Social Education 58(3), 1994, pp. 169-170
National Council for the Social Studies
Choosing Topics for Scenarios
Once incarcerated, the only opportunity the adult inmate typically has to observe and examine rights and privileges is through television and movie dramas. These give the inmate a false sense of reality. In many of these dramas, the defendant is on trial for his or her life for a case he or she did not commit (we see this in the opening scene). The hapless defendant hires the show's star, who defends him or her with style and eloquence; at the last minute, a surprise witness or a witness stand confession exonerates the defendant. Case closed. Next week, another defendant is freed from an unjust charge. In their own trials, however, real-life inmates did not have a famous attorney, and there were no surprise witnesses or last-minute confessions. Rights and privileges thus become something, in their minds, that only others have.
The scenarios I use are designed to change some of the inmates' negative attitudes toward constitutional law and bring its precepts into focus. Of the endless list of possible scenarios, let us take two that center on the First Amendment's right to freedom of speech. Many of the cases I use center on the First Amendment not only because there are so many cases from which to choose but because controversial subjects are thereby avoided. Past experience has shown me that inmates cannot discuss subjects such as unreasonable searches or the right to a fair trial in a calm and cool manner; voices get loud and tempers get high. It is much easier for the inmate to separate himself from his personal biases against the court system and discuss more objectively the rights of freedom of speech, press, and religion.
The two scenarios I have chosen to discuss center on the following two questions:
1. Is wearing a black armband freedom of speech?
2. Does a performer of rap music have a right to use foul language and simulate indecent acts on stage? Are these actions protected under freedom of speech or expression?
Scenario 1: The Black Armband
One cannot delve into these general questions with students without some preparation. First, in order to avoid confusion and unnecessary arguments, I try to establish a loose set of definitions in a class discussion generated by a few short questions: What exactly is freedom of speech? Is it absolute? What are the implications of an absolute freedom? What is libel? What is slander? What is defamation of character? What is clear and present danger? What is symbolic speech?
I then present students with this scenario:
A young African-American student named Thomas Wilson, age 16, had been reading about the deplorable conditions of apartheid in South Africa. He was appalled by the many deaths of young Africans who sacrificed their lives for freedom. He wished there was something he could do. In order to call attention to the atrocities of apartheid and needless deaths of people in South Africa, he decided to wear a black armband to school to symbolize his anguish until apartheid ended. On the first day of wearing the armband, the school's principal stopped him and told him to remove it. Thomas refused, stating he had caused no trouble. The principal told him to go to his locker immediately and get his coat because he was suspended until further notice.
One question should immediately come to the student's mind: Are nonverbal forms of communication (body language, gestures, etc.) protected under freedom of speech?
Before students can understand the scenario, they must also consider previous court decisions to see how the U.S. Supreme Court has viewed similar situations. To accomplish this, I briefly review a series of Court cases to show how the meaning of freedom of speech has progressed over the years. I begin with Justice Oliver Wendell Holmes's clear and present danger concept from the Schenck decision of 1919. Then I review other related cases: Gitlow v. New York (1925), Chaplinsky v. New Hampshire (1942), Feiner v. New York (1951), Rockwell v. Morris (1961), Tinker v. Des Moines Independent Community District (1969), and James v. Board of Education of Central School District #1 (1972).
After hearing the excerpts from the various cases, students are asked these questions:
1.Did Wilson have a legitimate reason to wear the armband? Would a legitimate reason be necessary?
2.Did he cause a disturbance or distraction from the normal routine of the day?
3.What if Wilson had stood on a table at lunch and led the room in a series of protest songs or organized a sit-in? Would these practices be covered by freedom of speech or freedom of assembly?
4.Was the principal justified in suspending him?
5.How would the case be different if the school had a rule against armbands?
6.Were any of Wilson's rights violated? If so, how?
7.Were his due process rights violated? If so, how?
8.Does the Tinker case apply? If so, how?
After discussion of the scenario, I ask other questions that spark further discussion on various aspects of freedom of speech:
1.Are dress codes of any kind a violation of freedom of speech?
2.What about one's hair length or style?
3.Armbands are one form of protest. What are some others?
4.Is there a fine line between protest and disturbing the peace? Explain.
Most inmates are confused by the literal interpretation of the First Amendment and its legal interpretation. Many think it means that a citizen should be permitted to say anything he or she wishes, regardless of circumstances. Common sense and legal precedent tell us otherwise. We are not always free to say everything we wish. The right to protest, however, has always been a powerful force in American history, and one generally protected by Court decisions.
Scenario 2: Stop the Music?
For this scenario, I again begin with some general questions: What exactly is pornography? What can be construed as indecent or foul language? How has the Supreme Court viewed obscenity? Does freedom of speech extend to derogatory name calling and racial slurs? Where does sexual harassment enter the picture? What is censorship? In what ways might it be applied?
Then, I give the class the following scenario, which comes directly from the front pages of newspapers across the country:
A rap group released a controversial album, which was banned in several record stores in Florida. Why? The communities involved believed the controversial album was pornographic. Also involved in the album's ban was the band's somewhat graphic displays at a typical concert.
The student must consider the following questions: Was the ban placed on the album a form of censorship? Did the community have a right to ban the album from its stores to protect their young people?
Other, more general questions arise: Is censorship sometimes necessary? If so, when? Consider child pornography. Is it censorship to restrict one's freedom of speech? Does a public performer (i.e., actor, comedian, musician) have a responsibility to his or her audience?
Like many others, inmates become outraged at the mere mention of censorship. No one likes having his or her music, art, or literature censored. On the other hand, inmates generally accept or tolerate movie ratings as necessary to protect young viewers.
The actual controversy over censorship of the album by Two Live Crew, as well as albums and videos by other performers, began a resurgence of interest in freedom of speech as it relates to the entertainment industry. The question for students is: Even though a group's performance, whether live or recorded, contains explicit language, is it still covered by the First Amendment's freedom of speech guarantees?
Have the class read the Supreme Court decisions of Roth (1957) and Ginzburg (1966), and then establish a loose definition of censorship and obscenity. The class is now ready to continue the discussion of censorship and freedom of expression with these questions:
1.What words, if any, shock you? What words do you think might shock others?
2.What responsibility does a parent have in keeping such materials out of his or her child's hands?
3.Would your favor age restrictions on the purchase of such albums? Is this censorship? Explain.
4.Is the use of foul language at a stage performance an expression of freedom of speech? Why or why not?
Part of the understanding of one's rights is that time has a way of changing everything. The decisions of the Court are based partially on society's value system. Society's attitude about vulgar language changes with time. What we considered crude and vulgar twenty years ago is commonplace today: words forbidden on television or radio in the fifties are heard daily in the nineties.
Quite often, I like to pose one last question: Although I may not object to your making an album or video that contains explicit language, do I as a store owner or radio station manager have to sell it or air it? If you have a right to say or print what you want, must you be provided a medium to voice it?
It is important in discussing these cases that the students come to understand not only the short-range effects of the Court's decisions but also the long-range effects. For example, if you stop child pornography, what might happen next? If you censor a comedian today, what could happen tomorrow? Throughout the discussion, the teacher must flow with the class. The reactions to a scenario, like any topic, vary from class to class, from day to day. Sometimes it falls flat. Many times a question may prompt "what ifs" or "whys."
Often, an impromptu discussion brings about a better understanding of a related concept. The Rodney King case happened to coincide with one of my class reviews of the Bill of Rights. Our discussion of it centered on four amendments: the Fourth (search and seizure), the Fifth and Fourteenth (due process), and the Sixth (fair trial). One question focused on the stop and frisk laws, allowing the police to stop an individual with only probable cause. Second, students grappled with the concept of police brutality: What constitutes police brutality? How common is it, and is it always avoidable? Are all six policemen in the King case guilty, even though not all participated in beating him?
The Value of Using Real-Life Situations
When approached through a scenario like those above, a concept becomes very real to students; they understand its applicability because it is no longer simply a paragraph in a book but it has been applied in a real-life situation.
The whole point of the scenario is to foster critical thinking and thoughtful discussion. In many cases, the instructor must become a devil's advocate. He or she might present a reactionary interpretation or a radical perspective just to stimulate participation, sometimes even to the point of argument. By the end of a discussion, however, the student should have developed his or her understanding that laws and the Bill of Rights are continuously being reinterpreted according to varying situations and changing times.
Although I directed this discussion toward an inmate population, teachers can apply it to any class on the U.S. constitution. The key to success with it is to be well prepared and ready for an endless list of questions and arguments. Only if these are forthcoming can instructors know that they are successfully sparking student interest and learning.
Donald Wasson holds a doctorate in constitutional history from Illinois State University and is presently an educator at Pontiac Correctional Center, a maximum security prison in Pontiac, Illinois.