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Chapters 2 and 3: The First Amendment
Chapters 2 and 3
The First Amendment
What’s the Big Picture for Chapter 2?
Like Chapter 1, Chapter 2 is also an essential, foundational chapter. It introduces students to the
notion of freedom of expression, the First Amendment protections of free speech and press, and
numerous theories for interpreting and applying the First Amendment. It also covers several
substantive areas where students can see the First Amendment in action, such as the A-heading
titled “Prior Restraint” and (more interesting for students) the C-heading titled “Real-Life
Violence: Blaming Movies, Video Games and Books.”
Some of the new material in Chapter 2 for the twentieth edition of the text is as follows:
1. Updated examples of self-censorship or community censorship, including major U.S. news
outlets not publishing controversial cartoons of Prophet Muhammad in 2015 and ESPN’s
firing of Curt Schilling for his post on social media in 2016
2. Updated data about Americans’ general lack of knowledge about the First Amendment in
the gray-shaded textbox titled “DO YOU KNOW WHAT THE FIRST AMENDMENT
SAYS? MANY AMERICANS HAVE NO CLUE”
3. An updated gray-shaded textbox titled “Blasphemy and Counterspeech: How American
Values Don’t Translate Worldwide” discussing ways in which American values don’t
translate worldwide
4. A new example of a lawsuit against Snapchat to demonstrate negligence principles in a
gray-shaded textbox titled “Should Snapchat Be Held Liable for Traffic Accidents?”
5. A new case example on prior restraints affecting information uploaded to the Internet
What in Chapter 2 Is of Current Interest to Students?
While most of the material in Chapter 2 is historical in nature and thus not always appealing to
some students, this historical material is nonetheless important for students to understand in
order to provide context and perspective. There is, however, a great deal of modern content in
Chapter 2.
The heading in Chapter 2 titled “Community Censorship, Then and Now” features many timely
examples of nongovernmental censorship, often committed by major corporations and appealing
to students. Community censorship includes government censorship (which is protected under
the First Amendment) and self-censorship that is censorship by corporations and businesses
(which is not protected under the First Amendment; that is, there is no First Amendment right to
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Chapters 2 and 3: The First Amendment
have Walmart sell your video game). The material under this heading, in other words, is
nonhistorical. You might ask students in class for examples of “community censorship” that they
have either heard or seen in the media or experienced firsthand. This heading teaches students
about the concept of a heckler’s veto and the principle of viewpoint neutrality, both of which are
core concepts for understanding the freedom of expression in the United States.
Chapter 2 also features a gray-shaded textbox titled “WHAT IS ‘SPEECH’ ANYWAY?” This
textbox discusses the symbolic speech doctrine in which courts treat conduct, such as burning a
flag in political protest at a rally, as speech if two elements—one focusing on the actor, the other
on the audience—are satisfied:
1. Actor: The person engaging in the conduct must intend to convey a particular or specific
message with his or her conduct.
2. Audience: There must be a great likelihood, under the surrounding circumstances in which
the conduct takes place, that some people who witness it will reasonably understand the
particular message that was intended by the actor.
Another gray-shaded textbox in Chapter 2 is titled “‘TO CATCH A PREDATOR’: MEDIA
LIABILITY FOR SUICIDE AND EMOTIONAL DISTRESS?” This textbox relates, in part, to a
lawsuit filed against NBC for its controversial television series titled “To Catch a Predator” on
the Dateline NBC television channel. There is also material on the same NBC program relating
to a 2011 case called Tiwari v. NBC Universal, Inc. Many students have heard about the “To
Catch a Predator” television series. To supplement the textbook, you might find newspaper
articles on the Internet that describe the show or, more specifically, one or both of the cases
discussed in this textbox. Supplementing the material in the textbox during class time with
newspaper articles related to the textbox is a good pedagogical method to get everyone in class
on the same page.
In addition, the heading in Chapter 2 titled “Real-Life Violence: Blaming Movies, Video Games
and Books” details modern content and may be of particular interest to students. This heading
includes a discussion of the U.S. Supreme Court’s decision in the violent video game case of
Brown v. Entertainment Merchants Association in 2011. Violent video games are an increasingly
popular target for lawmakers seeking to be “parent friendly.” Many college students today play
video games, so the appeal of this section is obvious. Importantly, this heading discusses two key
concepts—the strict scrutiny test that applies to content-based laws (laws that single out a
particular type of content or subject matter for regulation but leave out the other untouched
topics and ideas of the content or subject matter) and the void for vagueness doctrine. If you are
teaching a class that is narrowly focusing on press law or targeting only journalism students, you
can probably skip this unit. But if you have students who are “media studies” majors, the heading
will be particularly interesting for those studying the effects of the media.
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Chapters 2 and 3: The First Amendment
What Might I Skip in Chapter 2?
As just noted, the heading titled “Real-Life Violence: Blaming Movies, Video Games and
Books” is popular with students, but it can be skipped if you are teaching a class that is narrowly
focusing on press law, targeting only journalism students, or looking for ways to save time.
What about the Seven First Amendment Theories in Chapter 2?
You may choose to emphasize some First Amendment theories over the other theories, or you
may choose to cover them all briefly. Alternatively, these theories make for great questions in
exams (such as what is the primary goal of protecting speech under the marketplace of ideas
theory? What are the weaknesses of the marketplace of ideas theory? What is the primary goal of
protecting speech under Meiklejohnian theory?). They also allow for contrast questions as well
as excellent multiple-choice questions.
In the discussion under the “Absolutist Theory,” you will find material on the 2010 U.S.
Supreme Court decision in United States v. Stevens that could be of interest to students because
the case involved graphic videos depicting cruelty toward animals.
What about the Section on Prior Restraints in Chapter 2?
Any student who is studying the First Amendment needs to know about prior restraints on
speech imposed by the government. A helpful teaching dichotomy for this section is to ensure
that students understand the difference between prior restraints on speech (that is, reviewing,
regulating, or stopping speech before it is spoken) and subsequent punishments on speech (that
is, allowing one to tell one’s speech and then punishing one for one’s speech after it is spoken).
This edition of the textbook features more information on prior restraints (including information
on the Internet) than the previous editions, but it leaves intact the discussion of the seminal prior
restraint case in the United States, Near v. Minnesota.
You might ask your students the following question: In the age of the Internet and in light of
individuals like Julian Assange and his WikiLeaks website, do you think that a prior restraint
order by a court can ever be truly effective in stifling publication of information?
What’s the Big Picture for Chapter 3?
Chapter 3 focuses on contemporary problems affecting the First Amendment guarantee of free
speech. It contains many different subjects and topics from which you can choose.
Some of the new material in Chapter 3 for the twentieth edition of the text includes the
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Chapters 2 and 3: The First Amendment
following:
1. Updated examples of censorship of content in student newspapers at high schools
2. A new gray-shaded textbox titled “PUNISHING STUDENTS FOR DISPLAYING THEIR
‘SEXUALITY’ ON T-SHIRTS: VIEWPOINT-BASED DISCRIMINATION AGAINST
SPEECH?” describing a lawsuit filed by a student against her school administrators after
she was sent home from school for refusing to change out of a T-shirt that said, “Nobody
knows I’m a lesbian”
3. Updated content in the gray-shaded textbox titled “STUDENT SPEECH RIGHTS ON
THE WEB: THE ISSUE THE SUPREME COURT MUST ADDRESS” involving the
ability of schools to punish its students for their speech directed at the school
administrators while off campus on their personal computers
4. Updated examples of book-banning lawsuits
5. Updated material on the Clery Act, which requires universities to disclose crime data and
to provide timely warnings of crimes on campus
6. Updated examples and content on student newspapers that were stolen at their college
campuses
7. New discussion of a 2016 appellate court case striking down a state law banning “ballot
selfies” because the law failed intermediate scrutiny
8. A new gray-shaded textbox titled “SOCIAL MEDIA AND TRUE THREATS”
highlighting the U.S. Supreme Court’s decision in the 2015 case Elonis v. United States
regarding social media, rap music, and true threats
9. A new gray-shaded textbox titled “DEFENDING SPEECH OUTSIDE OF ABORTION
CLINICS” discussing the U.S. Supreme Court’s decision in the 2014 case McCullen v.
Coakley where the Court struck down a Massachusetts law that regulated abortion protests
10. An updated section on net neutrality, with a particular focus on the FCC’s Open Internet
Order released in March 2015
What in Chapter 3 Is of Current Interest to Students?
Three particular topics that are likely to have the most appeal to students are as follows:
1. The First Amendment in Schools: This section appeals to college students as they might
have experienced censorship of expression in their high schools, which has grown greatly
in recent years. In addition, this section covers the college press and censorship of student
newspapers at high schools and colleges—including a growing problem of the theft of
college newspapers by disgruntled students.
2. Theft of College Newspapers: This topic is covered in the heading titled “Problems for
College Journalists.” Students might consider if this problem exists on their campus. Visit
the website of the Student Press Law Center (SPLC) to look up current information on the
issue (http://www.splc.org).
3. The First Amendment and the Information Superhighway: This section has updated content
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Chapters 2 and 3: The First Amendment
on net neutrality that discusses the FCC’s Open Internet Order which was released in
March 2015.
What Might I Skip in Chapter 3?
Although the heading titled “The First Amendment in Schools” is very popular among most
students, the sections under this heading on high school expression are less essential than are the
sections on censorship of college newspapers and problems for college journalists.
One of the authors of this book sometimes does not teach the heading titled “The First
Amendment and Election Campaigns.”
Problem Questions
1. In 1971, in the case of Cohen v. California, the U.S. Supreme Court protected a man’s
right to wear a jacket emblazoned with the message “Fuck the Draft” during the Vietnam
War. Apply Meiklejohnian theory, the marketplace of ideas theory, and the self-
realization/self-fulfillment theory discussed in Chapter 2 to make a cohesive and cogent
argument that explains why Cohen’s offensive and vulgar message deserves protection of
his right to free speech guaranteed by the First Amendment.
Answer: Meiklejohnian theory represents a hierarchical approach to First Amendment
theory, with political speech placed at the top of this hierarchy. Under this theory, a broad
range of speech is essential to successful self-government, and Meiklejohnian theory
includes speech related to education (history, political science, geography, etc.), science,
literature, and many other topics. Cohen’s speech is about the draft during Vietnam War—
a public and political issue and a government policy. On top of this, his speech is
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Chapters 2 and 3: The First Amendment
Copyright © 2018 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior
written consent of McGraw-Hill Education.
Court Justice Oliver Wendell Holmes said in Abrams v. United States, “. . . the best test of
truth is the power of the thought to get itself accepted in the competition of the market. . .
.” Cohen’s idea may be offensive, and it may not “get itself accepted in the competition of
the market.” But to squelch or to censor his speech would be to reject the process of
competition of ideas. If only the speech in favor of the draft was allowed, then there would
be no competition for the topic and the very premise of the marketplace of ideas would be
invalid.
Under the self-realization/self-fulfillment theory, speech is important to an individual
regardless of its impact on politics or its benefit to society at large. This theory, thus,
supports Cohen’s right to identify himself to others and to realize his own identity as an
individual who is vehemently against the draft through the speech on his jacket. Under this
theory, it does not matter whether Cohen’s speech actually changes anyone else’s view
about the draft or produces a “truth” about the draft. However, protecting Cohen’s right to
speech about the draft under the theory allows him to realize his identity as a draft
dissenter and fulfill his own political passion.
2. One day, a public high school student named Clinton wears to school a homemade T-shirt
that reads, “Donald Trump Is an Idiot.” It has a picture of Donald Trump wearing a dunce
cap on his head. A few kids react to the T-shirt with laughter, while others tell Clinton that
they believe “Trump rocks.” School administrators, however, object to the T-shirt, finding
it offensive and degrading to President Trump, and they order Clinton either to wear
another T-shirt or to wear the anti-Trump T-shirt turned inside out so that the message is
not visible. Clinton refuses to do so, and she is suspended from attending school for ten
days. Clinton, then, turns around and sues the school for violating her First Amendment
right of free speech. As a judge, you should consider whether Clinton’s First Amendment
right of free speech has been violated or not.
a. Identify the name of the U.S. Supreme Court case that is most applicable here as the
precedent given the facts of Clinton’s case. Then, set forth the rule or test articulated
in that case for determining when school administrators may censor speech without
violating a student’s First Amendment right to free speech. In addition, use the
relevant facts to explain and demonstrate why this is the correct precedent to apply.
Answer: The case that is most applicable here as the precedent is the case of Tinker
v. Des Moines. In the case, the Supreme Court ruled that students in the public
schools do not shed at the schoolhouse gate their constitutional rights to freedom of
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Chapters 2 and 3: The First Amendment
Copyright © 2018 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior
written consent of McGraw-Hill Education.
disturbances or disorders on the school premises in fact occurred.”
Clinton’s case is similar to Tinker v. Des Moines in the following three ways:
• Similar to the issue of wearing black armbands with peace symbols to protest
the war in Vietnam at Tinker’s school, Clinton’s T-shirt is also political in
nature. It is a form of political speech criticizing a well-known political figure.
• Similar to Tinker v. Des Moines, the message in Clinton’s case is also passive
as it is on her clothing rather than in her speech.
• Similar to the students at Tinker’s school, students in Clinton’s school who
object to the message on her T-shirt can easily ignore it by looking away from
the T-shirt.
b. Explain why two other major U.S. Supreme Court cases on the free speech rights of
high school students are not applicable here. Be sure to identify the names of those
cases in the process of answering this question and to use the relevant facts that
distinguish them from Clinton’s case.
Answer: Two other major U.S. Supreme Court cases on the free speech rights of
high school students that are not applicable to this scenario are as follows:
• Hazelwood School District v. Kuhlmeier: This case is not applicable to the
c. Applying the rule or test that you identified in question a, is Clinton likely to prevail
against the school?
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Chapters 2 and 3: The First Amendment
Copyright © 2018 McGraw-Hill Education. All rights reserved. No reproduction or distribution without the prior
written consent of McGraw-Hill Education.
• The only reason the school administrators gave for censoring the T-shirt was
that they found it “offensive and degrading to President Trump.” This is not the
same as a substantial or material disruption.
3. The Cleveland Political Awareness League, a nonprofit, nonpartisan community group,
scheduled a series of eight talks by regional and national political figures in early 2017.
Two talks were held each month at the Paramount Theater, a large auditorium, over a four–
month period. The speakers represented a variety of viewpoints and political policies. On
the evening of the second speech, Art Ferrill, a radical socialist and longtime local political
agitator, set up a card table on the public sidewalk outside the theater and tried to sell a
book he had written titled, “Government and the End of Civilization.” Police outside the
theater asked Ferrill to move his table because they said, “it was an impediment to the
pedestrians using the sidewalk.” He refused, and he was arrested for violating a city
ordinance on street vending. “He failed to have a vending permit,” the police said.
The city’s ordinance requires that any person who seeks to sell any merchandise on a city
sidewalk must obtain a permit. This permit is issued if the city manager finds that the
goods for sale are legitimate and the seller will not endanger public safety or convenience.
The city manager should also determine if the sale of the goods is in the “best interest” of
the people of Cleveland. The sale of newspapers on street corners to pedestrians and
motorists is exempt from the provisions of the ordinance.
Ferrill challenged the time, place, and manner ordinance on First Amendment grounds. He
argues that the permit process is unconstitutional. He also argues that if it is permissible to
sell newspapers without a permit, it should be permissible to sell books as well.
a. What kind of a forum is a city sidewalk?
b. In testing whether a time, place, and manner rule is constitutional, what criteria do
the courts apply?
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Chapters 2 and 3: The First Amendment
justifies it. However, the law should not restrain more expression than is
actually required to further this interest.
c. Does this law meet this test?
Answer: No, it does not. While the language of the law says “any merchandise,” the
city manager has the discretion to allow the sale of some goods and bar the sale of
others, based solely on whether the sale is in the “best interest” of the people of the