Teaching What Free Speech Means

Two teachers of American government in Texas, Candee Collins (a dual credit instructor for Kilgore College at Pine Tree High School in Longview) and Kimberly Grosenbacher (who teaches at Samuel V. Champion High School in Boerne), spent a week in the summer of 2018 grappling with the current understanding of the free speech provisions of the First Amendment.

They had already studied the history of Supreme Court jurisprudence in past coursework for the Master of Arts in American History and Government (MAHG). Yet the summer residence course on “Free Speech in War, Hate, and On Campus” taught by Professor Joseph Fornieri (Rochester Institute of Technology) would zero in on a troubling issue their students might encounter when they left for college.

Fornieri noted that recent news stories showing university students loudly heckling both tenured professors and visiting speakers suggest a rising disregard for free speech protections. He cited a Brookings Institute survey suggesting the cause is students’ ignorance. It found a majority of undergraduates do not know that speech they deem offensive is constitutionally protected. Half thought it acceptable “to shout down a speaker whose views they don’t agree with,” Fornieri said, and nearly one of five agreed that “a student group opposed to a speaker might use violence to keep him from speaking.”

Inadequate civics education in high school could account for such opinions. Still, although free speech is protected, practical limits on this protection have been assumed to exist throughout American history. To fully understand what the free speech clause protects, students need to talk through court rulings on challenges to these practical limits. Fornieri’s class would give teachers the knowledge to confidently guide their students’ discussions.

Limits and Exceptions to the Right of Free Speech

The American Founders, understanding their own Revolution to have been kindled through speech and the press, considered free speech the ground of all other freedoms. Yet free speech “has never been considered absolute,” Fornieri said. During the nation’s first century, most speech restrictions were justified as necessary to national defense or civil order. Teachers in the course discussed the controversies provoked by these laws.

When the Supreme Court began hearing challenges to speech limits in the early 20^th century, their opinions articulated tests for determining whether speech deserved Constitutional protection. Each teacher in Fornieri’s course studied one landmark case, presenting its key points to the class. Do leaflets urging resistance to the draft during wartime represent a “clear and present danger” (as they were judged to do, in the case of Schenck v. United States)? Is a Klansman’s speech advocating violence a “direct incitement” to “imminent lawless action” (as was ruled not to be the case in Brandenburg v. Ohio)? Is flag-burning a form of “symbolic speech” protected by the first amendment (as justices ruled in Texas v. Johnson)?

More recently, the Court has ruled on limits to speech thought to threaten vulnerable minorities. Teachers considered one case, Matal v. Tam, that the Court ruled on just as Fornieri’s course was wrapping up. An Asian American rock group who attempted to trademark their band name, “The Slants,” had been denied. “They wanted to reclaim an offensive term and rock and roll it back” in the face of bigotry, Fornieri said. The teachers took note when the Court ruled unanimously that such speech was protected.

Teachers Tackle a Hypothetical Challenge to Free Speech

Questions about “offensive” speech remain unsettled on university campuses, however. As the final exam in the course, Fornieri presented teachers with a hypothetical case: the firing of a university professor accused of “hate” speech—in particular, allegedly offensive remarks that could have created a hostile environment for students. Teachers were tasked with writing three opinions on the case: a majority opinion, a concurrence, and a dissent.  

To prepare for the exam, the teachers formed study groups and discussed the hypothetical case in light of the precedents. “It was as if we conducted our own certiori conferences,” said Collins, referring to the meetings in which Supreme Court justices review potential cases to decide which to hear. “We sat around a dining table in the student apartments, with our books and notes open on the floor.” After the groups adjourned for the night—often at 1 am—each teacher kept thinking, perhaps writing part of an opinion by the next morning. “We weren’t sleeping very much,” Collins said.

Midweek, Fornieri joined the teachers in one large study session, addressing legal issues the teachers weren’t sure about. Traditionally, the term “hostile environment” implied a situation in which the plaintiff faced “a true threat.” Hate speech is not in itself excluded from first amendment protection, Fornieri explained. “The Court has made very clear that it cannot make a principled distinction based on the content of the speech.”

A Surprising Conclusion

The teachers in Fornieri’s course all reached the same conclusion: the Court majority would rule that the professor could not be removed from his job. Yet some of the teachers were surprised by their own reasoning. It made room for a kind of speech that would be disruptive in the high school classroom. Indeed, high school administrators, acting in loco parentis, can legally sanction speech in ways that universities may not.

Moreover, teachers who apply the conversational model practiced in MAHG understand classroom discussion as lessons in the art of reasoning together. These lessons can be derailed by a descent into invective or insult. Still, as Grosenbacher said, “Fornieri’s class helped me understand that we need to have more conversations about things that may make us uncomfortable, as long as we respect the two sides to every issue.”

A year later, Grosenbacher reported, “Today, my students discussed Texas v. Johnson, and next class we will discuss Snyder v. Phelps, which are both controversial free speech cases covered in Fornieri’s class. My students are learning,” Grosenbacher said, that even if we find a message offensive, that “doesn’t mean the opposing viewpoint doesn’t have the right to express it. Challenging students to look at different viewpoints that are protected by the same Constitution allows them to grow in their intellectual thought process.”