Confronting White Nationalism In Schools
Classroom Resources

Decoding the First Amendment

Grade Level: 9-12

Timeframe

Two 50-minute class periods

Introduction

Free speech is a foundational democratic value and a Constitutionally protected right. However, the interpretation of freedom of speech as articulated in the First Amendment has been a source of considerable debate over the course of U.S. history. In this series of activities, students will learn about the complexity of free speech arguments and explore some common misconceptions about this fundamental right. Choose the activities that fit your teaching and learning goals, or do them all if time allows.

Global Note: Before teaching about the sensitive topics covered in this activity, it is critical to lay a foundation of trust in your classroom. Have you established explicit community norms and agreement for engaging in emotionally charged conversations? Do your students have the language to discuss these issues? Have you done the internal work necessary to address identity, diversity and justice with students?
For more information on preparing to engage emotionally charged topics in the classroom, see Let’s Talk: Facilitating Critical Conversations With Students from Learning for Justice.

Global note: The precedents cited in this lesson may change over time. We recommend that reconfirming the facts presented here prior to teaching this lesson.

I. Close Reading

1. Display the text of the First Amendment in a visible location.

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.

2. Explain to students that the First Amendment was not part of the original Constitution; it is part of the Bill of Rights, added in 1791, three years after the Constitution was ratified.

3. Ask students to annotate the text, identifying what rights they believe the First Amendment guarantees and what they mean.

4. Talk about each of the five rights. Check for student understanding. Ask:

Whom does the First Amendment protect?

What or who does it protect from?
Why do you think the founding fathers felt it necessary to add the First Amendment to the Constitution?

5. If it does not come out in Step 4, emphasize that the First Amendment was written to protect people from the government, not from civilians (i.e., the founders wanted to ensure people were free to critique the government—not to shout “fire” in a theater).

II. True or False?

Display each statement in a visible location. Then, ask students whether they think the statement is true or false and why.

Free speech means being able to say whatever I want, whenever I want, wherever I want.
(Answer: False. The Supreme Court has ruled that, in some cases, speech can be legally limited to protect the safety, privacy, and rights of others.)
Schools cannot punish students for using foul language on social media off school grounds.
(Answer: True. In Mahanoy School District vs. B.L. (2021), the Supreme Court ruled that posts made off-campus “normally fall within the zone of parental, rather than school-related, responsibility. ...When it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention.”)
Student newspapers in public schools can’t be censored because they are government-funded.
(Answer: False. A student’s right to free speech can be limited while in school. This extends to classroom presentations [Bethel School District v. Fraser] and to school-based publications [Hazelwood School District v. Kuhlmeier] among other examples.)
Burning the American flag is illegal in all 50 states.
(Answer: False. In United States v. Eichman, (1990), the U.S. Supreme Court ruled that flag burning is protected speech, overturning existing state laws and proposed federal law.)
Political protest is always protected speech, no matter where it occurs.
(Answer: False: Legal authorities may intervene if the manner of protest poses a threat to the protestors themselves or others in the vicinity. The Federal Restricted Buildings and Grounds Improvement Act of 2011 also gives the Secret Service the right to arrest protestors who attempt to disrupt the function of government.)

If it doesn’t come up organically during the activity, make sure students understand that, while the First Amendment protects most speech from government censorship, it doesn’t mean people aren’t free to disagree with us publicly or that there won’t be consequences for the things we say.

III. Sorting

Now that students have warmed up give them some more practice. Create a T-chart in a visible location. On one side, write “Protected by the First Amendment.” On the other, write “Not Protected by the First Amendment.”

Then, read the following examples. Ask students if they think the example is protected or not protected by the First Amendment. Have them respond by moving from one side of the room to the other or holding up different colored cards. For each example, record the correct answer on the T-chart. Give them the context from the relevant court case or law if time allows. Explain that these cases are precedents (meaning they set the standard for how we interpret the law) and that precedents can change over time.

Refusing to say the Pledge of Allegiance. (protected – West Virginia Board of Education v. Barnette)
Lying under oath. (not protected – federal law 18 U.S.C. § 1621; state laws vary)
Shouting “fire” in a crowded public place. (not protected – Schenck v. United States)

Wearing an antiwar armband at school. (protected – Tinker v. Des Moines School District)
Broadcasting pornography on the radio. (not protected – prohibited by federal law 18 U.S.C. § 1464)
Medical professionals disclosing a patient’s diagnosis without permission. (not protected – prohibited by federal law 42 U.S.C. § 1320d–6, The Health Insurance Portability and Accountability Act of 1996, state laws vary)

IV. Vocabulary

1. Select a subset of the words in the provided list. Assign students into pairs. Ask each team of students to research the definition of one of the words or terms in the list below. Then, ask them to explain how the word or term represents a possible free speech limitation and provide a relevant example.

public security
perjury
public forum
the right to be forgotten
the right to dignity
the right to privacy
time, place and manner test
sedition
slander
trade secrets

censorship
classified information
clear and present danger
copyright violation
incitement
fighting words
food labeling
libel
non-disclosure agreements
obscenity

2. Bring the class back together. Have each student team share the results of their inquiry.

V. Brainstorm

1. Ask students to think about examples of “speech” other than spoken or written words. (Examples might include wearing a T-shirt with a symbol on it, donating money, posting an animated video to social media, including a book in a library’s collection, or not speaking when it is expected.)

Point out that, in any of these cases, there may be circumstances where the speech is protected and circumstances in which it is not. For example, in the case of not speaking, a person who omits testimony under oath is not protected, while a person who refuses to say the Pledge of Allegiance or takes the Fifth Amendment under prosecution is.

2. Ask students to brainstorm examples of when someone’s speech might infringe on another person’s rights. Emphasize that, in many cases, this type of speech is not protected. (Examples might include sexual harassment, slandering someone’s character, lying to someone about whether a job or housing is available because you don’t want them to work or live there, or threatening to kill someone.)

3. Pick up to three examples and, individually or in small groups, have students research whether or not each form of speech is or is not protected and why.

VI. Hate Speech

1. Share this definition of hate speech from the United Nations.

[T]he term hate speech is understood as any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor. This is often rooted in, and generates intolerance and hatred and, in certain contexts, can be demeaning and divisive.

2. Ask students: Based on what you’ve learned, do you think hate speech is protected by the First Amendment? Why or why not?

The answer is: It depends. While offensive, not all hate speech constitutes a violation of law, and in fact some aspects of hate speech are protected by the First Amendment. By and large, American courts do not find bigoted language to meet the threshold of “fighting words.” As defined in Chaplinsky v. New Hampshire, fighting words are words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” According to legal author E.A. Gjelten, “Courts have generally found that the First Amendment protects speech if it causes only emotional injury, no matter how offensive it is.”

In many countries, hate speech is legally defined and prohibited. For example, in over 20 countries, it is illegal to publicly deny that the Holocaust took place. In the United States, however, such speech is protected.

The Supreme Court of the United States is consistent in its stance that the answer to hate speech is not government regulation but rather peer pressure and public pushback.

Schools do have the right to limit student speech that is considered disruptive. This includes speech that upsets another student to a degree that impacts their learning.

3. Just because some hate speech is protected, however, does not mean that people who engage in hate speech won’t experience consequences. Share these examples with students:

A man attends a protest and is filmed by the news waving a Nazi flag. His boss at a local tech startup sees the footage, and the man is fired.
A high school senior loses a prestigious scholarship given by a local business after a gay student she’s harassed for years reveals his emails to the press.

The leader of a political group repeatedly posts hateful comments to Twitter and calls for violence against Muslims. Twitter removes him from the platform.

4. For each example, ask students to reflect on why the person experienced consequences for their speech even if it was legally protected by the First Amendment.

VII. Reflection

Post the following scenario to students.

Your friend posts a video on social media mocking a girl on her gymnastic team who speaks with an accent and saying offensive things about the food her family eats. You try to intervene and explain why what she’s done is hurtful, but your friend just says, “I don’t think they even have Internet. She’ll never see it. And, besides, this is a free country and I have free speech.”

Based on what they’ve learned in the activities, ask students to write a paragraph explaining how they would respond to their friend.