“Using
the Trial of John Peter Zenger
(1735)
to Teach About Freedom of Expression:
A Focus on Understanding Two Sides
of an Argument”
As our fifth grade
lesson study group began to
approach the teaching of the
case of John Peter Zenger, we
asked ourselves, “Five
years from now, what do we want
our students to know and be
able to do as a result of having
studied the Zenger case?”
We decided that navigating a
clash between individual rights
and the common good and being
able to write a persuasive essay
defending one side while acknowledging
the counterargument were core
experiences students should
take away from the unit of study.
Students should
also begin to be able to articulate
that while we have rights, our
rights have certain limits and
that understanding where our
rights end and those of our
community begin is an issue
that undergoes constant reevaluation.
As we were working
with ten- and eleven-year-olds,
we decided it would be necessary
to build a bridge from more
modern, familiar, and concrete
examples back to Zenger’s
libel case of 1735. Using materials
available to us (We the
People 2003, Center for
Civic Education), we selected
three other landmark court cases
in which an individual’s
right to exercise certain freedoms
was seen as a danger to the
public’s right to safety
and security of both ideas and
person: a) Chicago v. Morales
(1970), Engle v. Vitale
(1962), and c) Feiner v.
New York (1951).
We thought that
studying the case of Jesus Morales,
arrested for having broken an
anti-loitering law, would appeal
to our pre-teen students who
would likely have strong feelings
about the right to associate
freely with one’s friends
as well as the right to be considered
“innocent until proven
guilty.”
The cases questioning
Irving Feiner’s right
to urge members of an audience
to take up arms and fight for
equality, and, perhaps to a
lesser extent, Engle’s
right to have his child attend
a public school free from organized
prayer, we hoped, would then
help our students to expand
their concept of a basic and
ongoing tension between the
rights of an individual and
the concern for a sometimes
nebulous “Common Good.”
In order to construct
powerful arguments, students
need to develop their use of
the necessary language structures
and vocabulary for argumentation.
Conversely, many students often
are unable to think historically
and critically precisely because
they lack the language necessary
to show cause and effect, compare/ccontrast,
and other higher order thinking
skills.
To model and
scaffold the particular language
structures, we created a T-Chart
for the students to practice
using as they dissected a variety
of court cases. To state each
position of a given case, students
completed sentence stems, beginning
either “The individual
should…” or “The
individual should not..”.
To provide support for each
side, students listed three
reasons, beginning with sequence
words (First, Also, Finally).
Counter-arguments
were developed using sentence
stems (“The other side
says…, but…”
and “Some people say…,
however..”) that model
for students that good arguments
consider and rebut opposing
points of view.
The final section,
labeled Drawing the Line,
required especially sophisticated
language. We grappled with a
variety of sentence frames which
forced students to define the
limits of freedom (or regulation
of freedom) as perceived by
each side of the case, such
as “If…., then it
would be different, but in this
case, still…. because…”
For this lesson
we gave students multiple experiences
with applying a template for
argumentation, which they will
then be able to apply to a variety
of issues throughout their lives.
Using
Primary Sources
One of the problems
we faced in developing our lesson
was how to present the facts
of the Zenger case. Because
we wanted the students to take
a position, we avoided using
the history textbook which gives
away the jury’s verdict
and uses the case as an example
of growing support for free
speech in colonial America.
Using the transcript of the
Zenger case was also problematic
because the 18th century language
and the intricacies of the arguments
would have been hard for 5th
graders to grasp.
So we took the
23-page transcript and reduced
it to 6 by keeping only the
most important arguments and
counter-arguments in the case
and eliminating any redundancies.
Next, we decided to remove any
arguments that were not central
to the main issue of Zenger’s
right to publish a newspaper
which criticizes the government.
The arguments of the prosecution
and defense were then condensed
into two separate orations printed
on opposite sides of one paper.
This was to further help students
differentiate between the two
positions. (for
a copy of the summary - see
resources)
Even after collapsing
the primary document from 23
pages to 2,
there were still problems. The
Zenger case was heavily weighed
in favor of the defense in that
the prosecutor refused to argue
any point other than whether
or not Zenger published the
paper. The defense, admitting
that Zenger published the paper,
dominated the bulk of the transcript
with the argument that anything
true cannot be considered liable.
In order for the students to
hear both sides of the argument
clearly, we had to add words
that were not actually said.
For instance in order to help
students understand the defense’s
liable argument, we added the
humorous hypothetical of publishing
an article about the governor
dancing nude in public. In another
case we felt it was important
for the prosecutor to explicitly
state the consequences of Zenger’s
publication. The 18th century
jurors would not have to be
told that criticizing the governor
was the same as criticizing
King’s government which
has its authority from God.
Finally, we added language on
both sides to make sure that
for every argument one side
made, there was a corresponding
counter argument for students
to identify.
Finally, we went
through the text and substituted
difficult vocabulary with simpler
words so that less time would
be spent pre-teaching the vocabulary.
