Caroline Hecker

ENGL 297
February 20, 2018

Exploratory Essay Draft

“Congress shall make no law…abridging the freedom of speech.” Since this line is

written in the First Amendment to the United States Constitution, many Americans have

accepted that freedom of speech is a defining element of the United States—except for yelling

fire in a crowded theater. This ubiquitous piece of information may have helped many people

avoid a lawsuit from violating the “clear and present danger” doctrine developed by Supreme

Court in 1919. However, what most people are unaware of is that this decision made by the

Court in Scheck v. United States was actually overruled almost 50 years ago in a case that

appeared in front of the Supreme Court in 1969 known as Brandenburg v. Ohio. This does not

necessarily mean a person would be free from liability from the expected injuries that would

occur out of the expected panic from shouting fire in a crowded theater or any crowded place

that is. However, instead of expecting any layperson to research the law, apply the law, and

defend his/her actions, everyone is guaranteed a right to counsel if ever accused of violating the

law or sued for a civil infraction, a tort. I have provided the above context not only because it is

commonly known, but also to introduce some of the complexities of the law. There is more to

free speech than simply not being allowed to shout “fire.” There might be an assumption that

attorneys only work to help their clients avoid jail time or avoid fines. However, in this case, it

may be helpful for everyone to know whether or not a person is permitted to yell fire in a

crowded theater since it is a more colloquial circumstance. This is where lawyers come in.
 I think what intrigues me about this field is that the law and the justice system are

institutions that penetrate our lives on a daily basis, even if we are sometimes unaware. However,

lawyers learn more than just legal jargon or how to write legal memos—they learn how to

change their way of thinking. Learning to think like a lawyer is one of the main objectives in any

law class. The average person may not consider the legal implications of their actions, or the

importance of what appears to be miniscule details in a fact pattern of a highly publicized trial or

how complicated it is to pass new legislation concerning the law without violating any current

ones. But a well-attuned lawyer may think like this everyday. This is a skill I hope to learn.

Before an aspiring attorney can even consider writing a legal memo for a judge or submit

a motion for summary judgment or analyze a court opinion for reference on a memorandum, one

must first learn how to think like a lawyer. In an article printed in Harvard Law Today entitled

On Thinking Like A Lawyer, international lawyer Anne-Marie Slaughter describes thinking like a

lawyer as, “thinking with care and precision… attention to nuance and detail…understanding

that words can have myriad meanings and can often be manipulated” (Slaughter, 2002). One of

the hallmarks of practicing law is understanding that all facts matter, and if you pay close

attention to these facts and use effective rhetoric to use the facts in your favor, then you can be a

successful lawyer—relative to the case you may have.

Although lawyers are typically writing to District Court and Circuit Court judges to argue

their side of the case, a lawyer may impact a judge’s decision that can set a precedent for the rest

of the community. Consider Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

To an average person, this case is assumed to involve religion and the rights of homosexuals.

However, the lawyers for Masterpiece Cakeshop have expanded their argument to exceed past

religious freedom and into freedom of speech claiming cake making is expression that should be
protected under the freedom of speech clause as well. This could change the business and art

world forever. It could mean any business considered to be artistic or expressing free speech may

have a valid argument to refuse service if their services reflect their opinions, ideas, and skill.

Learning to construct legal arguments exceeds past the organizational formula and

conciseness needed to present a well-written memorandum. It involves rhetorical strategies in a

way that presents your side as the best side, applying what a lawyer should research in existing

law in our society.

References

Slaughter, A.M. (2002). On thinking like a lawyer. Harvard Law Today. Retrieved from
https://www.princeton.edu/~slaughtr/Commentary/On%20Thinking%20Like%20a%20Lawyer.p
df.