The Free Speech Center serves as a showcase for innovative approaches to teaching the first Amendment and we’re indebted to educators who share their thoughtful approaches and creativity. Meg Mott, professor of politics emerita at Marlboro College, offers a success story here about engaging middle school students on First Amendment topics.
An angry cheerleader and a Covid lockdown
In June of 2021, the Supreme Court handed down a decision that protected students’ right to defame their school when they are not on school grounds. Mahanoy Area School District v. B.L, also known as the “angry cheerleader case,” involved a cheerleader who failed to make the cut for the varsity squad. While at a local convenience store, she posted a picture of herself with her middle finger raised, accompanied by some profane language. When the coaches were informed of the post, they suspended her from the junior varsity team. B.L. sued the school and won. The school district took the case to the Supreme Court and lost. “B.L.’s posts, while crude,” wrote Justice Stephen Breyer, were still protected speech.
I have been teaching civics through case law to undergraduates since 1999. Marlboro College, a small liberal arts college in southeastern Vermont, used Town Meeting to run its business, affording students the reality of self-governance. Democracy at Marlboro was not an abstract concept but a doing thing. Constitutional principles were regularly invoked in campus-level disagreements. This culture of energetic democracy attracted students who were primed to debate and disagree. They were eager to dress up for a mock trial on campaign-finance law and willing to put in the extra hours to find a precedent that fit their side of the argument.
After Marlboro closed in 2020, I wanted to keep that constitutional energy alive. The angry-cheerleader case seemed like the perfect vehicle to introduce the principle of free speech to teenagers. With summer approaching, I proposed a Free Speech Camp to the librarians in Putney, Vt. Covid restrictions were still in place, which meant I would meet outside with the campers under a tent, the perfect place for a constitutional revival. The Free Speech Camp was born.
Besides the cheerleader case, we would study three other Supreme Court cases: West Virginia State Board of Education v. Barnette (1943), Tinker v. Des Moines Independent Community School District (1969), and Morse v. Frederick (2007). Barnette and Tinker established the principle that public school students had a right to free speech. The Barnette decision gave students a right to opt out of the daily Pledge of Allegiance. The Tinker decision gave students a right to quietly protest in class. But not all the cases swung in the plaintiffs’ favor. In Morse, the Court found for the school. Speech that promoted illegal activity was not protected.
Even when the young plaintiffs won, there were still questions. In Tinker, Justice Abe Fortas famously stated, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” This sentence became the rallying cry for the campers. Had they not read the dissent, they might have gone home carrying the truth of free speech in their pockets. But Justice Hugo Black disturbed their certainty. “The truth is that a teacher of kindergarten, grammar school, or high school pupils no more carries into a school with him a complete right to freedom of speech and expression than an anti-Catholic or anti-Semite carries with him a complete freedom of speech and religion into a Catholic church or Jewish synagogue.” Writing 30 years before schools started instituting speech codes, Black was making a case against hate speech.
Studying case law requires an ability to hold two different arguments in one’s head at the same time. While the students were initially on the side of the school-age plaintiffs in Tinker, they had to admit that Justice Black had a point. Should a student be allowed to wear a T-shirt that could be perceived to target others based on their gender identity or sexual orientation? Most of the students said, “No!” But what about Tinker? If a school can’t send someone home for wearing an armband, should they send someone home for wearing a T-shirt that might be considered hateful?
We decided to debate the issue, holding a public event under the tent. The proposition was: “Should schools prohibit harmful speech?” The students were prepared to argue both sides, with a coin toss determining which side they would present.
“Prohibiting harmful speech teaches students to be more aware and conscious,” argued the Affirmative. “Students need a safe haven to learn in, one that is free from hateful speech.” The audience was impressed. But the Negative had some key points as well. “School administrators cannot be trusted to decide what is harmful. What’s to say they won’t punish some groups and allow other groups to say whatever they think?” When the audience was asked to vote, few were willing to support one side over the other. As one librarian in the audience said, “They both make sense to me.”
At the end of the camp, the students made a zine that featured the four Supreme Court cases, with excerpts from the decisions and the dissents. They wanted their classmates to see how students as young as middle schoolers had played a key role in asserting the right to free speech. They also wanted readers to understand how complicated free speech was, and how there could be good arguments on both sides. Copies of the zine were placed in the Putney Public Library and in the local public schools.
Out of the tent and into the classroom
In 2024, I was asked to develop a free-speech curriculum for middle schoolers for the Taft Institute for Government and Civic Education at Queens College of the City University of New York. Working with Ana Voci, an Emmy-award winning children’s and educational media producer who lives in New York City, we reviewed the New York State Next Generation Learning Standards for 7th– and 8th-grade social studies. We also consulted with Nate Stauffer, a New York City middle-school humanities teacher who already was incorporating Supreme Court cases into his curriculum. New York wanted students to be able to read primary documents, to determine the author’s viewpoint, and to be able to explain their own reasoning using evidence and rhetoric. The free-speech cases checked all the boxes.
In order to bring the case law to life, Ana and I created role-plays for each of the cases, providing scripts for the controversy before the Court’s decision and then scripts for the classroom after the ruling. These role-plays gave students a chance to apply constitutional reasoning to classroom dynamics. By the end of a role-play they could explain the arguments for and against a student’s right to free speech.
In order to give more inner work to the complexity of each case, we incorporated a learning journal into the curriculum. We wanted individual students to have enough time to think their own thoughts, away from the scrutiny of the teacher and their peers. While offering some prompts to draw out their reasoning and their imagination, we also assured them that the journal was their property and would not be handed in.
Finally, in order to spread the seeds of student-generated civic education, the class produced a zine for their peers. The zine gives students a chance to familiarize themselves with original sentences from the decisions and the dissents, to summarize the facts of each case, and to offer suggestions for their peers on the complexities of free speech in the public school classroom. Creating a resource for their peers about Supreme Court decisions is a sure-fire way to develop enough civic confidence to navigate future controversies.
Choosing which cases to teach
Not all of the cases in our curriculum uphold the students’ claims that their free-speech rights were violated. Morse v. Frederick, for example, found that the school did not violate a student’s right to free speech when it suspended him for waving a banner that promoted illegal drug use at a school-sponsored event. “Bong Hits 4 Jesus” was not protected speech.
Another factor in our decision-making was the content of the speech in question.
While the angry cheerleader case met the standards of the sponsoring library in Putney, we worried that a 7th-grade teacher might lose control of the class, what with the raised finger and the “F**k Cheer” expletives. You will notice that it is not included in our free-speech curriculum for middle schoolers.
We also considered, but ultimately decided against, Bethel School District v. Fraser, a 1986 case in which the Supreme Court upheld the suspension of the valedictorian speaker after a particularly lewd speech. The speech was so unmistakable in its content that we worried students might have been too distracted by the language to focus on the constitutional principles. We also worried that the role-play might provoke a hostile-environment lawsuit.
Instead, we chose a 1988 Supreme Court case from Missouri — Hazelwood School District v. Kuhlmeier — in which a student editor claimed her free-speech rights had been violated after the principal refused to publish two articles approved by the journalism teacher. Justice Byron White, writing for the majority, determined that “A school need not tolerate student speech that is inconsistent with its basic educational mission.” Kuhlmeier gave schools the right to censor student speech in newspapers that was inconsistent with the schools’ mission.
Although “Bong Hits 4 Jesus” might cause some hilarity, we decided to keep Morse v. Frederick in the curriculum. Chief Justice John Roberts, writing for the majority, found that “student speech celebrating illegal drug use” is not protected under the First Amendment. We wanted students to know that speech promoting illegal activity is not protected speech.
Getting beyond offense to reason
Regardless of which cases are chosen, free-speech discussions are reliably contentious. In the decades since Tinker, students are more sensitive to the harm created by offensive speech. While black armbands may not provoke a disturbance in a digital classroom, T-shirts that express one side of a culture-war issue may be found in violation of a school dress code. The question for your students is, “How much power do you wish to give to the school in order to avoid feeling disturbed?” That is very much an open-ended question. Some of your students may conclude that Tinker was wrongly decided. If they can use Supreme Court arguments to make their case, your job is complete.
Case law is a great way to teach civics. Students learn to argue a position they may not personally agree with, to apply a free-speech principle to a different set of facts, and thus come to understand the responsibilities demanded by free speech. Students who know how to defend the right to wear an armband are more likely to defend someone who is wearing something with which they disagree. Once a class sees its capacity to weather a disturbance without sanctioning the speaker, they are more likely to navigate the next contentious moment with more speech, less punishment.
Justice William Brennan made this point in a 1983 case that upheld the right of a school board to ban books in the school library. Brennan strongly disagreed with the Court’s decision. “Access to ideas prepares students for active and effective participation in the pluralistic and often contentious society in which they will soon be adult members.” Since Brennan wrote those words, political discourse in the United States has become even more contentious. One response is to impose more sanctions on disfavored speech. This curriculum builds the habits for a different path—the path of participatory democracy. Our curriculum makes the classroom the place where students can develop the skills to balance the rights and responsibilities of free speech. It also shows them that the process can be a whole lot of fun.
Meg Mott, Ph.D., is professor of politics emerita, Marlboro College.
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