IDEA Project

AN IDEA TO HELP WITH CRITICAL THINKING

The role of many classes is not only to provide you with the opportunity to gain knowledge about a particular subject, but to help you learn to apply that knowledge. And, because each field has its own way of applying knowledge, a purpose of the class is also to help you learn to think like the people do in that field. In a biology class, you learn something about biology, but you also learn how to think like a biologist.

This is a law class, and that means that you can learn something about the law, but also that you can learn something about how to think like a lawyer. According to an article by Anne-Marie Slaughter, thinking like a lawyer means “thinking with care and precision, reading and speaking with attention to nuance and detail. It means paying attention to language, but also understanding that words can have myriad meanings and can often be manipulated. It thus also means paying attention to context and contingency.”

There is a both a science and an art to thinking like a lawyer, but the first skill set that you have to develop is critical thinking. And critical thinking is a science, which means that anyone can master it, if they will take the time to learn how.

In their book Think Critically, Facione and Gittens offer a simple mnemonic device that can help you think critically. They advocate the IDEA model:

Identify the problem and set priorities

Deepen understanding and gather relevant information

Enumerate options and anticipate consequences

Assess the situation and make a preliminary decision

The IDEA model is actually a great way to think critically about the law. This exercise will provide two scenarios which present legal problems, and then use the IDEA model to help analyze the first one. Your task will be to use the IDEA model to analyze the second one on your own.

Scenario 1

Gomez owns 10 acres of land, with highway frontage, on the road between Deming and Las Cruces. The land isn’t good for much, but he has made some income over the years by renting three billboards he has put on his land.

Recently, the county held some meetings about signage. A number of people expressed concern that their community was far too commercialized with signage. Some people argued that the value of property would increase if there was less signage. Finally, a third group expressed concern that all the signage was distracting to drivers, and presented a danger to the community. In response to these concerns, the County passed a regulation that prohibits signage except to advertise events and business which are on the land where the advertisement is. In other words, McDonalds could have a sign on its land, but could not have a billboard sign a mile away.

The ordinance is to be effective soon, and Gomez is worried about losing the income that he gets from billboards. He has three billboards that are leased to three different customers; one is advertising a restaurant, one proclaims the religious beliefs of a customer, and the third is a political ad for a candidate in an upcoming election.

Gomez has approached his lawyers, asking what rights, if any, he might have to continue to lease the billboards.

Note: Ignore any potential constitutional “takings” issues.

Identify the problem and set priorities

The obvious problem is that Gomez will be in violation of the law if he continues to have his billboards up after the ordinance goes in to effect. But we need to dig a bit deeper, and figure out more specifically what the problem is.

Sometimes you determine what the precise issue is by eliminating things that aren’t at issue. We know, for example, that Gomez doesn’t have a contract with the county that allows him to have billboards, so we can eliminate contract law as an issue. The First Amendment right to free speech immediately comes to mind, since the First Amendment limits the government’s right to interfere with what people want to say. So, the issue seems to be “can the government limit the right to free speech by prohibiting off-premise signage?”

Deepen understanding and gather relevant information

Once we know what the issue is, we have to conduct some research to figure out how to think about the problem. The First Amendment says that “Congress shall make no law … abridging the freedom of speech ….” The ordinance isn’t a law that Congress made, but a local ordinance, but we know that the First Amendment is interpreted to mean “the government shall make no law … abridging the freedom of speech.” And, of course, this law abridges the right of free speech.

But certainly the government can make laws that limit what people can say. The government could, for example, pass a law that says you cannot falsely yell “fire” in a crowded theater. So, that means that the First Amendment is interpreted “the government shall make no law … abridging the freedom of speech unless it is reasonable to do so under the circumstances.”

When is it reasonable for the government to limit the right to speak freely? Well, the law provides that the government may regulate the time, manner, and place of speech for the common good, but it treats speech about political and religious matters differently than it treats speech about commercial matters. It can, for example, regulate the time, place and manner of commercial speech whenever the rules are reasonably related to a legitimate goal. It can regulate the time, place and manner of speech about political and religious matters only when the speech is likely to immediately cause lawless action or presents an immediate harm.

Enumerate options and anticipate consequences

Sometimes we tend to think in absolutes. For example, it might be easy to think that the ordinance is either valid or it isn’t valid. But sometimes, the absolutes aren’t the only options. For example, there are a number of options here.

The entire ordinance is valid.
The ordinance is valid as it pertains to one of the billboards, but not the other two.
The ordinance is valid as it pertains to two of the billboards, but not the other one.
The entire ordinance is invalid.
That requires us to think about why we might treat one billboard differently from the others. What meaningful differences are there about these billboards? Well, one of the billboards is an advertisement for a restaurant, which is pure commercial speech. Another is about a religious message. The third is about a political issue. As we learned when we were gathering information, a government is much more free to regulate commercial speech than it is to regulate speech about religious and political matter.

Assess the situation and make a preliminary decision

The government can regulate the time, place, and manner of commercial speech whenever the rules are reasonably related to a legitimate goal. Regulating billboards is a form of regulating the manner of speech; the government is not prohibiting the commercial speech, it is only saying that the speech cannot be on billboards. The county has a legitimate goal of raising property values, of making the county look better, and of eliminating things that might distract drivers, and getting rid of billboards is reasonably related to those goals. So, I conclude that the County can lawfully outlaw billboards used for commercial advertising.

The government is prohibited from the regulating time, place, and manner of speech pertaining to religious and political matters unless the speech is likely to immediately cause lawless action or presents an immediate harm. There is nothing about billboards with a religious message or about a political candidate that is likely to immediately cause lawless action or presents an immediate harm.