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 criticalthinking. And critical thinking is a science, which means thatanyone can master it, if they will take the time to learn how.

In their book Think Critically, Facione and Gittens offer asimple mnemonic device that can help you think critically. Theyadvocate 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 IDEAmodel is actually a great way to think critically about the law.This exercise will provide two scenarios which present legalproblems, and then use the IDEA model to help analyze the firstone. Your task will be to use the IDEA model to analyze the secondone on your own.

Scenario 1:

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

Recently, the county held some meetings about signage. A numberof people expressed concern that their community was far toocommercialized with signage. Some people argued that the value ofproperty would increase if there was less signage. Finally, a thirdgroup expressed concern that all the signage was distracting todrivers, and presented a danger to the community. In response tothese concerns, the County passed a regulation that prohibitssignage except to advertise events and business which are on theland where the advertisement is. In other words, McDonalds couldhave a sign on its land, but could not have a billboard sign a mileaway. The ordinance is to be effective soon, and Gomez is worriedabout losing the income that he gets from billboards. He has threebillboards that are leased to three different customers; one isadvertising a restaurant, one proclaims the religious beliefs of acustomer, and the third is a political ad for a candidate in anupcoming election. Gomez has approached his lawyers, asking whatrights, if any, he might have to continue to lease thebillboards.

Note: Ignore any potential constitutional "takings" issues.

Identify the problem and set priorities

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

Sometimes you determine what the precise issue is by eliminatingthings that aren’t at issue. We know, for example, that Gomezdoesn’t have a contract with the county that allows him to havebillboards, so we can eliminate contract law as an issue. The FirstAmendment right to free speech immediately comes to mind, since theFirst Amendment limits the government’s right to interfere withwhat people want to say. So, the issue seems to be “can thegovernment limit the right to free speech by prohibitingoff-premise signage?”

Deepen understanding and gather relevantinformation

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

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

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

Enumerate options and anticipate consequences

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

1,)The entire ordinance is valid.

2.)The ordinance is valid as it pertains to one of thebillboards, but not the other two.

3.)The ordinance is valid as it pertains to two of thebillboards, but not the other one.

4.)The entire ordinance is invalid.

That requires us to think about why we might treat one billboarddifferently from the others. What meaningful differences are thereabout these billboards? Well, one of the billboards is anadvertisement for a restaurant, which is pure commercial speech.Another is about a religious message. The third is about apolitical issue. As we learned when we were gathering information,a government is much more free to regulate commercial speech thanit is to regulate speech about religious and political matter.

Assess the situation and make a preliminarydecision

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

The government is prohibited from the regulating time, place,and manner of speech pertaining to religious and political mattersunless the speech is likely to immediately cause lawless action orpresents an immediate harm. There is nothing about billboards witha religious message or about a political candidate that is likelyto immediately cause lawless action or presents an immediate harm.So, I conclude that the County cannot lawfully outlaw billboardsused for a religious message or about a political candidate.

I will encourage Gomez to take down the billboard for therestaurant, but to challenge the County’s right to enforce theordinance for the other two billboards. Now it is your turn:

Scenario 2

New Mexico High School is a public high school. Dyson Stevens, asenior at the high school, is point guard for the basketball team;Pauline Williams is a cheerleader. Last year, Pauline called thepolice, and claimed that she had been sexually assaulted by Dyson.She told the police that she and Dyson were at the same party, butnot together. He cornered her in the bathroom, groped her, andbegan ripping her clothes off when someone came into the bathroom;Dyson fled. Dyson denied the charge, and said that they wereinitiating consensual sexual contact when they were interrupted. Nocharges were brought against Dyson.

A problem arose during the first basketball game of the seasonthis year. Dyson had been fouled, and was at the free throw line.As was the custom, the cheerleaders were yelling him on, except forPauline. She stepped back from the rest of the cheerleaders, turnedher back to the court, and crossed her arms. Dyson took his shots,making the first one and missing the second.

Immediately afterwards, the basketball coach talked with thecheerleading coach, who then talked with Pauline. Pauline said thatshe was not going to cheer for someone who had tried to rape her.The coach said that she had to cheer for all of the players.

A few minutes later, Dyson was again fouled, the scene describedabove repeated itself; while Dyson took his free throw shots,Pauline stepped back from the rest of the cheerleaders, turned herback to the court, and crossed her arms.

Again, the cheerleading coach, this time joined by the highschool principal, talked with Pauline. Again, she said that was notgoing to cheer for someone who tried to rape her. Again, the coachsaid that she had to cheer for all of the players. The principalthen told her that unless she was going to cheer for all theplayers, including Dyson, she had no place on the cheerleadingsquad. She repeated that she would not cheer for Dyson. The coachthen told her that she was cut from the team.

Pauline has now gone to meet with some lawyers, asking whethershe can be cut from the high school cheerleading squad for refusingto cheer under the circumstance.

Your task is to work your way through the IDEA model. As this isnot an exercise in legal research, I am not expecting you toconduct your own independent legal research. Instead, I amproviding some excerpts from 3 separate cases that may inform youranalysis. They are saved in a .pdf file under the"Files" tab. These cases provide the legal precedent or law thatshould be used in your analysis. As you read thesematerials, please keep in mind that the entire cases have not beenprovided rather a substantially edited version so that you haveless reading.

To complete this assignment, please prepare a written analysiswhich should be set up using the following format and include theappropriate discussion. Identify the legal issue (This is the

1.)I - Identify in the IDEA Model) 20 points

2.)Identify both sides of the legal issue; remember, each andevery legal issue is seen/argued differently depending on what sideof the issue you are on. Here you need to argue all sides of theissue. (This corresponds with the D -Deepen Understanding in theIDEA Model) 20 points

3.) Analyze both sides of the issue based on the legal precedentprovided; please cite the cases you used in the analysis.[1] (Thiscorresponds with the E-Enumerate options section of the IDEA Model)20 points

4.)Conclude the discussion by describing what you believe theoutcome of the situation should be (This corresponds with theA-Assess the situation and make a preliminary decision section ofthe IDEA Model) 20 points

5.)Writing and presentation of analysis 20 points Total 100Points Be thorough and pay attention to detail!

[1] Cite the cases as follows: Tinker et al v. Des MoinesIndependent Community School District et al; 393 U.S. 503 (1969);Hazelwood School District et al v. Kuhlmeier et al; 484 U.S. 260(1988); Sissy Littlefield et al v. Forney Independent SchoolDistrict et al; 268 F.3d 275 (5th Cir. 2001).