Orrin Johnson (Model Lesson Plan)
Lesson: First Amendment (Free Speech)
Source: None
Time: 1:30* (see note below on how to fit in 50)
Date: 9 May, 2007
*Note: If you attempt to do everything in this lesson, it will take a good hour and a
half. It is too much to do in a single 50 minute class. However, it is designed for
flexibility. The power point, with good discussion, will take about 40 – 45 minutes.
But you can cut and add pictures to focus on certain aspects of free speech, or leave
others out (ignore commercial speech, defamation, etc.) You can also do the group
activities in another class, or (as I did) ask your teacher if she wants to do it. You
can cut back on the case studies and engage the whole class. In short – it’s designed
to be a very flexible lesson for all kinds of classes.
I. Goals:
A. Introduce the text First Amendment
B. Understand what “speech” is for purposes of the First Amendment
C. Understand what speech is protected by the First Amendment
II. Objectives
A. Knowledge Objectives
1. Know what the First Amendment says
2. Know what constitutes “speech,” and what is and isn’t protected.
3. Know the rules that apply to major categories of speech –
specifically:
i.
Political Speech
ii. “Fire in a crowded theater”
a. Strict scrutiny
iii. Threats
iv. Military secrets
v.
Fighting words
vi. Advocacy of violent overthrow
vii. Hate Speech
viii. Defamation
ix. Time, Place, and Manner restrictions
x. Expressive conduct (T-shirts, flag burning)
xi. Graffiti
xii. Obscenity
a. Miller test
xiii. Commercial Speech
B. Skills Objective
1. Be able to analyze a simple hypothetical situation, and determine if
speech is protected or not.
2. Be able to determine if a particular law or rule is permissible under
the First Amendment.
C. Attitude Objectives
1. The students will have a better idea WHY we have the First
Amendment, and why it doesn’t protect the things it doesn’t.
2. The students will understand that First Amendment jurisprudence
is not written in stone, and that there are a lot of grey areas when it
comes to determining what is and should be protected.
III. Classroom Methods
A. Introduction
1. Let them know that you’re going to start with the discussion, and
then will be breaking up into groups afterwards. (if that’s the case)
2. Tell them the focus of the lecture – as prepared, it’s just speech (as
opposed to Press or Religion, although they enter into the
discussion a bit).
B. PPT
1. Note: This is NOT meant to be a pure lecture. If you lecture, it
will take about 25 minutes, but will be boring. On the other hand,
if you want to get to the scenarios in a 50 minute class, you can use
it that way.
2. Show the First Amendment. Each click brings a new clause on
screen. Have students taking turns reading each one.
i. Things to point out:
a. It starts, “Congress shall make no law…” This
lesson came on the heels of our federalism
discussion, so I pointed out that until the 20s, the
First Amendment only applied to federal law.
b. Help them define “abridge”
c. “What does ‘no law’ mean? Is it that absolute?”
3. “Why”
i. Ask them why we protect free speech, and why we should.
You may want to write answers down on the board, but I
didn’t.
4. Show pics. With each one, ask if it’s speech, and if it’s protected.
Suggested questions follow:
i.
Political Rally
a. “Is this free speech?”
b. “What if someone there yelled to vote for the other
guy?”
c. State of the Law: Obviously, this is free speech,
fully protected. (Or is it? Political speech is
actually heavily regulated, but that gets a little
advanced of the intro class.) For this slide, it’s
enough that it’s obviously protected speech for a
political candidate to ask for votes.
ii. “Fire!” in crowded theater
a. “Speech?”
b. “What if there really was a fire?”
iii.
iv.
c. “Why should that matter?”
d. “Does the First Amendment protect lies?”
e. State of the Law: This is not protected speech.
It is the classic example of something that seems
to be “speech” but is clearly not protected. A
modern court would likely describe it as an
action, and not merely an idea being expressed.
Dixie Chicks hatin’ on the President
a. “Speech?”
b. “Protected?”
c. “Is a call for a boycott censorship?”
d. “If another private person urges others not to listen
to them, does that violate the First Amendment?”
e. State of the Law: Again, clearly protected. But
this is a good opportunity to talk about the word
“censorship.” It’s not censorship if other citizens
use THEIR First Amendment rights to urge
people (or radio station sponsors) NOT to listen
to or buy their albums. This is important, as
groups under attack for saying controversial or
offensive things (and the news media covering it)
often talk a lot about the first amendment while
obscuring what it actually means in this context.
Strict Scrutiny rule slide
a. Explain what “content based” is about.
b. Draw it back to the “Fire!” slide. Explain why that
“speech” fails strict scrutiny.
If a law tries to directly ban content
of speech, Courts examine the law
under Strict Scrutiny test:
• “Compelling
government
interest” AND
• Least restrictive law
possible to meet
that interest.
c.
v.
i. See Burson v. Freeman; R.A.V. v. St. Paul
Tony Soprano ordering a hit
a. “Speech?”
b. “Is this protected?”
c. “What if he said, ‘I wish someone would kill
Sonny…’?”
d. State of the Law: Ordering the hit is illegal. It’s
an incitement and an action undertaken to
further a conspiracy, not merely expressing an
idea. BUT – mere advocacy of lawless action
may not be punished. Brandenburg. And
expressions of sympathy and support for
unlawful actions are Constitutionally protected.
Bond v. Floyd.
vi. Loose Lips Sink Ships
a. “Can you reveal security secrets?”
b. “What if it’s open source (not leaked)?”
c. “If you can, SHOULD you?”
d. Talk about The Pentagon Papers cases.
e. State of the Law: The Court narrowly allowed
the NYT to publish the illegally obtained secret
documents that gave military secrets away. New
York Times v. United States. This gets into prior
restraints, where the Court will balance a) if the
restraints are based on past activity or possible
future harms, b) if the restraint is against
continuing activities, c) nature of risk, d) nature
of speech’s content, e) possible less restrictive
alternatives, f) source of info, g) imminence of
harm, h) efficacy of the restraint, and i)
separation of powers concerns.
vii. Fighting Words Slides
a. What are fighting words?
b. Speech?
c. Protected?
d. State of the Law:
Fighting Words
• “Likely to provoke the average person to
retaliation, and…cause a breach of the
peace.”
• Words that have “a direct tendency to
cause acts of violence by the” listener,
when spoken directly to him.
No modern case has declared any speech
to be “Fighting Words.”
e.
i. Chaplinsky v. New Hampshire; Gooding v.
Wilson
viii. Communist Poster
a. Discuss briefly early history
b. “Is it illegal to be a Communist?”
c. “Should it be?”
d. State of the Law:
e. Short answer:
What Can Be Punished?
• Teaching of forceful overthrow of
government, AND
• Instructions or directions on how to revolt
f.
g. Long answer (they have lots of questions)
A. No constitutional protection for:
(a) indoctrination of a group in preparation
for future violent action, as well as
exhortation to immediate action by advocacy,
directed to action for the accomplishment
of the forcible overthrow of government,
to violence as a rule or principle of action,
and employing language of incitement,
provided,
the group is of sufficient size and
cohesiveness, is sufficiently oriented towards
action, and other circumstances are such as
reasonably justify the apprehension that
illegal action will occur. [Yates v. United
States]
(b) Two patterns of speech-related activities
may be punished.
(i)
the teaching of forceful overthrow,
accompanied by directions as to the
type of illegal action which must be
taken when the time for the revolution
is reached
(ii)
the teaching of forceful overthrow,
accompanied by a contemporary,
though legal, course of conduct clearly
undertaken for the specific purpose of
rendering effective the later illegal
activity which is advocated.” [Scales
v. United States]
B. Constitutionally protected:
Mere doctrinal justification of forcible
overthrow, even when engaged in with the
intent to accomplish overthrow (Yates).
“The essential distinction is that those to
whom the advocacy is addressed must be
urged to do something, now or in the future,
rather than merely to believe in something.”
(Yates)
Example: In Noto v. United States, the
Court reversed the convictions under the
membership provisions of the Smith Act,
saying: “The most that can be said is that
the evidence as to that program might
justify an inference that the leadership of
the Party was preparing the way for a
situation in which future acts of sabotage
might be facilitated, but there is no
evidence that such acts of sabotage were
presently advocated.”
3. Punishment of Association with Organizations
A. Scales overrules Whitney v. California
B. Membership in an organization cannot be
unlawful, unless
the individual was an active member (not
merely passive, inactive, nominal, technical
membership),
(a) with knowledge of the organization’s
illegal ends, and
(b)
with the specific intent to
further those ends.
ix. Islamists
a. “Where is this?” (Answer, London, post 3/11)
b. “Is this legal in the US?”
c. “Is this like fighting words?”
d. “Are they making threats here?”
e. State of the Law: See above.
x. Speech vs. advocating violent overthrow
xi. KKK rally
a. “Assume there’s no lynching or anything, just
speaking out. Protected?”
b. “What if they say, ‘We hate blacks and Jews’?”
c. “What if ‘Blacks and Jews should be killed’?”
d. “What if ‘Come on – join us in the killing of some
blacks and Jews!’?”
e. State of the Law: See above.
xii. Hate Speech Laws
a. Difference between outlawing hate speech and
factoring it in to sentencing
Hate Speech
• NOT OK for gov’t to
ban outright
• But the expression
cannot be a direct
threat
• It IS OK for
government to say
hateful motive = more
jail time
b.
i. R.A.V. v. St. Paul (can’t ban); Virginia v.
Black (but cannot be direct threat);
Wisconsin v. Mitchell (can = more jail
time)
xiii. Defamation
a. That’s a picture of me – I recommend using your
own name and picture.
b. “Is the teacher a public official or private person?”
(Private)
c. State of the Law:
Defamation
• Public Official
– Actual malice
• Public Figure
– What makes them
“public”?
• Private Person
– See you in court!
d.
Truth is
always a
defense!!!
e. New York Times v. Sullivan (actual malice
required for public officials); Curtis Publishing
Co. v. Butts (Sullivan standard applies to public
figures); Gertz v. Robert Welch, Inc. (“Public
Figures” are those who invite attention and
comment from the public; private suits are
allowed, but must show actual fault)
xiv. Parade
a. “Speech?”
b. “Even if they’re not speaking?”
c. “Can the government require a permit?”
d. “Can a private parade exclude people it doesn’t
agree with?”
e. State of the Law: It is speech, and government
can require a permit, but not under a scheme
that allows unfettered discretion by a single
official, or prohibitive fees for specified content.
And a private person hosting a parade CAN
exclude groups he or she disagrees with.
xv. Time, Place, and Manner Restrictions
a. Explained in slide.
Time, Place, and Manner
Restrictions
• “Content neutral”
– CANNOT be used to suppress a particular
idea, and must be applied to ALL speakers
• “Narrowly tailored” to achieve “significant
government interest”
– Interest CANOT be to suppress
an idea
• Other avenues of expressing the
viewpoint must be available
b.
xvi. T-Shirt
a. “Speech?”
b. “Is it OK for the High School to ban it?”
c. State of the Law: It is speech. But schools have
the ability to regulate content because they have
a compelling interest in maintaining order. But
see Tinker.
xvii. Flag Burning
a. “Speech?”
b. “Protected?”
c. “What if it’s a general arson law – no burning
ANYTHING on government property?”
d. State of the Law: Flag burning is symbolic free
speech, and is protected. Texas v. Johnson. How
does that comport with the plain language of the
Amendment? Does that matter? Should it? A
general arson law would be protected, so long as
it was uniformly applied, and not used to attack
conduct through a facially neutral law.
xviii. Draft card burning
a. Explain the historical background
b. “Content Neutral”
c. “What’s the reason for the law against draft card
burning?”
d. “What if the Congress was on record as saying the
real reason was because they wanted to ‘shut up
those dirty hippies!’?”
e. State of the Law: The law banning draft card
burning was upheld, as the government has an
interest in the administration of the draft.
O’Brien. The court will not inquire into the
actual reasons, unless the administration of the
law is plainly discriminatory.
xix. Graffiti
a. “Speech?”
b. “What if the message is more direct – ‘I hate
cops’?”
c. “What if it’s on your own house?”
d. “Can your neighborhood outlaw it even in your own
house?” (CC&Rs)
e. State of the Law: Graffiti is vandalism – an
action on other people’s property that damages
it. The message is irrelevant.
xx. Playboy
a. “Speech?”
b. “Is it ‘obscene’?”
c. “Can this be restricted more than some other
magazine?”
d. State of the Law: See Below
xxi. Obscenity
What is “Obscene”?
• Appeals to “prurient
interest” (causes
lust)
• “Patently offensive”
description of
defined sexual
conduct
• No serious literary,
artistic, political, or
scientific value
a.
b. “What is ‘prurient interest’?”
c. “What is ‘patently offensive’?”
i. First two prongs = community standards
d. “What is ‘legitimate’?”
e. “These are the source of much debate!”
i. See Miller
xxii. Stripper
a. “Speech?” (Yes – expressive. My students were
outraged by this!)
b. “What regulations OK?”
c. State of the Law: This is complex and confusing.
Short answer is that it’s protected expressive
conduct, but zoning laws are OK so long as they
are aimed at the “secondary effects” of the
speech. Boos v. Berry.
xxiii. Wall Drug
a. “Speech?”
xxiv. Commercial Speech
a. Explain restrictions – lots of questions here!
Commercial Speech
• Communication which “proposes a
commercial transaction” (sometimes a
hard question!)
• Protected, but subject to more regulation
b.
C. Case studies
1. Explain ahead of time what you’re going to do!
2. Count off by fives, split groups.
3. Explain they are judges, attempting to decide which side should
win the lawsuit.
4. Hand out copies of the numbered cases to the corresponding
groups.
5. Have each group read the case study in their group.
6. Have them discuss the issue for about five minutes in their group.
Tell them to decide as a group, by voting if they can’t reach
consensus.
7. Float in the groups, and facilitate their discussions if necessary
8. Stop the class with about 10 minutes left
9. Put the case studies on the overhead.
10. Ask each group to briefly explain their problem, and why they
decided the way they did. Include “dissenting” opinions.
IV. Evaluation
A. See attached homework assignment.
1. Determine if law
i. Impacts speech
ii. Would survive under the First Amendment
2. Explain why in one or two sentences.
B. Explanatory handout included with homework.
The Case of the Student Protesters (#1)
Students are protesting the fact that their high school serves meat in the
cafeteria, because they believe killing animals for food is murder. They never
skip class to protest, but they often protest in the middle of the day during free
periods. They are friendly, but they can sometimes get loud enough to hear in
class. Teachers have complained that the sight of the protests outside of their
classroom windows is distracting.
The principal, who has often said that animal rights protesters aren’t worth
listening to, finally decided enough was enough, and banned all protesting on
school grounds.
The students sued the school to be allowed to continue speaking out for the
animals.
You are the judges in this case. Who should win?
The Case of the Black Armbands (#2)
A group of students, in order to protest the war in Iraq, decided to wear black
armbands at school. They aren’t being disruptive, noisy, or saying anything
about their opinions during class time. Between classes, however, they
sometimes get into heated arguments with other students, many of whom are
from military families. These discussions are emotional, but never have
crossed the line into fighting.
The principal, who has a son fighting in Iraq, decided that he didn’t want to
risk future disruption, and banned the armbands from the school. He then
suggested (but did not require) that everyone wear American flag armbands,
saying, “We can disagree about the war, but we should all support the troops
and our country.”
The students sued the school to be allowed to continue wearing their
armbands, saying their First Amendment rights had been violated.
You are the judges in this case. Who should win?
The Case of the Burning Cross (#3)
Jeffrey and his family, who are black, recently moved to Minneapolis,
Minnesota in a (previously) all white neighborhood.
One night around midnight, Jeffrey heard some noise outside. He got up just
in time to see his neighbor Bill lighting a large wooden cross on fire directly
in front of his house.
Jeffrey called the police, who arrested Bill. Minnesota had a law which said:
“Anyone who burns a cross in a public place with the intent to threaten
another based on his or her race, religion, or nationality, shall be guilty of
a felony.”
Bill was convicted and sentenced to 6 months in jail, but he appealed the
decision, claiming his First Amendment rights had been violated. He insists
that he never intended to threaten anyone, and that he was simply making a
statement of “white pride.” Other neighbors said at trial that Bill had burned
crosses in the street even before Jeffrey’s family moved in.
You are the judges in this case. Who should win?
The Case of the St. Patrick’s Day Parade (#4)
Every year on St. Patrick’s day, Erin O’Malley, a private business woman,
organizes and puts on a large parade through downtown. The city issues a
parade permit, but otherwise has nothing to do with the planning of the event
or the selection of participants.
Usually, Erin chooses the floats and other participants for the parade on a
first-come, first-serve basis. She’s been doing it this way for more than 10
years with no problems. Some of the groups who march express political
opinions, ask people to vote for certain candidates, etc. Erin doesn’t always
agree with them, but has never turned down a request to participate.
This year, though, a group of abortion rights activists called KAL (Keep
Abortion Legal) have applied to march in the parade. Erin is a devoted
Catholic, and thinks abortion is morally wrong. She told KAL that she
couldn’t in good conscience be associated with their group.
KAL sued the city, saying that because the parade was on public streets, and
the city issued a permit, closed the streets for the event, and provided extra
police for security, Erin was not acting as a private person. KAL argued that
they therefore had a right to march in the parade, and that they could not be
discriminated against for their viewpoint.
You are the judges in this case. Who should win?
The Case of the School Newspaper (#5)
Adam and Carla write for the high school newspaper. The principal usually
looks it over before the paper goes to the publishers, but has never before said
anything about the content of the articles.
In the last issue, however, the principal pulled two articles – one each from
Adam and Carla. One article was about divorce, and described (without
naming any names) several students and their experiences with their parents’
divorce. The other article was an opinion piece strongly against gay marriage.
The principal felt that the divorce article put other students’ privacy in danger.
He also believed that the article on gay marriage was simply inappropriate for
a high school newspaper, and besides, he thought Carla’s opinion on the
subject was ignorant, offensive, and wrong.
The students sued the school, saying their free speech rights had been
violated. The principal says he has a strong interest in maintaining good order
and discipline in the school, and that includes protecting privacy and not
allowing age-inappropriate discussions.
You are the judges in this case. Who should win?