A lesson on the free-speech debate Colin Kaepernick started
In a speech rich in irony, Attorney General Jeff Sessions blasted colleges and universities Tuesday for becoming “a shelter for fragile egos” and infringing on the free-speech rights of students with “politically correct” policies — even while organizers tried to prevent protests and his audience was handpicked.
Not long after Sessions blasted players and others in the National Football League for exercising their own free-speech rights by protesting during the national anthem at recent games, Sessions spoke to a small group at Georgetown Law School’s Center for the Constitution and gave fuel to a loud national debate about free speech on school campuses. That debate centers on language, the treatment of minorities and women, and how much room there is for divergent ideas — and whether any of those ideas are unacceptable on campus.
The NFL protests actually began in 2016 when Colin Kaepernick, then a quarterback for the San Francisco 49ers, decided not to stand while the national anthem was played before the start of games in a protest he said was against oppression of people of color in this country. President Trump recently blasted NFL players who were following up on that protest by dropping to one knee during the anthem in a similar protest, creating a backlash in which players on many teams — and even some team owners who supported Trump — took issue with his position.
As this report by the nonprofit PEN America says, the debate has thrown into the spotlight the very purpose of the university in American society today.
Those wary of what they see as encroachments on the freedom to express unpopular ideas worry that the campus’s role as a marketplace of ideas, a guardian of intellectual integrity, and a breeding ground for new generations of free thinkers is at risk. Supporters of new guidelines and intensified vigilance regarding speech-related offenses argue, by contrast, that in an increasingly diverse country struggling to eradicate persistent racism and other forms of discrimination, norms governing language and discourse must evolve to effect greater inclusion and equality.
Yet survey after survey has shown that too many students at all levels — including in college — don’t understand free speech and don’t know that it is guaranteed by the First Amendment. The Bill of Rights Institute, a nonprofit educational organization, is trying to turn that tide by developing educational resources and programs on this topic for a network of more than 50,000 educators and 70,000 students nationwide.
The institute’s website offers a long list of free lessons for teachers, and a lot of other useful material as well. You can find the website here, and the lessons here.
This is one of the lessons, which I am publishing with permission from the institute:
An Anthem, a Flag, and Individual Liberties
When American football player Colin Kaepernick began sitting (and later kneeling) during the national anthem to protest racial injustices in the country, he intended to draw attention to race relations in the United States. However, his actions have also sparked a discussion regarding the individual liberties of American citizens. This conversation has since extended to other symbols of patriotism beyond the national anthem such as respect for the American flag.
This eLesson asks students to consider what constitutes protected speech and how far patriotic symbols and actions can be legally protected from acts of protest. Through this lesson, students will better understand the rights guaranteed by the First Amendment to the United States Constitution. They will use this understanding to analyze a variety of current events and assess whether they constitute protected speech. Students will then apply their understanding and analysis through respectful debate to further clarify their position on this controversial topic.
Background or Warm-Up Activity
Assign students to read the case brief and answer the discussion questions found in the Bill of Rights Institute’s activity on Texas v. Johnson (1989). Students should use this review to familiarize themselves with the circumstances of the case and the court’s decision. They should come to class prepared to discuss their answers.
1). As a class, review the discussion questions answered in the Texas v. Johnson
After the discussion, take a poll as to who agrees or disagrees with the court’s decision. Divide your class along these lines. If the numbers are disproportionate, randomly assign students to one side or the other. Inform your students that they will be debating the following question: To what extent should national symbols be protected from actions that many would deem disrespectful.
2). Once your students are organized into groups, give each group time to research similar Supreme Court decisions. Encourage your students to research both the majority and dissenting opinion to further strengthen their position:
- Minersville School District v. Gobitis (1940) [Later overturned]
- West Virginia State Board of Education v. Barnette (1943)
- Texas v. Johnson (1989)
- United States v. Eichman (1990)
3). The following online resources can help your students in their research:
- United States Courts website
- Oyez Database from ITT Chicago-Kent College of Law
- Legal Information Institute from Cornell University Law School
4). Give your students approximately 15 minutes to review and research the Supreme Court cases listed above. Encourage students from both groups to split into smaller groups to cover each case to make the best use of this time.
5). It is now time to debate!
- Prior to beginning preparation for the debate, remind your students of the following rules for civil debate:
- Speak courteously: No raised voices or insults of any kind.
- Listen courteously: No interruptions.
- Argue authoritatively: Use primary sources to support reasoning.
- Each group should nominate a spokesperson to deliver a short speech — no more than a minute long — in favor of their position.
- At the end of each side’s speech, the other side should appoint an individual (different from the main spokesperson) to “cross-examine” the other side. During this period, the cross-examiner may only ask questions. These are designed to clarify the first speaker’s arguments and ask questions that were unanswered or not considered earlier in the discussion.
- The next side should give their speech followed by cross-examination.
- Each group will then have a third speaker deliver a brief response addressing concerns raised during the cross examination.
- Have your students cast a secret ballot in order to determine which side’s argument was most compelling to the class. Encourage students not to simply vote for the side they participated in, but to truly consider which side had the more compelling argument.
6). After the debate, complete the following “Debriefing” activity with your students designed to further their understanding of First Amendment protections
Ask your students the following critical thinking questions to further help them better understand First Amendment protections and the role of federalism and separation of powers:
1). Does the First Amendment to the U.S. Constitution protect only free speech, or does it also protect freedom of expression as demonstrated by Johnson’s burning of an American flag or the North Carolina teacher’s stepping on the flag?
2). Because the American flag, national anthem, and pledge of allegiance are treated with a high level of respect and patriotism by many, should this impact whether or not individuals are able to take actions seen as disrespectful to these national symbols?
3). In North Carolina, a teacher was suspended after stepping on the American flag as part of a lecture on free speech. While no legal action is being taken against the teacher, under North Carolina law, the teacher’s actions are still considered a misdemeanor for flag desecration. As a result of the Supreme Court’s ruling in Texas v. Johnson, should the teacher’s actions be protected by the First Amendment? Why or why not?
4). Some who disagree with the protests of the national anthem have suggested that the National Football League should implement a policy mandating players to stand during the Anthem. Even though private organizations have the ability to implement these rules, should professional sports leagues compel players to stand during the national anthem? What individual liberties should the players have with respect to the national anthem?
Let your students debate with students from across the country on this topic through the Bill of Rights Institute’s Bridge the Divide debate platform. Students have an opportunity to answer the question, “Should national symbols be protected from actions many deem disrespectful?.” Instruct your students to use their research and in class discussion to assist them in developing a well-reasoned argument from a constitutional perspective using the materials provided as well as the previously discussed material. After submitting their post, students will have an opportunity to view the responses of students from across the country.
Note: If you are viewing this eLesson after October 7, 2017, the main Bridge the Divide topic will have changed, but you are still encouraged to have your students participate in the discussion. Students can view and submit responses to all of our current and past Bridge the Divide topics.