Compelling Question:



|NC Essential Standards: C&G 2.3, 2.6, 3.8 |

|Grade Level |10 |

|Summative Performance Task |Mock Supreme Court case, a news report |

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|Compelling Question: What may I legally say? |

|What is the constitutional balance between my freedom of expression and the government authority to enforce the social contract by limiting my |

|freedom of expression? |

|Supporting Question I  |Supporting Question II  |Supporting Question III |

|What is freedom of expression? |When is freedom of expression limited by |When is freedom of expression protected by |

| |government? |government? |

|Historical Sources |Historical Sources |Historical Sources |

|First amendment |Schenk v US 1919 |Tinker v Des Moines 1969 |

|Overview of the First Amendment |Gitlow v NY 1925 |Brandenburg v Ohio 1969 |

|Voltaire quote |NY Times v Sullivan 1973 |Island Trees School District v Pico 1982 |

| |Bethel v Fraser 1986 |Texas v Johnson 1989 |

|  |Hazelwood v Kuhlmeier 1988 |Reno v ACLU 1997 |

| |Virginia v Black 2003 |Harper v Poway (9th Circuit) 2006 |

| |Morse v Frederick 2007 | |

|Formative Performance Task I  |Formative Performance Task II  |Formative Performance Task III  |

|(20 – 50 minutes)  |(40 – 90 minutes) |(40 – 90 minutes) |

|Identify your interpretation of freedom of |Identify and briefly explain authority of |Identify and briefly explain individual rights |

|expression found in the US Constitution. |government to limit freedom of expression as |to freedom of expression as interpreted by the |

|(see Appendix Worksheet A) |interpreted by the US Supreme Court.  |US Supreme Court. |

| |(see Appendix Worksheet B)  |(see Appendix Worksheet C) |

| |

|Summative Performance Task: |

| |

|Mock Supreme Court case, using a current case or one of the cases in this lesson. |

|Write a news release about your final decision, using the documents to support your conclusion. |

|Extension: |

|1. |

|Compare Elonis v US 2014 (violent Facebook postings against former wife and an FBI agent and unnamed Kindergarten class) and Walker v Texas |

|Division, Sons of Confederate Veterans (Texas and the Confederate license plates). |

| |

|

|-11e5-89f3-61410da94eb1_story.html |

Table of Contents

Formative Performance Task 1 Lesson Plan Suggestions p. 3

Formative Performance Task 2 Lesson Plan Suggestions p. 3, 4

Formative Performance Task 3 Lesson Plan Suggestions p. 4

Summative Performance Task Lesson Plan Suggestions p. 4

Supporting Question #1 Sources p. 5-7

Supporting Question #2 Sources p. 8-15

Supporting Question #3 Sources p. 16-22

Appendix for Supporting Question #1 p. 23

Appendix for Supporting Question #2 p. 24

Appendix for Supporting Question #3 p. 25

Appendix for Summative Performance Task p. 26

Rubrics for Summative Performance Tasks p. 27, 28

|Formative Performance Task 1 |Lesson plan |

15 – 30 minutes, depending on the depth/amount of each document that students investigate and the students’ reading comprehension skills and processing speeds.

1. Before the lesson begins:

i. Make copies of Supporting Question #1, Source A (or use the document camera, if available).

ii. Make copies of Appendix for Supporting Question 1, Worksheet A.

iii. Decide whether to use Supporting Question #1, Source B, an overview of the First Amendment. This source can also be shown using a document camera, if available.

iv. Make a class set of Volaire’s quote, Supporting Question #1, Source C, or use the document camera.

2. Create student groups of 2 – 4.

3. Distribute/show copies of Supporting Question #1, Source A.

4. Ask students to also read the First Amendment.

5. Distribute copies of Appendix for Supporting Question 1, Worksheet A.

6. Ask students to investigate the First Amendment, as defined in the Constitution.

7. Ask students to write their findings on the Appendix for Supporting Question 1, Worksheet A.

8. As a class, discuss the conclusions of the investigation of the First Amendment. As a class, answer : What is freedom of expression?

|Formative Performance Task 2 |Lesson plan |

40 – 90 minutes, depending on how many documents are used and the depth/amount of each document that students investigate as well as the students’ reading comprehension skills and processing speeds.

1. Before the lesson begins:

i. Decide which documents/sources to use. Make copies of sources that will be investigated by the students.

ii. Make copies of Appendix for Supporting Question 2, Worksheet B.

2. Create student groups of 2 – 4.

3. Distribute copies of sources chosen for student investigation.

4. Ask students to read the sources.

5. Distribute copies of Appendix for Supporting Question 2, Worksheet B.

6. Ask students to investigate government authority to limit freedom of expression, as explained in the sources chosen and photocopied.

7. Ask students to write their findings on the Appendix for Supporting Question 2, Worksheet B.

8. As a class, discuss the conclusions of the investigation of sources. As a class, answer : How far does government authority to limit freedom of expression extend?

|Formative Performance Task 3 |Lesson plan |

40 – 90 minutes, depending on how many documents are used and the depth/amount of each document that students investigate as well as the students’ reading comprehension skills and processing speeds.

1. Before the lesson begins:

i. Make copies of sources that students will use.

ii. Make copies of Appendix for Supporting Question 3, Worksheet C.

2. Create student groups of 2 – 4.

3. Distribute copies of sources that will be used.

4. Ask students to read the sources.

5. Distribute copies of Appendix for Supporting Question 3, Worksheet C.

6. Ask students to investigate freedom of expression and individual rights, as explained in the sources chosen and photocopied.

7. Ask students to write their findings on the Appendix for Supporting Question 3, Worksheet C.

8. As a class, discuss the conclusions of the investigation of sources. As a class, answer : How far do individual rights to freedom of expression extend?

|SUMMATIVE Performance Task |Lesson plan |

30 – 90 minutes, depending on the Summative Performance Task that is chosen.

As a class, discuss the extent of freedom of expression in the US. Explain to students that the notes from the discussion will be valuable in completing the Summative Performance Task. (30 minutes)

Choose one of the Summative Performance Tasks.

A mock Supreme Court case will usually take approximately 45 – 60 minutes.

|SUPPORTING QUESTION 1 |SOURCE A |

Supporting Question #1

Historical Source A

The Bill of Rights

Amendment I

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.

Reference



|SUPPORTING QUESTION 1 |SOURCE B |

Supporting Question #1

Historical Source B

Freedom of Speech and Freedom of the Press

—

Amendment I

Essay by Eugene Volokh (pp. 311–316)

Freedom of speech and freedom of the press are important but not well-defined provisions of the Constitution. The Framers certainly recognized the importance of such freedoms as vital to the advancement of truth, science, morality, and arts in general, but few Founding-era courts discussed the scope of these rights.

The most prominent debate on freedom of the press concerned the Sedition Act

of 1798, wherein Congress made it a crime to publish writings intended to defame

the government, Congress, or the President or to incite unrest in the country. The

debate turned on whether government (1) could prevent the publication of works

that would violate the Sedition Act or (2) could merely punish people for publishing

such works after the fact.

John Marshall, a Federalist Congressman, argued that freedom of the press meant

that one could publish freely without first obtaining permission, but the Freedom

of the Press Clause did not protect against criminal prosecution after publication.

James Madison did not agree with this view. He argued that penalties imposed after

publication would restrict freedom of the press every bit as much as laws allowing

prior restraint would.

Federalist supporters of the Sedition Act argued that freedom of the press does not

extend to seditious speech against the government, because seditious speech destroys confidence in government. By contrast, the Republicans argued that freedom of speech necessarily covers speech that criticizes the government.

The consensus on the original meaning of the Freedom of Speech Clause is also

unsettled. For instance, does the clause protect anonymous political speech? Some,

including Justice Clarence Thomas, point to the Founders’ use of anonymous speech as proof that anonymous political speech is protected. Justice Antonin Scalia, however, disagreed in McIntyre v. Ohio Elections Commission (1995).

Contemporary jurisprudence on the Freedom of Speech and Freedom of the Press

Clauses does not reference their original meaning. Rather, the Supreme Court has

developed its own set of categories of protected and unprotected speech and press.

First, the guarantees in the Freedom of Speech and Freedom of the Press Clauses

protect individuals against the actions of government, not against the actions of private individuals. Second, they apply to both the state and federal levels. Third, they cover speakers and writers, regardless of medium (book, magazine, or Internet) or membership with an institutional press. (Radio and television receive less constitutional protection.) Fourth, the Freedom of Speech Clause covers expressive actions, such as carrying a flag or wearing a symbol, and actions that are necessary for a person to deliver an effective talk,such as buying a podium and microphone. Fifth, both political speech and speech about science,religion, art, and a variety of other topics are protected. Sixth, free speech extends to all viewpoints, even ones that most of society considers evil.

The Court recognizes some limitations on freedom of speech and press, including speech inciting individuals to break the law; obscene works; threats of violence; fighting words, which are personal insults directed toward a specific individual that are likely to cause a fight; speech owned by others that may violate intellectual property laws; and certain types of commercial advertising such as misleading statements.

Before You Read

Ask: What does “freedom of speech” mean? (American citizens may speak

their opinions freely without being punished for their opinions.)

Ask: What does freedom of the press mean?(Freedom of the press safeguards the ability to write and publish one’s opinions freely. It is not limited to an institutional press such as a news agency. It is an individual right.)

…

Active Reading

Ask: What types of media are protected by freedom of speech today?(The

Founders understood freedom of speech to cover political speech. The modern Supreme Court considers freedom of speech to cover books, newspapers, movies, the Internet, and—to a lesser extent—radio and television.) What types of statements made by an individual might not be protected by freedom of speech? (statements that an individual knows are untrue, statements that are meant to provoke people to commit crimes, statements that contain threats of violence, and certain insults provoking a fight).

Reference



|SUPPORTING QUESTION 1 |SOURCE C |

Supporting Question #1

Historical Source C

[pic]

Reference



|SUPPORTING QUESTION 2 |SOURCE A |

Supporting Question #2

Historical Source A

SCHENCK v. UNITED STATES 1919

Facts of the Case 

During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.

Question 

Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?

Conclusion 

Decision: 9 votes for United States, 0 vote(s) against

Legal provision: 1917 Espionage Act; US Const Amend 1

Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "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." During wartime, utterances tolerable in peacetime can be punished.

Reference



other sources for more information:



(excellent for more information, well organized, with more background information)

|SUPPORTING QUESTION 2 |SOURCE B |

Supporting Question #2

Historical Source B

Bottom of Form

GITLOW v. NEW YORK 1925

Facts of the Case 

Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law.

Question 

Is the New York law punishing advocacy to overthrow the government by force an unconstitutional violation of the free speech clause of the First Amendment?

Conclusion 

Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.

Reference



other sources for more information:



|SUPPORTING QUESTION 2 |SOURCE C |

Supporting Question #2

Historical Source C

NEW YORK TIMES v. SULLIVAN 1973

Facts of the Case 

Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment.

Question 

Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?

Conclusion 

Decision: 9 votes for New York Times, 0 vote(s) against

Legal provision: Amendment 1: Speech, Press, and Assembly

The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed.

Reference



other sources for more information:





|SUPPORTING QUESTION 2 |SOURCE D |

Supporting Question #2

Historical Source D

Bottom of Form

BETHEL SCHOOL DISTRICT NO. 403 v. FRASER 1986

Facts of the Case 

At a school assembly of approximately 600 high school students, Matthew Fraser made a speech nominating a fellow student for elective office. In his speech, Fraser used what some observers believed was a graphic sexual metaphor to promote the candidacy of his friend. As part of its disciplinary code, Bethel High School enforced a rule prohibiting conduct which "substantially interferes with the educational process . . . including the use of obscene, profane language or gestures." Fraser was suspended from school for two days.

Question 

Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly?

Conclusion 

Decision: 7 votes for Bethel School District No. 403, 2 vote(s) against

Legal provision: Amendment 1: Speech, Press, and Assembly

No. The Court found that it was appropriate for the school to prohibit the use of vulgar and offensive language. Chief Justice Burger distinguished between political speech which the Court previously had protected in Tinker v. Des Moines Independent Community School District (1969) and the supposed sexual content of Fraser's message at the assembly. Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech since such discourse was inconsistent with the "fundamental values of public school education."

Reference



other sources for more information:



(excellent for more information, well organized, with more background information)

|SUPPORTING QUESTION 2 |SOURCE E |

Supporting Question #2

Historical Source E

Bottom of Form

HAZELWOOD SCHOOL DISTRICT v. KUHLMEIER 1988

Facts of the Case 

The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, received the pages proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court.

Question 

Did the principal's deletion of the articles violate the students' rights under the First Amendment?

Conclusion 

Decision: 5 votes for Hazelwood School District, 3 vote(s) against

Legal provision: Amendment 1: Speech, Press, and Assembly

No. In a 5-to-3 decision, the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. The Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns." The actions of principal Reynolds, the Court held, met this test.

Reference



other sources for more information:









|SUPPORTING QUESTION 2 |SOURCE F |

Supporting Question #2

Historical Source F

VIRGINIA v. BLACK 2003

Facts of the Case 

Barry Black, Richard Elliott, and Jonathan O'Mara were convicted separately of violating a Virginia statute that makes it a felony "for any person..., with the intent of intimidating any person or group..., to burn...a cross on the property of another, a highway or other public place," and specifies that "any such burning...shall be prima facie evidence of an intent to intimidate a person or group." At trial, Black objected on First Amendment grounds to a jury instruction that cross burning by itself is sufficient evidence from which the required "intent to intimidate" could be inferred. He was found guilty. O'Mara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality. In Elliott's trial, the judge did not give an instruction on the statute's prima facie evidence provision. Ultimately, the Virginia Supreme Court held, among other things, that the cross-burning statute is unconstitutional on its face and that the prima facie evidence provision renders the statute overbroad because the probability of prosecution under the statute chills the expression of protected speech.

Question:  Does the Commonwealth of Virginia's cross-burning statute, which prohibits the burning of a cross with the intent of intimidating any person or group of persons, violate the First Amendment?

Conclusion 

Decision: 7 votes for Virginia, 2 vote(s) against

Legal provision: Amendment 1: Speech, Press, and Assembly

Yes, but in a plurality opinion delivered by Justice Sandra Day O'Connor, the Court held that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, in which four other justices joined, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form, in which three other justices joined. Justice Antonin Scalia left the latter portion of the Court's conclusion to argue that the Court should vacate and remand the judgment of the Virginia Supreme Court with respect to Elliott and O'Mara, so that that court could have an opportunity to construe the cross-burning statute's prima-facie- evidence provision. Justice David H. Souter, joined by Justices Anthony M. Kennedy and Ruth Bader Ginsburg, concluded that the Virginia statute is unconstitutional and therefore concurred in the Court's judgment insofar as it affirmed the invalidation of Black's conviction. Justice Clarence Thomas dissented.

Reference



other sources for more information:



|SUPPORTING QUESTION 2 |SOURCE G |

Supporting Question #2

Historical Source G

MORSE v. FREDERICK 2007

Facts of the Case 

At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking. Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs. Frederick sued under 42 U.S.C. 1983, the federal civil rights statute, alleging a violation of his First Amendment right to freedom of speech. The District Court found no constitutional violation and ruled in favor of Morse. The court held that even if there were a violation, the principal had qualified immunity from lawsuit. The U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit cited Tinker v. Des Moines Independent Community School District, which extended First Amendment protection to student speech except where the speech would cause a disturbance. Because Frederick was punished for his message rather than for any disturbance, the Circuit Court ruled, the punishment was unconstitutional. Furthermore, the principal had no qualified immunity, because any reasonable principal would have known that Morse's actions were unlawful.

Question 

1) Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events?

2) Does a school official have qualified immunity from a damages lawsuit under 42 U.S.C. 1983 when, in accordance with school policy, she disciplines a student for displaying a banner with a drug reference at a school-supervised event?

Conclusion 

Decision: 5 votes for Morse, 4 vote(s) against

Legal provision: Amendment 1: Speech, Press, and Assembly

Yes and not reached. The Court reversed the Ninth Circuit by a 5-4 vote, ruling that school officials can prohibit students from displaying messages that promote illegal drug use. Chief Justice John Roberts's majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use. The majority held that Frederick's message, though "cryptic," was reasonably interpreted as promoting marijuana use - equivalent to "[Take] bong hits" or "bong hits [are a good thing]." In ruling for Morse, the Court affirmed that the speech rights of public school students are not as extensive as those adults normally enjoy, and that the highly protective standard set by Tinker would not always be applied. In concurring opinions, Justice Thomas expressed his view that the right to free speech does not apply to students and his wish to see Tinker overturned altogether, while Justice Alito stressed that the decision applied only to pro-drug messages and not to broader political speech. The dissent conceded that the principal should have had immunity from the lawsuit, but argued that the majority opinion was "[...] deaf to the constitutional imperative to permit unfettered debate, even among high-school students [...].

Reference



other sources for more information:







(includes a discussion with Mary Beth Tinker about First Amendment rights)



|SUPPORTING QUESTION 3 |SOURCE A |

Supporting Question #3

Historical Source A

TINKER v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT 1969

Facts of the Case 

In December 1965, a group of students in Des Moines held a meeting in the home of 16-year-old Christopher Eckhardt to plan a public showing of their support for a truce in the Vietnam war. They decided to wear black armbands throughout the holiday season and to fast on December 16 and New Year’s Eve. The principals of the Des Moines school learned of the plan and met on December 14 to create a policy that stated that any student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension. On December 16, Mary Beth Tinker and Christopher Eckhardt wore their armbands to school and were sent home. The following day, John Tinker did the same with the same result. The students did not return to school until after New Year’s Day, the planned end of the protest.

Through their parents, the students sued the school district for violating the students’ right of expression and sought an injunction to prevent the school district from disciplining the students. The district court dismissed the case and held that the school district’s actions were reasonable to uphold school discipline. The U.S. Court of Appeals for the Eighth Circuit affirmed the decision without opinion.

Question 

Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students' freedom of speech protections guaranteed by the First Amendment?

Conclusion 

Decision: 7 votes for Tinker, 2 vote(s) against

Legal provision: Amendment 1: Speech, Press, and Assembly

Yes. Justice Abe Fortas delivered the opinion of the 7-2 majority. The Supreme Court held that the armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it. The Court also held that the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would “materially and substantially interfere” with the operation of the school. In this case, the school district’s actions evidently stemmed from a fear of possible disruption rather than any actual interference.

In his concurring opinion, Justice Potter Stewart wrote that children are not necessarily guaranteed the full extent of First Amendment rights. Justice Byron R. White wrote a separate concurring opinion in which he noted that the majority’s opinion relies on a distinction between communication through words and communication through action.

Justice Hugo L. Black wrote a dissenting opinion in which he argued that the First Amendment does not provide the right to express any opinion at any time. Because the appearance of the armbands distracted students from their work, they detracted from the ability of the school officials to perform their duties, so the school district was well within its rights to discipline the students. In his separate dissent, Justice John M. Harlan argued that school officials should be afforded wide authority to maintain order unless their actions can be proven to stem from a motivation other than a legitimate school interest.

Reference



other sources for more information:









(this is a podcast)

|SUPPORTING QUESTION 3 |SOURCE B |

Supporting Question #3

Historical Source B

BRANDENBURG v. OHIO 1969

Facts of the Case 

Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

Question 

Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?

Conclusion 

Decision: 8 votes for Brandenburg, 0 vote(s) against

Legal provision: Amendment 1: Speech, Press, and Assembly

The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution

Reference



other sources for more information:



(one short paragraph, picture of KKK)



|SUPPORTING QUESTION 3 |SOURCE C |

Supporting Question #3

Historical Source C

ISLAND TREES SCHOOL DISTRICT BOARD OF EDUCATION v. PICO 1982

Facts of the Case 

The Island Trees Union Free School District's Board of Education (the "Board"), acting contrary to the recommendations of a committee of parents and school staff, ordered that certain books be removed from its district's junior high and high school libraries. In support of its actions, the Board said such books were: "anti-American, anti-Christian, anti-Semitic, and just plain filthy." Acting through his friend Francis Pico, and on behalf of several other students, Steven Pico brought suit in federal district court challenging the Board's decision to remove the books. The Board won; the U.S. Court of Appeals for the Second Circuit reversed. The Board petitioned the U.S. Supreme Court, which granted certiorari.

Question 

Did the Board of Education's decision to ban certain books from its junior high and high school libraries, based on their content, violate the First Amendment's freedom of speech protections?

Conclusion 

Decision: 5 votes for Pico, 4 vote(s) against

Legal provision: Amendment 1: Speech, Press, and Assembly

Yes. Although school boards have a vested interest in promoting respect for social, moral, and political community values, their discretionary power is secondary to the transcendent imperatives of the First Amendment. The Court, in a 5-to-4 decision, held that as centers for voluntary inquiry and the dissemination of information and ideas, school libraries enjoy a special affinity with the rights of free speech and press. Therefore, the Board could not restrict the availability of books in its libraries simply because its members disagreed with their idea content.

Reference



other sources for more information:









|SUPPORTING QUESTION 3 |SOURCE D |

Supporting Question #3

Historical Source D

TEXAS v. JOHNSON 1989

Facts of the Case 

In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court.

Question 

Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

Conclusion 

Decision: 5 votes for Johnson, 4 vote(s) against

Legal provision: Amendment 1: Speech, Press, and Assembly

In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Reference



other sources for more information:







|SUPPORTING QUESTION 3 |SOURCE E |

Supporting Question #3

Historical Source E

RENO v. ACLU 1997

Facts of the Case 

Several litigants challenged the constitutionality of two provisions in the 1996 Communications Decency Act. Intended to protect minors from unsuitable internet material, the Act criminalized the intentional transmission of "obscene or indecent" messages as well as the transmission of information which depicts or describes "sexual or excretory activities or organs" in a manner deemed "offensive" by community standards. After being enjoined by a District Court from enforcing the above provisions, except for the one concerning obscenity and its inherent protection against child pornography, Attorney General Janet Reno appealed directly to the Supreme Court as provided for by the Act's special review provisions.

Question 

Did certain provisions of the 1996 Communications Decency Act violate the First and Fifth Amendments by being overly broad and vague in their definitions of the types of internet communications which they criminalized?

Conclusion 

Decision: 9 votes for ACLU, 0 vote(s) against

Legal provision: Amendment 1: Speech, Press, and Assembly

Yes. The Court held that the Act violated the First Amendment because its regulations amounted to a content-based blanket restriction of free speech. The Act failed to clearly define "indecent" communications, limit its restrictions to particular times or individuals (by showing that it would not impact adults), provide supportive statements from an authority on the unique nature of internet communications, or conclusively demonstrate that the transmission of "offensive" material is devoid of any social value. The Court added that since the First Amendment distinguishes between "indecent" and "obscene" sexual expressions, protecting only the former, the Act could be saved from facial overbreadth challenges if it dropped the words "or indecent" from its text. The Court refused to address any Fifth Amendment issues.

Reference



other sources for more information:





(in depth document)



|SUPPORTING QUESTION 3 |SOURCE F |

Supporting Question #3

Historical Source F

Harper v Poway (9th Circuit of Appeals) 2006

Tyler Chase Harper v. Poway Unified School District 445 F.3d 1166 U.S. Court of Appeals for the Ninth Circuit. April 20, 2006.

Facts: Tyler Chase Harper, a high school sophomore, spent a class day in the principle’s office for wearing a T-shirt which contained disparaging statements about the homosexual community. Chase was not suspended or sanctioned in any way.

Procedural History: Chase filed suit in federal court claiming that the school had violated his First Amendment rights to freedom of speech and religion, as well as rights protected by the equal protection and due process clauses under the federal Constitution and the California Civil Code. Chase asked the court for a preliminary injunction and the school asked to dismiss the case. Both were denied. The Court dismissed all of Chase’s claims except the First Amendment claims because of the school‘s qualified immunity. Chase appealed the preliminary injunction decision to the U.S. Court of Appeals for the Ninth Circuit.

Issue: Whether forbidding a student in a public high school to wear a derogatory T-shirt violates his or her First Amendment rights to freedom of speech and religion.

Holding: No. Reasoning: Tinker v. Des Moines Indep. Cmty. Sch. Dist. allows school officials to curtail free speech of a student if that speech impinges upon the rights of other students or causes a substantial disruption or material interference with school activities. In this case, Chase’s t-shirt impinges on homosexual classmates right to a education without being psychological or emotionally harassed by other students. As a result, Chase would not receive a preliminary injunction for freedom of speech because it is highly unlikely that that claim will have merit in district court. Lastly, Chase’s claim that the school violated his right to free exercise of religion and his rights protected by the establishment clause is without merit. The school did not violate his right to free exercise of religion because there is no evidence in the ruling to suggest the school burdened his ability to exercise his religion. The establishment clause doesn’t apply because the banning of the t-shirt was not religiously motivated.

Reference



other sources for more information:



(brief overview)



(28 page document)

(in depth)



(video of arguments)



(8 page document)

|Appendix for SUPPORTING QUESTION 1 |Worksheet A |

Complete, using the documents suggested. Name (s)________________

____________________________

1. What are your thoughts about the wording of Amendment 1 (Supporting Question 1 Source A)? ______________________________________________________________

__________________________________________________________________________

2. What are your thoughts about the overview reading (Supporting Question 1 Source B)?

___________________________________________________________________________

___________________________________________________________________________

3. What is your response to Voltaire’s quote (Supporting Question 1 Source C)? ________

__________________________________________________________________________

Why do you agree or disagree?_________________________________________________

___________________________________________________________________________

4. What do you predict you may legally say (predict how far freedom of speech extends)?

_________________________________________________________________________________

_________________________________________________________________________________

|Appendix for SUPPORTING QUESTION 2 |Worksheet B |

Complete the information in the chart. Name (s)________________________________

|Reading | |How far does government authority to limit freedom of |comments |

| | |expression extend? | |

|Schenk v US 1919 | | | |

|B. Gitlow v NY 1925 | | | |

|C. NY Times v Sullivan 1973 | | | |

| D. Bethel v Fraser 1986 | | | |

| E. Hazelwood v | | | |

|Kuhlmeier 1988 | | | |

|F. Virginia v Black 2003 | | | |

| | | | |

| | | | |

| | | | |

|G. Morse v Frederick 2007 | | | |

| | | | |

| | | | |

Final conclusion: How far does government authority to limit freedom of expression extend?_____

_________________________________________________________________________________

_________________________________________________________________________________

Proof (at least 3 reasons based on the readings)

1.

2.

3.

|Appendix for SUPPORTING QUESTION 3 |Worksheet C |

Complete the information in the chart. Name (s)________________________________

|Reading | |How far do individual rights to freedom of expression |comments |

| | |extend? | |

|Tinker v Des Moines 1969 | | | |

|Brandenburg v Ohio 1969 | | | |

| C. Island Trees School District | | | |

|v Pico 1982 | | | |

| D. Texas v Johnson 1989 | | | |

|E. Reno v ACLU 1997 | | | |

| | | | |

| | | | |

|F. Harper v Poway | | | |

|(9th Circuit) 2006 | | | |

Final conclusion: How far do individual rights to freedom of expression extend?_______________

_________________________________________________________________________________

__________________________________________________________________________________

Proof (at least 3 reasons based on the readings)

1.

2.

3.

|Appendix for SUmmative Performance Task |Worksheet D |

Mock Supreme Court

Set up:

1. Choose two teams of lawyers, 2 – 6 students on each team. The lawyers will prepare opposing arguments, one as the plaintiffs and one as the defense. One side will argue for more individual freedom of expression and the other side will argue for government limits to enforce the social contract.

2. Choose 2 – 3 sets of 9 students to be the judges. These students question the lawyers to get more information and to determine the strength of the arguments. The nine judges will answer questions that lawyers might have about the courtroom protocol.

3. Determine the minimum number of rounds (at least 4).

Protocol:

4. The judges will explain the protocol and any additional rules needed.

5. The plaintiff will have 45 seconds to present its opening statements.

6. The defense will have 45 seconds to present its opening statements.

Round 1

7. The plaintiff will have 30 seconds to present its next point.

8. Both sides will have 45 seconds to confer.

9. The defense will have 30 seconds to present its next point or to rebut.

10. Both sides will have 45 seconds to confer.

Round 2

11. The plaintiff will have 30 seconds to present.

12. Both sides will have 45 seconds to confer.

13. The defense will have 30 seconds to present.

14. Both sides will have 45 seconds to confer.

Round 3 and ???

15. continue as long as was decided, or continue as needed.

Final round

16. Each group of nine judges will deliberate and write the reasons for their final decision. Each group of nine judges will announce which side won the argument.

17. Students may write a reflection of the protocol, indicating which side presented the most effective arguments and how they felt about the mock trial process.

|Appendix for SUmmative Performance Task - rubrics |Worksheet E |

1. Letter to the editor

RUBRIC for grading (50 total points)

proper essay form:

thesis – 10

specific facts: 4 (at least) accurate facts, well written, to support your proposal – 20

grammar, mechanics (spelling and punctuation) – 10

conclusion – 10

2. news release

INTRODUCTION / THESIS (4 points total)

__Are there major points in the thesis?

__Is the thesis well written? is the word choice excellent?

SEQUENCING / ORGANIZATION (4 points total)

__Are the topic sentences well written?

__Does the information in the conclusion “restate” the thesis as a proven fact?

__Is the order within each paragraph logical?

__Is the main idea of each paragraph interest and easy to follow?

SUPPORTING DETAILS (8 points total for all major ideas)

__Are the details specific and relevant to the topic sentence and prompt?

__Do the details analyze and connect the topic to the thesis/prompt?

__Are the details accurate and in depth?

__Are the examples appropriate and connected to the topic and thesis/prompt?

__Are the details written well; is the word choice excellent?

SOURCES (4 points total)

__Is the information in the essay correctly cited?

__Are the sources credible sources?

__Are the any instances of plagiarism?

OTHER (included in the supporting details point total)

__Is spelling accurate?

__Is the punctuation accurate?

Student evaluation___________x5 = _____

Teacher evaluation__________x5 = ______

Strong points of the essay:

3. Mock Supreme Court case (sample for the judges to consider or for teacher use)

| | | |

| |

|Mock Court Case : What is the balance between individual freedom of expression and government authority to limit freedom|

|of expression? |

|[pic] |

|Student Name:     __________________Team #_____ |

| |

|CATEGORY |4 excellent |3 good |2 fair | 1 poor |

|Organization |All arguments were clearly|Most arguments were |All arguments were clearly|Arguments were not clearly|

| |tied to an idea (premise) |clearly tied to an idea |tied to an idea (premise) |tied to an idea (premise).|

| |and organized in a tight, |(premise) and organized |but the organization was | |

| |logical fashion. |in a tight, logical |sometimes not clear or | |

| | |fashion. |logical. | |

|Presentation Style |Team consistently used |Team usually used |Team sometimes used |One or more members of the|

| |gestures, eye contact, |gestures, eye contact, |gestures, eye contact, |team had a presentation |

| |tone of voice and a level |tone of voice and a level|tone of voice and a level |style that did not keep |

| |of enthusiasm in a way |of enthusiasm in a way |of enthusiasm in a way |the attention of the |

| |that kept the attention of|that kept the attention |that kept the attention of|audience. |

| |the audience. |of the audience. |the audience. | |

|Respect for Other Team |All statements, body |Statements and responses |Most statements and |Statements, responses |

| |language, and responses |were respectful and used |responses were respectful |and/or body language were |

| |were respectful and were |appropriate language, but|and in appropriate |consistently not |

| |in appropriate language. |once or twice body |language, but there was |respectful. |

| | |language was not. |one sarcastic remark. | |

4. pamphlet

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