Unit Plan: The Bill of Rights
Primary Source Lesson Plan: The First Amendment
Essential Questions
To what extent, and at what times do we have freedom of expression? Should freedom of speech be illegal if it can harm people directly, or indirectly through exposing government plans in times of war? Should we sacrifice some freedom of speech for a little safety? What are the arguments of each stance?
Introduction
These questions are important for students to understand about the freedom of speech, since they will grow up to be activists and need to learn the limitations, if any, of what this amendment implies. The questions concerning whether speech rights should be suspended during times of war is especially important for students to understand because they have grown up while America was at war. Students also need to examine what the government has the power to do, and how it affects their freedoms.
The first-order primary document is the actual first amendment outlining the freedoms. This is the basis for the court cases, acts, and lesson that will follow.
The first second-order primary document is an excerpt from the Espionage Act of 1917. President Wilson put these into effect during World War I to protect people from treasonous acts that would hinder the American strategies. This act shows the perspective that freedom of speech can interfere with war and policies and should therefore be suspended during times of war. One can say this violates the first amendment, because if entails that certain acts or types of speech be prohibited. Although, this is to protect the citizens and the country involved in a war, it brings up the question of whether or not it is right to limit these expressions at all.
The second second-order document is the ruling from a court case in which the United States sued the New York Times for publishing a secret “study” on the Vietnam War in 1971. In this case, the court ruled in favor of the latter, saying that the government did not have enough evidence to prove that it would harm them. The freedom of speech was protected in this instance. This document also could start a discussion about another right outlined in the first amendment, freedom of the press.
The second-order documents offer two alternatives, or possible answers to the first two questions: when and why do we have limited freedom of speech, and is this right? Excerpts from the Constitution and other laws are great primary sources because the students can read for themselves what the authors were trying to say. The court case rulings are great second-order sources because they deal with real situations and conflicts that occurred in history. They also help to analyze the original document (in the situation of freedom of speech, the original document is the first amendment), by providing arguments and possible loopholes in it. Since the disputes over the amendment, or the original source, made it all the way up to the Supreme Court, students know that these are valid arguments and critiques.
Some possible third order documents are the case of Schneck vs. the United States. In this case, a man was distributing flyers telling people to go against the draft. He felt that the institution of this draft was a violation of the first amendment. The court ruled that the Espionage Act did not violate the first amendment right and that the government had a right to censor speech when it is a “danger”; in this situation the man’s speech was disrupting the war effort. This case touches on another right in the first amendment such as the freedom to petition, which this man was openly doing.
Primary Sources
First order:
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.”
Second order:
Espionage Act: “whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information, concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, coaling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, or other place connected with the national defense, owned or constructed, or in progress of construction by the United States or under the control or the United States, or of any of its officers or agents, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired. Or stored, under any contract or agreement with the United States, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place within the meaning of section six of this title; or”
Case of New York Times Co. vs. United States: “We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision-Making Process on Viet Nam Policy." Post, pp. 942, 943. "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." The District Court for the Southern District of New York, in the New York Times case, and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, in the Washington Post case, held that the Government had not met that burden. We agree.”
Third Order:
Case of Schenck vs. United States: “Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances a to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done. A conspiracy to circulate among men called and accepted for military service under the Selective Service Act of May 18, 1917, a circular tending to influence them to obstruct the draft, with the intent to effect that result, and followed by the sending of such circulars, is within the power of Congress to punish, and is punishable under the Espionage Act, § 4, although unsuccessful.”
Case of United States vs. O’Brien: “We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when "speech" and "non-speech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest, which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to 12 (b) (3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O'Brien can be constitutionally convicted for violating it."
Case of Zurcher vs. Stanford Daily: “Properly administered, the preconditions for a search warrant (probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness), which must be applied with particular exactitude when First Amendment interests would be endangered by the search, are adequate safeguards against the interference with the press' ability to gather, analyze, and disseminate news that respondents claim would ensue from use of warrants for third-party searches of newspaper offices.”
Activity
Class will go over first order document together, specifically what it means and how it applies to citizens. Then class will break up into pairs. One person in each pair will get the Espionage Act and the other will get the NY Times Supreme Court case. They will each read their document and make a list of the arguments each one gives. Then they will take turns teaching their article to their partner. Students will become an “expert” on one article, knowing it in depth, rather than knowing a little about many broad topics. By teaching their partners, the students will have a chance to show they really understand the material, as well as reviewing the information for themselves. They will also get a chance to learn something that they didn’t have to read themselves. The students will get the main ideas from their partner, without having to waste class time on both documents. After they teach their partner, the team will both work together and see if they can add on to each other’s list. For example, the student who did not read the Supreme Court case can add arguments or counterarguments to the list from their own base knowledge.
The students will then, working alone, fill out these questions from Drake and Brown, A Systematic Approach to Improve Students’ Historical Thinking for each document:
- Author of the Document:
- Title and Date:
- Type of Document:
- Purpose of document:
- Why did the author write this document?
- Main Idea or Argument:
- Give as many examples as you can find that support that idea/argument:
- Who is reading this document?
- What relationship does this have to the other documents we’ve looked at?
- Does this author have any bias?
- If yes, give examples:
- What was going on in the region, country, and world at this time?
- What people were important in the region, country, and world at this time?
- What other subjects does this document touch on?
During the next class or for homework, students will find their own primary document that deals with the first amendment, specifically freedom of speech in some way. I will provide a list of possible freedom of speech cases for students to research if they have trouble getting started. These third order documents will be researched and analyzed in class, where students will present their work to their peers. This list will concentrate mainly on cases or events that deal with school-age children, or events in school, or deal with activities the students deal with on a regular basis, such as the internet, bullying, sports, etc. This assignment will lead to a debate in which students will use what they’ve learned to give their opinions. Also, students will complete a persuasive essay in the format of a lawyer presenting his/her first amendment case to the jury about an issue the students feel is most important concerning the basic freedoms.
Sources
The First Amendment:
http://www.firstamendmentcenter.org/about.aspx?item=about_firstamd
Espionage Act:
http://www.firstworldwar.com/source/espionageact.htm
Case of NY Times Co. vs. United States:
http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0403_0713_ZO.html
Case of Schenck vs. United States:
http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Schenck_v_US
Case of United States vs. O’Brien:
http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=US_v_Obrien
Case of Zurcher vs. Stanford Daily:
http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0436_0547_ZS.html