Lesson 3 What is free speech?

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1 Lesson 3 What is free speech? Objectives Students will examine the language of the First Amendment and investigate limits on free speech. Handouts (3-1) Primary Sources; (3-2) Cartoons and Limits on Free Speech; (3-3) Limits on Free Speech Scenarios; (3-4) First Principles; (3-5) Art Norman Rockwell s Freedom of Speech, Dan Nance s painting, and others. Background Limits on Freedom of Speech, Freedom Forum The Right to Freedom of Speech, David Bodenhamer Words that matter clear and present danger First Amendment speech inalienable rights individual rights limit 1 place manner marketplace of ideas reasonableness time A. Daily warm-up and current events alert! Warm up: students will do a choral reading of the First Amendment s free speech clause: Congress shall make no law abridging the freedom of speech. There are ten words in the clause, so ask students to number off Number ones say Congress, number twos say shall, and so on through speech. The result is a wave of voices saying these words; repeat more than once around the class. The full text of the First Amendment, all 45 words, may be found on Handout 3-1. B. What does the First Amendment mean, Congress shall make no law? While most Americans believe there should be some limits to free expression, there is disagreement about what constitutes speech and where those limits should be. Consequently, freedom of speech ends up being our most contested right. Strategy: Ask students how they would respond to someone who made this statement: I have a right to free speech so I can say whatever I want to, however I want to say it, and wherever I want to say it. Return to this quote after learning about limits and ask for a second response. Source: What about limits on free speech? We will explore both where, when, and how-type questions as well as questions about the content of the speech itself. Laws regulate speech in both ways. Laws about what a speaker can say are about content. Laws about where, when and how they say it is about time, place and manner restrictions. As a whole class, discuss Cartoons and Limits on Free Speech, Handout 3-2. One cartoon depicts Fire! shouted in a theater and the other disturbs the peace. Some laws regulate expression based on its Questions: What is free speech? What free speech rights and responsibilities do we have? Is free speech vital to a thriving democracy (why or why not)? What are the challenges to free speech in the coming year?

2 content. These laws prescribe what a speaker is allowed to say. Other laws regulate the time, place, and manner of expression. These laws prescribe the when, where, and how speech is allowed. As a general rule, government cannot regulate the content of expression except in special situations (e.g., using profanity in prime time). However, government may make reasonable regulations governing the time, place, and manner of speech. For example, towns may require citizens to obtain permits to hold a march, use sound trucks, stage protests, and so on. i For a more detailed backgrounder suitable for teachers and upper grades, see Backgrounder: The Right to Freedom of Speech by David J. Bodenhamer. Upper grades, may analyze scenarios (Handout 3-3) to learn more about content and time, place, manner restrictions. Answer the first question as a whole group, then in pairs or small groups answer the remaining questions about whether the government may make laws to restrict speech. C. What is so important about the First Amendment? Americans revere the First Amendment. To understand why this is so, students will examine six principles underpinning the First Amendment (see Handout 3-4). Divide the class in six groups, assign one principle to each group. Each group will discuss the principle s meaning, then create a Public Service Announcement to present to the whole class. Public Service Announcements are very short (one minute max!) and are designed to inform the public. D. How do artists interpret free speech? Art inspires great discussion. See Norman Rockwell s Freedom of Speech (Handout 3-5, includes discussion prompts, or online at many sites such as painting. After discussing Rockwell s painting, ask what such a painting might look like today? See artist Dan Nance s answer as well as other pieces; discuss. E. Extended Activities Which First Principle means the most to you and why (aka, chose your principle!)? Draw or paint your own depiction of free speech; cartoons welcome! Imagine if there were no free speech. Create a worry list. Return to the quote: I have a right to free speech so I can say whatever I want to, however I want to say it, and wherever I want to say it. Has your response changed? Explain why or why not. i Lee P. Arbetman, and Edward L. O Brien, Street Law: A Course in Practical Law, 7 th Ed., 2007, Glencoe McGraw Hill, page Questions: What is free speech? What free speech rights and responsibilities do we have? Is free speech vital to a thriving democracy (why or why not)? What are the challenges to free speech in the coming year?

3 Handout 3-1 United States Constitution, Amendment 1 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. Oregon Constitution, Article I, Section 8 No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right. Universal Declaration of Human Rights, Article 19 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 18 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 20 (1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association. 1

4 Exploring Primary Source Documents Divide the questions among group members or pairs within a group. 1. List three things the author said that you think are important. 2. Why do you think this document was written? 3. What evidence in the document helps you know why it was written? Quote from the document. 4. List two things the document tells you about life in the United States at the time it was written. 5. Write a question to the author that is left unanswered by the document. 6. Or, from Scott Casper: What were they thinking? And what words in the document are most important? Source: Developed by the Education Staff, National Archives and Records Administration, Washington, DC 20408, Teaching with Documents orksheet.pdf 2

5 CLASSROOM LAW PROJECT Words Matter: Limits on Free Speech Lesson 3 Handout 3-2 Cartoons and Limits on Free Speech Sources: We The People: The Citizen & The Constitution, Level 2; Center for Civic Education, p203. We The People: The Citizen & The Constitution, Level 1; Center for Civic Education, p138. 1

6 Background Shouting Fire! In a Crowded Theater The classic example of the limitation on freedom of speech is the statement of the United States Chief Justice, Oliver Wendell Holmes who wrote, The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic. An often obscured fact is the context of the statement, which was that he was sentencing a group of socialists who distributed flyers opposing the draft during the First World War. The judgment was subsequently overruled, but the succinctly yet ambitiously phrased statement of Justice Holmes remained a seminal example of the restriction on the otherwise theoretically unbridled right of free expression. While Justice Holmes was deliberately being disingenuous in the particular instance; even then the limitation has merit. The more complete quote is: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. Justice Oliver Wendell Holmes, Jr., Schenck v. United States (1919) 2

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