Counseling Chapter 9 Nine Free Speech Public Order Crimes And The Bill Rights Learning

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CHAPTER NINE

FREE SPEECH, PUBLIC ORDER CRIMES, AND THE BILL

OF RIGHTS

Learning Objectives

After reading this chapter, students will be able to:

2. Identify the difference between fighting words and merely rude language.

4. List the circumstances that permit government to regulate speech based on content.

6. State when a threat becomes a “true threat.”

8. Identify when an assembly becomes unlawful.

9. State the basis for the Supreme Court’s decision that the Second Amendment is binding

on the states.

Lesson Plan

Correlated to PowerPoints

I. Belief—Speech—Action: When Speech May Be Regulated – Assignment 1

Learning Objective 1: Read and remember the First Amendment.

Learning Objective 2: Identify the difference between fighting words and merely rude

language.

Learning Objective 4: List the circumstances that permit government to regulate speech based

on content.

Learning Objective 5: Define obscenity.

Media Tool

ACLU v. Alvarez

http://www.aclu-il.org/aclu-v-alvarez22/

o ACLU video regarding the right to record officers in public.

o Discussion: Should citizens be able to audio record police officers

in public?

A. The First Amendment of the U.S. Constitution provides that “Congress shall

make no law … abridging the freedom of speech, or of the press…”

1. Human communications take many forms.

a. Included in protected communication are: words spoken face-to–

face or through one of the many media; written communication

includes books, magazines, newspapers, billboards, bumper

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stickers, and so on; picketing, protest marches, and boycotts are

also forms of communication; symbolic speech includes uniforms,

religious garb, black armbands, and hand gestures.

Class Discussion/Activity

Have students go to the archives of the Free Speech Movement (FSM)

online (http://www.fsm-a.org/). What was the FSM? Do we still need this

organization? What events are currently happening with this organization?

2. Speech and other forms of communication are not absolute rights, as they

can seriously clash with the rights of others and the need for public order.

a. There are five categories of speech that the First Amendment does

not protect:

i. Obscenity

ii. Fighting words

iii. Inciting or urging unlawful conduct

iv. Defamation

v. Public nuisances

3. Criminal statutes that have some effect on speech raise First Amendment

issues.

a. Directed at the content of the speech

b. Subject to “strict scrutiny”

c. Content-neutral statutes violate the First Amendment only if the

government lacks a substantial interest

II. The “Clear and Present Danger” Test – Assignment 4

Learning Objective 2: Identify the difference between fighting words and merely rude

language.

Learning Objective 3: Define a “clear and present danger.”

A. Local, state, or federal governments in the United States cannot forbid or suppress

Media Tool

Fighting Words

http://www.firstamendmentcenter.org/fighting-words

o Article discussing the fighting words doctrine, including its origin

and how the Supreme Court has reshaped it since its origin.

o Discussion: Why is the context of the “fighting words”

important? How did the cases in the article shape the application

of the fighting words doctrine?

B. Fighting words

1. All states and cities have enacted laws and ordinances that are called

2. To prove a fighting word violation, the city, county, or state would have to

prove the following in most jurisdictions:

a. That the defendant addressed very insulting and abusive language

b. To another person face–to-face

c. Causing a likelihood that “the person addressed will make an

immediate violent response”

d. If the charge is a public disorder, then the statute or ordinance

would probably require a showing that the offense occurred in a

public place

C. When does vulgar, insulting language to a police officer constitute fighting

words?

1. Many state courts have imposed higher standards for “fighting words”

2. The FBI Law Enforcement Bulletin listed the three following generally

accepted concepts to assist law enforcement in deciding whether to arrest

for speech directed at them:

a. Direct threats to the safety of an officer

b. When a crowd is present and the speech is likely to incite the

crowd to violence

c. Speech that obstructs and hinders police in the performance of

their duty

D. Convictions Upheld

3. Defendant disobeys “no parking” notice. When asked to leave, he calls an

4. Defendant calls police officer a “f—— pig.” When police officer

approaches him, he tells the officer, “fF— off, asshole.” He was convicted

of disturbing the peace. The conviction was upheld as the court ruled that

the defendant’s words were “fighting words.”

E. Convictions Overturned

5. Police officer sees defendant videotaping him. The officer runs a license

check on the car next to the defendant and then asks the defendant who the

car belongs to. The defendant asks why the officer ran the check, and the

6. A group gathered as National Park Service rangers attempted to arrest a

suspect. The crowd was hurling profanities at the ranger, and after the

rangers asked the crowd to disperse, one member of the group said, “F—

you” and refused to leave. He was arrested the next day and charged with

disorderly conduct. He was convicted, but the conviction was overturned

during appeal.

III. Obscene Communications

Learning Objective 5: Define obscenity.

Media Tool

Obscenity

http://legal-dictionary.thefreedictionary.com/obscenity

o The free dictionary online legal definition of obscenity and the

historical development of the legal definition.

o Discussion: How has the definition of obscenity been impacted

by institutions such as the Supreme Court and the ACLU?

A. Obscenity is not protected by the First Amendment and may be forbidden by

government.

B. Defining obscenity has been the subject of many court rulings. The following are

the guidelines established by the U.S. Supreme Court:

1. Communication that the average person, using contemporary community

standards, would find appeals to the prurient interests or depicts sexual

conduct in a patently offensive manner and, taken as a whole, lacks

serious artistic, literary, political, or scientific value.

“What If” Scenario

What if an adult bookstore plans to open near your house? What statutory language would you

use to ensure the constitutionality of a law designed to prevent the opening of such a store?

IV. Inciting and Urging Unlawful Acts – Assignment 2

Learning Objective 4: List the circumstances that permit government to regulate speech based

on content.

A. Inciting

2. The speech must incite imminent lawless action and must be likely to

produce action.

“What If” Scenario

What if a man stands on the corner by your house and speaks in a loud voice about the merits

of the KKK? Is this speech protected? What must he do to break the law? What would you do if

what he was saying was bothering you?

B. Defamation: Libel and Slander

1. Defamation is the offense of injuring the character or reputation of another

2. Although most states probably have one or more criminal defamation or

libel statutes, charges under these statutes are rarely filed, in part because

3. States have sometimes repealed criminal libel statutes after a court has

4. Most victims choose to rely primarily on the civil actions of libel and

slander that are available to them.

5. The law of defamation requires that the communication be made to people

6. Law enforcement officers and other public officials carry a heavier burden

if they file a lawsuit for defamation.

V. Symbolic Speech and the First Amendment – Assignment 2, 3

Learning Objective 4: List the circumstances that permit government to regulate speech based

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on content.

A. Tinker v. Des Moines Independent Community School District

Class Discussion/Activity

Have students read the information available at

http://www.esquilax.com/flag/. Why is flag burning such a hot issue? Is it

true, as the author of the flag burning website notes, that the only

difference between a dignified flag burning ceremony and a flag burning

by a protestor is the thoughts in the minds of those doing the burning?

B. Flag Burning and Cross Burning as Symbolic Speech

1. If the demonstrators burned their own flag as a means to communicate a

2. Cross burning can also be a symbolic act that seeks to communicate a

message, and therefore it can also have First Amendment protection.

a. R.A.V. v. St. Paul, Minn.

b. Virginia v. Black

c. The difference is in the focus on the content of the message or the

focus on intimidation in the statute.

VI. Threats of Violence as Crimes

Learning Objective 6: State when a threat becomes a “true threat.” – Assignment 5

A. A threat becomes a crime if it is explicit and likely to result in imminent lawless

action.

B. The First Amendment provides no protection for threats of violence because the

purpose of the speech is not to communicate ideas, but to put another person in fear

of imminent physical harm.

C. Using the U.S. Mail, Telephones, the Internet, or Email to Threaten Another Person

1. When the threat is made by U.S. mail, telephones, the internet, or other

interstate communication devices, the threat can result in a federal charge.

Such threats include:

a. Telephone threats

b. U.S. mail threats

c. Email and internet threats

Media Tool

Bullying

http://www.stopbullying.gov/

o United States government website on how to stop bullying.

o Discussion: What criminal justice responses are recommended on

the website? What other responses are recommended? Should

bullying be a crime? Explain why or why not.

D. Bullying: Not a Crime, but It Can Consist of Criminal Conduct

1. The U.S. Department of Justice, Office of Community Oriented Policing

Services (COPS), defines bullying as having two components:

2. Long-term effects

3. Can lead to other forms of violence

4. Cyberbullying

a. Research has indicated that one out of every five children ages 10

to 17 received sexual exploitation advances over the internet

b. 42 percent of children using the internet have been subjected to

“What If” Scenario

What if your best friend at school is being bullied by a group of students? You talk to her about

it and want her to seek help, but she says that it will only make things worse. What do you do?

VII. Loud Noise or Nuisance Speech

Learning Objective 4: List the circumstances that permit government to regulate speech based

on content.

A. The U.S. Supreme Court has stated that “it can no longer be doubted that government

B. City ordinances regulating private parties often present both First Amendment and

overbreadth problems.

“What If” Scenario

What if you were at a party that was raided by the police for being too loud? What would you

do?

IIX. Regulating the Use of Public and Private Places

Learning Objective 8: Identify when an assembly becomes “unlawful.”

Class Discussion/Activity

Individually or in small groups have students research your local criminal

laws dealing with public nuisances, terrorist threats, disorderly conduct,

and other related activities. They should also research ordinances that

regulate noise, dog leash laws, and panhandling. Students will be surprised

by the number of laws that regulate this type of behavior. They will also

learn that not all of this behavior is the subject of state law. There are

many local ordinances enacted by city and county governments that police

also enforce and which subject violators to criminal sanctions.

A. The First Amendment guarantees “the right of the people peacefully to assemble and

to petition the Government for a redress of grievances.”

B. First Amendment freedoms and the rights of expression in public places are not

absolute.

C. In order to restrict or limit conduct a city, state, or federal agency must be able to

show that:

2. The restriction or limitation can be no greater than necessary to

accomplish that interest.

4. Where there is communication, the U.S. Supreme Court has held that the

central question is whether it is discordant with the normal activity of the

place and time.

D. Under these guidelines, governments may regulate picketing; demonstrations;

parades; and door-to-door canvassing and passing out handbills.

E. The Crimes of Unlawful Assembly and Rioting

1. Under the common law, an unlawful assembly was a gathering of three or

2. An unlawful assembly became a riot under the old common law when

those assembled began to execute their enterprise by a breach of the peace.

4. There is also a Federal Control Statute

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IX. Obstruction of the Law Enforcement Process

Learning Objective 8: Identify when an assembly becomes “unlawful.”

A. The crime of obstruction can be committed in many different ways.

1. Failure to identify oneself when there is a legal obligation to do so

3. Making false material statements or providing false information to a law

enforcement officer or other investigation

5. Giving false identifying information to an officer that obstructs a computer

records search

7. Failure to identify a known offender

“What If” Scenario

What if you and a friend are driving home from a movie and your friend is stopped by the

police. The officer asks him for his driver’s license and he says he left it at home. He then gives

the officer his brother’s name and says that is him. What do you do?

X. Public Nuisances as Civil or Criminal Offenses

Learning Objective 8: Identify when an assembly becomes “unlawful.”

A. Under common law, a public nuisance was a civil offense.

B. Today, cities and states continue to use the civil law of public nuisances to correct

problems.

C. Public nuisance laws have been used to:

1. Seize and tear down crack houses and property owned by slumlords who

allow their properties to be used by gangs or drug dealers

3. Obtain court orders against repeat offenders such as people who blocked

the entrances to abortion clinics

5. An apartment building, a bar, or other building can be declared a “chronic

nuisance” if law officers are repeatedly called to quell a disturbance at the

premises

XI. The Crime of Stalking and Violation of Protective Orders – Assignment 1

Learning Objective 7: Describe some ways one person might “stalk” another person in

violation of a criminal law.

A. Stalking has become a serious problem in the United States and in Europe.

B. Often stalking involves offenders who had a previous relationship with the victim.

C. Stalking has now been made criminal in most states.

D. Spying on the victim, following the victim, or attempting to communicate with the

victim can be charged as stalking.

E. Authorities encourage victims to carefully document the stalker’s activities.

F. The federal government has a general stalking statute.

XII. Crime on City Streets

Learning Objective 8: Identify when an assembly becomes “unlawful.”

A. The use of criminal laws directed at conduct or persons believed to be related to

criminal acts is common, but they must be tailored to avoid infringing on individual

rights.

B. Some such laws include:

1. Anti-cruising laws

3. Juvenile curfew laws

4. Laws directed at homeless persons

XIII. Gun Ownership and Registration Laws

Learning Objective 9: State the basis for the Supreme Court’s decision that the Second

Amendment is binding on the states.

Class Discussion/Activity

Have students as individuals or in small groups visit the internet site of the

National Rifle Association. Whatever the student’s opinion is about gun

ownership and control, the site is very informative. Have them also visit

the sites for The Brady Campaign to Prevent Gun Violence and the

Coalition to Stop Gun Violence, to be exposed to the other side of the

debate on gun control. The Brady Campaign was formed by Jim and Sarah

Brady after Jim, who was President Ronald Regan’s press secretary, was

shot and seriously wounded during a1981 attempt to assassinate the

President. Have students consider whether well-publicized shootings since

Columbine have impacted their opinions about gun control.

A. The federal government, the states, and local governments all have the power to

regulate the ownership, registration, and use of guns, including through the criminal

law and all have laws that do so.

Media Tool

Gun Ownership Rights After Heller

http://www.nolo.com/legal-encyclopedia/right-own-gun-under-heller-

30295.html

o NOLO website on the implications of Heller.

o Discussion: What restrictions on gun control are still allowable

after the Heller case? What impact do you think this case will

have on gun rights?

E. Regulating guns after Heller

2. Heller only addressed regulations banning possession of guns in the home.

3. The Court made it clear nothing should cast doubt on the following

prohibitions:

a. Possession of guns by felons and the mentally ill

5. 46 do so by requiring a permit

XIV. The Free Exercise of Religion

Learning Objective 1: Read and remember the First Amendment.

A. Freedom to believe is absolute; freedom to act is not.

B. When a statute forbids a specific action or conduct, one who engages in that action or

conduct because of a religious belief may be prosecuted for the violation.

C. Conduct not protected by the freedom of religion clause includes:

1. Multiple marriages in violation of state polygamy laws

3. Requirements at airports, state fairs, and so on that religious, political, and

4. Violation of child labor laws

6. Refusing to place reflective triangles on horse-drawn buggies

XV. The Right of Privacy

A. There is no explicit right to privacy in the U.S. Constitution.

B. The Supreme Court has found such a right by implication from notions of personal

liberty in the Constitution.

C. Governments may not pass criminal laws that impinge upon the right to privacy

where one exists, except when there is a reasonable, legitimate government purpose

and the laws are tailored to advance that interest with the least restriction on the right.

D. Criminal laws that have been found to impinge on the right to privacy:

1. A state statute that prohibited providing medical information to a married

woman on birth control

3. A state law criminalizing abortion

a. The first trimester of a pregnancy the abortion decision was solely

up to the woman

b. After the first trimester and before viability the state could regulate

the abortion procedures, but could not ban abortions

c. After viability the state could ban abortions, so long as an

exception was made for the mother’s health

Lecture Notes

Most of the time students don’t think of the First Amendment as being related to criminal law.

The First Amendment usually involves civil rights issues. So it may come as a surprise that there

are situations where the criminal law must be sensitive to a person’s right to freedom of speech,

to assemble, to seek redress of grievances, and to exercise one’s religious beliefs. What makes

this chapter particularly interesting is that the criminal law issues related to the First Amendment

are usually quite controversial—flag burning, cross burning, obscenity, and the right to public

protest. This is a terrific opportunity to get students discussing important issues where there is a

lot of room for debate.

This chapter also discusses gun control statutes—another controversial topic. Students need to

appreciate that the criminal law controls who can possess a firearm and under what

circumstances. Offenders often face multiple criminal charges stemming from the same criminal

episode, and illegal possession of a firearm or ammunition is often one of those charges. There

are many gun control statutes and this chapter presents an opportunity to expose students to them

and introduce a discussion as to whether additional gun control legislation is good public policy.

An important discussion regarding gun rights includes the gun regulations that have occurred

following the Heller case.

Bullying is a problem that some of your students are already familiar with. Discuss with students

the likelihood that many of them know someone who has experienced bullying. Ask them how

many have attended some kind of training or speaker event that discussed the issue. What were

they told? How does what they have read in the chapter compare with their own personal

Although most of the stalking cases we hear of through news and other media sources involve

famous people, be sure that students understand that many more cases occur that we may or may

not be aware of. What are the problems with protection orders? How can victims of stalking

protect themselves? Is there something more that the criminal justice system should be doing to

Key Terms

“clear and present danger” test – The test used to judge government restrictions on speech. (p.

235)

disorderly conduct – Loud, obnoxious, or other offensive conduct in a public place. (p. 236)

fighting words – Speech that, because it will likely incite immediate violence, is not protected

by the First Amendment. (p. 236)

obscenity – Communication that the average person, using contemporary community standards,

would find appeals to the prurient interests or depicts sexual conduct in a patently offensive

manner and, taken as a whole, lacks serious artistic, literary, political, or scientific value. (p. 239)

symbolic speech – Nonverbal expressions that convey a belief or idea. (p. 242)

threats of violence – Statements or actions that unequivocally convey the message that violent

actions will be taken. (p. 244)

true threat – A serious expression of an intent to inflict bodily harm. (p. 244)

unlawful assembly – Under the common law, a gathering of three or more people for any

unlawful purpose or under such circumstances as to endanger the public peace or cause alarm

and apprehension. (p. 250)

Assignments

1. Most states have anti-stalking laws. Those laws have been controversial. Individually or in

small groups have students research the anti-stalking laws in your state and compare them to

similar laws in another state. Students can research more about such laws by visiting the

National Criminal Justice Reference Service (NCJRS) and searching under the term

“stalking.” When has a person crossed the line and committed the crime of stalking? How do

protective orders seek to address the problem stalker? [LO 7]

2. Whenever an organization wants to sponsor a protest march or demonstration, it must

abide by certain state laws and local ordinances that govern where, when, and how a

march or demonstration can proceed. Students can learn more by researching their state

statutes and city and county ordinances. Although such conduct is protected by the First

Amendment, it can be regulated by the government in order to avoid a disturbance and to

help ensure the safety of the public. Explain the considerations identified by courts in

determining the regulations and controls that government may use over public places.

How are these factors applied? [LO 4]

3. Have students describe a situation where flag burning would be protected and one where

4. Have students divide into groups and conduct research on the “clear and present danger

test.” Consider reviewing the cases listed in: http://legal-

role-play these scenarios to each other and discuss how the class would act, etc. [LO 3]

5. Provide students with the anti-bullying laws in your jurisdiction (city, county, state).

Working together in groups of two to three, have the students discuss the laws. What are

the positive and negative attributes? If they could write their own anti-bullying

legislation, what would it say? [LO 6]

Case Analysis and Writing Exercises

1. Massachusetts has a law that makes it a crime to possess a “stun gun” in public. The

defendant was convicted under this law for carrying a stun gun in her purse. She said she

needed it to protect herself from an abusive former boyfriend. On appeal, she contended the

total ban of stun guns violated the Second Amendment. The appeals court disagreed,

reasoning that <EOCNLSNL>(1) the Second Amendment only protects possession of

weapons that were in common use when the Amendment was adopted, (2) stun guns are a

“thoroughly modern invention,” and (3) are not adaptable for military use, like ordinary

2. As we will see in Chapter 12, courts routinely uphold the constitutionality of state laws

that target online attempts to solicit sex with a minor child. That is because speech intended

to achieve an illegal purpose is not protected by the First Amendment. It is the illegal

conduct, not the speech, that is made criminal. Texas has a law that makes it a crime to

communicate online in a “sexually explicit” manner with a minor if the communication is

intended to “gratify anyone’s sexual desire.” Does that law violate the First Amendment? Is

it directed at “content” or “conduct”? How does a court consider First Amendment claims

3. 49 U.S.C. § 46302(a) attaches civil penalties for conveying false information of a bomb

threat on an airplane. § 46507 (1) makes it a felony to convey a false bomb threat on an

airplane if it is done “willfully and maliciously.” A flight attendant, upset with the ground

workers servicing the American Airlines plane she was working on, tried to get them “in

trouble” by writing on the back of a storage compartment door in one of the plane’s

bathrooms “Bomb on Board! BOS–Mia”. She was charged under § 46507 with “maliciously”

making the bomb hoax. The judge charged the jury that it should convict her if she acted

“with an evil purpose or motive, or improper motive.” She was convicted, and she appealed.

Should her conviction be reversed? Did she do what Congress decided constituted a felony

4. A high school student did the following in a short period of time: (1) Asked a teacher

what she would do if he came to school wearing a bomb vest; (2) drew a picture of a stick

figure wearing a bomb vest, with the word “soon” written below the stick figure, and showed

the picture to other students, and (3) in reply to a Facebook post by another student, who

suggested he would bring a “blowup doll” to the prom, the student posted “fill the doll with