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As a student journalist in college, I learned firsthand the importance of a free press. I struggled with the school administration over the meaning of the First Amendment, and the issue means more to me than almost any other political topic. So it’s personally distressing to read in a new study that a significant portion of high school students are ignorant of First Amendment principles and indifferent to their importance. But decrying ignorance is easy. Developing solutions is harder. In that regard, those who care about the First Amendment’s future need to think beyond calling for yet another program to reform the schools. Instead, what’s needed are solutions animated by the same independent spirit that inspires free speech. WHAT FIRST AMENDMENT? The study by the John S. and James L. Knight Foundation, the largest study of its kind, was a two-year $1 million survey of students, faculty, and administrators at 544 high schools across the country. Results were released Jan. 31. The survey asked questions about both objective information — revealing what students knew about the current state of the law — and subjective values — ascertaining how students viewed the freedoms of speech and the press. The questions about objective knowledge revealed substantial factual ignorance of key First Amendment principles. For example, students were asked, “Under current law, do Americans have the legal right to burn the American flag as a means of political protest?” Despite years of well-publicized congressional efforts to pass a constitutional amendment following the Supreme Court’s ruling in Texas v. Johnson (1989), 75 percent of students think that flag burning is illegal. Almost half believe that the government has the right to restrict “indecent material” on the Internet. Of course, the Supreme Court held otherwise in Reno v. American Civil Liberties Union (1997), when it struck down the Communications Decency Act. The questions about subjective values revealed a student population with little appreciation for First Amendment freedoms. Only 51 percent agree that “Newspapers should be allowed to publish freely without government approval of stories.” More than one-third think that the First Amendment goes too far in the rights guaranteed, almost three-fourths would prohibit flag burning, and nearly three-fourths either do not know how they feel about the First Amendment or say they take it for granted. The report concludes that “America’s high schools are leaving the First Amendment behind.” As Hodding Carter III, president and CEO of the Knight Foundation, stated, “These results are not only disturbing; they are dangerous. Ignorance about the basics of this free society is a danger to our nation’s future.” In published comments on Jan. 31, Mike Maidenburg, vice president and chief program officer of the Knight Foundation, described the foundation’s recommendations: They want to “help launch a movement so that our schools and our freedoms are not in conflict.” They want to “convince thousands of school districts across the United States to care about student media and the First Amendment.” And they see a need to “persuade the school districts” to increase First Amendment education. THE TROUBLE WITH FREE SPEECH Whenever such a report about educational failures is released, the immediate reaction seems to be to call for more school programs to fix the problems. That reaction is understandable and well-intentioned. If such programs give students a finer appreciation of America’s freedoms, the results would be welcome. Increasing the ranks of student journalists and using the news in classrooms, as the Knight Foundation suggests, would be great. But teaching free-speech values is more complex than that. Before creating First Amendment programs, we need to develop a clearer understanding of the problem and the range of possible responses. (The Knight Foundation, it should be noted, is still working on its proposals.) When it comes to the study’s findings about students’ objective knowledge: Is their ignorance really news? Over the years, a variety of studies have found a widespread lack of knowledge about history and government. A great many young people (and quite a few of their elders) have difficulty explaining not just the latest First Amendment jurisprudence but also Reconstruction, the Gulf of Tonkin Resolution and NATO. The Knight study is symptomatic of a larger failure to teach history and civics, which in turn is part of a still larger story of shortcomings in American education. Big-picture proposals to improve education have ranged from higher pay for teachers to school vouchers to President George W. Bush’s No Child Left Behind program. With so many plans proposed and requirements already implemented on the schools, it is unclear how marginal efforts to tweak education, however well-intentioned, could make a material difference in attacking student ignorance. And the Knight survey is concerned about more than mere objective ignorance. The survey questions designed to elicit students’ subjective impressions about free speech reveal a different problem. Here, the issue is not that students are ignorant of the First Amendment, a matter within the legitimate role of public schools to address. Rather, the concern for the Knight Foundation (and for me) is that the students have reached subjective conclusions contrary to First Amendment values. It’s not simply that students don’t know that flag burning is legal. They don’t think it should be legal. But distressing political values are not something that should be addressed by demanding that government officials ensure students embrace the desired views. This remains true even — and perhaps especially — when the subject is the First Amendment. The core spirit of the First Amendment is that citizens should discuss political matters and reach conclusions independent of government interference. Given that anti-government spirit, a fundamental incompatibility exists in trying to use public employees to promote free speech and school authorities to inculcate respect for dissent. No one should be surprised that public schools do a poor job of teaching an idea as anti-government as the First Amendment. As institutions that must control students’ behavior to maintain order, the public schools have an inherent conflict of interest. The Knight study found, for example, that only 25 percent of high school principals believe that students should be allowed to report controversial issues in their student newspaper without approval of the school authorities. If the majority apparently embraces censorship of the high school press, these officials don’t sound like missionaries of freedom. Why trust them to promote First Amendment values? In addition, lobbying government officials on behalf of the First Amendment creates its own set of troubling precedents. In theory, the First Amendment may be noncontroversial. Who can be against free speech? But in practice, the First Amendment issues of importance frequently are politically charged matters on which courts and the public are split. Consider: TV lewdness, hate speech, flag burning, the reporter’s privilege, pornography, regulation of political campaigning and speech undermining national security. Imagine how equivalent educational campaigns on other disputed constitutional issues might look. If the National Rifle Association were to propose a movement to teach its interpretation of the Second Amendment, should schools agree? Is it a good thing to let the religious right into civics classes to expound their views on the free exercise clause? Should the American Civil Liberties Union have equal time to explain the establishment clause? These scenarios are troubling, but in principle, they are not appreciably different from a campaign to encourage schools to teach a certain interpretation of the First Amendment. THE RIGHT STUDENTS If lobbying schools to change their curricula is not the best response, what is? Several suggestions come to mind. Follow-up research is needed to ascertain why students have reached these unfavorable conclusions about the press. Thirty-two percent of students surveyed think the press has “too much freedom,” and almost half would accept government approval of stories. Why do these young people seem to trust the government more than the press? The study didn’t specifically address this, for understandable reasons. It’s a more complicated question that, in addition to surveys, may require research methodologies such as focus groups and individual interviews. Is the mistrust because of the particular media the students see? The Knight study found that their primary source of news was local television, with 41 percent viewing it every day. Newspapers were the least-relied-upon source, with only 13 percent reading the news there every day. It may be that defending the weather report and sportscasters from government interference may not seem particularly important to students, or it may be that local TV news does not inspire the same respect as might, say, The Wall Street Journal. Are politics at play? Of the study respondents, 24 percent attended private religious schools, which may be more conservative than secular public schools. The study indicated that the high schools surveyed were demographically representative. Given the national political split between red and blue, perhaps many of the students are reflecting their conservative parents’ distrust of an allegedly liberal media. After further research ascertains why students have reservations about the press and the First Amendment, then the media need to listen carefully to the students’ answers. If the answers seem to indicate the same concerns about bias or lack of substance shared by the general public, the proper response, at least in part, is some honest soul-searching. Ignorant or not, these students are current media consumers, and they also are future voters and jurors. It behooves us to understand their concerns about the reality of free speech. Finally, given the inevitable limits on resources, it’s worth identifying exactly which students are most important to reach. In the 41 years since New York Times v. Sullivan (1964), press freedom has rested less on the active support of the general public than on that of judges and lawyers. From allowing the publication of the Pentagon Papers to imposing heightened standards for libel and invasion-of-privacy suits by public figures, the essential guardians of First Amendment freedoms have been the bar and the bench. So although the high schools certainly shouldn’t be written off, perhaps the students whose views on free speech need to be watched most closely are those in the nation’s law schools. The opportunity to recruit law students to the cause of the First Amendment is particularly promising after the first year of law school, when a great number of first-rate students look for public interest internships (before taking jobs with law firms after their second year). These students are interested in constitutional issues — far more intriguing than what they typically will tackle in private practice — and they have sufficient professional training to research legal issues, draft arguments, and participate in moot courts on a range of press issues. A summer institute offering training and clinical practice in First Amendment defense would have no trouble attracting applicants. Over the long term, it would help produce a number of attorneys better educated about media issues and eager to advocate on behalf of the First Amendment. The result should be a long-term buttressing of the press’s legal defense corps. Such an effort would be money well spent. If the news from America’s high schools still proves distressing, the fact that lawyers and judges dedicated to the First Amendment are defending freedom’s legal bulwark should offer comfort. Robert L. Rogers is associate opinion editor of Legal Times and a Washington, D.C., lawyer. He can be reached at [email protected].

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