-
Teacher
Resources for Civic Education
-
-
THE FIRST AMENDMENT UNIT
Grade Level: 9, 10, 11, 12
-
- Subjects:
Social Studies: Government
- Language Arts: Reading, Writing
-
- Duration: 6 class sessions
-
- Description: This lesson will teach students the content
and meaning of the First Amendment to the US Constitution through
the use of case studies [hypothetical situations based on actual cases].
Students will gain a sense of their rights as residents of the United
States, as well as the reality that many rights are limited and controversial.
-
- ISBE Standards:
-
- 1. Social Science
- 14A: Understand and explain basic principles of the United
States government.
- 14F: Understand the development of United States political
ideas and traditions.
-
- 2. English/ Language Arts
- 1A: Apply word analysis and vocabulary skills to comprehend
selections.
- 3B: Compose well-organized and coherent writing for specific
purposes and audiences.
- 3C: Communicate ideas in writing to accomplish a variety
of purposes.
- 4A: Listen effectively in formal and informal situations.
- 4B: Speak effectively using language appropriate to the
situation and audience.
-
Objectives:
- Understand the provisions of the First Amendment to the Constitution.
- Explain the different provisions of the First Amendment to the
Constitution.
- Distinguish between governmental and private restrictions on freedom
of speech.
- Distinguish between constitutional and societal limits on freedom
of speech.
- Evaluate the usefulness of the First Amendment in real life through
evaluating case studies.
- Analyze several constitutional law cases regarding the First Amendment.
-
- Materials:
- Notebook paper/pen
- Blank overhead or chalkboard
- Case studies (one per student)
- Guide to the First Amendment, an educational brochure at
www.citizenadvocacycenter.org
- Instruction and Activity:
This unit covers the five rights involved in the First Amendment
(freedom from establishment of religion, free exercise of religion,
freedoms of speech and the press, freedom of association, and right
to petition), explains the rights, and includes activities and cases
studies for students.
Wording of the First Amendment to the United States Constitution:
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances."
FREEDOM OF SPEECH
The freedom of speech is the cornerstone of a democracy - it allows
the unfettered exchange of ideas that is necessary for decision-making,
and it protects the minority viewpoint from domination by the majority
viewpoint.
What is speech?
Speech encompasses verbal speech as well as other forms of expression
(books and other writings, artwork, pictures, sculpture, music, and
even the FAILURE to speak). Examples of limitations on different types
of speech and limitations on that speech:
- The paintings and photographs of an artist who incorporates nudity
and sex in his artwork is considered obscene and banned by a city;
- The music of a certain classical composer is not played in Israel
because the composer was anti-Semitic;
- A student is disciplined for not standing up and saying the Pledge
of Allegiance in class; and
- The Harry Potter books are banned in several schools and communities
for "promoting witchcraft."
What speech is protected?
Think of speech as a bundle of sticks. Each stick represents a different
type of speech: love words, work words, power words, and political speech.
Most of that bundle (speech) is protected by the First Amendment, giving
people the right to say just about anything. However, there are four
sticks (types of speech) that are not protected, and need to be removed
from the bundle. Instead of determining what speech in the big bundle
is protected, it is easier to determine what is not protected/what sticks
have been removed from the big bundle.
What speech is NOT protected?
Obscene Language
Three elements make speech "obscene"
- An average person, going by local community standards would find
that the speech appeals to a morbid or shameful interest in sex. (This
means that what the community of Springfield, Illinois believes to
be a morbid or shameful interest in sex might be different than the
community standards in New York City);
- The speech shows or describes sexual conduct in a patently offensive
manner. (This means that anyone would consider the speech offensive
- no matter if the speech took place in Springfield, Illinois or New
York City); and
- The speech lacks serious literary, artistic, political, or scientific
value. (This means that a context of the offending speech must be
considered. For example, sexual intercourse depicted in National Geographic
is considered different than that in Penthouse).
Fighting Words
Three elements make speech "fighting words"
- The words are of such little social value that any value they might
have is overshadowed by the government's interest in prohibiting them
(a straight balancing test - which is more important, the value of
the speech or the reason that the government wants to prohibit the
speech?);
- The very utterance inflicts injury or tends to incite an immediate
breach of the peace (yelling "Fire" in a crowded theater or yelling
a racial epithet at a group of minorities).
- The statement must be made face-to-face and directed at an individual
or small group.
Defamation
· Defamation is a statement that is both factually wrong and injures
another person's reputation or good name (a lie that hurts someone's
reputation).
· A statement is made about a private person or entity, (this is an
average citizen) and the injured person says the statement is defamatory:
- The private person must prove that the statement was made carelessly
or negligently.
· A statement made about a public official or person in the public
eye, and the public person says that the statement is defamatory:
- The speaker is only liable if the public official shows that the
statement was made with malice (the speaker either knew the statement
was false or did not care if the statement was true or false).
· What about comments made by either the public official or a government
official in legislative or judicial proceedings (i.e. on the floor of
the Senate)? The public official or government official CANNOT be sued
for making a defamatory statement. BUT ! Comments made either before
or after the legislative or judicial proceeding may not be privileged.
How can a person protect him/herself when talking in public or making
a public statement?
- If speaker has a valid reason to believe that the statement is true,
it is not defamation.
- TRUTH is always a defense to a defamation charge.
What regulations can the government place on protected speech?
We just discussed the four sticks that are outside of the bundle of
protected speech, and are considered unprotected speech. Remember the
other bundle of sticks/speech that we have the right to say? Even though
the speech in the bundle of sticks is protected, the government still
has a right to regulate that speech as to time, place, and manner.
Time: A public body can limit how long a person speaks, that
a music concert cannot go until 2 a.m., or how long people can gather
for a parade.
Place: A public body can limit where people lawfully gather.
Picketing can be limited to the sidewalk, and not to the street as to
interfere with traffic, entrance to buildings cannot be blocked, etc.
Manner: Government can prohibit posting of signs or advertisements
on public property to prevent visual pollution, prohibit the use of
a bullhorn late at night, etc.
What types of time, place, and manner regulations are acceptable?
The regulation must further an important government interest; and
That government interest cannot be to limit free expression; and
The regulation does not burden speech unreasonably more than
is necessary to further the government interest (ex: the regulation
cannot eliminate ALL speech in a public park when a regulation against
using a bullhorn will do).
Regulation must be content neutral - speech cannot be restricted
based on what is said or based on the content or the viewpoint expressed
(e.g. the government cannot allow everyone to have protest/parade permits
except the KKK);
Even if the time, place, and manner restriction is neutral on its
face, it can still be struck down if it results in discrimination against
a particular group.
A governmental authority cannot arbitrarily decide who is governed
by the regulation and who is not (e.g. again, town can require a parade
permit, but cannot arbitrarily decide who gets a permit and who does
not based on undefined criteria.
Another example: any religious group who wants to can put up a holiday
display at the courthouse EXCEPT for displays involving candles or depictions
of fire - this regulation looks neutral, but will clearly lead to discrimination
against Jewish menorahs).
Government actions to prohibit speech are only valid if:
- the action furthers a compelling state interest (defined below)
unrelated to the suppression of expression; and
- the action must be narrowly tailored to further that interest (the
regulation cannot be too broad to encompass too much speech).
Compelling State Interest: A clear and present danger of a serious
evil that rises far above public inconvenience, annoyance or unrest.
A compelling state interest means the immediate danger of a serious
evil that would result in more than just something annoying or slightly
inconvenient.
Example: A person says something intended to incite an audience to
imminent violence, and imminent violence is likely to result.
(A speech at a volatile picket line where the speaker tells the strikers
to "take over" the trucks and cars entering the plant, and the strikers
violently jump on entering cars and trucks injuring the drivers.) The
government can limit speeches that incite the audience to riot. This
type of speech is something that is more serious than a mere inconvenience
because rioting by nature can be violent harming both people and material
possessions. However, the government must narrowly tailor the speech
restriction. It cannot prohibit ALL speeches to union members, only
speeches inciting riots.
First Amendment Free Speech Activity:
- Read articles on and debate use of school uniforms (See Case Study
#1)
- Is what you wear a form of speech?
- Can the school regulate what you wear?
- Why would the school district be interested in what you wear to
school?
- How far can a public school go to regulate clothing (i.e. dress
code v. uniforms)
- Have different students take different views on each issue.
- Follow the school board or city council meetings for a month and ask
students to make a public comment at the meetings stating an opinion.
FREEDOM OF THE PRESS
- Allows differing viewpoints to be heard;
- Protects public's "watchdog" that monitors government activities;
- Discourages government from operating in secrecy;
- Related issues:
- individual privacy
- libel
- "fighting words"
- product advertising
- obscenity
- endangering national security
- rights of press v. rights of accused to a fair trial
- school journalism
First Amendment Freedom of the Press Activity:
Read articles and debate issue of administrator censoring of school
newspaper (See Case Study #2) (See also Student Press Law Coalition
website: www.splc.org).
- What sections of the 1st Amendment are affected in regulations
of school newspapers? (Freedom of Speech, Freedom of Press)
- When would it be appropriate for a school administrator to censor
a school newspaper?
- When would it be inappropriate for a school administrator to censor
a school newspaper?
- Is there a difference between school newspapers and underground/independent
newspapers?
FREEDOM OF RELIGION
The Freedom of Religion encompasses two clauses:
Establishment Clause:
"Congress shall make no law respecting an establishment of religion."
· This doctrine is the basis of separation between church and state
Free Exercise Clause:
"Congress shall make no law . . . prohibiting the free exercise thereof
. . ." · Protects an individual's right to believe (or not to believe)
as he/she wishes. · Particularly protects the rights of religious minorities
to practice a different religion from the majority.
History:
- During American Revolution, 9 of the 13 colonies had state religions
(Anglican, Dutch Reformed, and Congregationalist).
- Rhode Island, Pennsylvania, Delaware, and New Jersey did not have
established religions.
- Massachusetts de-established its official religion separating church
and state in 1833. The First Amendment to the Constitution applied
to a national establishment, not a state establishment of religion
(the Fourteenth Amendment to the Constitution applied the First Amendment
and other rights guaranteed by the Constitution to the States).
- Effect of established religion in those states were:
- legal restrictions on who could live where, who could vote,
run for office, and be on juries
- some people were not permitted to practice their religions at
all
- people of differing faiths were driven out, punished, and/or
killed for not adopting the official state religion
Lemon v. Kurtzman - a US Supreme Court case that created a test
to determine what laws or government actions relating to religion are
allowable under the Establishment Clause. Criteria/the Lemon test:
- The law or action must have a legitimate non-religious purpose.
- The primary effects of the law or action must not advance or inhibit
religion (cannot promote a religion, and cannot limit other individuals'
practice of that religion).
- The law or action must not result in "excessive governmental entanglement"
with religion (the government cannot be too involved in religion).
First Amendment Freedom of Religion Activity:
1. Distribute facts of Lynch v. Donnelly (1984), Board of
Trustees of the Village of Scarsdale v. McCreary (1985), and/or
County of Allegheny, Chaban, and City of Pittsburgh v. American Civil
Liberties Union (1989). (See Case Study #3) Discuss how students
would rule based on Lemon test. Does the Court agree?
2. Research countries with established religions. How does the established
religion influence the following factors?
- Who is allowed to vote or run for public office?
- What is taught in public schools?
- What is not taught?
- What are the laws about getting married?
- Who, When, Where?
- What are the nation's immigration laws - who may/may not come in?
- What forms of entertainment are permitted? (e.g. movies, dances,
concerts, television?)
- Which are illegal?
- What kinds of speech are protected?
- What magazines and newspapers are printed?
- Who is allowed to go to college?
- What are the best-paying jobs in this society?
- What are the qualifications to be a lawyer or police officer?
- What are the most common types of crimes?
FREEDOM OF ASSEMBLY
The Freedom of Assembly is:
- Bound with the Freedom of Speech;
- Guarantees the right to form or join any association or organization;
- Guarantees the right to gather together to listen to a speaker
or to the right to speak to an audience; and
- Bound with Freedom to Petition. The right to band together for
a common cause (A group is generally more forceful than one individual).
RIGHT TO PETITION
- An individual citizen has the right to contact the government and
courts about any number of problems or issues without fear of reprisal;
- Ways for citizens to petition include:
- Traditional petition to which names are signed, and submitted
to government officials
- Lobbying
- Conducting various types of mass demonstrations
- Civil suits in courts
First Amendment Activity:
In order to more effectively fight the War on Terrorism, the President
has decided that the general public does not need all of the five rights
in the First Amendment. Discuss how and why each right is important.
Whittle the First Amendment down to three rights. Decide which two rights
within the First Amendment that the American public can do without.
CASE STUDIES
Case Study #1
In response to complaints by parents and teachers, Hometown High School
institutes a dress code banning students from wearing tank tops, belly
shirts, and short-shorts.
- What right is invoked here?
- Why is it important?
- Why should it be protected?
- What are the opposing viewpoints/social values?
- How would you decide this case?
- Would your opinion change if wearing crosses or Stars of David were
banned as "gang symbols?"
- Would your opinion change if a full uniform was instituted?
- In order to preserve rights reflected in this case, do you have
to give up something else?
- How could this affect you?
- How have the Courts ruled?
- Do you agree with the Courts?
Case Study #1 Analysis
Right Invoked: Free Expression In Illinois, the courts have
deferred to schools to create and enforce dress codes for students -
as long as the school code does not limit political or religious expression
by students. In Tinker v. Des Moines Independent Community School
District, 393 U.S. 503 (1969), a school board suspended two students
for wearing black armbands to protest the war. The Court held that the
school could not limit the free expression of the students unless the
expression in question would cause a material and substantial disruption
of school activities or an invasion of the rights of others.
Case Study #2
A high school principal reads the copy for the upcoming issue of the
school-sponsored newspaper, and decides that the articles regarding
teen pregnancy in the school and the effects of divorce on children
cannot be published. The articles must be removed before he will permit
the newspaper to go to print.
- What right is invoked here?
- Why is it important?
- Why should it be protected?
- What are the opposing viewpoints/social values?
- How would you decide this case?
- Would your opinion change if the newspaper was an "underground newspaper"
written, edited, and published off school premises by students without
the assistance or support of the school?
- If it was an "underground" paper, could students distribute it at
school?
- In order to preserve rights reflected in this case, do you have
to give up something else?
- How could this affect you?
- Do you know what the courts have said, and do you agree with the
Courts?
Case Study #2 Analysis
Rights invoked: Freedom of Speech, Freedom of the Press
Hazelwood School District v. Kuhlemeier, 108 S.Ct. 562 (1988).
In the Hazelwood case, a school principal refused to permit the
publication of a school-sponsored newspaper that contained articles
regarding teen pregnancy in the school, and the effects of divorce on
children. The Court held that the school had a right to limit a student's
free speech rights in school-sponsored activities when the decision
is "reasonably related to legitimate pedagogical concerns." The school-sponsored
newspaper was found to not be a "public forum" for students to freely
express themselves.
Underground newspapers that are not in any way sponsored by the school
are a different matter. School-sponsored newspapers are written in a
school setting, monitored/edited by a teacher, and published/paid for
by the school, but an underground newspaper is written, edited, published
and paid for in full by the students independently of the school. The
school has nothing to do with the production of an underground newspaper.
In Tinker v. Des Moines Independent Community School District,
393 U.S. 503 (1969), a school board suspended two students for wearing
black armbands at school to protest the war. The Court held that the
school could not limit the free expression of the students unless the
expression in question would cause a material and substantial disruption
of school activities or an invasion of the rights of others. The courts
have applied Tinker to underground newspaper cases because underground
newspapers are a function of student expression outside of the school.
Therefore, the school would have to demonstrate a material and substantial
disruption of school activities or an invasion of the rights of others
in order to be able to censor the underground paper.
As to the distribution of an underground newspaper at school, remember
the bundle of sticks. The newspaper/speech is part of the big protected
bundle. However, the school/government still has the right to regulate
the speech in a content-neutral manner regarding time, place, and manner.
The school could not prohibit distribution of the newspaper in its entirety,
or on the basis of the content of the paper. The school could prohibit
distribution in class where it would be disruptive to learning.
Case Study #3
After recent terrorist attacks, the Illinois legislature passes a statute
requiring the posting of the Ten Commandments, purchased with private
contributions, on the wall of each classroom. At the base of each set
of Commandments, a sentence reads, "The secular application of the Ten
Commandments is clearly seen in its adoption as the fundamental legal
code of Western Civilization and the Common Law of the United States."
A local businessman offers to donate enough copies of the Commandments
to go in every school in Illinois "to promote patriotism, moral values,
and to discourage violence as dictated in the Ten Commandments."
- What right is invoked here?
- Why is it important?
- Why should it be protected?
- What are the opposing viewpoints/social values?
- How would you decide this case?
- Would your opinion change if the Commandments were posted outside
of the school, on school property, by the school flag pole?
- Would your opinion change if teaching the Ten Commandments were
part of a "World Religions" class curriculum?
- In order to preserve rights reflected in this case, do you have
to give up something else?
- How could this affect you?
- Do you know what the courts have said, and do you agree with the
Courts?
Case Study #3 Analysis
Rights invoked: Free Exercise, Prohibition on the Establishment
of Religion
Stone v. Graham, 449 US 39 (1980). The United States Supreme Court
held that the posting of the Ten Commandments in public classrooms is
a violation of the Establishment and Free Exercise Clauses of the First
Amendment. The Court looked to the Lemon test to determine whether
a statute allowing the posting of the Ten Commandments in a public school
classroom is permissible under the Establishment Clause of the Constitution:
Lemon Test:
- The statute must have a secular legislative purpose;
- Its principle or primary effect must be one that neither advances
nor inhibits religion;
- It must not foster an excessive government entanglement with religion.
If a statute violates any of these principals, it must be struck down.
Court Holding: The Court held that the posting of the Ten Commandments
is plainly religious in nature, no matter the "secular" purpose recited
by the legislature. The Ten Commandments are sacred text in the Jewish
and Christian faiths. They do not confine themselves to secular matters
(i.e. honoring one's parents, murder, adultery, stealing, false witness,
and covetousness), but they also concern purely religious duties of
believers (worshipping the Lord God alone, avoiding idolatry, not using
the Lord's name in vain, and observing the Sabbath Day). The Supreme
Court stated that the posting of the Commandments serves no educational
function, and is not part of a school curriculum in an appropriate study
of history, civilization, ethics, comparative religion, or the like.
The clear state objective of inducing children to read, meditate upon,
venerate and obey the Commandments is not a permissible State objective
under the Establishment Clause.
It is irrelevant that the posted copies are funded by voluntary, private
contributions. The mere posting of the copies under the auspices of
the legislature provides the "official support of the State . . . Government"
that the Establishment Clause prohibits.
How does the case cited in our case study violate the Free Exercise
Clause?
©Copyright 2003 Citizen Advocacy Center. All rights reserved. No part
of this lesson plan may be reproduced in any form or by any means without
the prior, written permission of the Citizen Advocacy Center
|
--HOME
--