The dilemma of protecting free speech –
Lesson Plan
Grade Level
9 – 12
Objective
Students will:

Compare several examples of offensive expression to First Amendment protections.

Evaluate whether free expression protections should be upheld when such expression is offensive.

Conduct a case study applying First Amendment protections to recent cases where the exercise of free speech was offensive to
others.
Overview
In this activity, students will review several examples of free expression that most would consider highly offensive and determine
whether such speech is protected by the First Amendment. Students will then examine two recent cases where individuals
exercised or threatened to exercise acts of free speech that many would find objectionable. They will conduct case studies of the
two examples to determine whether they feel such acts are protected speech.
Background
The First Amendment protections of free speech and religion were adopted in 1791 and are said to be the quintessential example
of government placing checks on its own power. These limits help guarantee Americans’ liberty, freedom, and access to their
democracy. The freedom to express views different or even at odds with the status quo helps educate the citizenry to better
manage their government and gives groups on the minority an opportunity to vent their frustration and concern.
But what about speech that is so offensive it violates the rights of others? What if the speech that violates someone’s rights leads
to a violent reaction to defend those rights? Through the years, various Supreme Courts have attempted to distinguish between
speech that is controversial and even offensive, but allowable, and speech that is dangerous and should be restricted.
Justice Oliver Wendell Holmes’ landmark decision in Schenck v. United States (1919) determined that the right to free speech is
not absolute. Holmes stated that falsely shouting “Fire!” in a crowded theater and causing a panic could not be protected. He
went on to clarify that the question of whether the government had a right to sensor speech depended on whether the words used
constituted “a clear and present danger” that could bring about such a negative reaction that the government is obliged to prevent,
as it is obligated to do in the Preamble of the Constitution to “insure domestic tranquility.”
This brings us to the two cases highlighted in this lesson: The planned Quran burning by a Florida pastor and the anti-gay protests
at the funerals of military personnel killed in the line of duty. In each case, the exercise of free speech by one group is considered
abhorrent by most standards, but is defended by First Amendment protections and the right (proponents would say obligation) to
publically draw attention to their concerns. And yet, is this expression so objectionable as to cause a clear and present danger?
Procedure
Opening Activity: First Amendment Scenarios
Before class starts, set the foundation for study of the 1st Amendment rights of freedom of expression by posting the text from
the First Amendment on the front board or overhead: “Congress shall make no law… abridging the freedom of speech or the
press…”
Prepare six index cards each with one of the following scenario descriptions:

Members of a neo-Nazi organization dressed in WWII German military uniforms conduct a parade in a Jewish neighborhood.

Protestors burn the American flag on the steps of the Capitol building on a 4th of July celebration.

An online wiki group publishes thousands of classified U.S. military documents about the Afghanistan war.

The local chapter of the Ku Klux Klan opens an office three blocks from the Sixteenth Street Baptist Church in Alabama where 4
small girls were killed after a bomb exploded.

Cartoons of the prophet Muhammad, depicted as a terrorist, are printed on large signs and set up on public property across the
street of a mosque

A political organization spends thousands of dollars in advertising to encourage people to not to vote in the next election.
As students enter the classroom, randomly distribute the cards to six students. As they settle in their seats, have students form of
equal size with each card holding student.
Review with students the text of the First Amendment excerpt and remind them that this limitation not only applies to Congress
(the national government) but that the 14th Amendment (ratified in 1868) extended this limitation to the states and local
governments. Then ask students to review the scenario on their cards and discuss the following in their small groups:

Identify the action being taken, who is taking it, and who it affects.

What First Amendment right is being exercised by this action?

Discuss whether you feel this action is protected by the First Amendment?

What affect might the action have on the people being offended? What rights of theirs do you feel are being violated?

How would you determine whether the feelings of the people being offended outweigh the rights of those exercising their right to
free speech or press?
After the student groups have discussed the questions, have a spokesperson from each group read the scenario on their card and
summarize their discussion.
Activity 2: NewsHour Video Segment Activity
In this activity students will review two PBS NewsHour segments on two recent incidents of where the act of exercising one’s
free speech violates the rights of others. In the first report, a pastor from a small congregation in Florida threatens to burn copies
of the Quran on the anniversary of 9/11.
In the second news segment, anti-gay activists openly protest at military funerals of American soldiers who died in the line of
duty. Students will view the news segments and record key points.

Review with students the essential points of the Background segment above. Help them understand the reasons behind
establishing the First Amendment free expression clauses, how this restriction on government doesn’t translate into an absolute
right (government still has the obligation to “insure domestic tranquility”), and how Justice Holmes’ doctrine of “clear and
present danger” is an attempt to clarify the extent of free expression.

Divide students into small groups of 3-5 or show the video segments to the entire class.
o
o

Church’s Quran-Burning Pledge Rankles U.S. Diplomatic, Military Officials
Supreme Court Weighs First Amendment Limits in Military Funeral Protest Case
Distribute the student handout, “Speaking Openly and Sending a Message.”

Have students discuss the questions on their handouts in their groups. Then review each segment’s questions with the entire class.


Have students review the story “Supreme Court Considers Same-Sex Marriage“
Then summarize the following key points:

Identify the action being taken, who is taking it, and who it affects.

What First Amendment right is being exercised by this action?

Discuss whether you feel this action is protected by the First Amendment?

What affect might the action have on the people being offended? What rights of theirs do you feel are being violated?

How would you determine whether the feelings of the people being offended outweigh the rights of those exercising their right to
free speech or press?
Activity 3: Case Study

Divide students into small groups of at least seven. Assign students in each group or have groups assign themselves the following
roles. Place any extra students into the attorney groups.

Three students will role play justices of the court.

Two students will role play the petitioners

Two students will role play the respondents.

Distribute the handout, “Preparing the Case Study” to all students. Tell them they will be conducting a case study exploring the
issues from one of the two news stories they viewed earlier.

Review the directions with the justices and the attorneys. Then have students prepare their cases. Point out that the pastor of the
Dove World Outreach Center only threatened to burn copies of the Quran, but this threat was never carried out. However, for the
activity, they are to consider the case as if the Qurans were burned.

When you have students conduct the case study reviews, try to distance the student groups away from each other so that their
conversation doesn’t distract the other groups.

Each set of attorneys is allowed five minutes to present their case. Justices can ask relevant questions at any time during or after
oral arguments.

After each attorney group as presented their case, the judges have five minutes to deliberate and arrive at a decision. This
deliberation should be held away from the attorneys or could occur out of class as homework.

After all groups have completed the case study, have a spokesperson from each group summarize the case and the decision.

Compare students decisions on this case with the Supreme Court decision handed down in March, 2011. Details of the decision
can be found on this PBS NewsHour story “Supreme Court Rules for Controversial Funeral Protesters in Free Speech
Case.”
Assessment:
Have students write a summary essay on the case they reviewed. In their essay they should have the following information:

Brief summary of the circumstances surrounding the case.

Positions held by the petitioner and the respondent.

Their personal position on the case and whether they agreed or disagreed with the judges’ decision. (Students who role-played
judges can express dissenting opinions or why the felt the decision was just.)

What they believe the impact of the judges’ decision would be on the litigants of the case and on society in general.

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Extension Activities
Have students research landmark free expression cases such as Tinker v. De Moines, Hazelwood v. Kuhlmeier, Morse v.
Frederick, New York Times v. United States, Citizens United v. FEC or other cases (many of these can be found at Cornell
University Law School’s Legal Information Institute. Have them conduct case studies on one of these cases and compare their
proceedings and decisions with the Supreme Court’s decisions.
Students can learn much from political cartoons. Have students analyze several political cartoons that feature First Amendment
issues of free speech and press. One good source for cartoons is Daryl Cagle’s Political Cartoonists Index. Have students
analyze the cartoons by identifying the main characters (famous or common people, symbols, and caricatures), the event the
cartoon depicts, the cartoonist’s opinion or statement, and student’s opinion of the cartoon’s message. Students can develop
poster or digital presentations.
National opinion polls show that most Americans are in favor of the free expression protections outlined in the First Amendment.
Yet, the same polls indicate that when expression turns to political views they dislike or find offensive, they want to see it
restricted or censored all together. Have students research examples of constitutionally approved speech that was offensive to
others. Then have them develop a poll asking respondents to determine whether the offending acts of free expression should be
restricted or censored.