March 19, 2019 Middle School

Government Speech Under the First Amendment

This lesson teaches students, through a simulation related to government-sponsored Confederate monuments, about the government-speech doctrine under the First Amendment. In particular, this lesson aims to (1) introduce students to the issue of government speech; (2) teach the doctrine; (3) apply the doctrine in a contemporary context; and (4) critically analyze the doctrine.


Time needed:
 60-90 minutes

Materials needed:

  • Chalkboard, white board, or flip chart, with writing utensils
  • Copies of handouts for each student, for Parts 1-3, as needed:

Part 1—Small Group Handouts
Part 2, Option 1—Interest Group Handouts
Part 2, Option 2—Debate Handouts


Introduction

Under Supreme Court First Amendment precedent, government speech is a relatively simple doctrine. In short, government can say whatever it wants. (In other words, the Free Speech Clause does not restrict government speech.) But the doctrine’s simplicity can be deceiving, especially in the context of some of today’s hot button issues. For example: Can government forbid government grantees and employees from talking about abortion in government family planning programs? Can government compel teachers to teach “intelligent design” or other alternatives to Darwinian evolution? Can government set qualitative standards for grantees of government arts grants? Can government fund news media (as in PBS’s NewsHour or Frontline, or National Public Radio), or entertainment (as in Sesame Street)? Or, as in this lesson, can government erect, or take down, certain monuments that pay tribute to certain figures, movements, or periods in our history that are deeply controversial? As to each of these: If the government can do these things, must it also present a contrary or opposing view? These issues are not easy, even if the First Amendment doctrine is.

The following cases offer more background:
Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009)
Johanns v. Livestock Marketing Association, 544 U.S. 550 (2005)
Rust v. Sullivan, 500 U.S. 173 (1991)
National Endowment for Arts v. Finley, 524 U.S. 569 (1998)
In addition to setting out the law—that government can say what it wants, without restraint under the Free Speech Clause—these cases also review the arguments around government speech in different contexts. Here’s a quote from Pleasant Grove that sums up the doctrine:

If [the government] were engaging in [its] own expressive conduct, then the Free Speech Clause has no application. The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. A government entity has the right to “speak for itself.”

Indeed, it is not easy to imagine how government could function if it lacked this freedom. “If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed.”

But even though the Free Speech Clause does not restrict government speech, there may be other constitutional restraints on government speech. For example, government speech cannot violate the Establishment Clause. So while the government can say whatever it wants under the Free Speech Clause, it may be restrained in what it can say under the Establishment Clause (or some other constitutional provision).

This lesson aims to introduce middle and high school students to some of these tough questions through the stages of Bloom’s Taxonomy. (If you’re not familiar with Bloom’s Taxonomy, you can readily find excellent summaries and resources online. Vanderbilt University’s Center for Teaching has a useful and accessible summary.) In short, this means that the lesson aims to guide students through rememberingunderstandingapplyinganalyzingevaluating, and creating around the government speech doctrine.  

The activities and times listed in this lesson are a suggestive guide, and not a rigid agenda. You should adapt the lesson plan to your own classroom, your own students, your classroom resources, your time constraints, and, most importantly, your own style.

Note

The core topic of this lesson is government-sponsored Confederate monuments. This topic has been all over the news, and many students will have strong views, one way or the other. Views may differ significantly by region, area, classroom, and even within an individual classroom. Please be sensitive to the students’ various views in your classroom so as to engage your entire class (and not alienate any portion of it). (If you’d like to catch up on the Confederate-monuments debate, google “Confederate monuments,” “Jefferson Davis monuments,” “Civil War statutes,” and the like. This is a fast-moving issue.

Activity

Introduction (3 to 5 minutes)

  1. Say briefly why you are teaching today: to share some information about free speech under the First Amendment, and, in particular, government speech.
  2. Ask students briefly about their own experiences with the law or the Constitution, e.g.:
    1. Raise your hand if you know a lawyer. Who? How did you meet her or him? What does she or he do?
    2. Who can tell me a fact about the Constitution? Who can tell me something that is in the Constitution? Who can tell me where they’ve seen the Constitution referenced in the news?
  3. State briefly that the lesson today will examine the government speech doctrine under the First Amendment—that is, whether, when, and how the Free Speech Clause restricts what the government can say.


Part 1: Introduction to Basic Free Speech Principles (10 to 15 minutes):

This exercise is designed to warm-up your students and introduce them to basic free speech ideas, with an eye toward government speech. This exercise goes to remembering and understanding in Bloom’s Taxonomy.

  1. Divide students into five small groups. Assign each group one purpose of free speech, and distribute the corresponding Small Group Handouts:
    1. to discuss and advocate politics and public policy
    2. to discover the truth (through the give-and-take of a “marketplace of ideas”)
    3. to learn, explore, and develop as individuals and as a society
    4. to express our individuality and define ourselves
    5. to promote tolerance for unpopular views by protecting the expression of those views.

This introductory discussion could also be conducted as a full class, with the class considering the five purposes of speech.

  1. Ask each group, or the class, to think of three or four examples of speech that correspond to each purpose. Ask each group to share these examples with the rest of the class, and collect responses on the board.
  2. Ask students to rank these broad purposes of free speech. You might ask students simply to vote and raise hands for each option; or you might ask them to get up and physically move to different designated parts of the room to indicate their choices. Tally the results, and rewrite the purposes in rank order. Remember: The Supreme Court has said that political speech is the most important—and thus most protected—kind of speech in our democracy.
  3. Ask students if they can think of examples of when the government speaks. You may need to prompt them with your own examples, e.g.: a government web-site that describes the work of an agency; official government statements and reports on various topics; government officials’ officially sanctioned statements (including things like instructions from a police officer, or lessons presented by your teacher); government-funded media and arts; and even things like instructions on how to complete a driver’s license application or your voter application. Discuss with students:
    1. Does government speech have the same purposes as other speech?
    2. What are the purposes of government speech?
    3. Should government have more freedom in speaking, or less freedom, than other speakers?
    4. Should the government have any restraints on its speech?



Part 2: Confederate Monuments (40 to 50 minutes)

This exercise challenges students to apply government-speech doctrine to a contemporary and controversial problem, Confederate monuments. This exercise has two options. Both options go to applying, analyzing, evaluating, and creating in Bloom’s Taxonomy.

Option 1: Interest-Group Advocacy

  1. Divide the class evenly into the following four groups (4-5 students each, depending on class size, create two sections of each group), and distribute the corresponding Interest Group Handouts:
    1. City Council
    2. Supporters of Confederate Heritage (an interest group)
    3. Opponents of Racial Oppression (an interest group)
    4. Advocates for Free Speech for All (an interest group)
  2. Instruct each interest group to develop arguments consistent with their instructions, with an eye toward the purposes of free speech in a democracy. (Allow students ten minutes to complete their arguments.) Ask each group to elect a spokesperson. (Rotate among the groups to engage, answer any questions, and keep students on track.)
  3. Instruct the City Council to anticipate the likely arguments of each group and to prepare critical questions for each group.
  4. Instruct each interest group spokesperson to present the group’s arguments to the City Council. (Allow each group five minutes to present its arguments.) Members of the City Council may ask questions during each presentation.
  5. Instruct the City Council to deliberate publicly and arrive at a final decision.

Option 2: Debate

  1. Divide the class into an even number of small groups of 4-5 students each. Assign each group to represent monument supporters or monument opponents. Distribute the corresponding Debate Handouts to each group.
  2. Instruct each group to develop arguments supporting its position, with an eye to the purposes of free speech in a democracy. (Allow ten minutes for this.) Instruct each group to elect a spokesperson. (Rotate among the groups to engage, answer any questions, and keep students on track.)
  3. Instruct each group to present their arguments to the entire class. (Allow five minutes for each group to present.) Other students may ask questions.
  4. Take a vote of the entire class: Which side presented the better arguments? How would students vote?

Part 3: Closing (5 to 10 minutes)

Based on Exercise 2, ask students to think, and then write, whether the government-speech doctrine (that government can say whatever it wants) is a good idea. Do we want a government that can say whatever it wants? Should there be any restraints on government speech? If so, what are they? Ask for volunteers to share their answers.

If there’s time, ask students to write down one idea, argument, or principle that they took away from this lesson. If time permits, ask for volunteers to share their responses. Share your own thoughts on what you took away from the lesson.

Steven Schwinn is professor of law at The John Marshall Law School in Chicago. He may be reached at sschwinn@jmls.edu.