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LESSON: First Amendment (with a Structured Academic Controversy)
I. GOALS
A. Introduce basic First Amendment concepts B. Introduce students to balanced discussions about controversial issues C. Enable students to use past court decisions (precedent) to support arguments in a new case D. Provide a foundation for subsequent classroom debates
II. OBJECTIVES A. Knowledge
- Identify important facts in a fact pattern
- Identify reasons for and against a particular outcome in a case
- Learn how a court may justify an outcome
- Understand that the constitution is open to different interpretations and applications
- Understand the meaning of the First Amendment’s text
- Recognize exceptions to the basic First Amendment principle
- Understand how First Amendment law is different in the school setting
B. Skills
- Active listening
- Collaboration with peers
- Critical thinking skills through brainstorming
- Develop confidence in stating opinions in a clear and concise manner
- To be able to see the opposing view
- Engaging in respectful debate
C. Attitude
- The study of our constitutional rights can be relevant and interesting
- Knowing the law can help an individual protect their rights, including his/her right of free speech
- Because laws are open to different interpretations and applications, each person’s perspective enhances our understanding of what “law” is
- Respecting and understanding others viewpoints is instrumental to gaining more knowledge
III. CLASSROOM METHODS
A. Show slide with plan for today’s class (~2 minutes)
a. Plan will include teaching about basic First Amendment law, applying those principles to hypothetical cases based on real First Amendment cases, and a class activity called a Structured Academic Controversy
B. PowerPoint Presentation on: First Amendment law (~10 minutes) a. See attached slides b. Answer student questions as they arise c. Tell the students that it is important to start any study of a Constitutional issue with applicable text
First Amendment: “Congress shall make no law…abridging the freedom of speech…”
d. What the text tells us: that it applies to the government, and that it prevents the government from doing something (note that through the 14 th^ Amendment, that First Amendment law applies to state/city governments just like the U.S. Congress) e. Tell the students that some kinds of speech are “unprotected,” like “fighting worlds,” obscenities, libel/slander, perjury, hate speech, and threats—this means the government can prohibit these kinds of speech (within reason) without violating the First Amendment f. Also tell the students that under First Amendment law, some kinds of speech have enjoyed increased protection—primarily speech that is considered “political speech”—therefore, the government is less likely to ban or inhibit people from expressing any kind of “political” speech g. Tell the students that generally, laws/regulations that discriminate based on the speaker’s viewpoint are presumptively unconstitutional under the First Amendment—e.g. the government could prohibit demonstrations in a park after 10 p.m., but could not prohibit antiwar demonstrations while allowing pro-war demonstrations after 10 p.m.— the latter case would almost certainly violate the First Amendment because courts would consider it “viewpoint discrimination,” and the government would need to show a “substantial interest” and “narrow tailoring” to overcome this [which is very hard to show, especially in an example such as this]
C. PowerPoint Presentation: Hypothetical Cases Based on Real First Amendment Cases (~30 minutes) a. See attached slides b. First Hypothetical: Ask students whether they think the government could punish someone for falsely yelling “fire” in a crowded theatre (show slide of crowded theatre) i. After students have answered/debated the issue, take a vote by having students raise their hands if they think the person could be punished
e. Fourth Hypothetical: Can the government ban/punish burning a cross? What if white supremacists burn a cross in front of an African American family’s house—can the government punish this? i. After students have answered/debated the issue, take a vote by having students raise their hands if they think this action could be punished ii. In Virginia v. Black , the U.S. Supreme Court held that a government cannot ban all cross-burning, but suggested that a government could ban cross-burning “with the intent to intimidate” without violating the First Amendment (the latter could be considered a threat, which is a category of unprotected speech). Virginia v. Black , 538 U.S. 343 (2003).
D. First Amendment Law and Schools: Show PowerPoint slide (see attached) and tell students that First Amendment law is applied a bit differently in the setting of schools (~5 minutes) a. Inform students that because courts view schools as a setting with special government interests, schools may regulate speech more closely b. For instance, the U.S. Supreme Court held that a school could suspend a student who gave assembly speech with an “an elaborate, graphic, and explicit sexual metaphor.” Bethel School Dist. v. Fraser , 478 U.S. 675 (1986). c. However, this heightened ability to constrain speech is not unlimited— for instance, the U.S. Supreme Court held that a school could not suspend students who wore black armbands protesting the Vietnam War. Tinker v. Des Moines School Dist. , 393 U.S. 503 (1969). d. General Test: When courts consider how the First Amendment applies in the school setting, they may use the following general test: Schools may ban “speech or action that intrudes upon the work of the schools.”
E. Activity : Structured Academic Controversy : “ Bong Hits 4 Jesus” Case Study ( Morse v. Frederick )) (~40 minutes) a. Introduce the SAC by telling students they will now apply what they’ve learned about First Amendment law to a case study b. Pass out the procedure handouts and the worksheet handouts c. Tell students that perspectives about what kinds of speech a school may control creates controversy, and that they are going to participate in an activity that will help them discuss the issue – with the goal being that students will be able to learn about and articulate both sides of the issue in order to come to their own conclusions. i. In this discussion, they will develop skills in listening, stating their opinions based on arguments on both sides, engaging in meaningful dialogue with others who present different arguments, and seeking common ground on issues
ii. Another goal is to help them learn to critique the ideas of others without critiquing the individuals themselves d. Have students turn to the procedure handout (see attached handout entitled “PROCEDURE FOR STRUCTURED ACADEMIC CONTROVERSY (SAC)”). Go over the procedure for the activity and make sure students understand it. e. Show PowerPoint slides for “Bong Hits 4 Jesus” Case Study (see attached slides), and pass out and read the handout entitled “’Bon Hits 4 Jesus’ Case Study” (see attached). i. Make sure students understand the facts—answer questions as they arise f. Have students divide into groups of four using a count-off and ask students within each group to pair off. g. Assign each pair a position on the case. Have the pairs begin brainstorming on their own. Make sure the pairs take notes. h. Go around the groups to check on their progress. Once students have some of their own ideas, pass out the handouts that summarize the arguments each side used in the actual case i. Have the pairs return to their group of four. Ask students to take turns sharing their arguments; the listening side should take notes and ask any clarifying positions. The students will then switch sides presenting. j. Tell the students they will now have a few minutes to discuss all of the arguments. Have them try to reach a consensus on the issue of whether there was a search in this case. If they can’t reach a consensus, have them identify where their agreements and differences lie. i. Have students fill out the SAC Worksheet as they proceed through the activity (see attached worksheet). k. Have the whole class reconvene. Each group will have an opportunity to share its conclusion. During this time, we can ask further questions to have students clarify their reasoning or to get them to think beyond the confines of this particular case. l. End the discussion by telling students what the Supreme Court actually decided: By a 6-3 vote, the Court determined that the school could permissibly suspend a student for refusing to take down the “Bong Hits 4 Jesus” banner during the Torch Relay. i. HOLDING: Principal did not violate student's right to free speech by confiscating banner she reasonably viewed as promoting illegal drug use ii. The Court reasoned that even though the banner wasn’t on school property, that the banner faced the school and the school had authority to regulate school-sanctioned events. Likewise, the Court said that it did not matter what the student’s subjective intent behind the banner was (he claimed it was a “silly” and did not know what it meant), but what a reasonable
