Lesson Plan: Burning the Flag: A First Amendment Debate

Subjects:

Civics/Government; AP United States Government and Politics

• This lesson addresses First Amendment: Freedom of Speech (Topic 3.3 of the AP United States Government and Policies curriculum). 

Grade Level:

9-12

Lesson Duration:

1-2 class periods (45-60 minutes)

Essential Questions:

• How has the Supreme Court defined and protected “symbolic speech” under the First Amendment?
• How does the Supreme Court balance individual expression against governmental interests in maintaining social order?
• How can other branches of government respond when they disagree with a Supreme Court ruling?

Lesson Objectives:

Students will:

• Identify the legal standards the Supreme Court uses to determine whether nonverbal conduct qualifies as protected “symbolic speech.”
• Analyze how the Supreme Court balances individual free speech rights against governmental interests across landmark flag-related cases.
• Evaluate the constitutional mechanisms available to Congress when responding to Supreme Court decisions on symbolic speech.

Materials:

• Retro Report video “Why the First Amendment Protects Burning the U.S. Flag” (Transcript)
• Student Activity handout  
• Texas v. Johnson (1989) | Oyez
• Stromberg v. California (1931) | Oyez
• West Virginia State Board of Education v. Barnette (1943) | Oyez
• Spence v. Washington (1974) | Oyez
• United States v. Eichman (1990) | Oyez

Procedure:

1. Designate one side of the classroom as the “Most strongly agree” side and the opposite side as the “Most strongly disagree” side. Then, read the statement: “Burning the American flag in political protest should be illegal.” 
   1. Have students arrange themselves in a line based on their opinions about the topic. Students will need to talk with each other about their opinions on the statement to ensure that they are in a line that reflects the strength of their views. 
   2. After students have settled into their spot along the line, ask students to describe why they chose the position they did along the line. 
2. Have students read the text of the First Amendment and then discuss with a partner why the Framers of the Constitution wanted to protect First Amendment freedoms. Sentence starters are provided on the Activity handout. After students share their answers, ensure via follow-up that the Framers’ particularly wanted to protect (potentially unpopular) political speech. Additional items that may be included in the follow-up:
   1. Explain that the Amendment forbids Congress from making laws to limit the freedom of speech. The amendment does not apply to private entities (i.e., while the government cannot punish you for exercising constitutionally protected speech, your parents or private employer could).
   2. Explain that the principle of selective incorporation from the 14th Amendment has extended the freedom of speech protections from the First Amendment to apply to state and local governments as well, not only is the United States Congress forbidden from passing laws to restrict your freedom of speech, your state and local governments are forbidden from passing such laws as well.
3. Instruct students to consider the questions below, write their initial thoughts, discuss their ideas with someone sitting next to them, and share with the class. Students should then complete and correct their answers with notes from the teacher. 
   1. What counts as speech that is protected by the U.S. Constitution? (Tell students that they will consider speech that is NOT protected by the First Amendment at a later time.) ANSWER: things you say (verbal speech), things you write (written speech), money you give (financial donations), symbolic conduct, the right not to speak/be compelled by the government to say a particular thing. 
   2. What is symbolic speech? What are some examples of symbolic speech? When is symbolic speech typically protected by the First Amendment? ANSWERS: Symbolic speech is nonverbal, nonwritten communication, such as making a gesture, carrying a sign or wearing an armband in protest, burning a flag. It is typically protected by the First Amendment when it is intended to convey a specifically tailored message and it is likely that others would understand that message. (Reference: Speech Beyond the Spoken Word: Symbolic Speech Explained | Freedom Forum)
4. Have students watch the Retro Report video and answer the corresponding questions on the Activity handout. Key vocabulary (desecration, venerated, prohibited) is provided for students prior to watching the video to reduce cognitive load and to support the later Supreme Court analysis. Additional vocabulary may be added as desired or as directed by the teacher. After the video concludes, review answers as needed. 
5. All students will read the case summary for Texas v. Johnson (1989) and complete that portion of the graphic organizer. 
6. Divide the class into 4 groups and assign each group one of the following Supreme Court Cases: Stromberg v. California (1931), West Virginia State Board of Education v. Barnette (1943), Spence v. Washington (1974), United States v. Eichman (1990). Students should read the summary of the assigned case, discuss the facts of the case and the Court’s ruling with their group, and answer the following: What non-verbal action or form of expression was involved? Did the Supreme Court protect the speech or uphold the government restriction? What was the reasoning behind the Court’s decision? Students should be prepared to share their answers with others and fill in information about the other cases as classmates share. 
7. Finally, students will independently draft their own thesis statement on their handout in response to the prompt: In response to Supreme Court rulings protecting flag burning, members of Congress have proposed a constitutional amendment to ban flag desecration. Develop an argument on whether Congress should pass a constitutional amendment to ban flag desecration. (Reference: H.J.Res.101 – Proposing an amendment to the Constitution of the United States giving Congress power to prohibit the physical desecration of the flag of the United States. 119th Congress (2025-2026) | Congress.gov)
   1. Before students practice drafting thesis statements, ensure they understand the process for amending the constitution (Reference: NCSL): Congress may submit a proposed constitutional amendment to the states, if the proposed amendment language is approved by a two-thirds vote of both houses. Congress must call a convention for proposing amendments upon application of the legislatures of two-thirds of the states (i.e., 34 of 50 states). Amendments proposed by Congress or convention become valid only when ratified by the legislatures of, or conventions in, three-fourths of the states (i.e., 38 of 50 states).

Additional Resource:

1. Inside Notes Illuminate How Supreme Court Decided Major Cases | The Wall Street Journal (PAYWALL)

About the Author:

Jack DiMatteo teaches at Deerfield High School in Illinois. He has taught AP United States Government and Politics, Civics, Economics, Introduction to Business, and AP Business with Personal Finance. He is a member of the Retro Report Council of Educators. Acknowledgement to Filiz Yargici for providing subject matter expertise and content development. 

Standards

College, Career, and Civic Life (C3) Framework for Social Studies

• D2.Civ.3.9-12. Analyze the impact of constitutions, laws, treaties, and international agreements on the maintenance of national and international order.
• D2.Civ.4.9-12. Explain how the U.S. Constitution establishes a system of government that has powers, responsibilities, and limits that have changed over time and that are still contested.
• D2.Civ.10.9-12. Analyze the impact and the appropriate roles of personal interests and perspectives on the application of civic virtues, democratic principles, constitutional rights, and human rights.

AP US Government and Politics

• Topic 1.5: Constitutional Change
  • LO 1.5.A: Explain how the Constitution can be amended.
  • EK 1.5.A.2: Debates about self-government during the drafting of the Constitution necessitated the drafting of an amendment process in Article V that entailed either a two-thirds vote in both houses or a proposal from two-thirds of the state legislatures, with final ratification determined by three-fourths of the states.

• Topic 3.3: First Amendment: Freedom of Speech
  • LO 3.3.A: Explain the extent to which the Supreme Court’s interpretation of the First Amendment reflects a commitment to free speech.
  • EK 3.3.A.1: The Supreme Court has held that speech, including symbolic speech (nonverbal action that communicates an idea or belief), is protected by the First Amendment.
  • EK 3.3.A.2: Efforts to balance social order and individual freedom are reflected in interpretations of the First Amendment that limit speech.

Common Core Literacy Standards

• CCSS.ELA-LITERACY.RH.11-12.1: Cite specific textual evidence to support analysis of primary and secondary sources, connecting insights gained from specific details to an understanding of the text as a whole.
• CCSS.ELA-LITERACY.RH.11-12.9: Integrate information from diverse sources, both primary and secondary, into a coherent understanding of an idea or event, noting discrepancies among sources.
• CCSS.ELA-LITERACY.WHST.11-12.1: Write arguments focused on discipline-specific content.