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Week Two Street Law Lesson Plan
Title: The First Amendment: the Five (six) Clauses
Creator: Kerry Werner
Sources: 1 For All - Newseum First Amendment Activities
(https://1forallnet.files.wordpress.com/2010/06/fight_five.pdf)
Time: 98 Minutes
I. Goals:
1. Studying the First Amendment helps students:
a. Understand that their conduct, words, and expressions are greatly protected by the
First Amendment
b. Understand the meaning of each protection of the First Amendment
c. Recognize that the government generally cannot punish you for having an
unpopular opinion
II. Objectives
1. Knowledge and Skills Objectives
a. Identify that the 5 protected freedoms of the First Amendment
b. Summarize when a government can place Time, Place, Manner restrictions on
your First Amendment activities
c. Recognize that a lot of First Amendment cases implicate more than one clause
because the clause all support one another
d. Recognize that state constitutions can often afford citizens greater protections
than the federal constitution and remember this idea once we move on to 4th
Amendment
e. Actively listen to other students’ answers and thoughtfully respond
2. Application Objectives
a. Determine the likely constitutionality of a government action by applying the
rules governing each protected First Amendment Freedom
3. Attitude Objectives
a. Appreciate how protective the First Amendment is of citizen conduct
III. Materials
1. Powerpoint
2. Group Hypothetical Exercises
3. Answers to group activity
IV. Classroom Methods
1. First Amendment Law: Identifying the Protected Freedoms + Hypotheticals (~40 min)
a. Ask for a volunteer to read the First Amendment (on powerpoint slide)
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b. Ask for students to identify what rights are protected in this Amendment; write
them on the white board so that students can use them for reference when running
through hypotheticals
i. Freedom of speech
ii. (no) Establishment of Religion
iii. Free exercise of religion
iv. Freedom of the press
v. Right to Peaceably Assemble
vi. Right to petition the Government
c. Define and run through hypos for each clause (see power point slides)
i. When running through the hypos (12 in all), ask the students if the First
Amendment right has been violated or even implicated in each hypo.
1. Answers to each hypo are on the slides
ii. Freedom of speech – you can voice your opinions using words, symbols or
actions
1. “Congress shall make no law… abridging the freedom of speech.”
2. Core political speech is highly protected (speech criticizing the
government, insisting on reform, etc) – it is purely expressive in
nature and serves an important function to the republic (how will
you decide who to vote for if you can’t hear someone talk about a
candidate’s negative qualities, why a candidate is bad for the job)
3. Time Manner Place restrictions are the restrictions placed on your
speech. It has to be made at an appropriate time, manner, and
place. For example, if you plan on using an amplification system
or if you plan on marching a parade down a street in protest, you
typically have to get a permit for that because it is incompatible
with normal activity of a particular place at a particular time.
Standing on a public side walk holding a sign and shouting
typically does not require a permit.
4. Time, manner, place restrictions must: (Ward v. Rock Against
Racism; 1989)
a. Be content neutral (if it forces you to change how or what
you say, then it isn’t content neutral)
b. Be narrowly tailored
c. Serve a significant governmental interest
d. Leave open ample alternative channels for communication
iii. Freedom of Religion – (no) Establishment Clause
1. “Congress shall make no law respecting an establishment of
religion”
2. This means that the government can’t tell you what religion to
practice, and that they can’t favor one religion over another.
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3. Lemon Test – if any one of the 3 prongs are violated, the
government’s action is unconstitutional under the Establishment
clause
4. Entanglement Prong – take into consideration where, when, and
how the religious activity is occurring and if an objective outsider
would perceive the religious activity as being government
sponsored or approved (Like students being required to read a
bible verse at the start of every school day – Abington School
District v. Schempp, 1963)
5. Effect Prong – does it primarily have the effect of advancing a
religion? (nativity scene – yes; menorah next to a Christmas tree
and a sign saluting liberty – no because it merely recognized that
both Christmas and Hanukkah are a part of the same winterholiday season – County of Allegheny v. ACLU (1989))
6. Purpose Prong - was there a non-religious reason for this religious
activity (like the 10 commandments being erected on Texas capitol
grounds among 16 other monuments all demonstrating the values
that the Texas settlers possessed – Van Orden v. Perry (2005))
iv. Freedom of Religion – Free Exercise Clause
1. “Congress shall make no law…prohibiting the free exercise [of
religion]”
2. This means that the government can’t tell you how to practice your
religion.
3. If a law is “neutral” and “generally applicable,” then it (usually)
doesn’t violate the Free Exercise Clause
4. The Government must have a “compelling interest to refuse to
accommodate religiously motivated conduct.”
v. Freedom of the Press – the government cannot (generally) censor
information in newspapers, online news sources, TV news broadcasts, etc
1. “Congress shall make no law… abridging the freedom… of the
press.”
2. “Press” means “every sort of publication which affords a vehicle of
information and opinion.”
3. Like Freedom of Speech, there are some categories of publications
that are not protected. Libel is a good example of an unprotected
publication.
a. Libel – a published false statement that is damaging to a
person’s reputation
vi. Right to Peaceably Assemble – you can gather in a group
1. “Congress shall make no law… abridging… the right of the people
peaceably to assemble.”
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2. The right of a group of people to come together to express,
promote and defend their ideas. A lot of times thought of as your
right to protest (in conjunction with speech)
3. Time, manner, place restrictions must: (Ward v. Rock Against
Racism; 1989)
a. Be content neutral (if it forces you to change how or what
you say, then it isn’t content neutral)
b. Be narrowly tailored
c. Serve a significant governmental interest
d. Leave open ample alternative channels for communication
4. A Government cannot punish speech for its content unless the
speech
a. Is intended to produce imminent lawless action, AND
b. Is likely to incite or produce such action
vii. Right to Petition the Government – you can criticize the government, and
you can complain about policies that affect you negatively and ask for
change
1. “Congress shall make no law… abridging… the right of the
people… to petition the Government for a redress of grievances.”
2. Ex: Submitting petitions to your local government or school board;
We the People initiative with the White House where citizens can
submit proposals/petitions to the federal government
3. Doesn’t necessarily mean that the government has to act on it
though
d. Takeaways
i. 1st Amendment protects you from government action
ii. The rights tend to overlap
iii. Restrictions (time, manner, place)
iv. This whole area of law is very complicated
2. First Amendment Group Activities (~30 minutes)
a. I am going to pass out an activity now. There are 6 different kinds of cases we are
handing out. When you get your activity, read through it, and try to answer on
your own whether or not the First Amendment has been violated or not. The top
of every page is just a refresher of the relevant information you learned from the
powerpoint slides. It is there to assist you when considering the constitutionality
of your assigned hypothetical/situation/case.
b. After 5 minutes of individual time, you’ll form a group with the other classmates
who received your same activity.
c. You’ll have 10 minutes to discuss the activity with your group. Make sure you
write down which clause is applicable, what your ruling was, and your reasons
why or why not a violation occurred.
d. After 5 minutes, we’ll come back as a class and you’ll present your problem and
your decision. Afterward, I will tell the class what a court has or might decide.
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3. Which freedoms could you live without – Elimination Game (~ 20 Minutes) (Modified
for Street Law but borrowed from “1 for All”)
a. Now that you have become familiar with all of the clauses, we’d like to know if
the class thinks any one of the freedoms could exist alone, without the support of
the other five.
i. Would freedom of speech be as powerful if there was no freedom of the
press?
ii. How would freedom to petition be different if we didn’t also have freedom
of assembly?
iii. Ask the students for examples of how the freedoms work together.
b. How would you choose which freedom to give up if you had to? Tell students you
are going to do five rounds of voting to determine which freedom the group thinks
is the most important. Ask the students to decide which of the freedoms they
would eliminate if they had to pick one. Then have your students show which
freedoms they chose using a show of hands. After the first vote, cross out on the
white board the freedom that received the most votes for elimination. Then ask
some students who voted for that freedom to explain why they picked it.
c. Repeat the process 4 more times.
d. Once one freedom remains, ask the students if they agree that this right is most
important and why or why not. Ask them how this right would be different if it
didn’t have the other four rights for support? Would it still be useful? How would
people exercise it? Would people have to change how they exercise it if they
didn’t have the other five?
e. Discuss as a class: If you only had freedom of ____________ (the winner from
the votes), would the events below have been possible?
i. Martin Luther King Jr.’s “I have a Dream” speech on the National Mall.
ii. The Washington Post writing an article about each presidential candidate’s
negative qualities
iii. Women gaining the right to vote.
iv. An all-night prayer vigil in memory of a fallen soldier
v. The Occupy Wall Street Movement
f. If you find that the federal constitution doesn’t protect your First Amendment
rights as much as you’d hope, check out your STATE CONSTITUTION
i. State Constitutions can and do typically provide even greater protections
than the federal government. Washington Courts have read the
Washington Constitution to be more protective in many different areas.
More on that when we start learning about the 4th Amendment next week
g. Debrief:
i. It would be very hard to let go of even one of the clauses
ii. The First Amendment clauses are all very closely related to one another
and cases often implicate two or more clauses at the same time.
iii. If you aren’t protected by the Federal Constitution as much as you’d hope,
check out the state constitution.
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V. Evaluations
1. Students’ ability to articulate a reasoned answer for why they think the First Amendment
is violated or not in a particular context.
2. Students’ integrating the law from the lecture into their arguments during the group
exercises
3. Students’ having reached a level of First Amendment comprehension that allows them to
articulate what would be different if a particular freedom from the First Amendment were
no long guaranteed and how that might change the usefulness of the other First
Amendment freedoms.
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Freedom of Religion
The Establishment Clause
“Congress shall make no law respecting an establishment of religion”
This means that the government can’t tell you what religion to practice, and that they
can’t favor one religion over another.
Lemon Test to determine if a law violates the Establishment Clause
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The statute must not result in an "excessive government entanglement" with
religious affairs. (also known as the Entanglement Prong)
The statute must not advance or inhibit religious practice (also known as the
Effect Prong)
The statute must have a secular (non-religious) legislative purpose. (also known as
the Purpose Prong)
With your group, decide whether the law in the following case violated the First
Amendment:
Santa Fe Independent Schools v. Doe
Some public high school students in Texas wanted to offer a Christian prayer before every
school football game. The school district allowed the students to elect a student chaplain
(the student that would give the prayer) who would read a Christian prayer over the P.A.
system at home football games.
High school football games are held on public school property. The school supervised the
use of the P.A. system.
It was the students who wanted a prayer before every football game and the students who
offered the prayer.
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Freedom of Religion
The Free Exercise Clause
“Congress shall make no law…prohibiting the free exercise [of religion]”
This means that the government can’t tell you how to practice your religion.
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If a law is “neutral” and “generally applicable,” then it (usually) doesn’t violate the
Free Exercise Clause
The Government must have a “compelling interest to refuse to accommodate
religiously motivated conduct.”
With your group, decide whether the law in the following case violated the First
Amendment:
Wisconsin v. Yoder
Amish families pulled their students out of public school after the completion of 8th
grade because their religion tells them that higher education is unnecessary and may even
threaten their salvation.
Wisconsin has a compulsory attendance law which requires students to attend school
until they reach the age of 16. Wisconsin convicted the parents for violating the law. The
law does not have an exception for students whose religion prevents them from attending
high school.
Wisconsin has an interest in making sure all children are educated enough to become
productive members of society.
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Freedom of Speech
Political Speech (criticizing the government, insisting on reform, etc) is highly protected
 Expressive in nature
 Serves an important function of the republic
Time, Manner, Place Restrictions: The government can place these restrictions on your
speech, but the restriction must:
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Be Content neutral
Be Narrowly tailored
Serve a significant governmental interest
Leave open ample alternative channels for communication
With your group, decide whether the restrictions in the following situations
would violate the First Amendment:
1. A city prohibiting citizens to post signs with political opinions written on them in
their windows, but still permits signs like “for sale” or signs with business names
written on them to be posted in windows.
2. A city only allows billboards to be used for advertising.
3. A city requires that any group wishing to have a concert or rally in the park must
use city provided sound systems and technicians to control the volume of concerts
in the park.
4. Because the National Parks Service bans everyone from camping in the parks, they
denied a permit request from protestors who set up tent cities and wanted to sleep
in the park to demonstrate the plight of homelessness.
5. A city prohibits posting campaign signs in residential yards any earlier than 60
days before an election.
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Freedom of the Press
“Congress shall make no law… abridging the freedom… of the press.”
“Press” means “every sort of publication which affords a vehicle of information and
opinion.”
Like Freedom of Speech, there are some categories of publications that are not protected.
Libel is a good example of an unprotected publication.
With your group, decide whether the following situations would violate the First
Amendment:
1. Someone complains that your Facebook profile picture is inappropriate. Facebook
removes the photo and bans you from the site.
2. The government bans all books that criticize the excessive use of force by police
officers.
3. The government shuts down a blogger’s website after she posts criticisms about
President Obama.
4. You use your cell phone to record a police officer arresting someone. You are
arrested and charged with obstruction of justice
5. Because I don’t want Governor Inslee to be re-elected, I write newspaper article—
which I know to be false—claiming that he believes he is a time-traveler, sent from
the future to protect democracy. He sues me.
6. Same facts as number 5, but Governor Inslee actually does think he is a timetraveler, sent from the future to protect democracy.
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Right to Peaceably Assemble
“Congress shall make no law… abridging… the right of the people peaceably to assemble.”
The right of a group of people to come together to express, promote and defend their
ideas.
Time, Manner, Place Restrictions: The government can place these restrictions on your
speech, but the restriction must:
 Be Content neutral
 Be Narrowly tailored
 Serve a significant governmental interest
 Leave open ample alternative channels for communication
A Government cannot punish speech for its content unless the speech
1. Is intended to produce imminent lawless action, AND
2. Is likely to incite or produce such action
With your group, decide whether the restriction in this case violated the First
Amendment.
National Socialist Party of America v. Village of Skokie:
Skokie, Illinois’s population is over 50% Jewish. Thousands of Skokie’s citizens were
survivors of Nazi concentration camps.
The National Socialist Party of America (Nazi Party) wanted to have a parade in in the
Skokie. They would be wearing their Nazi Party uniforms, be displaying swastikas, and be
distributing pamphlets that would promote hatred against persons of Jewish faith or
ancestry. They applied for a permit with the village.
A local trial court filed a court order prohibiting the group from engaging in those
activities (This type of court order is called an injunction).
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Right to Petition the Government
“Congress shall make no law… abridging… the right of the people… to petition the
Government for a redress of grievances.”
With your group, decide whether the law in the following case violated the First
Amendment:
NAACP v. Button
A Virginia law prohibits “improper solicitation of any legal or professional business.” This
means that lawyers are not allowed to “improperly” seek out clients.
The National Association for the Advancement of Colored People (NAACP), sought out
parents of children who had been discriminated against in public schools. The NAACP
gave the parents paperwork and legal advice, and offered to sue the state on the parents’
behalf.
The State of Virginia held the NAACP to be in violation of the law mentioned above.
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First Amendment Activity Answers
Freedom of Religion: The Establishment Clause
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Sante Fe Independent Schools v. Doe (2000)
Holding: A policy permitting student-led, student-initiated prayer at high school
football games violates the establishment clause; because at public high school, at
a government-sponsored event using school property. Looks like an endorsement
from the government
Freedom of Religion: Free Exercise Clause
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Wisconsin v. Yoder (1972)
Holding: Wisconsin’s law violated the Amish parents’ freedom of religion because
the parents’ interests in the free exercise of their religion under the First
Amendment outweighed the State’s interests in compelling two extra years of
schooling beyond 8th grade.
Freedom of Speech
1. Ladue, MO v. Gilleo (violates 1st Amendment)
2. Metromedia, Inc v. City of San Diego (violates 1st amendment; goes too far)
3. Ward v. Rock Against Racism, 1989 (No violation; reasonably related to legitimate
governmental interest in controlling excessive noise which is content neutral)
4. Clark v. Community for Creative Non-Violence, 1984 (No violation; reasonable
time manner place restriction to protect the park; content neutral; park beauty)
5. Collier v. City of Tacoma, WA Supreme Court 1993 (Yes, violation of state and federal
free speech; though aesthetics and traffic safety is an important government interest, in
this case, it did not sufficiently justify restricting plaintiff’s political speech in a public
forum; alternatives were not practically available – radio ads vs yard signs)
Freedom of the Press
1.
2.
3.
4.
No; not a government actor
Yes; censorship of written speech that isn’t unprotected
Yes; censorship for criticizing the government which is protected written speech
Yes, maybe; unless you are truly interfering with the police officer’s activities (for
example you are standing to close to a hot scene). The ACLU
5. No; sounds like libel which is not protected press
6. Yes; libel is only successful if the victim can prove the written statement is a lie.
Here the Governor really thinks he is a time traveler.
Right to Peaceably Assemble
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National Socialist Party of America v. Village of Skokie (1977)
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Holding: Supreme Court heard case about the trial court’s injunction saying there
had to be strict review standards or otherwise couldn’t impose it
Sent back to Illinois Supreme Court  IL Supreme Court found that this was not a
content neutral restriction and couldn’t be justified by imminent lawless
action/”fighting words” exceptions because though offensive, was not attempting
to promote physical harm or riots. (1978)
Right to Petition to Government
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NAACP v. Button (1963)
Holding: Violation of right to petition in a round-about way; can’t bar lawyers
from soliciting people to serve as litigants in civil rights cases. The Courts and
litigation might be the only way a minority can successfully/meaningfully petition
the government for help.