Robert Johnson Moore, Esq.
This course is designed for high school students participating in the Saturday Law Class of the Yale-New Haven Public School International Studies Program. The purpose of the curricula is to examine the extension of the Bill of Rights, the first ten amendments, to the protection of children.
Historically, children derived constitutional protection through their parents. They were viewed as wards of their parents first, then wards of the State. Until the mid 1960’s juveniles in the court system were not treated as adults with regard to due process, the right to counsel and the right to a jury trial. More recent constitutional decisions have been made with regard to students rights to privacy in the school room and their right to publish a newspaper without the restraint of adult censorship.
The focal point of this unit are the rights of students under the first amendment. Classroom activities will include small group discussions, mock trials, summation arguments as well as written examinations on knowledge of legal terminology. Sample tests and discussion materials are attached at the end of the unit.
What does the First Amendment Say?
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.
(Amendment I,
United States Constitution
)
Students should be reminded that the First Amendment encompasses a broad spectrum of rights and privileges. Many scholars on the constitution focus on Amendment I exclusively. Freedom of religion, press, speech and assemblage is not without limitations, as students will find when they read the Supreme Court Case
Bethel School District No. 403 v. Fraser
. What if a student in his address to the student body made the following comments?
I know a man who is firm—he’s firm in his pants, he’s firm in his shirt, his character is firm—but most . . . of all, his belief in you, the students of Bethel, is firm.
Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts—he drives hard, pushing and pushing until finally—he succeeds.
Jeff is a man who will go to the very end—even the climax, for each and every one of you.
So vote for Jeff for A.S.B. vice-president—he’ll never come between you and the best our high school can be . . .
This speech made to nominate a fellow student to office resulted in the suspension of the deliverer. The suspension was upheld because the Supreme Court found the speech to be “an elaborate, graphic, and explicit sexual metaphor” which was not constitutionally protected. The speech the court noted was followed by numerous disruptions during the assembly.
Bethel, however, did not go so far as to give school officials limitless discretion to apply their own notions of indecency to those expressions of school students. Spirited, provocative speech may unwarrantedly be chilled by the overzealous prudishness of adults. (
Rights
, 28-29)
In discussing what First Amendment rights students have, two legal terms should be discussed in detail: in loco parentis and Parens Patriae. Briefly stated the constitution does not clearly delineate rights of free speech, religion, press, and assembly for juveniles. Children derive their rights through their parents. School officials act in loco parentis (in place of parents) when deciding how children should be disciplined, censured, and punished. School officials may silence student expression within the same parameters as would their parents give permission for their children to express certain views which conflict with those of school officials who are responsible for the care during the school day. Such is the case of
Tinker v. Des Moines School District
393 U.S. 503 (1969), which will be discussed later.
Parens Patriae, in brief, gives the state superior rights over the parents of juveniles under certain circumstances. Based on the old English legal system, the state acts as the parent of the country. Under the doctrine of parens patriae court proceedings involving juveniles were informal and without the constitutional protections granted to adults such as the right to counsel, the right to an adversarial trial and the right to be tried by a jury. Paternalistic and benevolent in theory, parens patriae resulted in many abuses. The case
In re Gault
378 U.S. 1 (1966) greatly limited this doctrine giving juveniles many of the same constitutional protections afforded adults. (Renstrom,58) Most relevant to this unit is the fact that parens patrae was successfully used to free children from possible suffering because of the religious beliefs of their parents. (
Prince v. Massachusetts
321 U.S. 158 (1944).)
Limits on Freedom of Expression
For adults we know that the freedom of speech does not permit the yelling of the word “Fire!” in a crowded theater unless, of course, the theater is engulfed in flames. A series of important cases have carefully limited First Amendment guarantees:
Brandenburg v. Ohio
, 395 U.S. 444 (1969) limits speech content when it creates a “clear and present danger” and “where the speech is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action.”
Bethel School District No. 403 v. Fraser
, 478 U.S. ____ (1986) excluded high school student’s lewd and offensive campaign speech from First Amendment protection.
Chaplinsky v. New Hampshire
, 315 U.S. 568 (1942) defined speech containing “fighting words” not constitutionally protected. Calling a police officer “a Goddamned racketeer” and “a damned Fascist” was more than just annoying and offensive, but created a genuine likelihood that imminent violence would result.
New York Times v. Sullivan
, 376 U.S. 254 (1964) and
Gertz v. Robert Welch, Inc.
, 418 U.S. 323 (1974) held that the First Amendment provides no protection against defamatory statements or writings.
Time v. Hill
, 385 U.S. 374 (1967) and
Cox Broadcasting Co. v. Cohn
, 420 U.S. 469 (1975) held that the constitution did not protect speech that invaded the privacy of citizens by reporting matters of public interest upon proof that the plaintiff reported a false story with knowledge of its falsity or in reckless disregard of the truth.
Roth v. United States
, 354 U.S. 476 (1957) and
Miller v. California
, 413 U.S. 15 (1973) held that speech defined as obscene was unprotected by the First Amendment.
Numerous cases permit governmental regulation of the time, place and manner of speech. Reasonable restraints are allowed to further an important or significant governmental interest. These cases do not attempt to regulate the content of the speech, but try to provide the proper public forum for expressing ideas that may be controversial. Cases include:
Talley v. California
, 362 U.S. 50 (1960),
Cox v. Louisiana
, 379 U.S. 536 (1965),
Grayned v. City of Rockford
, 408 U.S. 104 (1972) and
Tinker v. Des Moines School District
, 393 U.S. 503 (1969).