Topic 1 (1/22): What are the historical roots of the First Amendment? What societal functions does the First Amendments serve? Which of these functions are most important? Is the free speech clause absolute? Does "no law" mean no law? Should free speech interests be balanced against government interests?
E-Casebook: Introduction to the Free Speech Clause
Topic 2: What is "speech" within the meaning of the
First Amendment? How should a court analyze a
case when the regulated activity includes both speech
and non-speech ("conduct") elements?
E-Casebook: What is "Speech?"
Topic 3: How did the Supreme Court's approach to reviewing speech restrictions evolve from a "bad tendency" test to a "clear and present danger" test? What constitutes a clear and present danger? Is there an argument for applying different standards of review to federal and state laws?
E-Casebook: The "Clear
& Present Danger" Test for Subversive Advocacy
Topic 4: Do even Nazis and Klansmen have First Amendment rights? What is the modern test for subversive advocacy? Should the Constitution protect extremist speech? Are some ideas so offensive (e.g., advocating racial genocide) that no protection for their expression should be afforded? How far does First Amendment protection extend for speech that encourages or facilitates illegal activity?
Unlawful Action and the Incitement Test
Topic 5: What is the difference between as as
applied First Amendment challenge and a facial First
Amendment challenge? What is the doctrine of
substantial overbreadth? When might a law
regulating speech or speech-related conduct be void
E-Casebook: The Substantial
Topic 6: What is a "prior restraint"? Should the First Amendment treat instances of prior restraints differently than instances of subsequent punishment? When, if ever, should a prior restraint be constitutional?
and The Presumption of Unconstitutionality
Topic 7: What is the difference between "indecent" speech and "obscenity"? How has society's tolerance for racy or indecent speech changed over time? How has the law relating to speech of this sort changed over time? Do you have a First Amendment right to wear a jacket that says "F--- the Draft" (or Law School)? Does expression ever become unprotected simply because it is vulgar or trivial?
E-Casebook: A Free
Speech History Lesson: The Trial of Lenny Bruce;
and Other Indecent Speech
Topic 8: What limitations does the First
Amendment put on gag orders and other speech
restrictions imposed to protect fair trial rights?
Topic 9: What limitations does the First Amendment place on hateful speech? How does the First Amendment apply to statutes that attempt to punish speech that degrades women or creates a hostile work environment?
Topic 10: Does the First Amendment place limitations on civil liability? Does it protect even falsehoods? What social purpose is there in protecting false statements injurious to a person's reputation? Should the same burdens apply to all defamation plaintiffs? What are the reasons for applying a less stringent standard to suits by private persons? How does the First Amendment apply to other theories of liability used by plaintiffs suing media defendants, such as breach of contract and negligence?
Amendment Limitations on Civil Law Liability
Topic 11: What is "the public forum doctrine"?
in the Traditional Public Forum
Topic 13: Should different standards
apply when the government is attempting to regulate
the time, place or manner of speech, rather than its
content? What are reasonable time, place, and manner
restrictions? How should we determine whether a speech
regulation is or is not content-based? Do cities have
the power to ban signs from all public property? May
cities restrict the placement of signs on private
property? Do you have a First Amendment right to play
loud rock music?
Topic 15: What is "government speech"? What is "the doctrine of unconstitutional conditions"? Does the First Amendment allow governments to ban books from public libraries? From school libraries? From classrooms? What sort of principles can be found to limit book censorship in these contexts?
E-Casebook: Government Speech
& Speech-Related Conditions Attached to
Topic 16: Does the First Amendment allow the government to impose speech restrictions on public employees that it could not impose on the public at large? Do public employees have the right to speak out on certain topics and keep their jobs? What is the right-privilege distinction? Does the First Amendment protect public employees who are discharged because of their partisan affiliation?
E-Casebook: Free Speech
Rights of Public Employees
Topic 17: Is commercial speech entitled to First
Amendment protection? Should it be entitled to the
same degree of protection as other forms of speech?
What is the Supreme Court's standard for reviewing
restrictions on commercial speech?
Assigned cases: Va. State Bd of Pharmacy, 44 Liquormart, City of Cincinnati
Topic 18: What limitations may the government impose on private funding of political campaigns?
E-Casebook: Campaign Finance Regulation and the First Amendment
Assigned case: Citizens United v F.E.C.
Topic 19: Is there a freedom not to speak?
What constitutes impermissible government coercion of
E-Casebook: Government-Compelled Speech
Assigned cases: West Virginia v Barnette, Wooley, Pruneyard
Topic 20: Does the First Amendment give groups a right to exclude speakers with which they disagree? Does the First Amendment protect a private association from being forced to admit members without regard to their sex, race or religion? What is the source of the "freedom of association" and what does it mean?
E-Casebook: The Right Not to
Topic 21: Should obscenity be treated
differently than other forms of speech? If so, why?
How do we know what is obscene and what isn't? Should
"community standards" be a factor in a test for
obscenity? May communities prohibit the sale of
obscene materials, but not their possession? Can the
state restrict the sale of certain materials to minors
which the First Amendment protects in the case of sale
to adults? May government treat adult theaters and
bookstores differently than it does other types of
businesses? May it ban them altogether? Zone them
together? Is nude dancing constitutionally
of Obscenity and Child Pornography
Topic 22: May government treat adult
theaters and bookstores differently than it does other
types of businesses? May it ban them altogether? Zone
them together? Is nude dancing constitutionally
Sexually-Oriented Businesses & the "Secondary
Topic 23: What was the original understanding
of the establishment clause? What is the general test
that the Supreme Court first developed for reviewing
alleged violations of the establishment clause? What
is a religion within the meaning of the First
Amendment? How should religion be defined for
the Establishment Clause;
Topic 24: What protection is afforded by the First Amendment's Free Exercise Clause? Are Mormons free to practice polygamy? Can Jehovah's Witnesses deny their children necessary blood transfusions? May native Americans smoke marijuana as part of their religious services? What does the free exercise clause protect after Smith?
Assigned cases: Reynolds, Sherbert, Yoder,
Frank, Jensen, Oregon v Smith, Church of Lukumi
Babalu Aye, Holt, Locke v Davey, Trinity Lutheran
Church v Comer, Masterpiece Cakeshop
Some or all of the
following topics will be covered if time allows:
Topic: Does the First Amendment guarantee the
press some sort of access to places under government
control, such as prisons or courtrooms? Does the
First Amendment protect the press when the government
seeks access to information held by the press, such as
the names of sources or potentially incriminating
information in newsroom files?
Assigned cases: Branzburg, Zurcher, Saxbe, Richmond Newspapers
Topic: Should there be different First Amendment tests for laws regulating different media? For example, should the First Amendment protect the content of video games or broadcast media just as stringently as it protects the content of newspapers? How should the First Amendment approach regulation of the Internet or, specifically social media?
E-Casebook: Different Tests for Different Media?
Assigned cases: Red Lion, Miami Herald, Reno, Brown v Entertainment Merchants, Peckingham v NC
Topic: What First Amendment Issues are
Raised by Permit Requirements for Parades, Rallies,