Use these talking points to initiate thoughtful discussion on Snyder v. Phelps and the fictional scenario. This activity is based on a modified Oxford Style Debate.
Judge: The issue before us today is – Are Ms. Laura Anderson's statements matters of public concern that are entitled to the protections of the First Amendment? We will analyze this question by exploring three issues – the content of the message, the form of the message, and the context of the message. Are they matters of public concern? After each attorney presents, I will ask a couple of follow-up questions.
Issue #1 – Is the content of Ms. Anderson's statements a matter of public concern?
John Smith
Plaintiff's Position: #1 [CONTENT]
The content of Ms. Anderson's statements was directed at Mr. Smith personally. She used his name and she specifically referenced his recent eviction, unpaid student loan debt, maxed out credit cards, and correspondence from collection agencies.
Judge: Optional follow-up questions. Thank you, Counsel. We will now hear from the Defense.
Ms. Laura Anderson
Defense's Position #1: [CONTENT]
The content of Ms. Anderson's statements was directed at the message and composition of OFS, generally, not Mr. Smith personally. Ms. Anderson's statements centered on her issues with the movement and the young people who support it. She only incidentally mentioned Mr. Smith as an example of a generation's sense of entitlement.
Judge: Optional follow-up questions.
Issue #2 – Is the form of Ms. Anderson's statements a matter of public concern?
John Smith
Plaintiff's Attorney #2: [FORM]
Ms. Anderson's statements were made in a private venue with only her family at a holiday dinner. Although her nephew was filming the speech with his phone, Ms. Anderson's statements were off-the-cuff and informal. They were not for public consumption. The subsequent rebroadcast of the statements by her nephew was not by her choice or direction and should not matter as the original audience was in a private setting.
Judge: Optional follow-up questions. Thank you, Counsel. Now we will turn to the Defense.
Ms. Laura Anderson
Defense Attorney #2: [FORM]
Ms. Anderson was fully aware that she was being filmed. She frequently looked directly at the camera as her nephew pointed his cell phone camera at her. While her statements were made to a small audience on private property, the camera was in plain view. Accordingly, she was directing her statements to a much broader audience than those at the dinner table.
Judge: Optional follow-up questions.
Issue #3 – Is the context of Ms. Anderson's statements a matter of public concern?
John Smith
Plaintiff's Attorney #3: [CONTEXT]
Ms. Anderson's statements were made in direct response to Mr. Smith's recent eviction. Ms. Anderson had a direct financial interest in Mr. Smith's failure to pay rent and sought to embarrass him through reference to his personal circumstances.
Judge: Optional follow-up questions.. Thank you, Counsel. Now we will turn to the Defense.
Ms. Laura Anderson
Defense Attorney #3: [CONTEXT]
Ms. Anderson's statements were a response to the vigorous public debate raised by the OFS movement. She sought to express her opinions that, in general, the movement was not contributing to the productivity of the economy and was interfering with the public order. She referenced Mr. Smith incidentally, as an example.
Judge: Optional follow-up questions.
Judge: – Now that the open floor debate is concluded, we will turn to the closing arguments. Then we will ask for a verdict by a show of hands, so please listen closely. We will start with Plaintiff's Counsel representing Mr. Smith.
John Smith
Plaintiff's Attorney #4: [CLOSING ARGUMENTS]
Ms. Anderson's statements were a personal attack on Mr. Smith intended to destroy his credibility. It was a blatant personal assault on his character that could have a long-term negative impact on his future. Ms. Anderson was Mr. Smith's landlord, who evicted him for nonpayment of rent. She was privy to his student loan and credit card debt only as a result of personal communications with him relating to rent. The fact that Ms. Anderson wants to embarrass Mr. Smith for failing to repay his debts is not a matter of political or social concern. His personal financial status and plans are not of general interest, value or concern to the public. Because Ms. Anderson launched a personal attack on Mr. Smith, her speech is not a matter of public concern and is not entitled to full First Amendment protection.
Ms. Laura Anderson
Defense's Attorney #4: [CLOSING ARGUMENTS]
Ms. Anderson's statements were part of a public response to the OFS movement. She was exercising her First Amendment right to voice her political opinions. Her comments emphasized the public consequences when people accrue debts that they have no intention of repaying. Massive failure to pay off debt is a high-profile public issue about which she stated her concerns as a survivor of a national financial meltdown – The Great Depression. Ms. Anderson was responding to the public message of OFS and its public tactics. The fact that Ms. Anderson used the example of a protestor was incidental to the overall purpose of the statements. Ms. Anderson's statements in response to the OFS movement relate to matters of public concern and are entitled to full First Amendment protections.
Judge: – I will now give the jurors their instructions for the open floor debate. We want to give everyone the opportunity to participate in open court so, instead of going to a jury deliberation room, we will open the floor debate in the courtroom.
All jurors are encouraged to express your opinions. Jurors, based on your initial impressions during the arguments, the Moderator will ask you to sit behind the counsel table whose position you support, at this time.
You are asked to be open minded, as if you were serving on a real jury. During the open floor debate, you are free to move back and forth in the audience section behind the counsel tables as you change your mind.
You are to direct your comments only to jurors on the other side of the issue – not to the student or adult attorneys, or to me. This is your time as jurors to express your opinions and analysis. The program moderator will facilitate the discussion and bring it to a close within our limited time.*
Judge: – Thank you, Jurors. Due to time limits, we will take the verdict by a show of hands. The Moderator will count the results. First, we will see a show of hands by those in favor of Mrs. Anderson. (Count is taken.) Now we will see a show of hands by those in favor of Mr. Smith. (Count is taken.) The Moderator will announce the verdict.
Notes to the Moderator: Ask all audience members (jurors) to sit in the gallery behind Mrs. Anderson or Mr. Smith – whichever side they favor at this point in the process.
During the debate, ask the student jurors to stand and identify themselves every time they speak and make sure that no students or opinions dominate the discussion. Only audience members (jurors) in the gallery may participate in this segment of the program.
They are to direct their arguments and questions only to jurors/audience members on the other side of the issue. No questions/comments for the Judge and attorneys are allowed during the floor debate. This is time for the jurors to try to persuade each other. The student attorneys may not defend their positions during the open floor debate.