Orrin Johnson (Model Lesson Plan)Lesson: First Amendment (Free Speech)Source: NoneTime: 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 AmendmentB. Understand what “speech” is for purposes of the First AmendmentC. Understand what speech is protected by the First Amendment

II. ObjectivesA. Knowledge Objectives

1. Know what the First Amendment says2. 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 Speechii. “Fire in a crowded theater”

a. Strict scrutinyiii. Threatsiv. Military secretsv. Fighting wordsvi. Advocacy of violent overthrowvii. Hate Speechviii. Defamationix. Time, Place, and Manner restrictionsx. Expressive conduct (T-shirts, flag burning)xi. Graffitixii. Obscenity

a. Miller testxiii. Commercial Speech

B. Skills Objective1. 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 Objectives1. 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 MethodsA. 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. PPT1. 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 Rallya. “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 theatera. “Speech?”b. “What if there really was a fire?”

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.

iii. Dixie Chicks hatin’ on the Presidenta. “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.

iv. Strict Scrutiny rule slidea. Explain what “content based” is about.b. Draw it back to the “Fire!” slide. Explain why that

“speech” fails strict scrutiny.

c.

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.

i. See Burson v. Freeman; R.A.V. v. St. Paulv. 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 Shipsa. “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 Slidesa. What are fighting words?b. Speech?c. Protected?d. State of the Law:

e.

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.”

i. Chaplinsky v. New Hampshire; Gooding v. Wilson

viii. Communist Postera. Discuss briefly early historyb. “Is it illegal to be a Communist?”

c. “Should it be?”d. State of the Law:e. Short answer:

f.

What Can Be Punished?

• Teaching of forceful overthrow of government, AND

• Instructions or directions on how to revolt

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. Islamistsa. “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 overthrowxi. 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 Lawsa. Difference between outlawing hate speech and

factoring it in to sentencing

b.

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

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. Defamationa. 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:

d.

Defamation

• Public Official– Actual malice

• Public Figure– What makes them

“public”?

• Private Person– See you in court!

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. Paradea. “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 Restrictionsa. Explained in slide.

b.

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

xvi. T-Shirta. “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 Burninga. “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 burninga. Explain the historical backgroundb. “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. Graffitia. “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. Playboya. “Speech?”b. “Is it ‘obscene’?”c. “Can this be restricted more than some other

magazine?”d. State of the Law: See Below

xxi. Obscenity

a.

What is “Obscene”?

• Appeals to “prurient interest” (causes lust)

• “Patently offensive”description of defined sexual conduct

• No serious literary, artistic, political, or scientific value

b. “What is ‘prurient interest’?”c. “What is ‘patently offensive’?”

i. First two prongs = community standardsd. “What is ‘legitimate’?”e. “These are the source of much debate!”

i. See Millerxxii. 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 Druga. “Speech?”

xxiv. Commercial Speecha. Explain restrictions – lots of questions here!

b.

Commercial Speech• Communication which “proposes a

commercial transaction” (sometimes a hard question!)

• Protected, but subject to more regulation

C. Case studies1. 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 necessary8. Stop the class with about 10 minutes left9. 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. EvaluationA. See attached homework assignment.

1. Determine if lawi. Impacts speechii. 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?