Scenario 1: The Pledge of Allegiance
Michael Newdow is an atheist and the father of a young child who attends public
elementary school. He objects to his daughter’s hearing and reciting of the Pledge of
Allegiance in school. California law requires “appropriate patriotic exercises” to be
conducted daily in all public elementary schools during the school year. Reciting the
Pledge is one way of satisfying this requirement, and it was the policy adopted by Elk
Grove School District.
Congress first created the Pledge in 1942. Twelve years later, at the height of the Cold
War, Congress changed the text of the Pledge of Allegiance to include the words “under
God.” According to the Congressional Record, Congress “intended the inclusion of God in
our pledge… [to] further acknowledge the dependence of our people and our Government
upon the moral directions of the Creator.” According to the House Report, including a
reference to God in the Pledge would also “serve to deny the atheistic and materialistic
concepts of communism.” Anticipating a potential Establishment Clause challenge,
Congress noted the addition was not an “an act establishing a religion or one interfering
with the ‘free exercise’ of religion.”
Newdow isn’t claiming that the school district or teacher requires his daughter to
participate in reciting the Pledge. Instead, he claims that his daughter has a legal
complaint (that he can bring on her behalf) when she is forced to “watch and listen as her
state-employed teacher in her state-run school leads her classmates in a recitation
proclaiming that there is a God, and that ours is one nation under God.” Newdow argues
that the 1954 modification of the Pledge by Congress, as well as the state law and school
rule requiring daily recitation, violate the First Amendment’s Establishment Clause. He
seeks a ruling that the Pledge of Allegiance is unconstitutional with the addition of the
words “under God” and a court order prohibiting the school from requiring the daily
Does a school district policy that requires public school teachers to lead willing students
in reciting the Pledge of Allegiance with the words “under God” violate the Establishment
Clause of the First Amendment?
Scenario 2: Drug Messages in School
Although the First Amendment states that the government cannot make any law
“abridging the freedom of speech,” there are still many limits to where people can speak
and what they can say. Students in public schools, for example, have free-speech rights,
but they are not the same rights as what adults have in the community. This case is about
limits on student speech in public schools and whether a school can punish a student for
what he said about drugs during an off-campus event.
On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska. School
officials at Juneau-Douglas High School released students from school as a field trip event
to watch the Olympic torch pass by. Some of the students, including the school’s
marching band, were supervised by school faculty and staff. Approximately 1,000 students
stood near the school, on both sides of the street, to watch the relay.
Joseph Frederick, an 18-year-old senior, was one of those students. Although he never
made it to school that day because he got stuck in the snow, he joined his classmates on a
public sidewalk across the street from school. Frederick was interested in more than just
watching the relay. He and some friends waited for the television cameras to pass by and
then unfurled a large banner reading “Bong Hits 4 Jesus.” The school principal, Deborah
Morse, saw the banner from across the street. Believing that it advocated drug use, she
approached Frederick and demanded that he stop displaying it. He refused, so she
grabbed and crumpled up the banner.
Frederick was suspended for ten days. After losing his appeal to the school board, he filed
a lawsuit against Morse and the school district, arguing that his First Amendment rights
had been violated. Principal Morse and the school district appealed to the Supreme
Does the First Amendment allow public schools to prohibit students from displaying pro-
drug messages during a school-supervised event?
Scenario 3: Protesting in School
John and Mary Beth Tinker were public school students in Des Moines, Iowa in December
of 1965. As part of a group against American involvement in the Vietnam War, they
decided to publicize their opposition by wearing black armbands to school. Having heard
of the students' plans, the principals of the public schools in Des Moines adopted and
informed students of a new policy concerning armbands. This policy stated that any
student who wore an armband to school would be asked immediately to remove it. A
student who refused to take off his or her armband would be suspended until agreeing to
return to school without the band.
Two days later and aware of the school policy, the Tinker children decided to wear
armbands to school. Upon arriving at school, the children were asked to remove their
armbands. They did not remove the armbands and were subsequently suspended until
they returned to school without their armbands.
The children returned to school without armbands after January 1, 1966, the date
scheduled for the end of their protest. However, the father filed suit in U.S. District
Court. This suit asked the court for a small amount of money for damages and an
injunction (a court order to stop) to stop school officials from enforcing their armband
policy. Although the District Court recognized the children's First Amendment right to
free speech, the court refused to issue an injunction, claiming that the school officials'
actions were reasonable in light of potential disruptions from the students' protest. The
Tinkers appealed their case to the U.S. Court of Appeals but were disappointed when a tie
vote in that court allowed the District Court's ruling stand. As a result they decided to
appeal the case to the Supreme Court of the United States.
The case came down to this fundamental question: Do the First Amendment rights of free
speech extend to symbolic speech by students in public schools? And, if so, in what
circumstances is that symbolic speech protected? The First Amendment states “Congress
shall make no law ... abridging the freedom of speech.” The First Amendment, however,
does not identify which kinds of speech are protected. For example, it is not clear whether
hate speech against an individual or group is protected. Neither does the First
Amendment specify what types of expressive actions should be considered as speech.
Scenario 4: Flag Burning
Gregory Johnson participated in a political demonstration during the Republican National
Convention in Dallas, Texas, in 1984. The purpose of the demonstration was to protest
policies of the Reagan Administration and of certain corporations based in Dallas.
Demonstrators marched through the streets, chanted slogans, and held protests outside
the offices of several corporations. At one point, another demonstrator handed Johnson
an American flag.
When the demonstrators reached Dallas City Hall, Johnson doused the flag with kerosene
and set it on fire. During the burning of the flag, the demonstrators shouted, "America,
the red, white, and blue, we spit on you." No one was hurt or threatened with injury, but
some witnesses to the flag burning said they were seriously offended. One witness picked
up the flag's charred remains and buried them in his backyard.
Johnson was charged with the desecration of a venerated object, in violation of the Texas
Penal Code. He was convicted, sentenced to one year in prison, and fined $2,000. The
court first found that Johnson's burning of the flag was expressive conduct protected by
the First Amendment. Therefore in order for a state to criminalize such behavior it would
have to serve a compelling state interest that would outweigh the protection of the First
Amendment. The court concluded that criminally sanctioning flag desecration in order to
preserve the flag as a symbol of national unity was not a compelling enough interest to
survive the constitutional challenge. It also held that while preventing breaches of the
peace qualified as a compelling state interest the statute was not drawn narrowly enough
to only punish those flag burnings that would likely result in a serious disturbance.
Further, it stressed that another Texas statute prohibited breaches of the peace and could
serve the same purpose of preventing disturbances without punishing this flag
desecration. The court said, “Recognizing that the right to differ is the centerpiece of our
First Amendment freedoms . . . a government cannot mandate by fiat a feeling of unity in
its citizens. Therefore that very same government cannot carve out a symbol of unity and
prescribe a set of approved messages to be associated with that symbol...” The court also
concluded that the flag burning in this case did not cause or threaten to cause a breach of
Do the First Amendment rights of free speech extend to symbolic speech? And, if so, in
what circumstances is that symbolic speech protected? And what types of expressive
actions should be considered speech? The First Amendment states “Congress shall make
no law . . . abridging the freedom of speech.”
Scenario 5: The School Newspaper
Three former Hazelwood High School students who were involved in the school
newspaper argue that school officials violated their First Amendment rights by deleting
two pages of articles from the May 13, 1983, issue of Spectrum.
The practice at Hazelwood High during the spring 1983 semester was for the journalism
teacher to submit page proofs of each Spectrum issue to Principal Reynolds for his review
before publication. On May 10, Emerson delivered the proofs of the May 13 edition to
Reynolds, who objected to two of the articles scheduled to appear in that edition. One of
the stories described three Hazelwood students' experiences with pregnancy; the other
discussed the impact of divorce on students at the school.
Reynolds was concerned that, although the pregnancy story used false names “to keep the
identity of these girls a secret,” the pregnant students still might be identifiable. He also
believed that the article's references to sexual activity and birth control were
inappropriate for some of the younger students at the school. In addition, he was
concerned that a student identified by name in the divorce story had complained that her
father “wasn't spending enough time with my mom, my sister and I” prior to the divorce,
and “always argued about everything” with her mother. Reynolds believed that the
student's parents should have been given an opportunity to respond to these remarks or
to consent to their publication. He was unaware that Emerson had deleted the student's
name from the final version of the article.
Reynolds believed that there was no time to make the necessary changes in the stories
before the scheduled press run and that the newspaper would not appear before the end
of the school year if printing were delayed to any significant extent. He concluded that his
only options under the circumstances were to publish a four-page newspaper instead of
the planned six-page newspaper, eliminating the two pages on which the offending
stories appeared, or to publish no newspaper at all. Therefore, he directed Emerson to
censor the two pages containing the stories on pregnancy and divorce.
Did the principal's deletion of the articles violate the students' rights under the First