We hear a lot about free speech issues relating to college campuses, but what about K-12 students? Should they have full access to their First Amendment rights, or are they limited until they’re 18 years old and free from mandatory school requirements? Here are three big issues to consider:
School Walk-Outs (freedom to petition)
On March 14 – one month after the Parkland shooting in Florida – students at 2,500 schools across the country planned a walk-out in protest of governmental inaction on gun control policies. However, some faculty members and school administrators threatened to suspend students who walked out of class because doing so could disrupt the learning process.
Does the freedom to protest only exist outside of regular school hours? There is no clear answer here, but it’s well-worth considering as students become more politically active in the future.
School Newspaper Censorship (freedom of press)
Freedom of the press is limited for school-sponsored newspapers, thanks to the 1988 Supreme Court decision (5-3) that determined student publications could be censored if the decision to do so was “reasonably related to a legitimate pedagogical purpose.” Unfortunately for students, the vague phrasing of the decision opened the gateway for school administrators to censor content based on largely arbitrary standards, as long as they attempted to justify the decision in line with the Supreme Court’s ruling.
Although some states have laws in place to protect student journalists’ rights to freedom of publication, many states still allow school administrators and faculty to control what is deemed publishable in a school newspaper. These instances of censorship have led organizations such as the Student Press Law Center to create resources for students who believe their First Amendment rights are being violated, and other students have ditched their school-sponsored publications in favor of online websites dedicated to informing the student body without the intrusion of administrators censoring their speech.
Praying in Public Schools (freedom of religion)
Although public school-sponsored prayers were deemed unconstitutional by the Supreme Court, religious expression is still available to students (in spite of the confusion surrounding students’ freedom of religious expression). Students can choose to pray (or not), create or join religious groups (as long as they don’t proselytize to other, non-consenting students), say “Merry Christmas,” and learn about different religions in the classroom.
Although common misperceptions of public schools as religion-free zones remain, K-12 students in public schools are largely protected when it comes to their First Amendment rights to freedom of religion (as long as they don’t disrupt classes or impose their beliefs on other students).
Free speech on college campuses is already a heated topic of discussion, but what about freedom of speech for teachers and professors at all levels of education? Should they be limited from exercising their First Amendment freedoms because they might influence their students’ world views? Here are some factors to consider:
Public Versus Private Schools
One of the first considerations to make when it comes to teachers’ free speech in classrooms is whether the institution they teach at is public or private. Public schools and colleges have different regulations about freedom of speech (for students and instructors) compared with private schools, but should this make a difference? For instance, a privately funded religious university might object to one of their professors expressing anti-religious sentiments and subsequently fire them. This has happened several times over the last few decades, but the question still lingers: should the public/private status of a school or college dictate whether instructors are free to exercise their First Amendment rights?
Ideological Influence in Lectures
Free speech affects teachers of all academic subject areas. For instance, an adjunct science professor from San Jose City College lost her job in 2007 after students complained her lectures suggested that homosexuality results from nurture, rather than nature. When she sued the college, the judge stated in the ruling, “the precise contours of the First Amendment’s application in the context of a college professor’s instructional speech are ill-defined and are not easily determined.” The judge further argued that college professors could be punished if the college acted upon “legitimate pedagogical concerns.”
The issue of free speech for teachers and professors in the classroom remains highly contested in all levels of our nation’s legal system. Educators’ speech and expression has been limited by college policies and rejected in some cases, so we must ask ourselves: should instructors be prohibited from fully expressing their First Amendment freedoms to prevent their students from being ideologically influenced in the classroom?
Teachers’ Speech Outside of the Classroom
What if a teacher/professor utilizes their freedom of speech outside of the classroom (e.g., on social media) in a way that brings negative publicity to the educational institution they teach at? In 2017, several adjunct professors were fired for anti-Trump social media posts, which they had posted from their own personal profiles. Adjunct professors are in a particularly vulnerable position because they have no job stability (they can be offered 5 classes one semester and 0 the next semester, with no justification from the college required).
Other teachers with contracted jobs have also been fired for comments or social posts made outside of the classroom, but the question remains: Were they acting within their First Amendment rights, or did they overstep their ethical positions as educators by posting controversial material online?
On February 5, Representative Eric Swalwell introduced the Journalist Protection Act. This new bill proposal is designed to protect journalists’ efforts to investigate and report newsworthy events, which has become increasingly dangerous over the past couple of years, in both the U.S. and abroad. Since freedom of the press is a vital component of our First Amendment freedoms and the very fabric of our country’s democratic foundations, it’s important to understand how this act might change our highly polarized environment for the better.
According to Swalwell’s website, the Journalist Protection Act “makes it a federal crime to intentionally cause bodily injury to a journalist affecting interstate or foreign commerce in the course of reporting or in a manner designed to intimidate him or her from news gathering for a media organization. It represents a clear statement that assaults against people engaged in reporting is unacceptable, and helps ensure law enforcement is able to punish those who interfere with news gathering.”
This act is designed to prevent attacks on journalists in the course of their reporting and news gathering duties, which is inherent in the First Amendment but less protected in practice. It is currently supported by the Communications Workers of America (CWA) and the News Media for Open Government organization.
Although journalists are rarely killed in the U.S., many have been harassed or outright attacked while trying to gather information for their respective publications. As Bernie Lunzer, president of The NewsGuild, stated:
“This is a dangerous time to be a journalist. At least 44 reporters were physically attacked in the U.S. last year and angry rhetoric that demonizes reporters persists. The threatening atmosphere is palpable. The Journalist Protection Act deserves the support of everyone who believes our democracy depends on a free and vibrant press.”
Some attacks may have been politically motivated – one congressional candidate even body-slammed a reporter – but there’s no single cause for the increasing rates of harassment and violence against journalists. Some argue that President Trump’s anti-media rhetoric could be the cause, while others claim journalists are getting too nosy and should back off intensive investigations. Regardless of the causes, one thing remains clear: we need to protect our journalists to ensure our First Amendment press freedoms remain unobstructed.
Will the Journalist Protection Act solve all of our problems related to freedom of the press these days? Of course not, but it might be a good solution to prevent more reporters from facing serious harassment and even violence in their news gathering duties. As we’ve seen in other countries with even fewer protections for journalists, corruption, violence and even murder become prevalent when the rights of reporters are disregarded. Ultimately, if we want our free press to remain truly free, we need to protect those who are in charge of uncovering stories and getting the details we need to be informed citizens.
Photo Credit: Dr. Malcolm Byrd, American Bible Society In the photo from right to left: Dr. Paul Murray, Colonel John Church, President of Valley Forge Military Academy & College, Annie Brown, the Honorable Wilson Goode, Jr, former Mayor of Philadelphia, Dr. Fred Lester, Men’s Empowerment Network, Joe Cohn, Legislative Director, FIRE, and Steve Miska, Director, First Amendment Voice
Dr. Murray and I had the supreme honor of meeting with stakeholders in the Philadelphia area to discuss the FAV direction for the upcoming National Symposium in September. People in the meeting provided constructive input into the programming that would most resonate with respect to freedoms of religion, speech, press and civic challenges today. We are excited to invite you to join us on September 14th and 15th to celebrate Constitution Day and Citizenship Day and help rekindle understanding around first amendment issues.
Following our Round Table discussion, I had the distinct honor of addressing the Corps of Cadets at Valley Forge Military Academy & College. I spoke about Character as it relates to First Amendment Freedoms. The cadets asked insightful questions and instigated a meaningful exchange around important issues that many in the crowd would soon swear an oath to defend. Serving something greater than yourself is one of the most meaningful ways to live out life, whether that service is through your faith, your service to country in uniform, through the Peace Corps, or some other way. There are many ways to serve, but like citizenship, service is not a spectator sport! You need to get in the game and enjoy the rewards.
Please forward this newsletter to friends and colleagues you think would appreciate FAV’s work. Subscribe here.
Yours in Service,
Steven M. Miska
Director, First Amendment Voice
First Amendment Voice awarded PEN America Grant to promote press freedom
Thanks to the support of PEN America, FAV will host Coffee Talks in local areas to discuss threats to First Amendment issues and empower citizens to learn and advocate for protection of their freedom. Coffee shop talks will help consumers be more critical and think about the reliability of their news sources by learning about different perspectives. Two Coffee Talks will be held in Southern California in the next month to raise awareness of press freedom. Dates, times, and locations to be announced.
Upcoming Events in 1A Space
The Religious Freedom Center of the Newseum Institute invites you to attend our March webinar, Islam and America: Tips for Sharing Scholarship with the Public. We will discuss how scholars of Islam and American public life can engage different publics to raise the visibility of their work. We are pleased to host co-presenters Dalia Mogahed, Najeeba Syeed, and Asma Uddin. The webinar will include a presentation and extended Q&A. Sign up today!
Event Details: March 14, 2018: 12 – 1 p.m. EST
In the News
Discussion with those whom you disagree. The first paragraph gives you a sense for where this piece goes. I hope you take the time to read it.
Disagreement has made disagreeable individuals of us all. News channels are littered with platitudes masquerading as thoughtful discussions. Individuals, convinced that the volume of their speech corresponds to the correctness of their arguments, contribute to the cacophony of tirades. The print media publish headlines assassinating opponents’ characters rather than their ideas.
Free speech and toleration: A family exercising free speech stir controversy within their community.
There is much debate over what is and isn’t protected under the First Amendment, but the issue becomes even murkier when you apply constitutional rights in an online context. Should the First Amendment regulate online speech or just leave it alone? Here are three relevant considerations to make:
Problems with Algorithms
Commentators, politicians and others criticize the major platforms such as YouTube, Twitter and Facebook about their computer algorithms not doing enough to regulate appropriate content. While unregulated algorithms may seem like a good thing from the perspective of protecting universal free speech, this has led to some troubling incidents recently. For example, YouTube star Logan Paul’s infamous video of him laughing at a corpse in Japan’s suicide forest was available to audiences for a long time before it was removed. Additionally, a phenomenon known as “Elsagate” has become increasingly concerning, as young children are encouraged to click on videos with familiar cartoon characters, only to be presented with incredibly inappropriate videos after a few seconds’ introduction. On Facebook, algorithms are still struggling to parse out “fake news” from legitimate news, which has led to incidents like “Pizzagate,” in which a gun-toting man open fired on a pizzeria in Washington D.C. after believing a false online news report. Since there are real consequences to these expressions of speech online, there should probably be more improvements conducted on algorithms that regulate content for viewers of all ages. The tech firms say they are attempting to reign in inappropriate content. Others argue that society must be the ultimate arbiter of acceptable content and not rely on the tech firms to solve the problem.
Does the First Amendment protect those who harass, bully or anonymously send death threats to other people online? Offline, bullying is a serious issue, but the anonymity of online profiles has created a situation where accountability concerns are left in a moral gray area and protections for victims of cyberbullying are less stringent than those implemented in academic and professional environments.
Since cyberbullying is unlikely to go away anytime soon and has led to real consequences (higher rates of young adults feeling depressed or anxious, for instance), then perhaps we should rethink how we protect harmful speech written or spoken online. How can we as a civil society stop people from harassing others if they’re anonymous? Maybe a little transparency could help?
Finally, what can we do about political advertising that is paid for by foreign entities? Slate produced a great article on this subject, which discussed a new piece of legislation called the Honest Ads Act. If implemented, the Honest Ads Act would require large platforms like Twitter and Google to publicize the people and groups that purchased ads ($500 or more) for political elections. The act has not been debated or passed yet, but it could be a good remedy for preventing foreign influence in our country’s elections.
Follow FAV on social media or go to our website and let us know what you think. Joining the discussion is a great way to exercise your citizenship.
The Founding Fathers probably never saw this coming: A digital era in which humans aren’t the only ones communicating. Set aside your fears of a robot-dominated dystopia for a moment and think about this: Robots and artificial intelligence are increasingly present in online conversations and media, which means free speech considerations are starting to crop up.
What does this mean for us? As a recent Slate article argued, now is the best time to start thinking about how we protect (or restrict) speech produced by robots. If we don’t, then our fundamental First Amendment freedoms could be at stake as we interact more online. How do you think we should apply the First Amendment to robotic speech (if at all)? Here are some things we need to critically evaluate in the coming years:
The First Amendment Doesn’t Specify Humans
Although it may seem obvious that the Constitution was written by people, for people, this doesn’t necessarily mean the protections within our country’s legal framework are exclusively limited to humans. Other legal challenges in the U.S. – such as the debate over legal personhood for chimps and apes – and abroad – such as Saudi Arabia granting citizenship to a humanlike robot in 2017 – demonstrate how our modern society is changing its attitudes towards nonhuman beings in our global society.
Should the First Amendment only apply to humans? If the government is forbidden from “abridging the freedom of speech,” then could speech produced by robots and AI be protected as well? A literal reading of the Constitution suggests this might be the case, but it’s ultimately up to citizens and policymakers to decide.
Fundamental Freedoms Are at Stake
A major concern about free speech for robots doesn’t even involve robots – it involves universal protections for fundamental freedoms like speech and expression. If you look at FIRE’s history of free speech records, you’ll find several instances throughout English and American history when the First Amendment was violated for arbitrary reasons, such as Union Army General Ambrose Burnside’s suspension of the Chicago Times in 1893, the 1918 Sedition Act that prevented spoken or written criticism of the U.S. government, and the 1938 ban on Life Magazine after the media organization produced a public health documentary on childbirth.
In the present-day context, First Amendment right violations occur on a regular basis, from school dress codes primarily targeting female students to the suppression of freedom of speech on college campuses. By ignoring the growing issue of robots and free speech, we could be fracturing the universality of free speech protections. Even if we do not give robots and related technologies the right to freedom of expression, we still need to figure out what to do about this matter during a time when thousands of bots are posing as real human beings in online interactions.
Regulating Robots’ Speech is Nearly Impossible
Whether you believe robotic speech derives from human programmers or it comes from robots themselves, the fact of the matter is: regulating bots online would be next to impossible to enforce. There are millions (if not billions) of bots on social media websites, and we do not have the regulatory framework or government funding needed to regulate all instances of robotic speech.
Additionally, how would regulating robotic speech even work? We will never be able to eliminate bots entirely from the Internet, imposing fines wouldn’t work because that would require a human to be directly involved and held accountable, and since bots are mostly anonymous, how could we determine if the bot is programmed by a human or running autonomously?
Ultimately, there’s no clear solution for regulating robotic speech under the First Amendment. It could be that only human beings deserve rights under the law, but it could also be that robots are too widespread online to bother with regulating them (our government simply doesn’t have the billions of dollars needed to do this). So what do you think? Should we restrict robotic speech or grant it protection under the First Amendment?
On January 1, Tennessee’s Campus Free Speech Protection Act (Senate Bill 723) went into effect. The law is designed to offer comprehensive protections for free speech rights on college campuses.
During a time when free speech freedoms are being heavily restricted by many college campuses nationwide, the new Tennessee measure is a breath of fresh air for First Amendment supporters. As FIRE’s Legislative and Policy Director Joe Cohn stated, “protecting the free speech rights of students and faculty on public college campuses across Tennessee is an important victory for everyone who cares about the future of higher education.”
So what makes Tennessee’s Campus Free Speech Protection Act so important? Here are some provisions that other states should strongly consider adding to their own legislative agendas in 2018:
Freedom of Expression for All
Section 4(b) of the Campus Free Speech Protection Act states: “Public institutions of higher education embrace a commitment to the freedom of speech and expression for all students and all faculty.” This is an enormous step forward in light of recent protests against speakers of certain political affiliations and the suppression of religious minority groups’ freedom of expression on college campuses throughout the country.
Additionally, the inclusion of Section 4(d) attempts to end First Amendment restrictions like “free speech zones” and unequal speaking engagement acceptances by forbidding all public higher education institutions from “[stifling] freedom of speech and expression by implementing vague or overly broad speech codes, establishing free speech zones, imposing unconstitutional prior restraints on speech, or disinviting speakers based on the anticipated reaction or opposition of others to the content of speech.”
Free Speech Protections for Nontenured Faculty
Section 5(2) of the bill defines “faculty” as “tenured and non-tenured professors, adjunct professors, visiting professors, lecturers, graduate student instructors, and those in comparable positions.” Since Section 4 of the bill guarantees freedom of speech and expression for “faculty,” Section 5 expands free speech protections for adjunct professors and graduate student teachers, who have been historically denied true freedom of expression on campus with threats of revoked research funding and/or job loss. Protecting freedom of speech for faculty who — unlike tenured faculty — can be fired from their jobs more easily is an important step towards advancing First Amendment rights for everyone on campuses.
Eliminating Subjective Evaluations About Free Speech
Section 6(3) of the Campus Free Speech Protection Act reads: “An institution shall be committed to maintaining a campus as a marketplace of ideas for all students and all faculty in which the free exchange of ideas is not to be suppressed because the ideas put forth are thought by some or even by most members of the institution’s community to be offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrong-headed.”
Since many universities nationwide have established committees that unilaterally determine the offensiveness of a speech act (typically based on vague criteria), the Tennessee bill significantly expands freedom of speech for students and faculty by eliminating subjective criteria and promoting campus environments as “marketplaces of ideas” instead.
In conclusion, Tennessee’s Campus Free Speech Protection Act represents a tremendous step in the right direction for protecting First Amendment rights on college campuses. A public institution like a university should not be immune from the fundamental rights guaranteed by our national Constitution, and Tennessee should serve as a model for other states to follow in the coming years.
The Foundation for Individual Rights in Education (FIRE) recently released their 2018 report on free speech codes on college campuses. The extensive report outlines a ratings system for colleges’ free speech policies, ranging from highly restrictive (red light) to policies that do not seriously threaten or hinder free speech (green light). If you’re concerned about the state of freedom of speech on college campuses, here are some of the most troubling findings from the FIRE report:
Free Speech Restrictions Are Still Significant
Nearly one-third of colleges in FIRE’s report received a red-light rating, which means they have some of the most anti-free speech policies that clearly and significantly restrict individuals’ rights on campus. Although this number is on the decline compared to previous years, this figure is still too high for comfort, considering students’ and college employees’ basic First Amendment rights are at stake.
A Majority of Institutions Have Vague Free Speech Policies
More than 58% of colleges in FIRE’s latest study have vague policies that could either protect or suppress freedom of speech on campus. The wording of these policies are simply too unclear to determine the outcome in potential scenarios, which could lead to dangerous precedents that restrict student and faculty members’ fundamental rights.
Some Colleges Have Implemented “Free Speech Zones”
As we’ve discussed previously, free speech zones on college campuses are likely unconstitutional, drawing from recent court decisions against universities that implemented specific areas of their campuses for open expression. Free speech zones may sound like good ideas initially, until you realize these are actually quite restrictive of students’ and members of the public’s rights to freedom of speech and expression.
If it’s a public community college or university, then why limit freedom of speech to a tiny area of campus? Proponents of free speech zones argue that protests and other disruptive speech acts could hinder students’ ability to get to or concentrate in class. However, these arguments completely ignore the fact that freedom of speech knows no physical boundaries; you cannot limit this freedom to a small, 10′x10′ space on campus. Although one-in-ten colleges currently maintain some kind of free speech zone, the growing number of legal appeals against these zones we’re hopeful that they will be rendered obsolete in the future.
Bias Response Teams Are Evaluating Offensive Speech
According to the FIRE study, 30% of colleges (and more than 50% of private universities) have a “bias response team” on campus. This team is designed to respond to student and faculty reports of speech they deem “offensive” or “hate speech,” either in the classroom, around campus, or elsewhere on the college’s property. Although what constitutes “offensive” speech is largely contestable, these bias response teams use anonymous reports from students to restrict other students’ freedom of expression.
According to a recent report, freedom of the press worldwide is at its lowest level in more than a decade. This decline has been linked to many different causes, including harassment and violence against journalists, media corruption, Internet censorship, “fake news” rhetoric, and fewer legal protections for those practicing their freedoms of expression.
In 2016, more than 250 journalists were imprisoned and 59 journalists were killed in their line of work. In Mexico alone, there were more than 420 reported attacks against journalists, and even the United Kingdom enacted the Investigatory Powers Act (also known as the “Snoopers’ Charter) to track citizens and journalists online. In Turkey, more than 150 journalists are still in prison and 170 media organizations have been shut down since the 2016 coup.
In the U.S., violence against journalists has also been increasing. Montana congressman Greg Gianforte assaulted a reporter from The Guardian shortly before he was elected to Congress, and Alaskan Senator David Wilson slapped a reporter from the Alaska Dispatch News in the face. Media organizations also have expressed concern about President Trump’s retweet of a GIF in which he threw a body — with a CNN logo as its head — to the ground.
What’s concerning about the latest attacks on our press freedoms is that they’re no longer limited to authoritarian regimes. Democratic countries with longstanding histories of press freedoms are also contributing to the climate of mistrust and violence, oftentimes through public officials trying to discredit credible news organizations and enacting legislation designed to limit press freedoms.
Without a free press, nations cannot remain democratic. Freedom of the press is integral to the well-being of a democracy by informing the public, mediating the relationship between citizens and their political representatives, and holding politicians accountable for their actions, both in office and in their everyday conduct. Since our very tenets of democracy are now at stake, we must come together to promote freedom of the press.
To protect the freedom of the press in both America and globally, citizens must come together and let their voices be heard. By contacting your congressional and local representatives to let them know you deeply value your First Amendment freedoms and want the press to remain free to report on all issues of societal concern without obstruction, you can make a difference. Additionally, you can lend monetary or volunteer support to organizations such as Free Press, which advocate on behalf of journalists and media organizations that want to preserve our most fundamental First Amendment rights.
The free press in American society is under attack by political figures and everyday citizens calling articles written by reputable news organizations “fake news”. It’s an attempt to discredit journalists and diminish the credibility of reports that are seen as critical of politicians and/or government policies. “Fake news” is threatening the very foundations of our First Amendment rights pertaining to both freedom of the press and freedom of expression.
There are many different definitions of fake news, but we’ll focus on the main three: 1) Satire/parody, 2) “fake news” rhetoric and 3) Completely false news posing as real. Satire and parody news, such as Last Week Tonight and The Onion, create humorous (and obviously not real) articles meant as entertainment. Satire is a form of humorous critique that may contain elements of truth but presented in an exaggerated way to ridicule or expose the absurdity of a situation.
“Fake news” rhetoric is an entirely different matter. This is a political strategy that is being used to delegitimize traditional (mainstream) news organizations such as CNN, The Washington Post and The New York Times by dismissing reports published or broadcast by these press outlets. NPR refers to “fake news” rhetoric as a form of alternative language, in which anyone of any political affiliation can rebuke a news story they disagree with by calling it “fake news”.
Finally, we have actual fake news, which the Pew Research Center reports is also causing a great deal of confusion in American society. Fake news in this sense refers to completely false stories, which often are used as part of a coordinated effort to sway public opinion and/or as a way to generate ad revenue. A Buzzfeed analysis found that many fake news stories about the 2016 presidential election outperformed real news stories on social media. For example, a fake news story about the Pope endorsing Donald Trump for president received 960,000 shares, comments, and likes on Facebook before the election, while a real news story from The Washington Post about Trump and Hillary Clinton’s histories of corruption received just 849,000 shares, comments, and likes.
How is fake news harming our First Amendment rights? As mentioned previously, the Pew Research Center says “fake news” is hurting our democracy by confusing the public about what is real journalism and facts and what is fake. A 2016 study of more than 376 million Facebook users’ interactions with 900+ media outlets found another problem: People tend to seek out information that aligns with their political views. “Fake news” rhetoric is exacerbating the problem by making it socially acceptable for people to reject legitimate media reports that don’t align with their views as merely “fake.”
The phenomenon of fake news and fake news rhetoric subsequently diminishes the free press protections of the First Amendment by delegitimizing reputable news outlets with a long history of credibility, thereby making it harder for them to report real news. What can we do to combat “fake news” and preserve the freedom of the press? To combat “fake news” and protect our First Amendment rights for all, education is key. We must be diligent as consumers when it comes to determining which news outlets are publishing blatantly false “clickbait” articles for the purpose of making money from ad revenue instead of informing the public about legitimate current events. Facebook, Google, and other online organizations are currently developing new algorithms for detecting fake stories and fake news outlets, but it’s also up to us as responsible Americans to educate ourselves and our communities about media literacy.
HowStuffWorks has published an awesome list of 10 ways to spot fake news stories, which includes double-checking information with other sources, checking the URL of the publisher, being wary of incredulous-sounding headlines, and many more. Facticious also developed a game to help students and everyday Americans alike learn how to detect fake news stories. Although “fake news” rhetoric and fake stories are likely to remain a problem for many years to come, it’s vital that we advocate for real journalism and avoid fake sources that want to make money instead of inform their audiences.