1st Amendment: Freedom of Speech in Schools

1. 
   Introduce the various provisions of the First Amendment
   
2. 
   Understand what constitutes “speech” for purposes of the First Amendment
   
3. 
   Understand what speech is “protected” by the First Amendment
   
   1. 
      Learn the balancing rules that apply to major categories of speech:
      
      1. 
         Political Speech
         
      2. 
         Threats or Other Speech Constituting an Illegal Act
         

v. Hate Speech

vi. Political Actions Constituting Expressive Conduct (flag-burning vs. draft cards).

vii. Graffiti

viii. Expressive conduct (Anti-government T-shirt or clothing).

4. Empower students to analyze a simple hypothetical situation, and determine if speech is protected or not.

• 
  First Amendment Overview PowerPoint Presentation
  
• 
  “SPEECH IN SCHOOLS” Handout
  
• 
  Caselaw Cheat Sheet for Teacher
  

Procedure:

1. 
   Introduce today’s topic of “Free Speech in School.” Begin by asking what the students know or have heard about the term “free speech.”
   
   1. 
      To generate discussion (optional), do a 3-4 minute class “brainstorm” about various forms of “speech.” Write the word “SPEECH” on the board and ask students to think of all the different forms of expression that could be considered “speech” (i.e. words, music, poems, radio, tv, t-shirt slogans, cheers, raps, acting, clothing/costumes, buttons, facial expressions, other body language, etc.).
      
   2. 
      Legal Definition of speech:
      
      1. 
         Conduct may be speech: To qualify as speech, must have (1) intent to convey a particular message and (2) a great likelihood that the message would be understood by those who viewed it. See Texas v. Johnson, 491 U.S. 397, 405 (1989). (flag-burning at a rally is speech; might not be “speech” in a grocery store).
         

2. 
   Lecture: Free Speech PPT
   
   1. 
      Slide 1: First Amendment
      
      1. 
         “Congress shall make no law…” Feel free to point out that until originally, the First Amendment only applied to the federal government. Now it applies to State governments and public bodies (arms of the State, including public schools).
         
      2. 
         Define “abridge”
         
      3. 
         “What does ‘no law’ mean? Is it that absolute?”
         
   2. 
      Slide 2: “Why” do we need free speech?
      
      1. 
         Ask the students why we protect free speech, and why we should.
         
      2. 
         What (if any) forms of speech should NOT be protected?
         
   3. 
      Slide 3: Political rally
      
      1. 
         Is it speech?
         
      2. 
         Is it protected?
         
         1. 
            What if someone jeers the candidate or encourages people to vote for another candidate?”
            
      3. 
         State of the Law: Asking for votes and stating ones’ views about a particular candidate is clearly political speech, and it is fully protected.
         
         1. 
            Restrictions placed upon core political speech must weather strict scrutiny analysis or they will be struck down.
            
            1. 
               Strict Scrutiny: If the court determines that the speech is protected, any restrictive government regulation must serve a 1) compelling governmental interest and be 2) narrowly tailored to serve that interest.
               
   4. 
      Slide 4: Yelling “Fire!” in crowded theater
      
      1. 
         Is it speech?
         
      2. 
         Is it protected?
         
         1. 
            “What if there really was a fire?
            
      3. 
         State of the Law: This is not protected speech. A modern court would likely describe it as an action, and not merely an idea being expressed. Also, speech that presents imminent lawless action is clearly not protected.
         
   5. 
      Slide 5: Tony Soprano ordering a hit
      
      1. 
         Is it speech?
         
      2. 
         Is this protected?
         
         1. 
            “What if he said, ‘I wish someone would kill Sonny…’?”
            
      3. 
         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.
         
         1. 
            After exercising increasing scrutiny of laws that infringed upon free speech, the Court in Brandenburg v. Ohio (1969) established the doctrine that the government may restrain only speech that is likely to incite imminent unlawful action. The First Amendment may therefore even protect speech that calls for an overthrow of the government as long as it is not likely to result in action.
            
         2. 
            And expressions of sympathy and support for unlawful actions are Constitutionally protected. See Bond v. Floyd
            
   6. 
      Slide 6: Security Secrets- Loose Lips Sink Ships
      
      1. 
         Is it speech?
         
      2. 
         Is it protected?
         
         1. 
            “Can you reveal security secrets?”
            
         2. 
            “If you can, SHOULD you?”
            
      3. 
         State of the Law: Talk about The Pentagon Papers cases. The Court narrowly allowed the NYT to publish the illegally obtained secret documents that disclosed military secrets. New York Times v. United States. This gets into the Court’s jurisprudence on 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) the nature of risk, (d) the nature of the speech’s content, (e) possible less restrictive alternatives, (f) the source of info, (g) the imminence of harm, (h) the efficacy of the restraint
         
   7. 
      Slide 7: Hate speech
      
      1. 
         Is it speech?
         
      2. 
         Is it protected?
         
      3. 
         State of the Law:
         
         1. 
            The government can’t ban the content of racist speech directly. In R.A.V. v. St. Paul (1992), the Supreme Court held that a city ordinance that prohibited words that insulted or provoked violence “on the basis of race, color, creed, religion or gender” was unconstitutional because it imposed content‐based discrimination. Lower courts have often overturned similar laws on the same grounds.
            
            1. 
               But laws may target hate speech in other ways, i.e., if it involves incitement to immediate violence or defamation then the speech is not protected.
               
            2. 
               And speech that makes a direct threat is not protected. Virginia v. Black
               
         2. 
            But see Wisconsin v. Mitchell (hate motive can increase jail time).
            
            1. 
               See also Apprendi v. New Jersey (2000), (sustaining a law that permitted a state to enhance the sentence for a battery that was racially motivated).
               
   8. 
      Slide 8: Graffiti
      
      1. 
         Is it speech?
         
         1. 
            “What if the message is more direct – ‘I hate cops’?”
            
      2. 
         Is it protected?
         
         1. 
            “What if it’s on your own house?”
            
         2. 
            “Can your neighborhood outlaw it even in your own house?”
            
      3. 
         State of the Law: Graffiti is vandalism – an action on other people’s property that damages. The message is irrelevant.
         
   9. 
      Slide 9: School Law: Tinker (Vietnam war bands) and Guiles (Anti-Bush T-Shirt)
      
      1. 
         Is it speech?
         
      2. 
         Is it protected?
         
      3. 
         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.
         

3. 
   Speech in Schools Survey: The last slide will serve as a transition into the discussion on “Free Speech in Schools.” To introduce this discussion, pass out the “SPEECH IN SCHOOLS” handout to each student. This handout (attached) provides a series of examples of hypothetical free speech situations. Give the students 2-3 minutes to read over the handout.
   
   1. 
      Next to each hypothetical situation, ask the students to write either: “P” for PROTECTED (if they think this speech/conduct SHOULD be protected), or “NP” for NOT PROTECTED (if they think this speech/conduct should NOT be protected).
      
   2. 
      When the students are done, do a class survey: For each hypothetical situation, take a vote of how many students felt the relevant speech/conduct should be PROTECTED or NOT PROTECTED.
      
   3. 
      Mark the vote on the board so students can see how their peers responded.
      

4. 
   Vote with Your Feet: Opinion Continuum: If time permits, ask the students to line up along an “opinion continuum” for each hypothetical situation. One side of the room will be the position for “ABSOLUTELY PROTECTED” and the opposite side of the room will be the position for “ABSOLUTELY NOT PROTECTED.” Instruct the students to position themselves according to their opinion about each hypothetical free speech situation.
   
   1. 
      If time permits, after reading each hypothetical situation, ask students to explain why they chose to protect (or not protect) that particular form of speech/conduct.
      

5. 
   Write Your Own School Dress Code: If time permits, ask students (in groups of 2-4) to make a Dress Code regulating conduct speech (for t-shirts, buttons, symbols on clothing) in their school.
   
   1. 
      Give an example, such as:
      

1. 
   messages that motivate violence;
   
2. 
   messages that harm or threaten to harm the health or safety of others.
   
1. 
   Discuss.
   
2. 
   Review the highlights of today’s lesson.