FIRST AMENDMENT LAW
 
COURSE SYLLABUS
Professor Linder
WINTER SEMESTER, 2018

Topic 1 (8/23): 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 (8/25): 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?"
Assigned cases: O'Brien, Texas v Johnson, Buckley, South Fla Free Beaches, Expressions Hair Design
Discussion Problem: Portland traveler's TSA protest
Discussion Problem: Headlight flashing

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
Assigned cases: Debs, Abrams

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?

E-Casebook: Advocacy of Unlawful Action and the Incitement Test
Assigned cases: Brandenburg, Hess, Rice
Discussion Problem: Neo-Nazi posts name, address, and photo of foreman of jury who convicted a white supremacist on website urging violence

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 for vagueness?

E-Casebook:  The Substantial Overbreadth Doctrine
Assigned cases: Erznoznik, Bd. of Airport Commissioners, U.S. v Stevens
Discussion Problem:  St. Louis man prosecuted for displaying "9-11 was an Inside Job" sign on city overpass

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?

E-Casebook: Prior Restraints and The Presumption of Unconstitutionality
Assigned cases: Near, U.S. v Progressive

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;   Four-Letter Words and Other Indecent Speech
Assigned cases: Cohen, FCC v Pacifica

Topic 8: What limitations does the First Amendment put on gag orders and other speech restrictions imposed to protect fair trial rights?

E-Casebook: Fair Trial Issues
Assigned cases: Sheppard, Nebraska Press, Gentile

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?

E-Casebook: Falwell v Flynt Trial; Regulation of Hate Speech
Assigned cases: Hustler, R.A.V., Wisconsin v Mitchell, Virginia v Black, Snyder v Phelps

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?

E-Casebook: First Amendment Limitations on Civil Law Liability
Assigned cases: NYT v Sullivan, Gertz, Zacchini, Cohen

Topic 11: What is "the public forum doctrine"? 

E-Casebook:  Speech Restrictions in the Traditional Public Forum
Assigned cases: Frisby, U.S. v Kokinda, Intl Society for Krisna Consciousness

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?

E-Casebook: Speech Restrictions in the Limited Public Forum;  Speech Restrictions in the Non-Public Forum
Assigned cases: Southeastern Promotions, Widmar, Rosenberger, Greer v Spock

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?

E-Casebook:  Time, Place, and Manner Regulations
Assigned cases: Ward, Feiner, City Council v Taxpayers for Vincent, City of Ladue
Discussion problem: Regulating costumed characters in Times Square

Topic 14: 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
Assigned cases: Tinker, Bethel, Hazlewood, Morse

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 Government Spending
Assigned cases: Pleasant Grove, Walker v Texas Sons of Confederate Veterans, Rust, NEA v Finley, Legal Services Corp, U.S. v American Library Assn, Matal v Tam

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
Assigned cases: Pickering, Mt. Healthy, Connick, Rankin, Garcetti, Branti

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?

E-Casebook:  Regulation of Commercial Speech
Assigned cases: Va. State Bd of Pharmacy, 44 Liquormart, City of Cincinnati

Topic 18:
What First Amendment Issues are Raised by Permit Requirements for Parades, Rallies, and Marches?
 
E-Casebook: First Amendment Issues Raised by Permits and Fees
Assigned cases: Cox v N. H., Collin, Forsyth County

Topic 19: 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 20:  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?

E-Casebook:  Access to (and Protection of) Press Sources
Assigned cases: Branzburg, Zurcher, Saxbe, Richmond Newspapers

Topic 21:  Is there a freedom not to speak? What constitutes impermissible government coercion of speech?

E-Casebook:  Government-Compelled Speech
Assigned cases: West Virginia v Barnette, Wooley, Pruneyard

Topic 22: 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
Assigned cases: Roberts, Boy Scouts of America v Dale

Topic 23:  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?  

E-Casebook:  The Regulation of Obscenity and Child Pornography
Assigned cases: Stanley, Miller v California, Ashcroft v Free Speech Coalition

Topic 24: 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? 

E-Casebook:   Regulating Sexually-Oriented Businesses & the "Secondary Effects" Test
Assigned cases: City of Renton v Playtime Theatres, Barnes v Glen Theater

Topic 25:  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 constitutional purposes?

E-Casebook:Introduction to the Establishment Clause
Assigned cases: Everson, Engel, McGowan, Van Orden

Topic 26:  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?

E-Casebook: Introduction to the Free Exercise Clause
Assigned cases: Reynolds, Yoder, Oregon v Smith, Trinity Lutheran Church v Comer

Review

E-Casebook: Exams

EXPLORING FIRST AMENDMENT LAW