Review the simulation: You are a Supreme Court Justice Deciding on a Free Speech Case.

Review the simulation: You are a Supreme Court Justice Deciding on a Free Speech Case.

Review the simulation: You are a Supreme Court Justice Deciding on a Free Speech Case.

Read Appendix B: Briefing and Analyzing Cases in Constitutional Law.

Choose a U.S. Supreme Court case that covers the First Amendment (free speech, religion, press, assembly, and petition). Do not use any of the cases mentioned in the You are a Supreme Court Justice simulation. Keep in mind that Supreme Court cases always have two sides, each of which is advocating for an important interest. You should discuss how the Court balanced the competing interests.

Use the Supreme Court of the United States website ( to locate a case. Or choose one of the following:

Schenck v. United States (1919)

Cox v. New Hampshire (1941)

United States v. O’Brien (1968)

New York Times v. United States (1971)

Gertz v. Robert Welch, Inc. (1974)

United States v. Lee (1982)

New York v. Ferber (1982)

Bethel School District v. Fraser (1986)

Hustler Magazine, Inc v. Falwell (1988)

Frisby v. Schultz (1988)

Follow the FIRAC model in Appendix B to brief the case.

Use the FIRAC Worksheet provided.

Appendix B: Briefing and Analyzing Cases

Decisions of courts are often written and are commonly referred to as judicial opinions or cases. These cases are published in law reporters so they may be used as precedent. Many cases appear in this text for your education. Your instructor may also require that you read other cases, often from your jurisdiction. The cases included in your book have been edited, citations have been omitted, and legal issues not relevant to the subject discussed have been excised. There is a common method that students of the law use to read and analyze, also known as briefing, cases.

Most judicial opinions are written using a similar format. First, the name of the case appears with the name of the court, the cite (location where the case has been published), and the year. When the body of the case begins, the name of the judge, or judges, responsible for writing the opinion appears directly before the first paragraph. The opinion contains an introduction to the case, which normally includes the procedural history of the case. This is followed by a summary of the facts that led to the dispute, the court’s analysis of the law that applies to the case, and the court’s conclusions and orders, if any.

Most opinions used here are from appellate courts, where many judges sit at one time. After the case is over, the judges vote on an outcome. The majority vote wins, and the opinion of the majority is written by one of those judges. If other judges in the majority wish to add to the majority opinion, they may write one or more concurring opinions. Concurring opinions appear after majority opinions in the law reporters. When a judge who was not in the majority feels strongly about his or her position, he or she may file a dissenting opinion, which appears after the concurring opinions, if any. Only the majority opinion is law, although concurring and dissenting opinions are often informative.

During your legal education, you may be instructed to “brief” a case. Even if your instructor does not require you to brief cases, you may want to, as many learners understand a case better after they have completed a brief. Here are suggestions for reading and understanding cases.

First, read the case. Do not take notes during your first reading. Get a “feel” for the case—the facts, the Court’s tone, and the outcomes.

Second, brief the case. What follows is a suggested briefing format.

A very common format for briefing judicial decisions is IRAC. The acronym represents Issue, Rules, Analysis, and Conclusion. It is recommended that you employ a modified form of IRAC that adds the facts of the case, hence FIRAC. See Figure B-1.

Figure B-1 Framework for briefing cases

Begin your brief by identifying the most important and material FACTS of the case. Not all facts mentioned by the court are material to the issue you are studying. It is possible for a court to reference an immaterial fact, or more likely, it had to address more legal issues than you have read about, and accordingly, it has included facts that could be material to a separate legal issue. Remember, you are reading cases that have been edited and pared down to the topic you are studying.

Identify the legal ISSUE in the case. Issue spotting is a very important legal skill. The issue is the legal question the court is answering. The facts of the case give rise to and frame the legal issue(s) of the case.

What RULE(s) applies to the issue you have identified The rules are the laws, from whatever source, that guide the analysis. The rules come in many forms. The law that directly applies to the issues and facts is known as doctrinal law. But other process rules may apply as well, such as the rules of statutory or constitutional interpretation, stare decisis, etc. Often, some knowledge of the law, or at least a good intuition, is needed to identify an issue. This is one of the challenges of being a legal neophyte.

ANALYZE the case, applying the law to the facts of the case. Remember, the law is “blind.” The politics and social dimensions of cases are immaterial. Like Mr. Spock in Star Trek, engage in objective, logical (legal) analysis and leave your personal opinions out of the mix. Often during analysis, new legal issues will emerge. Be prepared to add them to your analysis. See the example below to understand how this happens.

Draw a CONCLUSION. Students often want to jump to the “final answer.” What is important is that you can identify and frame an issue and analyze the problem. Your final conclusion is less important (unless you are a judge!). In most cases, your conclusion will not be about guilt or innocence. It will be about the application of a law to a set of facts.

Finally, depending on your objective, you may also want to discuss any concurring and/or dissenting opinions.

Here is a simple example of the application of the FIRAC model.

EXAMPLE: Gun Possession in the Home


In response to rising homicides and robberies involving guns, MegaTown enacts an ordinance making it a class A misdemeanor punished by as much as one year in jail and a fine of $10,000 for the possession of a handgun anywhere in the city, including in the home. One evening, A. Sih, a resident of MegaTown, phoned the police to report that she heard a noise in her home. She invited the two officers who were dispatched to her residence to come into her home to search for possible intruders. While they did not find an intruder, they discovered a handgun sitting on a table in the living room. The officers inquired about the gun and she replied, “I keep it for safety. I don’t think the neighborhood is safe. I work with a local group that identifies and reports trouble in the neighborhood. Gang members have threatened me.” They issued Ms. Sih a citation for possession of the firearm in violation of city ordinance. She filed a motion to dismiss the citation on the grounds that the ordinance violates the Second Amendment to the U.S. Constitution. She did not challenge the ordinance’s prohibition of guns in public places. She challenged its provision making it unlawful to possess a gun in the home. The motion was denied by the trial judge. Subsequently, she pled guilty and was sentenced to sixty days in jail and a $1,000 fine. She has appealed the judge’s denial of her motion to dismiss. The judge agreed to stay her punishment pending appeal.


May MegaTown forbid the possession of handguns in the home More specifically, is MegaTown’s ordinance forbidding handgun possession in one’s home consistent with the Second Amendment to the U.S. Constitution


The Second Amendment to the U.S. Constitution provides that “A well regulated Militia, bei
ng necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”

This is an example of where some knowledge of the law is necessary in order to identify the issue. One would have to know, at some level, that there is a protection of gun ownership to know to turn to the Constitution.

Additionally, as an issue is researched, new legal issues often emerge. In this case, for example, you would learn as you read the Supreme Court’s cases that an issue that must be addressed is whether the Second Amendment applies against the states or just against the federal government, as was the framers’ intention at the time of the adoption of the Bill of Rights. This analysis requires the application of a new rule, the Fourteenth Amendment’s due process clause (which is used to “incorporate” or apply the Bill of Rights to the states).


The Second Amendment reads, “A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”

Initially, the rights found in the first ten amendments (Bill of Rights) limited only the federal government, as intended by the framers. The Civil War dramatically changed the federal system. The adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments is the most significant legal change resulting from the Civil War. Although it took some time after the ratification of the Fourteenth Amendment (see Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833)), the Supreme Court eventually held that rights that are fundamental and necessary to an ordered liberty are incorporated and apply against the states under the Fourteenth Amendment’s due process guarantee, see Hurtado v. California (1884) and Chicago, B. & Q. R. Co. v. Chicago (1897). Because only those rights that are fundamental and necessary to an ordered liberty are incorporated, the process has become known as selective incorporation, as opposed to Justice Black’s theory that the Fourteenth Amendment totally incorporated the first eight amendments.

Evidence from the Constitutional Convention makes it clear that the Second Amendment’s Right to Bear Arms Clause is independent of its Militia Clause. Accordingly, there is an individual right to bear arms.

There is considerable evidence that possession of a handgun in the home for personal security is “deeply rooted” in U.S. and English history. The framers of the Constitution, both Federalists and anti-Federalists, considered gun ownership and self-defense important to freedom. Attempts to disarm the colonists by the King of England were met with hostility. At the time of the adoption of the Second Amendment, the states commonly protected the right through their constitutions and the framers purposely replicated those protections in the U.S. Constitution. Congress has on more than one occasion recognized the importance of gun ownership to personal safety and to the protection of civil rights. For example, Congress acted on several occasions to protect gun ownership by African-Americans in southern states following the Civil War, where whites were permitted to own guns and African-Americans, who were not permitted to possess weapons, were the target of violence by unrelenting rebels.

The right to self-defense and defense of family is most acute in the home.

Accordingly, possession of a handgun in the home is a fundamental right intended to be protected from federal governmental intervention under the Second Amendment.

Because it is fundamental and necessary to an ordered liberty, the right to bear arms is incorporated under the Fourteenth Amendment and applies against the states (which includes localities).

MegaTown’s desire to address the rising number of homicides and robberies is genuine. However, it does not justify a full prohibition of gun possession for all residents, in all homes. MegaTown’s law forbidding gun possession in the home directly conflicts with the Second Amendment.

You will want to cite the cases, statutes, and constitutional provisions that stand for the principles you are advancing.


MegaTown’s ordinance violates the Second Amendment’s right to bear arms in the home, and Ms. Sih’s conviction must be overturned. The Court made no judgment about MegaTown’s regulation of guns in public places.

Note: This example draws from two Supreme Court decisions: McDonald v. Chicago (2010) and Washington, D.C. v. Heller (2008).

Constitutional Law. Governmental Powers and Individual Freedoms, Second Edition

Briefing and Analyzing Cases

ISBN: 9780135109502 Authors: Daniel E. HallJ.D., Ed.D., John P. FeldmeierJ.D., Ph.D.

Copyright © Pearson Education (2013)

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