Regulating Freedom of Speech
Introduction
Freedom of speech is a fundamental American
right, and regulation of that freedom has been a fundamental
responsibility of the Supreme Court throughout our history.
With the Internet, students can observe firsthand how today's
Court exercises this responsibility at a time when technology
has extended the freedom to speak in ways our nation's founders
could not have imagined.
Learning Objectives
To trace the judicial review process
within the Supreme Court from determination of facts through
oral argument and the delivery of a written opinion; to examine
the nature and limits of the Constitutional right to freedom
of speech; to explore the nature and purpose of dissent within
the context of Supreme Court rulings.
Lesson Plan
1
Begin by exploring some general questions about freedom of
speech. Read the First
Amendment and briefly discuss what "freedom of speech"
meant to the Framers of our Constitution. What limits can
be put on this Constitutional right? Students will likely
mention the well-known example that we are not free to yell
"Fire!" in a crowded theater. Guide discussion of this example
to help students recognize that, because this use of free
speech would likely cause harm to others, the government is
justified in prohibiting it in the interest of public order.
Ask students to suggest other examples where an individual's
right to free speech might come into conflict with public
or community rights in a similar way.
2
Against this background, introduce some
of the questions at issue in the 1989 Supreme Court case Ward
v. Rock Against Racism: Do musicians have a free speech
right to play as loudly as they want in a public space? Can
the government impose limits on the volume level of a musical
performance? Can it enforce those limits by putting a government
agent in charge of the sound system? What if the musical performance
is part of a political protest? Have students express their
opinions on these questions, then have them divide into research
teams to study how the Supreme Court decided the issue.
3 Have
each research team first review the facts of the case in Ward
v. Rock Against Racism by accessing the Court's decision
at the Oyez,
Oyez, Oyez website. (Click on "Cases" at the Oyez,
Oyez, Oyez homepage, then enter "Rock Against Racism"
in the "Search by Title" area of the search form to retrieve
a summary of the decision. Scroll to the full "Written Opinions
of the Court.") Students will find the facts described briefly
in the website's summary of the decision, and described more
fully both in the first paragraph of the decision itself and
in the first section of the opinion delivered by Justice Kennedy.
Have each research team prepare a summary of the facts based
on these three somewhat different descriptions and discuss
their views of the case in class. What actually happened here?
How would students characterize the parties on either side?
What is at issue in the case for the City of New York? for
the concert promoter, Rock Against Racism? What is at issue
in the eyes of the Court? How would students themselves frame
the underlying issue? Discuss in class how an element of interpretation
enters into even a simple statement of the facts, and ask
students what additional facts they think might be important
for a different interpretation of this situation - an historical
interpretation, for example, or a sociological interpretation.
4
Turn next to the Court's opinion, expressed
by Justice Kennedy, and to the dissenting opinion expressed
by Justice Marshall. Have each research team analyze these
opinions to determine how the Justices ruled on each of the
following questions:
- Does the City of New York have a right to regulate
the
"time, place, or manner" of free speech in this case by
limiting the volume level of public musical performances?
- Is the City's method of regulating the volume level
"content
neutral"?
- Is it "narrowly tailored" to serve the purpose of
regulating
the volume level?
- Does it "leave open ample alternative channels of
communication"?
5 Have
each research team also record its own opinion (or opinions)
on each of these questions. Then explore any points on which
there is a difference of opinion, either within the Court
or between the Court and your class. Some students may believe,
for example, that the City should not be permitted to interfere
with any concert in a public park, since a few hours of noise
is not harmful to the community in the same way that shouting
"Fire!" in a crowded theater would be. Students will find
that the Court itself is divided on the question of whether
the City's method of regulating volume is "narrowly tailored."
Justice Kennedy accepts the City's argument that its control
of the sound system provides an "effective" way to regulate
volume without affecting the artistic quality of the musical
performance. Justice Marshall, on the other hand, contends
that, while "effective," the City's total control of the sound
system is not "narrowly tailored" to the purpose of regulating
volume, since it gives the City power to regulate all aspects
of the musical performance.
6
Conclude by considering Justice Marshall's
argument that New York City's method of regulating the volume
at concerts is a form of "prior restraint" on free speech.
He likens control of the sound system to control of the printing
press in 17th-century England, and argues that it gives the
City absolute power to suppress or restrict free expression,
despite the City's assurances that it does not exercise this
power. Does his argument overstate the case? Does it raise
a legitimate concern? Why does he express this dissenting
opinion? Have each research team draft a response to this
part of Justice Marshall's dissent, using hypothetical examples
to refute his argument or reinforce it.
Standards Alignment
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