Topic 1: 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?
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?
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?
Topic 5: What is the difference between as as applied
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 for vagueness?
Substantial Overbreadth Doctrine
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?
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?
Topic 8: 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 9: 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?
Topic 10: Can the government require the media to provide opportunities for replies to personal attacks? Should the print and electronic media have equal rights under the First Amendment? How persuasive are the reasons for allowing more extensive regulation of content for the electronic media? How should the Internet and video games be treated for First Amendment purposes?
E-Casebook: Different Tests for Different Media?
Topic 11: What is "the public forum doctrine"?
Topic 12: Must cities allow nudity in a municipal theater? Must a university allow a student religious organization to use to its student center? May a law school insist that any subsidized student organization accept "all comers"? How do we determine what constitutes a limited (or designated) public forum? What speech restrictions are permissible in places under government control that are not public forums?
Topic 13: Should different
apply when the government is attempting to regulate the time, place or
manner of speech, rather than its content? What are reasonable time,
and manner restrictions? How should we determine whether a speech
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
property? Do you have a First Amendment right to play loud rock music?
Do different First Amendment standards apply to reviewing injunctions
restrict the time, place, or manner of speech than would apply to
that do so? How should the First Amendment interests of abortion
protesters be evaluated? May cities charge fees for parades and
May cities pay groups not to march?
E-Casebook: Time, Place, and Manner RegulationsTopic 14 (Oct. 11): Do students have First Amendment rights? Do students have the right to wear black armbands to class to protest government policy? To give indecent speeches in a high school school assembly? To distribute offensive literature on a college campus?
E-Casebook: Student Speech Rights
Topic 15 (Oct. 13): Is there a freedom not to speak? What
government coercion of speech?
Topic 16: Is lying protected by the First Amendment? What important societal value, if any, is served by protecting deliberate lies? Should lies be treated differently for First Amendment purposes when the speaker does not intend that the lies be believed?E-Casebook: Does the First Amendment Protect Lying?
Topic 17: 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?
Topic 18: 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?
Speech Rights of Public Employees
Topic 19: Does the First Amendment guarantee the
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
to (and Protection of) Press Sources
Topic 20: Is commercial speech entitled to First Amendment
Should it be entitled to the same degree of protection as other forms
speech? What is the Supreme Court's standard for reviewing restrictions
on commercial speech?
Topic 21: 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 Associate
Topic 22: 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 protected?
Topic 23: Does the
Amendment prevent the government from regulating the political speech
of corporations and labor unions during campaigns? What types of
campaign finance regulation might be constitutionally
permissible? Was Citizens
United v Federal Election Commission correctly decided?
Topic 24: What was the original understanding of the
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 constitutional purposes? When is prayer permissible in
places? Do the same standards apply to prayer in elementary
that would apply to prayer in a university? Does it matter if the
prayer is initiated by students rather than by school administrators?
Topic 25: What financial support can government provide to religious schools? Are vouchers constitutional? Does it matter whether almost all the government funds support tuition payments at religious--as opposed to other private--schools? Does it matter whether the government funds go to parents or directly to the religious schools? What Establishment Clause test is appropriate to use to decide these cases?
E-casebook: Vouchers & Other Aid to Religious Schools
Topic 26: Does the First Amendment allow states to ban the teaching of the theory of evolution? To require that if evolution is taught, the theory of creationism must be taught as well? Does a biology teacher have a right to teach creationism, if that is what he or she believes explains the existence of life on earth?
E-Casebook: The Evolution/Creationism Controversy
Topic 27: What is a theocracy? Does the establishment clause forbid the state from making a religious law its law?
E-Casebook: Theocracy Issues: Looking for Secular Purposes
Topic 28: What is the "two plastic animals rule"? Are there principled lines that can be drawn in this area? Where is the Supreme Court going with its establishment clause jurisprudence?
E-Casebook: Religious Symbols in Public Places
Topic 29: 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?