students generally have broad freedom to express themselves on the Internet on their own time, using their own off-campus computers. However, some school officials have suspended students for their off-campus Internet postings that lampooned (meaning: made fun of in a mean way) or criticized school officials or contained vulgar commentary. However, if a student creates certain online expression as part of a class or even using a school computer outside of class time, then school officials will argue that the speech is in fact school-sponsored and therefore subject to less protection.

Hate speech and speech codes:

Some school officials have implemented speech codes, arguing that they help to ensure a safe learning environment by prohibiting students from engaging in harassing speech or so-called hate speech.

Sometimes it isn’t students’ speech but their choice of symbols that is interpreted by school officials as harassing or hateful. There is perhaps no symbol more controversial in the public schools than the Confederate flag, which supporters say is merely a symbol of heritage, but critics charge is a symbol of hate. Many students have been suspended for wearing such garb or even for drawing pictures of the flag in class.

Pledge of Allegiance:

In the aftermath of the Sept. 11, 2001, terrorist attacks, a resurgence of patriotism has swept the nation. Public schools have helped fuel this patriotic zeal by requiring students to recite the Pledge of Allegiance.

After the attacks, school officials in Georgia suspended two high school students for failing to stand during the Pledge of Allegiance. The court reasoned that the First Amendment free-speech clause included the right not to speak.

Other Things You Should Know:

            There is a “clear and present danger” test applied to determine whether or not the statement you are about to make is protected by the First Amendment. The famous example of this is that you aren’t allowed to yell “fire!” in a crowded theater if there is no fire. If you did, you might start a stampede towards the exits and people might get very hurt. Their rights to personal safety are greater than your right to say whatever you want.

            You are, in effect, allowed by the First Amendment to say WHATEVER you want. However, the First Amendment limits WHEN and WHERE you can say it. In the aforementioned example, you could be jailed for screaming “fire!” (what) in a crowded theater (where), but if you were the only person in the building you could scream it all you want (where/when). You are allowed to wear a t-shirt with curse words on it (what) in the street (where), but could be suspended for wearing it to school (where). You can protest WalMart’s employment policies (what) in the public park across from the store (where), but you are not allowed to protest in the parking lot owned by WalMart (where).

The First Amendment would say that teacher is allowed to give you detention for saying “why do we have to do this? This is boring! I hate this class!” (what) in the middle of a lesson (when), but would probably protect you from suspension if you said it to them in private (when) in a respectful manner (again: your rights to freedom of speech are less valid than your classmates’ rights to an education). The Supreme Court says you have the right to write an article in the school newspaper saying you don’t like your school’s uniform policy, or stand up and make a speech to student council, or make an appointment with the principal to discuss your concerns. However, courts still give schools rights to enforce their school clothing policies.

The First Amendment protects your rights, as long as the action taken does not infringe upon the rights of others.

Post: TAKE A STAND and BE PERSUASIVE!

Choose one of the following options:

• Respond to a question at the bottom of each AoW.  Use text evidence to support your response.
• Reply (comment) to a teammate's response  Summarize the argument made then add your own thoughts and evidence.  Finally, post a question to keep the conversation going.  Use text evidence to support your response.

Be mindful of the rubric:  (Focus, Development, Reading, Organization, Conventions, Formatting)

RESPONSE QUESTION:

The First Amendment provides for freedom of expression.  Should schools have a right to limit a student’s freedom? 

Welcome to AoW: Let's take the conversation digital!

Welcome Team 2019!  In order to facilitate  discussions around our "Article of the Week," we are moving our AoW to the blogger.

Each week, we will post an article to this blog.  Read the article and tell us what you think!

Posts Due:  Sunday nights 11:59pm


Directions:

1.  Read and Annotate: Underline make margin notes on the article  (this will still be collected in class) 

• Ask Questions

• Make a comment or statement

• Make an inference

• Mark confusion

• Record an idea

• Restate the tex

• Identify Key Ideas and Details

2.  Post:   TAKE A STAND and BE PERSUASIVE!

Choose one of the following options:

• Respond to a question at the bottom of each AoW.  Use evidence to support your response.
• Reply (comment) to a teammate's response  Summarize the argument made then add your own thoughts and evidence.  Finally, post a question to keep the conversation going.  Use evidence to support your response.

Be mindful of the rubric:  (Focus, Development, Reading, Organization, Conventions, Formatting)

Note on professionalism:  This is a public blog available and visible to students, teachers, parents and administrators within the WHEELS school community.  Please make sure the content of your post is appropriate, professional, precise, and accurate!  If you are worried about grammar or spelling, try composing in a word processor, use the spell/grammar check, then copy and paste to the blog.


*Article of the Week online blog is a structure adapted from Kelly Gallagher (KellyGallagher.org)

AoW#1: “Mistrial: Justice for Freddie Gray Uncertain as Baltimore Jury Fails to Reach Verdict”

Source: Democracy Now, December 17, 2015

The following is a transcript of Democracy Now’s War and Peace Report, a news show hosted by Nermeen Shaikh and Amygoodman.

Guests                  Douglas Colbert - professor of law at the University of Maryland School of Law. He’s also the director of the Access to Justice Pre-trial Clinic and founder of the Lawyers at Bail Project.

                             Roberto Alejandro - reporter with OnBckgrnd.com.

In Baltimore, a mistrial has been declared in the case of a police officer charged in the death of Freddie Gray. Gray died in April from a spinal injury sustained while being transported in the back of a police van. Gray’s family and attorney say his voice box was crushed and his spine was "80 percent severed at his neck." Six officers were charged in Freddie Gray’s death. Officer William Porter was the first one to go to trial, charged with involuntary manslaughter, second-degree assault, reckless endangerment and misconduct in office. On Wednesday, a judge declared a mistrial after jurors were unable to reach a verdict on any of the charges after three days of deliberation.

NERMEEN SHAIKH: We begin today’s show in Baltimore, where a mistrial has been declared in the case of a police officer charged in the death of Freddie Gray. Gray died in April from a spinal injury sustained while being transported in the back of a police van. Gray’s family and attorney say his voice box was crushed and his spine was, quote, "80 percent severed at his neck." Six officers were charged in Freddie Gray’s death. Officer William Porter was the first one to go to trial, charged with involuntary manslaughter, second-degree assault, reckless endangerment and misconduct in office.

AMY GOODMAN: On Wednesday, a judge declared a mistrial after jurors were unable to reach a verdict on any of the charges after three days of deliberation. Attorneys are expected to meet this morning to decide if Officer Porter should be tried again. Gray’s death in April sparked large protests in Baltimore. On Wednesday, scores of Baltimore residents took to the streets again to protest the hung jury. At least two people were arrested. Billy Murphy, an attorney for the Gray family, described the mistrial as a temporary bump on the road to justice.

TRANSCRIPT FROM BILLY MURPHY: The people who say that this is not justice simply don’t understand how the system works. Sometimes there are guilty verdicts. Sometimes there are not guilty verdicts. And sometimes there are temporary hung juries, where no verdict can be reached, and the cases are normally tried again. So, this is just a temporary bump on the road to justice. It happens. It’s part of how the system works.

AMY GOODMAN: We’re joined right now by two guests who were inside the courtroom Wednesday. Doug Colbert is a professor of law at the University of Maryland School of Law. Roberto Alejandro is a reporter with OnBckgrnd.com. Doug let’s begin with you. A hung jury, a mistrial—what does this mean?

DOUGLAS COLBERT: Well, it means that all 12 jurors could not agree on a verdict for any of the charges. And what’s interesting is that some of the pundits continue to see this as a victory for the defendant. I don’t see it that way, Amy. I attended every single day of the trial. I was there for all of the testimony. And the prosecution presented a very strong case against [Officer William Porter]. In many ways, he’s fortunate that he was not convicted of all of the charges. And the jury continues to ask and consider why Officer Porter left Freddie Gray in such a dangerous situation, when he failed to seat-belt him and when he refused to provide him medical care, even though Freddie Gray had asked for care and told him he had difficulty breathing.

So I think one of the real values that we take from this trial, first of all, it puts the prosecution in a much stronger position for a retrial—and I expect that Officer Porter only received a temporary reprieve and will be tried a second time. But it also allows the public to gain transparency about what happened to Freddie Gray. And in many ways, it provides opportunity to engage in real reform of police practice.

AMY GOODMAN: Just to be clear, they could have—they could have convicted him on several of the four charges—is that right?—and hung on others, but they were hung on all four charges?

DOUGLAS COLBERT: Yes. And what that suggests to me—and, of course, this is my educated speculation—is that there were probably a minority, perhaps one or two jurors, who were holdouts. I expect that at some point we will hear that the majority of the jurors voted to convict. But when you have hardcore people on a jury who refuse to convict on any of the charges, it led the judge to declare a mistrial.

NERMEEN SHAIKH: And you were in the court every day, Doug. Could you talk about what the response was when the judge declared a mistrial?

DOUGLAS COLBERT: Well, the media, whom I spent a good deal of time with, trying to counter what I considered a strong pro-police perspective from other people who were commenting, took off and, of course, wrote their reports. I think what’s really important here, though, is the media perspective—and I certainly don’t include all of the journalists, but there has always been a very strong criticism against the local prosecutor for doing something that very few prosecutors do, and that is to bring charges and to be seriously determined to convict each of the officers. More than 98 percent of the police officers involved in the 2,700 killings of people over the past 10 years have not had to face criminal charges. So, our local prosecutor, Marilyn Mosby, is one of the very few who decided to bring charges and to be serious about doing so.

AMY GOODMAN: Roberto Alejandro, you were there, as well, reporter with OnBckgrnd.com. What most surprised you about the case presented against Porter, as well as his overall defense?

ROBERTO ALEJANDRO: I mean, I think the thing that, to me, was most interesting was really more on the defense’s side, because I feel like their strategy ran on two tracks. There was the one track that sort of dealt with the factual issue of where Mr. Gray was injured along the six stops that the wagon made that day when he was arrested. But there was another track where they effectively, I think, put the Baltimore Police Department on trial and said, "Look, this is a department that doesn’t prepare its officers well, through the—its training process in the academy, it has a sort of lackadaisical professional culture, and we shouldn’t hold a 26-year-old officer, with about two-and-a-half years’ experience when this incident happened, responsible for the culture of the entire police department." And it was interesting to watch the defense in this case essentially make a sort of ethical/structural argument as they were also saying, "Don’t convict this man. Show the city that the whole damn system isn’t guilty as hell."

NERMEEN SHAIKH: And, Roberto, could you talk about what new evidence and testimonies were introduced during the trial that shed more light on what actually happened to Freddie Gray?

ROBERTO ALEJANDRO: I don’t know that there was a ton of new evidence or anything that was particularly surprising that came up at the trial. You know, the state brought forward the chief medical examiner, Dr. Carol Allan, who performed the autopsy, as well as its medical expert, Dr. Marc Soriano—excuse me, Morris Marc Soriano. And they both presented a narrative in which Mr. Gray was injured between the second and fourth stops. I think that is more or less the sense that we’ve had leading up to the trial. He was injured, obviously, somewhere along the way. And the state presented its case, and the defense presented its side and suggested that the injury had to occur later, giving Officer Porter less opportunities to intervene. So, to my mind, I don’t know that we saw really new facts emerge that shed light in one direction or the other. We had two competing narratives about where the injury had occurred, in light of facts that were prior largely established.

NERMEEN SHAIKH: Doug, I want to ask you about one of the charges—namely, misconduct in office against Officer Porter. Judge Williams said it was not enough to show that Porter failed to follow department regulations. Instead, the jury had to find that he acted, quote, "with an evil motive in bad faith." When the judge was asked to explain what that means, he refused to do so. Could you talk about the significance of that?

DOUGLAS COLBERT: Well, the judge does not want to give further direction to the jury during deliberations. And I think the real stumbling block for at least one of the jurors was whether Officer Porter represented the reasonable officer, because he did what many other officers do—namely, failing to protect his prisoner—or whether the reasonable officer is the one who follows what the police commissioner tells every officer that they must do, which is seat-belt.

One of the interesting things here is that Officer Porter told the investigating detectives only five days after that Freddie Gray couldn’t breathe and was in real danger. At trial, he said that that statement that Freddie Gray made was made much earlier. He also told the jury that he was—it was too dangerous to seat-belt Freddie Gray, when indeed, just seconds before that, he lifted Freddie Gray up only inches away from him. And if Freddie Gray was able to do anything, he could have very easily grabbed the officer’s gun. But at that point, Freddie Gray was paralyzed, and he couldn’t do anything, and that’s what allowed the officer to conduct the lifting up that he did.

AMY GOODMAN: Professor Colbert, what does this mean for the next trial, that’s set for January, Caesar Goodson, the driver of the police van? If now Porter—if there’s a hung jury, and if today they, what, have a choice of either saying that they will retry him or—what else could they do? Could they grant him immunity? If they are going to retry him, that would mean he wouldn’t be available to testify in the Caesar Goodson case.

DOUGLAS COLBERT: Well, they could ask for Porter’s retrial to take place before Goodson, if they wanted to do that. And that would put considerable pressure on Porter to decide what’s the best course of action for him to take. I think he has to be very concerned with just how strong the prosecution case was and how ineffective, in many ways, his own testimony must have been to many of the jurors. So, they can offer him a negotiated plea. They could grant him immunity, which would allow him to testify for the prosecution. But, of course, we know that there’s a code of silence among police officers that’s going to move Officer Porter to perhaps not do what’s best for him. But at this point, I expect the prosecution’s cases will move forward. They have learned a great deal about the defense case. There are ways that they can improve their prosecution. There are also ways that the defense will become stronger for the next trial, as well.

AMY GOODMAN: And, Roberto Alejandro, you are known for not only reporting in the courtroom, but on the streets. The response of the community after the announcement of the mistrial?

ROBERTO ALEJANDRO: Yeah, after the announcement of the mistrial, I went over to Gilmor Homes, which is the housing project in Sandtown-Winchester where Mr. Gray grew up. I would say that the mood there was largely subdued. But the persons I spoke to largely expressed hurt, you know, a sense that the jurors, who represent the citizens of Baltimore in this trial, don’t care about their community, and that that was the message they received, as well as sort of an acute feeling that the system of justice that Mr. Porter faced was very different than the one that they tend to face. And many people talked about the fact that these officers are all receiving different charges, and that is not an experience they generally have when they’re sot of at the wrong place at the wrong time and somebody’s arrested. If you’re in the area, you’re likely to face the same charges as your co-defendants. And so, there’s an acute sense of that, I think, in Sandtown, that the system is lopsided, especially when it comes to poor black residents in Baltimore City.

NERMEEN SHAIKH: Well, some Black Lives Matter activists were less critical of the verdict. DeRay Mckesson, who lives in Baltimore, said in an interview with The New York Times, quote, "This is a hung jury; it’s not an acquittal. That’s important. The prosecution resonated with the jury in some capacity—and that is undeniable." So could you respond to that, Roberto? Was that the sense that you had from the people in the community you spoke to?

ROBERTO ALEJANDRO: No. I mean, I think that the—I think you have to remember that this is a community that, for all its issues, is fairly tight-knit, and they lost somebody that I think was cared for a great deal in that neighborhood. And so, the sense there is that justice is something rarely that they receive, and that this is another example of, yet again, the justice system not delivering on its promises, where persons like them are concerned. And, you know, I understand, especially the clip we played earlier from Mr. Murphy, you know, the justice system plays out this way sometimes, and a hung jury is not the same as not guilty or as a verdict at all, obviously, and they can retry the case. But Mr. Gray doesn’t get to retry his arrest. And I think that sense probably permeates the understanding of most residents of West Baltimore right now.

AMY GOODMAN: We want to thank you both for being with us, Roberto Alejandro, a reporter with OnBckgrnd.com—we’ll link to your pieces—and Douglas Colbert of the University of Maryland School of Law. When we come back, we’re staying in Baltimore, and we’re going to speak with Ben Jealous—who used to be head of the NAACP, now he’s with ThinkProgress—about police departments, not only in Baltimore, but around the country. What kind of change is happening? How are they remaining the same? And more. Stay with us.

Post: TAKE A STAND and BE PERSUASIVE!

Choose one of the following options:

• Respond to a question at the bottom of each AoW.  Use text evidence to support your response.
• Reply (comment) to a teammate's response  Summarize the argument made then add your own thoughts and evidence.  Finally, post a question to keep the conversation going.  Use text evidence to support your response.

Be mindful of the rubric:  (Focus, Development, Reading, Organization, Conventions, Formatting)


Response Questions:

1.  Why was Officer Porter’s trial declared a mistrial? Is this announcement a win or a loss for the prosecution?  Explain with evidence from the article.  

2.  The defense presents two arguments in defense of Office Porter. What are the two arguments? Do you agree or disagree with the second argument? Explain with evidence from the article and outside sources.