Lesson 4: Speech & The Constitution

Topic:

Should "fighting words" be protected as speech?

Background:

In 1942, in Chaplinsky v. New Hampshire, the Supreme Court established the "fighting words" as an "unprotected category" of speech. Chaplinsky met the city marshal on the street and called him a "goddamned racketeer" and "a damned fascist," and they fought. Chaplinsky was convicted under a law that said "no person shall address any offensive, derisive, or annoying word to any other person who is lawfully in any street or public place." The Supreme Court upheld his conviction and the law, stating that "fighting words"--those which inflict injury or incite an immediate breach of the peace--are not protected. The case in this lesson, Feiner v. New York (1951) is the last "fighting words" conviction upheld by the Court.

Objectives:

1. Given a case visual, students will be able to role-play the facts of the case;

2. Identify the facts and develop the issue question for the Feiner case.

3. Compare two cases related to "fighting words" and apply the earlier decision to discussing how the latter case should be decided.

Materials:

Handouts 4A, "Feiner v. New York (1951); 4B, "Feiner v. New York:" What Are the Facts and the Issue Question?" 4C, "The Feiner Case: Decisions and Reasoning;" 4D, "Chaplinsky v. New Hampshire (1942)"

Time Required:

1-2 class periods

Procedures:

1. Any size class can role-play the facts of Feiner v. New York (4A). Roles include Irving Feiner; two police officers; a friend of Feiner among the crowd; a strong vocal opponent of Feiner in the crowd; and the remainder of the class are the crowd, some of whom should support Feiner and some should react negatively. Have students refer to the visual to understand their roles. Feiner needs to be played very emotionally, with the student shouting that the mayor is a bum, President Truman is a bum, and that Negroes should rise up and demand their rights. The Feiner opponent tells police if they don’t shut him up, that he will; Feiner’s supporter says he has freedom of speech. A couple times police ask Feiner to stop, he continues, and then he is arrested. Then, discuss the event with the class, including what should the role of the police have been (arrest Feiner or control the crowd?); was Feiner starting a riot or exercising free speech?

2. Use Handout 4B, ""Feiner v. New York::" What Are the Facts and the Issue Question?" to assist students in developing the facts of the case and the issue question.

3. Use Handout 4C, "The Feiner case: Decisions and Reasoning." Have students compare Opinions I and II, and discuss the questions on the bottom of the handout.

Performance Assessment:

Refer to the visual of Chaplinsky v. New Hampshire (4D) and briefly discuss it with the class, pointing out the decision. Have students do an oral or written comparison of the two cases and decisions.

Further Enrichment:

Based on multiple intelligence theory.

Linguistic: Have students write a "You Are There" newspaper article describing the events in the Feiner case and explain the reasons why he was arrested.

Logical/Mathematical: Students should determine all of the alternative actions the police could have taken e.g. crowd control, talk to Feiner, arrest Feiner, disperse crowd etc. and then discuss what they think the results of these approaches would have been. Ask students if it would have made a difference if there were no crowd?

Kinesthetic: Have the class conduct "man-in-the-street" interviews with students role playing average citizens holding various opinions of the Feiner case.

Spatial/Logical: The teacher should diagram the events of the Feiner case. Scramble the diagrams and have students place them in sequential order. Then show students how one event leads to the next ending in the arrest of Feiner.

Intrapersonal: Have students write a diary entry explaining their feelings about the "fighting words" decision by the Supreme Court in the Feiner case.

Interpersonal: Divide the class into groups of equal size. The teacher should assign roles in the group, e.g. facilitator, recorder, summarizer and explain what these roles are. Each group should discuss what they think "fighting words" means. Then each group should determine whether "fighting words" should or should not be protected as free speech under the First Amendment.

Handout 4A: SPEECH & THE CONSTITUTION

Handout 4B: SPEECH & THE CONSTITUTION

The Feiner Case: What Are the Facts and the Issue Question?

Directions: Use the two cartoons (Handout 4A) to complete the questions below:

Feiner vs. New York (The Syracuse Police)
  1. List the actions of Feiner:

    2. ____________________________________

    ____________________________________

  2. What value was shown by Feiner's actions?

    3. ____________________________________

  3. What two amendments are the legal basis for Feiner's actions?

    4. ____________________________________

 

  1. List the actions of the Syracuse Police:

    2. ____________________________________

    ____________________________________

  2. What value was shown by the Police's actions?

    3. ____________________________________

  3. What local law was part of the legal basis for the police?

    4. ____________________________________

  4. What amendment gives the local police authority?

    5. ____________________________________

 

Forming the Issue Question

In court cases, the issue question is the main problem that the court has to decide. Every case has two sides to it. Both sides have taken an action which they may believe was right. The actions of each side are based on values. These actions and values have a legal basis (Lesson Six). Therefore, the issue question asks the court to decide:

Do the actions, values and legal basis of one side win out against the actions, values and legal basis of the other side?

The main issue in the Feiner Case:

Does the ___________________________________________________
                                    (action of the police)

based on ___________________________________________________
                                    (legal basis of police)

violate the Feiner's right to _____________________________________
                                                            (action or value)

based on the ____________________________________?
                                    (legal basis)

Handout 4C: SPEECH & THE CONSTITUTION

 

DECISIONS and REASONING:

THE FEINER CASE GOES TO THE U. S. SUPREME COURT

In 1951, the nine justices on the Supreme Court agreed to hear the arguments in the Feiner case. After listening to the arguments on each side, the Supreme Court justices made their decision. Below are parts of the majority opinion and the dissention opinion. Read both opinions and select the one that you prefer. Which one do you think was the majority opinion?

Opinion I

Feiner is guilty of disorderly conduct. Feiner's speech made some of the audience angry. This could have resulted in fighting and a possible riot. The crowd interfered with traffic. We believe that Mr. Feiner deliberately tried to make the audience angry and create a disturbance.

 

Opinion II

Feiner is not guilty of disorderly conduct. Mr. Feiner has a right to speak in public. He has a right to express his ideas, even if other people do not like them. The police should have protected his right of free speech. If necessary, the police could have arrested people who were causing a disturbance.

Discussion Questions
  1. What are the main reasons given for Opinion I?
  2. What are the main reasons given for Opinion II?
  3. Which opinion do you prefer? Why?
  4. Which opinion do you think represents the majority opinion?
  5. In the Feiner Case the Supreme Court protected the value of _________ when it conflicted with the value of _________. What does this teach you about the way in which our legal system tries to resolve values conflicts? What does this show you about the freedoms and values contained in the Bill of Rights?
 

Handout 4D: SPEECH & THE CONSTITUTION

chap visual