Lesson plan on the 1st amendment.pdf

Education for Freedom <strong>Lesson</strong> 4 

When May Speech Be Limited? 

LEVEL 

SUBJECT 

Beginning 

Government, Civics 

Introduction 

One of the most difficult but important questions the public faces is: If freedom is 

not absolute, then what circumstances justify a limitation? This lesson introduces 

standards that have been used in answering this question. Students then evaluate 

several cases, applying the standards and deciding specifically the beneficial or 

harmful consequences of the particular speech in question. Finally, students 

determine what values underlie the perceived need to limit speech, uncovering 

and discussing conflicts between freedom of speech and other values. 

Develop in students the habit of visiting freedomforum.org. They will find 

breaking news relating to speech issues and access to the archives of news articles 

and commentary. 

Key concepts 

● 

● 

● 

Freedom of speech is not absolute. 

Society and the legal system recognize limits on the freedom of speech. 

Issues arise in which freedom of speech conflicts with other values. 

First Principles 

Go to this curriculum’s First Principles. The First Principles document was 

developed to explain in practical, everyday terms just what the First Amendment 

means. 

Read the ex<strong>plan</strong>ations to the principles listed below. They have special relevance 

to the activities in this lesson. 

● 

The First Amendment tells the government to keep its “hands off” our 

http://www.freedomforum.org/packages/first/curricula/educationforfreedom/L04main.htm (1 of 6) [7/2/03 2:37:08 PM]


religion, our ideas, our ability to express ourselves. 

● 

“Who draws the line, and how?” is a key question. 

First moments 

Review the benefits of freedom of speech in a democracy. Point out that the First 

Amendment states “Congress shall make no law … abridging the freedom of 

speech.” That sounds very straightforward and simple. Ask the students to 

imagine this scene: 

Your pep band is at a rival school across town for a game one evening. Suddenly 

they find themselves surrounded by angry, taunting students from the other 

school. The crowd shouts, “You stink!” “You’ll never get home tonight alive!” 

“You’re gonna pay for being here!” Even though no one has touched anyone, 

some fear for their lives. Does the crowd have the constitutional right to yell at 

the pep band members? 

Use student discussion as a springboard for the idea that society and the courts 

have agreed upon limits to free speech. You may also consider: Which is more at 

risk, student safety or free speech? 

In the example, the hecklers are causing a dangerous situation that could easily 

get out of hand. At a minimum, they are causing great distress to the surrounded 

students. Various laws might be applied to the incident depending on the number 

of perpetrators, the presence of weapons, the age of the victims and even where 

the incident takes place. Legislatures, as well as courts and law- enforcement 

agencies, influence how these incidents are handled. Teachers, check on the 

policies and laws in your local jurisdictions. 

Procedure 

1. Distribute Limits of Freedom of Speech. Review the tests that the 

Supreme Court has established to determine whether speech may be 

limited. You may also want to discuss symbolic speech with the students 

before giving students the case studies. (Symbolic speech has been defined 

as the communication of an idea through an action.) 

2. Have students work in small groups to complete the Limits of Freedom of 

Speech Case Studies. Students may be given all the case studies or only 

some of the studies. You may wish to download and print them as cards in 

order to distribute individual cases to each group. Use the tests on limits to 

freedom of speech as a way to structure student debate over the cases. 



(The case studies can also be completed individually online if you prefer 

to do this as homework, or each group could focus on a selected case.) 

The case studies: 

Case study 1—Permits and demonstrations 

Case study 2—Burning a selective service registration certificate 

Case study 3—Gathering petitions in a shopping mall 

Case study 4—Obscene or indecent phone calls 

Case study 5—Distribution of anonymous political flyers 

Case study 6—Third-party candidate inclusion in televised debates 

Case study 7—Student speech at school assemblies 

Case study—Answers 

3. When students have finished, have them take turns explaining what they 

decided in each case and why. Check which groups or individual students 

agreed and which disagreed. When disagreements arise, refer to the tests, 

discussing (1) the potential for the speech to result in a harmful 

consequence, 2) the probability that this might occur, and 3) how to 

resolve conflicting values. 

4. After this introduction to the tests, have students study one of these 

guidelines for limiting speech. Students will then write a personal reaction 

paper on the topic: Do you agree or disagree with the necessity for this 

limit on speech? 

Enrichment 

To help students understand that freedom of speech is a contemporary issue, have 

them scan the newspaper for approximately one week to find articles regarding 

freedom-of-speech issues. Clip and glue each article to a piece of paper. Beneath 

the article, students should indicate the specific speech issue involved and 

whether or not, in their opinion, the speech would be protected. 

Resources 

On the Web 

ACLU Briefing Paper, No. 10 

“Freedom of Expression” gives an overview of pure and symbolic 

speech, limits to speech and three reasons why freedom of 

expression is essential to a free society. 

Ask Sybil Liberty about your right to Free Expression 

Answers to students' basic questions. 



Heckler’s Veto 

An activity based on an actual case that occurred at Northwestern 

University in March 1999. 

Heckler’s Veto 

Columnist Nat Hentoff on use of the heckler’s veto to limit free 

speech. 

freedomforum.org 

CD 

Goldman, Jerry. "The U.S. Supreme Court’s Greatest Hits." CD- 

ROM. Multimedia: audio, images, text. 1999. 

Developed and edited by Jerry Goldman, 

Northwestern University professor and developer of 

OYEZ Web site. Contains more than 70 hours of the 

actual oral argument in 50 of the most significant 

constitutional cases, searchable by name, date and 

justices participating. Cases include Lee v. Weisman, 

Miller v. California, Roth v. United States, Tinker v. 

Des Moines Ind. Comm. School Dist. 

In print 

Hentoff, Nat. Free Speech for Me — But Not for Thee. 

HarperCollins Publishers, Inc. 1992. 

McElroy, Wendy. Queen Silver. Prometheus Books. 1999. 

Biography of a passionate advocate for women and labor. Includes 

articles and speeches. 

National Standards 

U.S. History, Standard 8: Understands the institutions and practices of 

government created during the Revolution and how these elements were revised 

between 1787 and 1815 to create the foundation of the American political system 

based on the U.S. Constitution and the Bill of Rights. 

Civics, Standard 8: Understands the central ideas of American constitutional 

government and how this form of government has shaped the character of 

American society. 



Civics, Standard 18: Understands the role and importance of law in the American 

constitutional system and issues regarding the judicial protection of individual 

rights. 

Civics Standard 26: Understands issues regarding the proper scope and limits of 

rights and the relationships among personal, political, and economic rights. 

Benchmarks 

U.S. History, Standard 8, Grades 9-12: Understands the Bill of Rights and various 

challenges to it. 

Civics Standard 8, Grades 6-8: Knows opposing positions on current issues 

involving constitutional protection of individual rights, such as limits on speech 

(e.g., "hate speech," advertising), separation of church and state (e.g., school 

vouchers, prayer in public schools), cruel and unusual punishment (e.g., death 

penalty), search and seizure (e.g., warrantless searches), and privacy (e.g., 

national identification cards, wiretapping). 

Civics, Standard 18, Grades 9-12: Understands the effects of Americans relying 

on the legal system to solve social, economic and political problems rather than 

using other means, such as private negotiations, mediation and participation in 

the political process 

Civics, Standard 26, Grades 6-8: Understands what is meant by the "scope and 

limits" of a right; Grades 6-8: Understands the argument that all rights have 

limits, and knows criteria commonly used in determining what limits should be 

placed on specific rights (e.g., clear-and-present-danger rule, compellinggovernment-interest 

test, national security, libel or slander, public safety, equal 

opportunity). 

Interdisciplinary 

Speech: Students prepare a speech on a speech-related topic, such as It is/is not 

necessary to limit freedom of speech. 

Debate: Students debate whether there should be limits on freedom of speech. 

Use Limits of Freedom of Speech to understand the reasons speech is limited. 

Students may use any of the case studies or add their own to substantiate their 

positions. 

BACK TO HOME PAGE 





Answers, case studies: when may speech be limited? 

Case 1 — This case, which involved the National Socialist Party of America 

and the Village of Skokie (a suburb of Chicago), generated rulings in both 

Illinois state and federal courts. The Illinois Supreme Court, by a 6-to-1 margin, 

held that displaying swastikas was a form of symbolic speech protected by the 

First Amendment. The court further held that the “fighting words” doctrine 

developed by the Supreme Court did not permit “prior restraint” of the Nazis’ 

speech because advance notice of the march gave citizens the option of avoiding 

face-to-face insults. Such prior restraint to prevent violence, which the court 

admitted was a possibility, amounted to a “heckler’s veto.” 

A month later, a federal district judge ruled that Skokie’s ordinances were 

unconstitutional, holding that not only did the ordinances censor certain kinds 

of speech, they provided for censorship on the basis of what might be said, 

rather than what was actually said. The judge said, “The ability of American 

society to tolerate the advocacy even of the hateful doctrines espoused by the 

plaintiffs without abandoning its commitment to freedom of speech and 

assembly is perhaps the best protection we have against the establishment of 

any Nazi-type regime in this country.” This decision was upheld by the court of 

appeals. When the Supreme Court refused to hear National Socialist Party of 

America v. Skokie, 432 U.S. 43 (1977). The decision of the court of appeals 

held. 

Case 2 — In the case of the United States v. O’Brien, the Supreme Court ruled 

8 to 1 against the protesters. The Court held that Congress had the authority to 

raise armies and could therefore require that Selective Service registration 

certificates (draft cards) be handled in particular ways. The military purposes of 

the draft law outweighed David O’Brien’s right to expression through symbolic 

speech (i.e., burning of his draft card). He had alternative ways to express 

himself that did not involve violating a valid law that prohibited destroying the 

card. 

http://www.freedomforum.org/packages/first/curricul...nforfreedom/supportpages/L04-AnswersCaseStudies.htm (1 of 3) [7/2/03 2:37:52 PM]


Case 3 — In this case, Pruneyard Shopping Center v. Robins (1980), the court 

ruled that Robins’ manner of speech was orderly and the activity was conducted 

in the common public area of the mall. Since the California Constitution 

protected “speech and petitioning, reasonably exercised, in shopping centers 

even when the shopping centers are privately owned,” the time, place, and 

manner test was not violated and the speech was protected. 

This case affirms the legal principle that state and local governments may give 

their citizens more free-speech rights than are accorded them by the First 

Amendment and the federal constitution. 

Case 4 — In this 1989 case, Sable Communications of California v. FCC and 

Thornburgh, the Supreme Court said that the government could ban “obscene” 

communications but not “indecent” communications. While the Supreme Court 

agreed that preventing children from hearing indecent messages was a valid 

goal, it did not think this goal justified making indecent communications illegal. 

While stopping “indecent” speech would protect children, it would also 

unconstitutionally deny adults access to protected “indecent” speech. The 

Supreme Court and other courts have cited Sable to rule unconstitutional federal 

laws setting limits on Internet expression. 

Case 5 — The Court ruled in McIntyre v. Ohio Elections Commission (1995) 

that Ohio’s ban on anonymous elections literature was too broad to achieve the 

purpose that it was intended to achieve — protecting voters and candidates from 

false, misleading or libelous statements. While such a state interest might be 

compelling, the remedy used by the state was too broad. The court stated, 

“Anonymous pamphleteering is … an honorable tradition of advocacy and of 

dissent” and held that McIntyre’s speech was protected. 

Case 6 — Forbes lost in district court but won on appeal. AETC appealed to the 

Supreme Court, where the case was argued on October 8, 1997. In a 6-to-3 

decision, the court found in favor of AETC since AETC had created a 

“nonpublic forum” when it selected participants by “objective indications of 



their popular support” rather than their points of view. Arkansas Ed. Television 

Comm. v. Forbes determined that public broadcasters can exclude participants 

from sponsored debates as long as the debates are not public forums. News 

coverage of the case can be found on washingtonpost.com. 

Case 7 — The U.S. Supreme Court ruled in Bethel School District No. 403 v. 

Fraser that school systems may prohibit the use of vulgar and offensive 

language at school-sponsored activities or forums. The informal suggestion by 

teachers not to give the speech was sufficient warning to Fraser. The decision 

held: “It is a highly appropriate function of public school education to prohibit 

the use of vulgar and offensive terms in public discourse. Nothing in the 

Constitution prohibits the states from insisting that certain modes of expression 

are inappropriate and subject to sanctions. The inculcation of these values is 

truly the work of the school, and the determination of what manner of speech is 

inappropriate properly rests with the school board.” 

Note that this decision applies only to school-sponsored expression. The Bethel 

ruling and standard do not apply to individual expression, such as wearing an 

inscribed pin or a shirt with a message that does not disrupt the school or 

educational process. The court made it clear in Bethel that it was not 

overturning Tinker, with the “disruption” standard that applies to individual 

expression. And that test survived Hazelwood, as well. 

BACK

Lesson plan on the 1st amendment.pdf

Create successful ePaper yourself

Delete template?

Save as template?