This chapter is challenging for those students who want and expect the law to be clear, clean, determinate, and fixed. Some students also will begin to be troubled by the density of legal language, the need for clear sequential thinking, the myriad of tests and categories that are being introduced, and, essentially, the alien contours of legal thinking. Rather than view these issues as problematic, students’ unease with the uncertainty inherent in First Amendment interpretation and application may provide a highly useful pedagogical opportunity for critical thinking exercises.

The fundamentals of First Amendment theory and application introduced in this chapter are vital to active understanding of many of the topics to follow. Therefore, it is useful to spend time helping students to learn and distinguish among the various strategies used by the Court to interpret and apply the First Amendment. The First Amendment schema reproduced on this website is an overview tool to help this analysis throughout class discussions.

This chapter first introduces students to differences in the application of the First Amendment based on differences in the nature of the laws government has enacted. A discussion of the distinction between positive liberty (e.g., liberty to speak) and negative liberty (e.g., liberty from restraints) is extremely useful here. When students grasp the role of the First Amendment in preventing government from infringing on freedom of speech, they will recognize why the type of law is so central to the Supreme Court’s reasoning. At this point, exercises that ask students to determine whether a given law is content-based or content-neutral are very useful. A follow-up discussion about the effects of the two types of laws leads naturally into exploration of the levels of scrutiny and how they operate to protect constitutional liberties. Finally, students may be encouraged to critically evaluate the operation of the tests and the basic assumption of the Court that content-neutral laws are actually more benign than content-based restrictions.

Recent Supreme Court decisions on public employee free speech and right to testify (Harris v. Quinn and Lane v. Franks), fixed buffer zones around family planning clinics (McCullen v. Coakley), and state bans on false advertising (Susan B. Anthony List v. Driehaus) seem to suggest shifting contours to the right of government to control speech that provide an excellent locus for discussion of the often-difficult balancing of competing interests.

Many students are intrigued by the concept of government funding creating virtual public forums, particularly as the case law in this domain frequently has involved university campuses. The university cases afford the opportunity to move from abstract or detached conversations to situations that present direct challenges to the students’ own values and self-interest. Here is the valuable chance to explore whether we, as individuals, really believe in freedom of speech or whether, as Nat Henthoff said so aptly, we believe in “free speech for me, but not for thee” (NAT HENTOFF, FREE SPEECH FOR ME, BUT NOT FOR THEE (1992)).