CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Lesson 1
Lesson 1
What about students’ free speech rights?
Objectives
Students will learn about two Supreme Court student free speech cases,
Tinker and Fraser; understand that political speech is protected under the
First Amendment; understand that students’ rights in school are different
than adults’ rights outside of school.
Handouts
(1-1) Pre and Post Test; (1-2) Tinker and Fraser Cases; (1-3) Comparing Two
Cases: Tinker and Fraser; (1-4) Post Tinker and Fraser Discussion Points;
(1-5) Moot Court Activity
Background Supreme Court Case Summaries
“Boobies” Bracelet Ban Sparks Free Speech Suit
Words that Matter (see vocabulary list in Background Materials)
amendment
offensive, vulgar or lewd speech
limits
protected speech
free expression
pure speech
obscene language
Pre-Test
Before beginning this unit, use the pre-test (Handout 1-1) to assess what the students know
about free speech. Use the same test again at the end of the unit. Please share your findings
or a few samples with Classroom Law Project; we will use this information to improve our
work.
A. Daily warm-up and current events alert!
Current event: Provide structure for answering the question by reminding students of basic
rules for a civil conversation: all students get a chance to speak, students may pass, and
students ditto a previous response. Check the daily news for a current event that connects
to free speech to students; elicit student reaction.
Warm-up: True or False:
1. Free Speech is part of the First Amendment to the Bill of Rights. T
2. Free Press is also included in the First Amendment. T
3. Students under 18 in a school setting have the same “free speech” rights as adults. F
4. There are no limits on your right to free speech. F
5. You can yell “Fire!” in a crowded theater when there is no fire. F
B. What some students said and did in school …
We begin with two stories of how students expressed themselves in school. While the
immediate outcome in both cases was the same – students’ suspension from school – the
U.S. Supreme Court viewed them differently. Tell their stories to engage students in how
the First Amendment impacts them.
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Questions:
What is free speech? What free speech rights and responsibilities do we have? Is free speech vital to
a thriving democracy (why or why not)? What are the challenges to free speech in the coming year?
CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Lesson 1
As a whole class, the teacher should read the story of first case, Tinker (Handout 1-2). It’s a
good story so be dramatic! Role play what happened in the principal’s office; then switch
roles and role play again. After the role plays, students say or write an important line for
each side.
Divide the class in half, one will make arguments in favor of Tinker, the other in favor of
the school. Students should develop their arguments in pairs. Each side presents their
arguments while teacher records findings on the board. Discuss. Following the class
discussion, present decision of the Supreme Court (found on page 3, Handout 1-2).
In groups of four, distribute story of the Fraser case (page 5, Handout 1-2). Students read
the case, then, in pairs, develop the arguments in favor of Fraser and the school. Discuss in
small groups, then together as a large group. Record findings on the board (do not erase
Tinker!).
Distribute graphic organizer to compare Tinker and Fraser (Handout 1-3). In pairs, make
comparisons. Discuss as a whole group. Ask, which student(s) showed respect?
Responsibility? Did their behavior make a difference? Highlight: students do not shed
their rights at the schoolhouse gate; political speech is protected, vulgar speech is not. Note:
symbolic speech (black arm bands) is “speech.” Can you think of other examples of
symbolic speech (flag, burning the flag, demonstrations, buttons with slogans, etc.)?
For additional discussion points, see Handout 1-4, Post Tinker and Fraser Discussion
Points. Among the nineteen prompts are questions suitable for all levels of learners.
Consider using these as jumping off points for discussion, homework, essays, journal
prompts and so on.
D.
Extended Activities
Journal entry: If you were a Supreme Court Justice, how would you vote in the Tinker or
Fraser case? What are your reasons?
Use Post Tinker and Fraser Discussion Points, Handout 1-4, for homework, essays, etc. It
contains a list 24 thoughtful and provocative prompts, from simple to complex, to further
explore this area. Consider keeping this handout available to use with other lessons, as
well.
For a current day application of the Tinker standard, see the “I love boobies” bracelet
controversy in which middle schoolers were suspended from school for wearing breast
cancer awareness bracelets (in background materials).
Do a Moot Court of the Tinker or Fraser case; see Handout 1-5 for instructions.
For upper grades, research Snyder v. Phelps, 562 U.S. ___ (2011), the Supreme Court case
where free speech rights of members of the Westboro Baptist Church were upheld as they
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Questions:
What is free speech? What free speech rights and responsibilities do we have? Is free speech vital to
a thriving democracy (why or why not)? What are the challenges to free speech in the coming year?
CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Lesson 1
demonstrated with hateful and hurtful posters outside the funeral of a fallen soldier. For
teachers wanting more depth and a discussion of whether this is hate speech and how
other countries might view it, see
http://cardozolawreview.com/index.php?option=com_content&view=article&id=165:mca
llister2010408&catid=21:funerals-fire-and-brimstone&Itemid=20.
For an article on what happened when Westboro Baptist Church members protest near a
Spokane high school, see http://www.grahamlawyerblog.com/2010/10/22/should-ferrishigh-school-have-to-cancel-school-for-the-westboro-baptist-church-protest.
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Questions:
What is free speech? What free speech rights and responsibilities do we have? Is free speech vital to
a thriving democracy (why or why not)? What are the challenges to free speech in the coming year?
CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Name
Date
Handout 1-1
Pre & Post Survey
What do you know about free speech? How important is free speech? Why?
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Lesson 1
CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Lesson 1
Handout 1-2
Speech in School: Two Cases
Tinker v. Des Moines Ind. Comm. School District, 393 U.S. 503 (1969)
Tinker Story adapted from Freedom Forum,
http://www.freedomforum.org/packages/first/curricula/educationforfreedom/supportpages/L08CaseSummaryTinker.htm
It all began on a snowy Saturday, Dec. 11, 1965. A large group of students met at the home
of Christopher Eckhardt in Des Moines, Iowa, to make plans for a school protest against the
Vietnam War. After long discussion, they decided to wear black armbands to school on
Thursday, Dec. 16, and to continue wearing them until New Year’s Day, 1966.
On Dec. 14, the principals of the Des Moines school system, having learned of the students’
plan to wear armbands, adopted a policy that all students wearing armbands to school
would be asked to remove them. If they refused, they would be suspended until they were
willing to return without the armbands.
Most of the original group of students who had planned to protest backed out when they
realized their records and their chances for college entrance and scholarships might be
threatened.
On Dec. 16, Christopher Eckhardt, 16, a student at Theodore Roosevelt High, and 13-yearold Mary Beth Tinker, a student at Warren Harding Junior High and family friend, wore
their home-made black armbands, complete with peace signs, to school. Mary Beth’s 15year-old brother, John, wore his the following day to North High School. More than two
dozen students wore black armbands on Dec. 16 and 17 in Des Moines high, middle and
elementary schools.
“Ultimately, only five Des Moines secondary-school students were singled out for
discipline for wearing armbands in December 1965: Christopher Eckhardt, John and Mary
Beth Tinker, Roosevelt sophomore Christine Singer, and Roosevelt senior Bruce Clark,”
according to John Johnson in The Struggle for Student Rights.
Decades later, Christopher Eckhardt remembers what happened as if it were yesterday. “I
wore the black armband over a camel-colored jacket.” There were threats in the hallway.
“The captain of the football team attempted to rip it off. I turned myself in to the principal’s
office, where the vice principal asked if I ‘wanted a busted nose.’ He said the seniors
wouldn’t like the armband. Tears welled up in my eyes because I was afraid of violence.
“He called my mom to get her to ask me to take the armband off.” Christopher’s parents were
peace activists; his mother refused. “Then he called a school counselor in. The counselor asked
if I wanted to go to college, and said that colleges didn’t accept protesters. She said I would
probably need to look for a new high school if I didn’t take the armband off.
“The year before, they allowed everyone to wear black armbands to mourn the death of
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Lesson 1
school spirit . . . but on Dec. 15 the gym coaches said that anyone wearing armbands the
next day had better not come to gym class because they’d be considered communist
sympathizers.
“My former subversive activities had included being president of the student council in
elementary and junior high school, membership in the Boy Scouts, listing on the honor roll,
delivering The Des Moines Register and shoveling snow for neighbors.”
Unlike her friend Chris, Mary Beth Tinker remembers very little about the events of 1965
and the court cases that followed, although she thinks she attended all three court hearings.
She does, however, remember being called into the principal’s office. When asked to
remove her armband, she did thinking “well, I’ve made my point, I can take it off now.”
She returned to math class where only then was she removed and suspended.1
“I think I’ve blocked a lot of it out. I didn’t realize the significance of the case for years,” she
says. “I had just moved to St. Louis when the decision was announced in 1969. I was a high
school junior, and I just wanted to fit in, blend in with the crowd. Suddenly, Newsweek
and Time were descending on the school, wanting to take pictures of me.
Plus we’d gotten a lot of threats [in 1965]. A man who had a radio talk show threatened my
father, a Methodist minister, on the air. Red paint was thrown on our house. A woman
called on the phone, asked for me by name, and then said, ‘I’m going to kill you!’
“I realized how hateful, how irrational people could be. Subconsciously there was a part of
me that withdrew. I got a little bit protective of myself and our family.”
A school board meeting was held on December 21, 1965, with 200 in attendance. The
armband ban had originated from a unanimous vote of Des Moines high school principals,
not the school board. The board meeting was a lively exchange of different viewpoints. The
meeting ended in a vote to postpone a decision. The Des Moines Register on Dec. 22 and
The New York Times on Dec. 23 carried articles about the armband controversy. At the Jan.
3 meeting, the school board voted 5-2 to uphold the administrative ban.
Christine and Bruce decided to take no further action. Christopher Eckhardt, John and
Mary Beth Tinker returned to school without armbands, but each wore black clothing. On
March 14, they filed a formal complaint in the U. S. District Court of the Southern District
of Iowa. They claimed that by suspending them, their schools had infringed on their First
Amendment right to free expression.
What do you think?
Arguments in favor of the Des Moines School District
Arguments in favor of Chistopher Eckhardt, John and Mary Beth Tinker
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Mary Beth Tinker’s recollections, September 17, 2011.
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Words Matter: Limits on Free Speech
Lesson 1
Speech in School: Two Cases – Answer Sheet
Tinker v. Des Moines Ind. Comm. School District, 393 U.S. 503 (1969)
It all began on a snowy Saturday, Dec. 11, 1965. (Junior and senior high school students
wanted to protest the Viet Nam war by wearing black arm bands to school) … the school
board voted 5-2 to ban (armbands at their Jan. 3, 1966, meeting). … Christopher Eckhardt,
John and Mary Beth Tinker returned to school without armbands, but each wore black
clothing. On March 14, (they) filed a formal complaint in the U. S. District Court of the
Southern District of Iowa … claim(ing) that by suspending them, their schools had
infringed on their First Amendment right to free expression.
What do you think?
Possible arguments in favor of the Des Moines School District
1. The students’ actions disturbed student learning.
2. The armbands caused a disruption and threatened safety (evidence: football player).
3. School administrators must be able to administer discipline.
4. Finding on behalf of the student would set a dangerous precedent during dangerous
times.
5. Armbands are not speech and, thus, not protected.
6. …
Arguments in favor of Chistopher Eckhardt, John and Mary Beth Tinker
1. The students Chris, John and Mary Beth did not threaten.
2. There is no evidence of widespread disruption interfering with school discipline.
3. Their “speech” was protected symbolic speech.
4. Since their speech was political in nature, it is considered “pure speech” and, thus,
highly protected.
5. The First Amendment applies to students in school.
6. …
Majority Opinion
The wearing of armbands was "closely akin to 'pure speech'" and protected by the First
Amendment. School environments imply limitations on free expression, but here the
principals lacked justification for imposing any such limits. The principals had failed to
show that the forbidden conduct would substantially interfere with appropriate school
discipline.
Justice Abe Fortas, writing for the majority (7-2) declared, “Neither students nor teachers
shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”
— thus asserting that students are persons under the Constitution and that states would
have to respect their rights in the same way they would citizens in other contexts. This idea
became the guiding principle for student free expression rights.
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More to the Story
“Tinker came out of the Vietnam era, which was a time of great social ferment,” says Paul
McMasters, ombudsman of the First Amendment Center. “It was all right to question
authority and to protest and to state your beliefs loudly and clearly, which is what the
students in Des Moines did.
Despite the prevailing climate of free expression in the 1960s, Tinker was the first Supreme
Court ruling that specifically provided protection for students’ First Amendment rights.
“Within a year of the decision we saw dress codes relaxed, hair codes relaxed,” says
Christopher Eckhardt. “Justice Black was correct in his dissent when he said the decision
would usher in a new era of permissiveness.”
Sources:
1. Tinker Story adapted from Freedom Forum,
http://www.freedomforum.org/packages/first/curricula/educationforfreedom/supportpages/L08CaseSummaryTinker.htm
2. The Oyez Project, Tinker v. Des Moines Ind. Comm. School Dist., 393 U.S. 503 (1969);
(http://oyez.org/cases/1960-1969/1968/1968_21).
3. Personal recollections by Mary Beth Tinker, September 17, 2011.
4. Explore YouTube for examples of Tinker and Fraser, many of which are student-created.
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Lesson 1
Speech in School: Two Cases
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)
Matthew Fraser was a senior at Bethel High School in 1983 in Spanaway, Washington, not
far from Tacoma. An outstanding student, Matthew carefully prepared for a speech for 600
students in which he would nominate fellow classmate Jeff Kuhlman as student vice
president. He even shared his speech with three teachers before the assembly.
They were not fans. Matthew’s speech used many metaphors about male sexuality that the
teachers said was inappropriate. Matthew gave the speech anyway.
During the speech, some students whooped it up while others appeared to be embarrassed.
The day after the assembly, the assistant principal called Matthew into her office. The
school handbook said that students could not interfere with education by using obscene or
profane language. Armed with letters from five teachers describing the disruption
Matthew caused and his own admission that he used sexual references, Matthew was
punished. He was suspended for three days and had his name removed from a short list of
students nominated to be their class graduation speaker.
Matthew did not think this was fair and challenged the punishment. A hearing followed.
The hearings officer sided with the school finding that his speech was, "indecent, lewd, and
offensive." Matthew served two days of his suspension and but was allowed to return to
school on the third day.
Matthew sued claiming that his First Amendment right to free speech was violated when
the school punished him.
What do you think?
Arguments in favor of Bethel School District
Arguments in favor of Matthew Fraser
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Lesson 1
Speech in School: Two Cases – Answer Sheet
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)
Matthew Fraser was a senior at Bethel High School in 1983 … Matthew sued claiming that
his First Amendment right to free speech was violated when the school punished him (for
giving a sexual innuendo-filled speech in an assembly).
Possible arguments in favor of Bethel School District
1. One of the purposes of school is to teach students how to be good citizens; behaving
appropriately in public is a part of this. In school, free speech must be balanced against
the need to teach appropriate behavior.
2. Evidence (letters from teachers) showed that the speech was disruptive.
3. Offensive speech in school should not be protected (different than speech among adults
outside of school) because younger students are just learning about sexuality.
4. …
Possible arguments in favor of Matthew Fraser
1. First Amendment protects students even when they are in school (the Tinker rule).
2. No evidence that the speech “offended” anyone and even offensive speech is protected
under the First Amendment.
3. Under Tinker, schools cannot punish a student for speech unless he disrupts education;
there was no substantial disruption.
4. …
Majority Opinion
U.S. Supreme Court (7-2 decision in 1986) held that it was appropriate for the school to
prohibit the use of vulgar and offensive language. Chief Justice Burger writing for the
majority 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."
More to the Story
The trial court and 9th Circuit Court of Appeals agreed with Matthew. Since Matthew’s
argument was the winning one at the time of his high school graduation in June 1983, he
was not prevented from giving a speech at commencement. He had won the right to do so
on a write-in vote from his classmates.
Sources:
1. http://www.enotes.com/supreme-court-drama/bethel-school-district-no-403-v-fraser
2. The Oyez Project, Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986);
(http://oyez.org/cases/1980-1989/1985/1985_84_1667)
3. http://en.wikipedia.org/wiki/Bethel_School_District_v._Fraser
4. Explore YouTube for examples of Tinker and Fraser, many of which are student-created. Also see
Channel One’s 4-minute video where students explore their rights,
http://network.fivefreedoms.org/video/2089480:Video:1336
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Handout 1-3
Comparing Two Cases: Tinker and Fraser
Tinker
Fraser
Name of school (or school district)
Name(s) of students exercising free speech or expression
Year the case was decided by the Supreme Court (extra credit: year the case began)
What was the free speech or expression (what did the student(s) do)?
Did the Supreme Court rule in favor of the school or student(s)?
Why?
How were the facts in these two cases similar or different?
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Handout 1-3
Comparing Two Cases: Tinker and Fraser - ANSWERS
Tinker
Fraser
Name of school (or school district)
Des Moines Ind. Comm. School District
Bethel School District No. 403
Name(s) of students exercising free speech or expression
Christopher Eckhardt, John and Mary Beth Tinker
Matthew Fraser (senior at Bethel HS)
Year the case was decided by the Supreme Court (extra credit: year the case began)
Case decided 1969 Case decided 1986 Case started 1965
Case started 1983
What was the free speech or expression (what did the student(s) do)?
They wore black armbands to protest the Viet Fraser gave a campaign speech for a friend at a Nam war
school assembly that contained vulgar and embarrassing references
Students
Did the Supreme Court rule in favor of the school or student(s)?
School
Why?
Their protest was considered pure, political speech and it did not disrupt the school educational environment. Famous quote students do not “shed their Constitutional rights … at the school house gate.”
Speech was not political speech. First Amendment does not protect vulgar and lewd speech – such discourse was inconsistent with the “fundamental values of public school education.”
How were the facts in these two cases similar or different?
Similar in that there were students in school expressing themselves. Differed in that in the Tinker case, the speech/expression was pure, political (Constitutionally protected), and in the Fraser case, the speech was vulgar (not protected).
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Handout 1-4
Post Tinker and Fraser Discussion Points
After reading about the Tinker and Fraser cases, additional discussion points may include the
following. Consider using throughout all the lessons, as well as for homework, essays, journal
prompts and so on.
1. Explore history and current status of free speech rights of students. Use schoolhouse
door quote.
2. Define interest of schools in safety and learning environment.
3. Emphasize limits on free speech and responsibilities/respect.
4. Think about free speech rights during war or times of national stress (9/11).
5. Follow up with other cases which have reaffirmed or modified Tinker.
6. Predict how technology (social media) will change free speech issues in school and
elsewhere?
7. Discuss “hate speech” and cyber bullying.
8. Speculate about the Tinker decision if the case were decided in 2011.
9. Survey student knowledge of and attitude toward free speech rights.
10. Should there be limits on free speech? Why or why not?*
11. If there should be limits on free speech, who should decide those limits? What should
those limits be? Explain.*
12. Should students have the same free speech rights as adults? Explain.*
13. If schools regulate dress with the intent to stop disruption and protect the entire student
body, should the school similarly regulate dress with the interest of protecting the
individual? For example, should articles of clothing, which could be considered
dangerous to an individual such as platform shoes, spiked jewelry or baggy pants with
large bell bottoms be banned?*
14. Are there any forms of student protest on school grounds that are not protected under
the Tinker decision? A: In Cox v. Louisiana (1965): the Supreme Court ruled that the
rights of free speech and assembly do not mean that anyone with opinions or beliefs to
express may address a group at any public place and at any time. Student protest that
will disrupt school activities or endanger the safety of others is not protected.
“Reasonable regulation of speech-connected activities in carefully restricted
circumstances,” according to Justice Abe Fortas (Tinker), is permitted. **
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15. When or under what circumstances is wearing an armband protected speech? A: The
armband is considered “symbolic” speech rather than “pure” speech. Whether as an
expression of mourning or protest, the black armband has been used for many years.
Justice Abe Fortas wrote the opinion of the Supreme Court. In it he stated that the
wearing of black armbands was correctly classified as a “type of symbolic act that is
within the Free Speech Clause of the First Amendment.” **
16. Under what circumstances may student speech be limited in school according to the
Tinker standard? A: Speech that is libelous or invades privacy is not protected. Speech
that will materially and substantially disrupt school activities may be controlled. The
First Amendment only prohibits government officials from suppressing speech; it does
not prevent school censorship at private schools. A state constitution, statute or school
policy could provide private school students with free speech protections. **
17. What other forms of student speech in school are protected under the Tinker decision?
A: The Tinker decision was applied to student newspapers, literary magazines,
yearbooks and broadcast media.**
18. Why do we tolerate hurtful or unpopular expression? Why is protecting the expression
of controversial views important? Why do we tolerate hurtful or unpopular expression?
A: Justice Abe Fortas delivered the opinion of the Court. He states, “Any departure from
absolute regimentation may cause trouble. Any variation from the majority’s opinion
may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that
deviates from the views of another person may start an argument or cause a disturbance.
But our Constitution says we must take this risk … and our history says that it is this sort
of hazardous freedom — this kind of openness — that is the basis of our national
strength and of the independence and vigor of Americans who grow up and live in this
relatively permissive, often disputatious, [argumentative] society.” **
19. Are the desires of parents and administrators for a safe school environment, an academic
environment and positive public relations necessarily in conflict with an active,
unencumbered student media? A: Gwen Gregory, deputy general counsel for the
National School Board Association, spoke with understanding of both sides’ views at a
session on student press rights at the fall 1993 convention of the Journalism Education
Association. While she enthusiastically supported the legal reasoning of Hazelwood, she
said she did not feel that principals should clamp down so hard on journalists that
they’re not allowed to write about anything except school events. If agreement can’t be
reached with the principal, she said “go to the school board to see if you can get more
power.” … A school environment devoid of free expression is not likely to produce an
adult ready to support the sentiment attributed to Voltaire: “I disapprove of what you
say, but I will defend to the death your right to say it.” **
20. Do you think that there should be any limit on your constitutional right to speak?
21. Do you think that the constitutional protections of your right to speak should extend to
private entities?
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22. What are the benefits to society if everyone respects the right to disagree?
23. At what point do you think that a person’s expression shows disrespect – rather than
simply disagreement?
24. To what extent should an expectation of respect limit your freedom of speech?
Sources:
Questions: 10-13: A Resource Guide for Teaching the Bill of Rights, prepared by American
Civil Liberties Union of Michigan, http://michigan.camp-quest.org/pdfs/billofrights.pdf
Questions 14-19: Much of this file is excerpted from "From Tinker to Hazelwood:
Landmark Supreme Court decisions and how schools deal with them" originally published
in Death By Cheeseburger: High School Journalism in the 1990s and Beyond by Alice
Bonner, et. al. Reprinted by permission, The Freedom Forum.
Questions 20-24: National Constitution Center Lesson provided by Bill of Rights Institute,
http://constitutioncenter.org/ncc_edu_Respecting_Freedom_of_Speech.aspx
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Handout 1-5
Moot Court Activity
A moot court is a role play of a state or federal appeals court or Supreme Court hearing. The court,
composed of a panel of justices, is asked to rule on a lower court's decision. No witnesses are called. Nor are
the basic facts in a case disputed. Arguments are prepared and presented on a legal question (e.g., the
constitutionality of a law or government action). Since moot courts are not concerned with the credibility
of witnesses, they are an effective strategy for focusing student attention on the underlying principles and
concepts of justice.
The following procedures are a slight adaptation of appellate procedures. The changes make the moot court
an appropriate educational activity for middle and high school students.
Select a case that raises a constitutional issue. Adapt the case information to suit your class.
When selecting a case you may wish to consider the following factors:
• Is the content of the case relevant to your course, to a specific school outcome (e.g., civic
literacy or citizenship), or worth knowing?
• Is it interesting to students?
• Is it a topic of current interest in your community?
• Are community resource people available to assist with the lesson?
• Is there an underlying value conflict that is important for students to examine? Read, review, and clarify the facts of the case. Have pairs of students ask each other the
following questions:
• What happened in this case?
• Who are the people/organizations/companies involved?
• How did the lower court rule on this case?
•
Who is the petitioner, the respondent?
Review terms such a these with the students:
Petitioner/Appellant: The person/organization/company who appeals the lower court
decision to a higher court.
Respondent/Appellee: The person/organization/company who argues that the lower
court decisions were correct.
Ask the class to identify the issue(s) involved in the case. An issue should be posed in the form
of a question. Ask the students to phrase the issue as a question by thinking about these
questions:
• Who was the actor(s)?
• What is the specific part of the Constitution involved?
• Who was affected by the action(s)?
• What caused the controversy? Pre-Court Preparation
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Select an odd number of students (7 or 9) to be the justices of the court.
Divide the remaining students into two teams. One team will represent the person or group
appealing the lower court decision (the petitioner or appellant). The other team will represent the
party that won in the lower court (the respondent or appellee).
To increase student participation, several students can be selected to play the role of journalists.
Each team of litigants should meet to prepare arguments for its side of the case. The team should
select one or two students to present the arguments to the court. When discussing the arguments,
students should consider:
• What does each side (party) want?
• What are the arguments in favor of and against each side?
• Which arguments are the most persuasive? Why?
• What are the legal precedents and how do they influence this case? (A precedent is a
previously decided case recognized as the authority for future cases on that issue. Using
precedents allows for the development of more sophisticated arguments.)
• What might be the consequences of each possible decision? To each side? To society?
• Are there any alternatives besides what each side is demanding? The justices should meet to discuss the issue involved and any case precedents. They should
prepare at least 5 questions for each side that they need answered in order to reach a decision.
The justices should select one student to serve as chief justice. The chief justice will preside over
the hearing. He or she will call for each side to present its case as well as recognize other justices
to ask questions.
Participants should consider all of the facts that have been established at the trial. Teams may not
argue the accuracy of the facts.
Arguments do not need to be rooted in legal technicalities. Any argument that is persuasive from
a philosophical, theoretical, conceptual or practical standpoint can be made. Teams should rely
on principles found or implied in the United States Constitution.
The Moot Court
Seat the justices at the front of the room. The attorneys for each side should sit on opposite sides
of the room facing the justices. The other team members should sit behind their respective
attorneys.
The chief justice should ask each side to present its arguments in the following order. The justices
may ask questions at any time. Each side should have three to five minutes for its initial argument and two minutes for rebuttal.
(This time may need to be lengthened if the justices ask a lot of questions. The teacher should
decide on a time limit based on the students' verbal skills.)
During and/or after each presentation, the justices can and should question the attorney in an
effort to clarify the arguments. Attorneys may ask for time to consult with other members of their
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CLASSROOM LAW PROJECT
Words Matter: Limits on Free Speech
Lesson 1
team before answering questions. (This time is included in the total time allowed for the
presentation.)
After all arguments have been presented, the justices should organize into a circle to deliberate
on a decision. The rest of the class can sit around the outside of the circle and listen, but they
cannot talk or interrupt the deliberations of the court.
In the circle, the justices should discuss all of the arguments and vote on a decision. Each justice
should give reasons for his or her decision.
The chief justice should then tally the votes and announce the decision of the court and the most
compelling arguments for that decision. A decision is reached by a majority of votes. A
dissenting opinion may be given.
Conclusion
Conclude with a class discussion of the decision and the proceedings. If you are using an actual
case, share the court's decision with the students after the student court has reached a decision. In
the event the student's decision and the Court's are different, it is helpful for the students to
understand the reasoning in the dissenting opinions as well as the majority. The students are not
wrong, but the majority of the real Court was influenced by different compelling arguments. Ask
the students to evaluate the reasoning the Court used in the majority and dissenting opinions
and compare these to their reasoning. (They think just like some of the justices...). Continue to
debrief the activity by discussing what the decision means for the both sides and for society.
Adapted and excerpted by Susan Marcus from materials by West Publishing Company.
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