Title: the First Amendment: the Five (Six) Clauses

Week Two Street Law Lesson Plan

Title: The First Amendment: the Five (six) Clauses

Creator: Kerry Werner

Sources:1 For All - Newseum First Amendment Activities (

Time: 98 Minutes

I. Goals:

Studying the First Amendment helps students:
Understand that their conduct, words, and expressions are greatly protected by the First Amendment
Understand the meaning of each protection of the First Amendment
Recognize that the government generally cannot punish you for having an unpopular opinion

II. Objectives

Knowledge and Skills Objectives
Identify that the 5 protected freedoms of the First Amendment
Summarize when a government can place Time, Place, Manner restrictions on your First Amendment activities
Recognize that a lot of First Amendment cases implicate more than one clause because the clause all support one another
Recognize that state constitutions can often afford citizens greater protections than the federal constitution and remember this idea once we move on to 4th Amendment
Actively listen to other students’ answers and thoughtfully respond
Application Objectives
Determine the likely constitutionality of a government action by applying the rules governing each protected First Amendment Freedom
Attitude Objectives
Appreciate how protective the First Amendment is of citizen conduct

III. Materials

Powerpoint
Group Hypothetical Exercises
Answers to group activity

IV. Classroom Methods

First Amendment Law: Identifying the Protected Freedoms + Hypotheticals (~40 min)
Ask for a volunteer to read the First Amendment (on powerpoint slide)
Ask for students to identify what rights are protected in this Amendment; write them on the white board so that students can use them for reference when running through hypotheticals
Freedom of speech
(no) Establishment of Religion
Free exercise of religion
Freedom of the press
Right to Peaceably Assemble
Right to petition the Government
Define and run through hypos for each clause (see power point slides)
When running through the hypos (12 in all), ask the students if the First Amendment right has been violated or even implicated in each hypo.
Answers to each hypo are on the slides
Freedom of speech – you can voice your opinions using words, symbols or actions
“Congress shall make no law… abridging the freedom of speech.”
Core political speech is highly protected (speech criticizing the government, insisting on reform, etc) – it is purely expressive in nature and serves an important function to the republic (how will you decide who to vote for if you can’t hear someone talk about a candidate’s negative qualities, why a candidate is bad for the job)
Time Manner Place restrictions are the restrictions placed on your speech. It has to be made at an appropriate time, manner, and place. For example, if you plan on using an amplification system or if you plan on marching a parade down a street in protest, you typically have to get a permit for that because it is incompatible with normal activity of a particular place at a particular time. Standing on a public side walk holding a sign and shouting typically does not require a permit.
Time, manner, place restrictions must: (Ward v. Rock Against Racism; 1989)
Be content neutral (if it forces you to change how or what you say, then it isn’t content neutral)
Be narrowly tailored
Serve a significant governmental interest
Leave open ample alternative channels for communication
Freedom of Religion – (no) Establishment Clause
“Congress shall make no law respecting an establishment of religion”
This means that the government can’t tell you what religion to practice, and that they can’t favor one religion over another.
Lemon Test – if any one of the 3 prongs are violated, the government’s action is unconstitutional under the Establishment clause
Entanglement Prong – take into consideration where, when, and how the religious activity is occurring and if an objective outsider would perceive the religious activity as being government sponsored or approved (Like students being required to read a bible verse at the start of every school day – Abington School District v. Schempp, 1963)
Effect Prong – does it primarily have the effect of advancing a religion? (nativity scene – yes; menorah next to a Christmas tree and a sign saluting liberty – no because it merely recognized that both Christmas and Hanukkah are a part of the same winter-holiday season – County of Allegheny v. ACLU (1989))
Purpose Prong - was there a non-religious reason for this religious activity (like the 10 commandments being erected on Texas capitol grounds among 16 other monuments all demonstrating the values that the Texas settlers possessed – Van Orden v. Perry (2005))
Freedom of Religion – Free Exercise Clause
“Congress shall make no law…prohibiting the free exercise [of religion]”
This means that the government can’t tell you how to practice your religion.
If a law is “neutral” and “generally applicable,” then it (usually) doesn’t violate the Free Exercise Clause
The Government must have a “compelling interest to refuse to accommodate religiously motivated conduct.”
Freedom of the Press – the government cannot (generally) censor information in newspapers, online news sources, TV news broadcasts, etc
“Congress shall make no law… abridging the freedom… of the press.”
“Press” means “every sort of publication which affords a vehicle of information and opinion.”
Like Freedom of Speech, there are some categories of publications that are not protected. Libel is a good example of an unprotected publication.
Libel – a published false statement that is damaging to a person’s reputation
Right to Peaceably Assemble – you can gather in a group
“Congress shall make no law… abridging… the right of the people peaceably to assemble.”
The right of a group of people to come together to express, promote and defend their ideas. A lot of times thought of as your right to protest (in conjunction with speech)
Time, manner, place restrictions must: (Ward v. Rock Against Racism; 1989)
Be content neutral (if it forces you to change how or what you say, then it isn’t content neutral)
Be narrowly tailored
Serve a significant governmental interest
Leave open ample alternative channels for communication
A Government cannot punish speech for its content unless the speech
Is intended to produce imminent lawless action, AND
Is likely to incite or produce such action
Right to Petition the Government – you can criticize the government, and you can complain about policies that affect you negatively and ask for change
“Congress shall make no law… abridging… the right of the people… to petition the Government for a redress of grievances.”
Ex: Submitting petitions to your local government or school board; We the People initiative with the White House where citizens can submit proposals/petitions to the federal government
Doesn’t necessarily mean that the government has to act on it though
Takeaways
1st Amendment protects you from government action
The rights tend to overlap
Restrictions (time, manner, place)
This whole area of law is very complicated
First Amendment Group Activities (~30 minutes)
I am going to pass out an activity now. There are 6 different kinds of cases we are handing out. When you get your activity, read through it, and try to answer on your own whether or not the First Amendment has been violated or not. The top of every page is just a refresher of the relevant information you learned from the powerpoint slides. It is there to assist you when considering the constitutionality of your assigned hypothetical/situation/case.
After 5 minutes of individual time, you’ll form a group with the other classmates who received your same activity.
You’ll have 10 minutes to discuss the activity with your group. Make sure you write down which clause is applicable, what your ruling was, and your reasons why or why not a violation occurred.
After 5 minutes, we’ll come back as a class and you’ll present your problem and your decision. Afterward, I will tell the class what a court has or might decide.
Which freedoms could you live without – Elimination Game (~ 20 Minutes) (Modified for Street Law but borrowed from “1 for All”)
Now that you have become familiar with all of the clauses, we’d like to know if the class thinks any one of the freedoms could exist alone, without the support of the other five.
Would freedom of speech be as powerful if there was no freedom of the press?
How would freedom to petition be different if we didn’t also have freedom of assembly?
Ask the students for examples of how the freedoms work together.
How would you choose which freedom to give up if you had to? Tell students you are going to do five rounds of voting to determine which freedom the group thinks is the most important. Ask the students to decide which of the freedoms they would eliminate if they had to pick one. Then have your students show which freedoms they chose using a show of hands. After the first vote, cross out on the white board the freedom that received the most votes for elimination. Then ask some students who voted for that freedom to explain why they picked it.
Repeat the process 4 more times.
Once one freedom remains, ask the students if they agree that this right is most important and why or why not. Ask them how this right would be different if it didn’t have the other four rights for support? Would it still be useful? How would people exercise it? Would people have to change how they exercise it if they didn’t have the other five?
Discuss as a class: If you only had freedom of ______(the winner from the votes), would the events below have been possible?
Martin Luther King Jr.’s “I have a Dream” speech on the National Mall.
The Washington Post writing an article about each presidential candidate’s negative qualities
Women gaining the right to vote.
An all-night prayer vigil in memory of a fallen soldier
The Occupy Wall Street Movement
If you find that the federal constitution doesn’t protect your First Amendment rights as much as you’d hope, check out your STATE CONSTITUTION
State Constitutions can and do typically provide even greater protections than the federal government. Washington Courts have read the Washington Constitution to be more protective in many different areas. More on that when we start learning about the 4th Amendment next week
Debrief:
It would be very hard to let go of even one of the clauses
The First Amendment clauses are all very closely related to one another and cases often implicate two or more clauses at the same time.
If you aren’t protected by the Federal Constitution as much as you’d hope, check out the state constitution.

V. Evaluations

Students’ ability to articulate a reasoned answer for why they think the First Amendment is violated or not in a particular context.
Students’ integrating the law from the lecture into their arguments during the group exercises
Students’ having reached a level of First Amendment comprehension that allows them to articulate what would be different if a particular freedom from the First Amendment were no long guaranteed and how that might change the usefulness of the other First Amendment freedoms.

Freedom of Religion

The Establishment Clause

“Congress shall make no law respecting an establishment of religion”

This means that the government can’t tell you what religion to practice, and that they can’t favor one religion over another.

Lemon Test to determine if a law violates the Establishment Clause

The statute must not result in an "excessive government entanglement" with religious affairs. (also known as the Entanglement Prong)
The statute must not advance or inhibit religious practice (also known as the Effect Prong)
The statute must have a secular (non-religious) legislative purpose. (also known as the Purpose Prong)

With your group, decide whether the law in the following case violated the First Amendment:

Santa Fe Independent Schools v. Doe

Some public high school students in Texas wanted to offer a Christian prayer before every school football game. The school district allowed the students to elect a student chaplain (the student that would give the prayer) who would read a Christian prayer over the P.A. system at home football games.

High school football games are held on public school property. The school supervised the use of the P.A. system.

It was the students who wanted a prayer before every football game and the students who offered the prayer.

Freedom of Religion

The Free Exercise Clause

“Congress shall make no law…prohibiting the free exercise [of religion]”

This means that the government can’t tell you how to practice your religion.

If a law is “neutral” and “generally applicable,” then it (usually) doesn’t violate the Free Exercise Clause
The Government must have a “compelling interest to refuse to accommodate religiously motivated conduct.”

With your group, decide whether the law in the following case violated the First Amendment:

Wisconsin v. Yoder

Amish families pulled their students out of public school after the completion of 8th grade because their religion tells them that higher education is unnecessary and may even threaten their salvation.

Wisconsin has a compulsory attendance law which requires students to attend school until they reach the age of 16. Wisconsin convicted the parents for violating the law. The law does not have an exception for students whose religion prevents them from attending high school.

Wisconsin has an interest in making sure all children are educated enough to become productive members of society.

Freedom of Speech

Political Speech (criticizing the government, insisting on reform, etc) is highly protected

Expressive in nature
Serves an important function of the republic

Time, Manner, Place Restrictions: The government can place these restrictions on your speech, but the restriction must:

Be Content neutral
Be Narrowly tailored
Serve a significant governmental interest
Leave open ample alternative channels for communication

With your group, decide whether the restrictions in the following situations would violate the First Amendment:

A city prohibiting citizens to post signs with political opinions written on them in their windows, but still permits signs like “for sale” or signs with business names written on them to be posted in windows.
A city only allows billboards to be used for advertising.
A city requires that any group wishing to have a concert or rally in the park must use city provided sound systems and technicians to control the volume of concerts in the park.
Because the National Parks Service bans everyone from camping in the parks, they denied a permit request from protestors who set up tent cities and wanted to sleep in the park to demonstrate the plight of homelessness.
A city prohibits posting campaign signs in residential yards any earlier than 60 days before an election.

Freedom of the Press

“Congress shall make no law… abridging the freedom… of the press.”

“Press” means “every sort of publication which affords a vehicle of information and opinion.”

Like Freedom of Speech, there are some categories of publications that are not protected. Libel is a good example of an unprotected publication.

With your group, decide whether the following situations would violate the First Amendment:

Someone complains that your Facebook profile picture is inappropriate. Facebook removes the photo and bans you from the site.
The government bans all books that criticize the excessive use of force by police officers.
The government shuts down a blogger’s website after she posts criticisms about President Obama.
You use your cell phone to record a police officer arresting someone. You are arrested and charged with obstruction of justice
Because I don’t want Governor Inslee to be re-elected, I write newspaper article—which I know to be false—claiming that he believes he is a time-traveler, sent from the future to protect democracy. He sues me.
Same facts as number 5, but Governor Inslee actually does think he is a time-traveler, sent from the future to protect democracy.

Right to Peaceably Assemble

“Congress shall make no law… abridging… the right of the people peaceably to assemble.”

The right of a group of people to come together to express, promote and defend their ideas.

Time, Manner, Place Restrictions: The government can place these restrictions on your speech, but the restriction must:

Be Content neutral
Be Narrowly tailored
Serve a significant governmental interest
Leave open ample alternative channels for communication

A Government cannot punish speech for its content unless the speech