When May Speech Be Limited?
One of the most difficult but important questions the public faces is: If freedom is not absolute, then what circumstances justify a limitation? This lesson introduces standards that have been used in answering this question. Students then evaluate several cases, applying the standards and deciding specifically the beneficial or harmful consequences of the particular speech in question. Finally, students determine what values underlie the perceived need to limit speech, uncovering and discussing conflicts between freedom of speech and other values.
Develop in students the habit of visiting freedomforum.org. They will find breaking news relating to speech issues and access to the archives of news articles and commentary.
- Freedom of speech is not absolute.
- Society and the legal system recognize limits on the freedom of speech.
- Issues arise in which freedom of speech conflicts with other values.
Go to this curriculum’s First Principles. The First Principles document was developed to explain in practical, everyday terms just what the First Amendment means.
Read the explanations to the principles listed below. They have special relevance to the activities in this lesson.
- The First Amendment tells the government to keep its “hands off” our religion, our ideas, our ability to express ourselves.
- “Who draws the line, and how?” is a key question.
Review the benefits of freedom of speech in a democracy. Point out that the First Amendment states “Congress shall make no law … abridging the freedom of speech.” That sounds very straightforward and simple. Ask the students to imagine this scene:
Your pep band is at a rival school across town for a game one evening. Suddenly they find themselves surrounded by angry, taunting students from the other school. The crowd shouts, “You stink!” “You’ll never get home tonight alive!” “You’re gonna pay for being here!” Even though no one has touched anyone, some fear for their lives. Does the crowd have the constitutional right to yell at the pep band members?
Use student discussion as a springboard for the idea that society and the courts have agreed upon limits to free speech. You may also consider: Which is more at risk, student safety or free speech?
In the example, the hecklers are causing a dangerous situation that could easily get out of hand. At a minimum, they are causing great distress to the surrounded students. Various laws might be applied to the incident depending on the number of perpetrators, the presence of weapons, the age of the victims and even where the incident takes place. Legislatures, as well as courts and law- enforcement agencies, influence how these incidents are handled. Teachers, check on the policies and laws in your local jurisdictions.
- Distribute Limits of Freedom of Speech. Review the tests that the Supreme Court has established to determine whether speech may be limited. You may also want to discuss symbolic speech with the students before giving students the case studies. (Symbolic speech has been defined as the communication of an idea through an action.)
Have students work in small groups to complete the Limits of Freedom of Speech Case Studies. Students may be given all the case studies or only some of the studies. You may wish to download and print them as cards in order to distribute individual cases to each group. Use the tests on limits to freedom of speech as a way to structure student debate over the cases. (The case studies can also be completed individually online if you prefer to do this as homework, or each group could focus on a selected case.)
The case studies:
Case study 1—Permits and demonstrations
Case study 2—Burning a selective service registration certificate
Case study 3—Gathering petitions in a shopping mall
Case study 4—Obscene or indecent phone calls
Case study 5—Distribution of anonymous political flyers
Case study 6—Third-party candidate inclusion in televised debates
Case study 7—Student speech at school assemblies
When students have finished, have them take turns explaining what they decided in each case and why. Check which groups or individual students agreed and which disagreed. When disagreements arise, refer to the tests, discussing (1) the potential for the speech to result in a harmful consequence, 2) the probability that this might occur, and 3) how to resolve conflicting values.
- After this introduction to the tests, have students study one of these guidelines for limiting speech. Students will then write a personal reaction paper on the topic: Do you agree or disagree with the necessity for this limit on speech?
To help students understand that freedom of speech is a contemporary issue, have them scan the newspaper for approximately one week to find articles regarding freedom-of-speech issues. Clip and glue each article to a piece of paper. Beneath the article, students should indicate the specific speech issue involved and whether or not, in their opinion, the speech would be protected.
On the Web
ACLU Briefing Paper, No. 10
“Freedom of Expression” gives an overview of pure and symbolic speech, limits to speech and three reasons why freedom of expression is essential to a free society.
Ask Sybil Liberty about your right to Free Expression
Answers to students' basic questions.
An activity based on an actual case that occurred at Northwestern University in March 1999.
Columnist Nat Hentoff on use of the heckler’s veto to limit free speech.
Goldman, Jerry. "The U.S. Supreme Court’s Greatest Hits." CD-ROM. Multimedia: audio, images, text. 1999.
Developed and edited by Jerry Goldman, Northwestern University professor and developer of OYEZ Web site. Contains more than 70 hours of the actual oral argument in 50 of the most significant constitutional cases, searchable by name, date and justices participating. Cases include Lee v. Weisman, Miller v. California, Roth v. United States, Tinker v. Des Moines Ind. Comm. School Dist.
Hentoff, Nat. Free Speech for Me — But Not for Thee. HarperCollins Publishers, Inc. 1992.
McElroy, Wendy. Queen Silver. Prometheus Books. 1999.
Biography of a passionate advocate for women and labor. Includes articles and speeches.
U.S. History, Standard 8: Understands the institutions and practices of government created during the Revolution and how these elements were revised between 1787 and 1815 to create the foundation of the American political system based on the U.S. Constitution and the Bill of Rights.
Civics, Standard 8: Understands the central ideas of American constitutional government and how this form of government has shaped the character of American society.
Civics, Standard 18: Understands the role and importance of law in the American constitutional system and issues regarding the judicial protection of individual rights.
Civics Standard 26: Understands issues regarding the proper scope and limits of rights and the relationships among personal, political, and economic rights.
U.S. History, Standard 8, Grades 9-12: Understands the Bill of Rights and various challenges to it.
Civics Standard 8, Grades 6-8: Knows opposing positions on current issues involving constitutional protection of individual rights, such as limits on speech (e.g., "hate speech," advertising), separation of church and state (e.g., school vouchers, prayer in public schools), cruel and unusual punishment (e.g., death penalty), search and seizure (e.g., warrantless searches), and privacy (e.g., national identification cards, wiretapping).
Civics, Standard 18, Grades 9-12: 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
Civics, Standard 26, Grades 6-8: Understands what is meant by the "scope and limits" of a right; Grades 6-8: Understands the argument that all rights have limits, and knows criteria commonly used in determining what limits should be placed on specific rights (e.g., clear-and-present-danger rule, compelling-government-interest test, national security, libel or slander, public safety, equal opportunity).
Speech: Students prepare a speech on a speech-related topic, such as It is/is not necessary to limit freedom of speech.
Debate: Students debate whether there should be limits on freedom of speech. Use Limits of Freedom of Speech to understand the reasons speech is limited. Students may use any of the case studies or add their own to substantiate their positions.
This lesson is
part of Education for Freedom: Lesson Plans for Teaching the First Amendment and is provided by the Freedom Forum’s First Amendment Center, a nonpartisan center dedicated to the understanding and appreciation of the values of the First Amendment.
Tuesday, March 31, 2015 | 15:05:13