“Whispering Wires”:
Public Law vs. Individual Civil Liberties
Investigating Electronic Surveillance from
Olmstead vs. U.S. to modern day
Grade Level: 9–12 (Many elements of the lesson may also be used with advanced
placement or college-level students.)
Related Academic Subjects: U.S. History, Government (Political Science, Civics)
Lesson Overview:
In this lesson, students work in groups to complete a “case study” activity examining the
Fourth and Fifth Amendments through the cases of Olmstead vs. U.S. (1928) and Katz vs.
U.S. (1967), which overturned the Olmstead case. In this lesson, students also investigate
current trends in government surveillance of individuals and the right of privacy and
protection against unreasonable search as defined in the Fourth Amendment to the United
States Constitution.
Lesson Objectives (Students will…)
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Research various patterns in how the Constitution’s due process rights have been
interpreted over the course of time
Explain the process by which the Supreme Court interprets the Constitution and
writes opinions on cases
Develop conclusions regarding how individual rights frequently clash with the
need of law enforcement to collect evidence and punish violators of the law
Understand how social mores and attitudes regarding interpretation of law and the
Constitution change over time
Estimated Time for the Lesson: Three class periods, plus additional time for student
research as homework.
Video Segments:
Episode 2: A Nation of Scofflaws
The Good Bootlegger: Short biographical “introduction” to Roy Olmstead, a Seattle
police officer turned bootlegger. As Olmstead became one of the West Coast’s more
successful suppliers of alcohol, he ordered his lieutenants not to use guns to ensure
delivery of liquor, and instead relied on the corruption of other public officials to ensure
he would not be caught. Olmstead’s customers knew they were receiving the best-quality
merchandise from him.
Whispering Wires: In a sweep against corruption and lax enforcement in Seattle, the
acting mayor, Bertha Landes, takes action while Mayor Doc Brown is out of the city.
Speakeasies are closed and a “wiretapper” is hired to take transcripts of phone
conversations of several Prohibition violators, including Olmstead. Evidence collected
from the taps is used to convict him, and he is sentenced to four years at hard labor.
Appealing his case, Olmstead’s conviction is upheld in the U.S. Supreme Court.
Although Olmstead received a presidential pardon in 1935 and the Supreme Court
reversed its position on wiretaps in Katz vs. U.S., Olmstead had already served his
sentence.
Materials Needed:
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Computers with Internet access and/or an interactive whiteboard
Student Handouts:
o Opening Activity Opinion
o Preparing the Case Study
o Case Study Activity
Lesson Methodology:
Opening Activity (Phase 1):
In this activity, students will examine the text of the Fourth Amendment and its
protections against unreasonable searches and seizures and explore where these
protections are not always granted.
Write the text of the Fourth Amendment to the U.S. Constitution on the board or make it
available to students as a handout or on the overhead projector. (Note: the text of the
Fourth Amendment reads, The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be
seized.)
The teacher should also point students to the Fifth Amendment provision protecting
persons from self-incrimination. (No person… shall be compelled in any criminal case to
be a witness against himself….)
After students have had an opportunity to read the text of the amendment, ask them to
brainstorm as to what is protected (or not protected) from search under the terms of the
Fourth Amendment. (Most high-school-aged students will probably point first to
vehicular searches, but others may relate to locker searches, personal searches at school,
or possibly mandated drug testing. The teacher may also wish to ask students to consider
searching e-mail accounts or social networking accounts as a possible area of contended
search.)
The teacher can write these ideas on the board, or a student volunteer may do so. Once
students have had an opportunity to share ideas, move to the next phase of the opening
activity.
Explain to students that in the next activity they will analyze how Fourth Amendment
protections did not apply to a wiretapping case during Prohibition and how these
protections were later upheld in a similar case. They will explore how different Supreme
Courts can strike down previous decisions when social expectations and the makeup of
the Supreme Court justices change.
Phase 2: Divide the class into groups of 3 or 4 students. Distribute the “Opening Activity
Opinion” form to each student. Instruct students to complete it while they watch the
video segments The Good Bootlegger and Whispering Wires. Students should look for
information in the clips that points to whether the actions of the police or other authorities
violated Olmstead’s Fourth Amendment rights, or whether law enforcement officials
were justified in their conduct regarding collecting information about Olmstead. Students
should also consider whether the use of wiretaps against Olmstead constituted a violation
of his Fifth Amendment protection against self-incrimination. If needed, the teacher may
wish to show the clips again as a follow-up.
After viewing the clips, have students take a few moments to collaborate on what they
saw as either legitimate or illegal regarding the circumstances behind the Olmstead case.
Have each group report their findings to the class. Instruct students to keep their
“Opening Activity Opinion” form to assist them in the case study activity.
Main Activity (Case Study):
Introduce the idea of a Supreme Court case study. Explain to the class that the purpose of
the case study is not only to identify the facts of the case and render a decision, but also
to investigate the issues and arguments of the principals in the case. To help students
better understand this, you might use a previously studied Supreme Court case as an
example of developing a case study. Remind students that as they conduct the case study
for Olmstead vs. United States, they will need to consider both the intent of the Fourth
Amendment regarding unreasonable search and seizure as well as the Fifth Amendment
protection against self-incrimination and the guarantee of due process of law. Point out to
students that interpretations of constitutional issues sometimes change as the makeup of
the Supreme Court changes and as the nation’s customs and philosophies about issues
change. Use examples to support this point (e.g., Dred Scott vs. Sanford, Plessy vs.
Ferguson, Brown vs. Board of Education, Korematsu vs. United States).
Next, distribute the “Preparing the Case Study” and “Case Study Activity” sheets to each
student. Redivide the class into groups of 7 students each. Three students will act as
“judges,” two of the remaining students will act as attorneys for the plaintiff, and the
other two will act as attorneys for the respondent. Assign the Olmstead case to half of the
groups and the Katz decision to the other half.
Allow sufficient time for each member of the group to research the case. Make sure the
students follow the preparation notes on the “Preparing the Case Study” handout. They
can access information about the cases from the resources listed below. Attorneys
(plaintiff or respondent) should focus on how they want the case to be decided, develop
arguments that favor their side, anticipate arguments against their side, and consider the
impact of the decision (what’s at stake) for their side and society as a whole. Judges
should preview the details and issues involved in the case and collaboratively develop
five to seven questions to ask the attorneys regarding the facts of the case, the
constitutional basis for their positions, and the potential impact on society of their
decision in the case. Judges should also take notes during the oral arguments that will
assist them in coming to a decision in the case.
Once students have had time to research their assigned case, separate groups to allow for
as much privacy as possible for deliberations (for example, if the class has four groups,
assign each group a specific corner of the classroom for their case study deliberations).
Have them follow the case study schedule on their handouts.
At the conclusion of the case study deliberation period, one student from each group
should summarize the case, arguments, and decision. Have the groups that decided the
Olmstead case summarize their decision first, and then have those groups that decided the
Katz case give their summation. Justices with opposing views should be allowed to post
their dissenting opinions.
Culminating Activity: Have students write a reflective essay describing their experience
in the case study. This essay should include the following points:
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The title of the case the group studied
A brief description of the facts of the case
Positions held by the prosecution and defendant
How the case was decided by the student judges, and why
How the case was decided by the U.S. Supreme Court, and why
The student’s reason for agreeing or disagreeing with the moot court and U.S.
Supreme Court decisions
Assessment:
Once students have completed the lesson, the teacher should assess student work by using
either an assessment instrument or rubric approved by the school or district, or a teachercreated rubric. A suggested rubric is included below that may be used as is or adapted to
meet teacher objectives.
NOTE: In order to adequately evaluate student participation in the case study, the teacher
should plan to “float” among the various groups and randomly observe students involved
in each group’s presentation.
Extension Activities:
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Have students use the “Opening Activity Opinion” sheet as a guideline to write
newspaper editorials, op-ed pieces, or blogs either supporting or criticizing the
Olmstead decision. The teacher should assign each student the role of writing an
editorial supporting the decision, or an op-ed piece criticizing the Supreme
Court’s opinion in the case. Students might read their editorials or op-ed columns
to the class and allow other students to critique them, or go online to read each
other’s blogs and leave appropriate critiques as comments on the blogs.
Ask students to conduct similar case studies for other Fourth or Fifth Amendment cases
that involve students, including New Jersey vs. TLO
(http://www.law.cornell.edu/supct/html/historics/USSC_CR_0469_0325_ZS.html) Vernonia
School District vs. Acton (http://law.cornell.edu/supct/html/94-590.ZO.html), or Board of
Education vs. Earls (http://www.law.cornell.edu/supct/html/01-332.ZO.html).
(While these cases do not pertain to prohibition of alcohol, they do provide insight into
similar cases dealing with the Fourth and Fifth Amendments, as well as the rights of
juveniles.)
Resources:
NOTE: The teacher should encourage students to conduct additional research online as
well as by using traditional sources, including books, magazines, newspaper archives,
and encyclopedias.
Text of the Fourth Amendment to the United States Constitution, along with online
annotations and resources: http://caselaw.lp.findlaw.com/data/constitution/amendment04/
Text of the Fifth Amendment to the United States Constitution, along with online
annotations and resources: http://caselaw.lp.findlaw.com/data/constitution/amendment05/
Cornell University Law School page on the Olmstead case (includes syllabus as well as
separate links for the opinion of the Supreme Court and justices who dissented against the
decision)
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0277_0438_ZS.html
“Oyez Project” page on the Olmstead case: www.oyez.org/cases/19011939/1927/1927_493
“Oyez Project” page on the Katz case: http://www.oyez.org/cases/19601969/1967/1967_35
National Constitution Center Educational Resources page:
http://constitutioncenter.org/ncc_edu_Educational_Resources.aspx
J-Rank.org Wiretapping and Electronic Eavesdropping page (includes information from
Olmstead vs. U.S., Katz vs. U.S., and other cases):
http://law.jrank.org/pages/19166/Wiretapping-Electronic-Eavesdropping.html
E-Case Briefs on the Olmstead case, including summaries of facts, arguments, and main
and dissenting opinions in the case:
http://www.ecasebriefs.com/blog/law/criminal-procedure/criminal-procedure-keyed-toweinreb/electronic-surveillance-agents-and-informers-and-entrapment/olmstead-v-unitedstates/
Electronic Privacy Information Center (EPIC) wiretapping resource page (includes links
to several current wiretapping concerns and cases): http://epic.org/privacy/wiretap/
Constitutional Challenges to Prohibition Enforcement (Note: Adobe Acrobat Reader will
be needed to open this file. Contains several documents relating to the Olmstead case as
well as texts of several pieces of Prohibition-era legislation, including the Volstead Act):
http://www.fjc.gov/public/pdf.nsf/lookup/olmstead.pdf/$file/olmstead.pdf
Cornell University Law School page on Katz vs. United States (includes syllabus as well
as separate links for the opinion of the Supreme Court and concurring and dissenting
opinions): The Katz decision (1967) overturned the Court’s earlier ruling in Olmstead.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0389_0347_ZO.html
Exploring Constitutional Conflicts Right of Privacy page:
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html
Security, Wiretapping, and the Internet (expands on the history of electronic surveillance
into its use to monitor conversations made over VOIP (Voice Over Internet Protocol)
phones): http://privacyink.org/html/SwatI.pdf (Note: this file requires Adobe Acrobat
Reader to open and view.)
Academic Standards:
This lesson fits the following academic standards set by the Mid-Continent Research for
Education and Learning (McREL) (http://www.mcrel.org/standards-benchmarks).
Civics:
Standard 1: Understands ideas about civic life, politics, and government
Benchmark 5: Understands competing ideas about the purposes government should serve
(e.g., whether government should protect individual rights, promote the common good,
provide economic security, mold the character of citizens, promote a particular religion)
Benchmark 2: Knows formal institutions that have the authority to make and implement
binding decisions (e.g., tribal councils, courts, monarchies, democratic legislatures)
Benchmark 3: Understands the nature of political authority (e.g., characteristics such as
legitimacy, stability, limitations)
Benchmark 4: Understands the sources of political authority (e.g., consent of the
governed, birth, knowledge) and its functions (e.g., create and enforce laws)
Benchmark 8: Understands how the purposes served by a government affect relationships
between the individual and government and between government and society as a whole
(e.g., the purpose of promoting a religious vision of what society should be like may
require a government to restrict individual thought and actions, and place strict controls
on the whole of the society)
Standard 18: Understands the role and importance of law in the American
constitutional system and issues regarding the judicial protection of individual
rights
Benchmark 1: Understands how the rule of law makes possible a system of ordered
liberty that protects the basic rights of citizens
Benchmark 6: Understands the effects of Americans relying on the legal system to solve
social, economic, and political problems rather than using other means, such as private
negotiations, mediation, and participation in the political process
Benchmark 8: Knows historical and contemporary instances in which judicial protections
have not been extended to all persons and instances in which judicial protections have
been extended to those deprived of them in the past
United States History:
Standard 22: Understands how the United States changed between the post-World
War I years and the eve of the Great Depression
Benchmark 1: Understands the various social conflicts that took place in the early 1920s
(e.g., state and federal government reactions to the growth of radical political movements,
rising racial tensions and the resurgence of the Ku Klux Klan, the Garvey Movement, the
clash between traditional moral values and changing ideas as exemplified in the Scopes
trial and Prohibition, how the restriction of European immigration affected Mexican
American immigration)
Name ___________________________________________ Date___________
Olmstead vs. United States Opening Activity
Opinion Sheet
In the spaces below, jot down information from the video clips that will help you in
making conclusions about the case of Olmstead vs. United States. Be sure to look for
particular facts about Olmstead, his personality, and bootlegging activity in The Good
Bootlegger, as well as facts of the case against him, his conviction, and appeal to the U.S.
Supreme Court in Whispering Wires.
Notes from The
Notes from the
Good Bootlegger segment
Whispering Wires segment
Information from the clips that supports the argument that the government violated
Olmstead’s Fourth and/or Fifth Amendment rights:
Information from the clips that supports the government’s actions in the case (showing no
violations of Olmstead’s constitutional rights):
Name ________________________________________________________________ Date___________
Preparing the Case Study
Overview: In this case study, your group will review issues regarding the right of
protection against unreasonable search and protection against self-incrimination. The
attorney groups will argue their case on its constitutional merits before the three-judge
panel. Follow the attorneys’ guide below to prepare for your case. Judges will also
prepare for the case by becoming familiar with the issues involved. Follow the judges’
guide below.
Guide to the Attorneys’ Role:
Olmstead vs. United States:
In this case, the petitioner is Roy Olmstead, a Seattle bootlegger convicted of violating
the National Prohibition Act (the “Volstead Act”) in part due to evidence collected by
law enforcement officials by “wiretapping” his telephone conversations without a courtissued warrant. The respondent is the United States government, which collected the
information and filed the charges against Olmstead. The government contends that it
followed correct procedural due process in collecting the evidence against Olmstead.
Katz vs. United States:
In this case, the petitioner is Charles Katz, a Los Angeles bookie convicted of
transmitting illegal gambling information from Los Angeles to Boston and Miami. The
respondent is the United States government, which collected evidence against Katz by
connecting an eavesdropping device to the outside of a phone booth that Katz used to
make wagers. It contends that it followed correct procedural due process in collecting the
evidence against Katz.
Guide to the Judges’ Role:
Pick one of you to be the lead judge. You will monitor the attorneys’ presentation time
and make sure all judges get to ask questions. You will also report to the class the
findings of your court at the end of the activity.
Preparation for each Attorney Group:
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How does your side (petitioner or respondent) want the case to be decided?
What are the arguments that favor your side?
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What are the arguments against your side? (Anticipating the opposition can
strengthen your argument.)
What’s at stake here for your side and for society?
Preparation for Judges:
• Before attorney presentations, preview the details and issues of the case
• As a group, develop 5 to 7 questions to ask the attorneys regarding the facts of the
case, the constitutional basis for their position, and the potential impact on
society of a decision either way on this case.
• Take notes during the oral arguments to assist you in delivering your decision (see
step 3, below).
Case Study Schedule:
1. Each attorney group has five minutes to present their arguments. Judges can ask
relevant questions at any time during or after the presentations.
2. After both attorneys have presented their cases, the judges convene in a “closed
door” session for five minutes to arrive at a decision. During your deliberations,
discuss the following:
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The facts of the case
How did each side want the case to be settled?
The arguments for each side. Which attorney group was the most persuasive,
and why?
Which side (petitioner or respondent) will you decide for? (You don’t all have
to agree. The decision is based on majority vote, but there can be dissenting
opinions.)
What do you believe is the impact of your decision? How will your ruling
affect the litigants of the case and society?
3. The judges’ decision should contain all the information from the list of
deliberation topics above.
Name ________________________________________________________________ Date___________
Case Study Activity (Attorneys)
Attorneys’ Names: ________________________________________________________
Side Represented (petitioners or respondents):___________________________________
What are the facts of the case (what actions led to this case coming to the court?):
What were the position and arguments of the petitioner?
What were the position and arguments of the respondent?
What constitutional issues were involved in this case?
How would you have ruled in this case (if you had been a judge)?
How did the Court decide in this case?
Name ________________________________________________________________ Date___________
Case Study Activity (Judges)
Judges’ names: ________________________________________________________
What questions (5–7) do we want to ask the petitioner and respondent?
Which side’s arguments (petitioner or respondent) were most persuasive? What made us
feel that way?
Which side do we decide for? _______________________________
Reasons for majority opinion:
Reasons for dissenting opinion:
Case Study Rubric
Category
Research
Clear
Expression
of Ideas
Speaking
Ability
Additional
Criteria as
set by the
teacher
Final
Student
Score
Excellent
(15–10)
Good
(9–5)
Fair
(4–2)
Poor
(1–0)
Case Study
and
Opening
Activity
sheets
totally
completed
Case Study
and Opening
Activity
sheets
generally
completed
Case Study
and Opening
Activity
sheets
somewhat
completed
Case Study
and Opening
Activity
sheets not
completed
Arguments Arguments (if Arguments (if
(if attorney) attorney) or
attorney) or
or decision
decision (if
decision (if
(if judge)
judge)
judge)
easy to
generally
somewhat
understand understandab understandab
and logical le and logical le and logical
Arguments
(if attorney)
or decision
(if judge) not
logical or
understanda
ble
Student is
easily
understand
able and
speaks
distinctly
Student is
not
understanda
ble nor able
to convey
ideas
Student is
Student is
generally
somewhat
understandab understandab
le and speaks le and speaks
distinctly
somewhat
distinctly
Student
Score