English 300: Language and Law

First Amendment

Dennis Baron

Spring 2012
Tu-Th 11-12:15
313 Davenport Hall

office: 251 English Building
office hours: Thurs 1:15 - 3 pm and by appointment

office phone: 217-305-0067
email: debaron@illinois.edu

The history of language and law from an American perspective, considering how legal texts make meaning; how we interpret that meaning; and how governments, schools, and businesses create policies that privilege, protect, or restrict language. The law depends on our common understanding of language to frame and interpret everything from statutes and contracts to witness statements and judicial rulings. The law assigns meaning to language as well, sorting out ambiguity and resolving opposing readings of the same text. For example, in Washington, DC, v. Heller, nine highly-educated Supreme Court justices came to two completely opposite interpretations of the Second Amendment (the one about the right to bear arms).

In addition to considering various aspects of legal meaning-making, we’ll look at instances where language becomes the subject of the law: First Amendment cases from the Alien and Sedition Acts to George Carlin’s “7 Dirty Words You Can’t Say on TV” (currently being revisited in the Supreme Court case this term, FCC v. FOX), to the USA Patriot Act. We'll look at language as property and issues of language in the workplace. And we’ll look at attempts to designate English as an official language at the federal, state, and local levels, as well as official language policies in schools and workplaces, together with various efforts to restrict or protect the rights of minority-language and minority-dialect speakers.

Readings — all are available online — include legislation, court cases, and analyses of various language and law issues. Students will write four short essays.

Grading: Essay 1 is worth 20%, and essays 2, 3, and 4 are worth 25% each. Participation is worth an additional 5% (remember, simply showing up does not count as participation). And speaking of showing up, your attendance is essential -- you can't participate if you don't attend class -- and students with more than 2 unexcused absences risk a lowered grade.


Week 1 Introducing language and law

Tues Jan 17  Course overview: some recent language and the law issues

Chief Justice Roberts administers the oath of office to Barack Obama


Why is the language of a country so important? Why is the language of the Star-Spangled Banner so important? What about translating the Declaration of Independence? The Constitution? The Pledge of Allegiance? The Bible? How do these questions reflect concerns over designating English as the "official" American language and the protection of minority language rights?

Thurs Jan 19 District of Columbia v. Heller: the linguistics of the Second Amendment and how the courts make meaning.

Guns and Grammar: Linguistic authority and legal interpretation in Washington, D.C., v. Heller What do we learn about language and the law when nine highly-educated justices of the U.S. Supreme Court, who spend their entire professional lives analyzing and interpreting language, can hold two directly opposite interpretations of the Second Amendment?

Constitutional interpretation turns partly on "originalism"--what the framers meant when they wrote the words of the Constitution--and partly on a view of the Constitution as a document whose meaning, while rooted in its original language, also evolves over time and adapts itself to changing circumstance. Heller is a perfect example of how these two views play out, and it's also an example of how liberal and conservative interpretations jump between originalism and the idea of a living constitution, with the Justices picking and choosing their support to fit the outcome they are looking for. Judicial critics call this making law, not interpreting it, but all judges do this, because it's the normal way that all of us make meaning.

What role does historical language analysis play in Constitutional interpretation? How can we determine what a text meant in the 18th century, and how that might differ from what it means today? To what extent should original meaning control contemporary interpretation? To what extent are the courts bound by the language of the Constitution?

Guns and grammar slide show

Documents relating to Heller

Week 2

Tues Jan 24 Analysis of the Heller decision.


Questions to consider as you read the links above: Posner argues that both the liberal and conservative courts have been activist, engaged in making law, not simply interpreting it. How does this play out in Heller? What is the doctrine of originalism and how are we to account for the fact that both language and circumstance change over time? How does such change apply when we look at legal texts? sacred texts? literary texts? Is the text, legal or otherwise, a stable entity in an ever-changing world, or a moving target?

Thurs Jan 26 The right to privacy. When Constitutional meaning is implied, not expressed.

Nowhere does the word privacy appear in the Constitution or in its amendments, and yet the Supreme Court now recognizes a constitutional right to privacy. Privacy concerns first come to light a century after the adoption of the Constiution, in an 1890 essay in the Harvard Law Review warning of the power of such new technological advances such as newspapers and photography to invade and destroy traditional notions of privacy, or the "right to be let alone."

Paper #1 on privacy assigned. Rough draft due Thurs, Feb 2.

The Oxford English Dictionary cites this article as the earliest occurrence of the phrase "right to privacy." Though the phrase was used as early as the 1830s, Warren and Brandeis' essay did much to enshrine "the right to privacy" as a common legal phrase. U of I law professor Amy Gaijda has argued that the foundational essay in American privacy law might have been written because the very private Samuel Warren was upset over intrusive press coverage of his wife's high-society family (her father had been a senator and Secretary of State, and the family was often mentioned in the society and gossip columns of the day).

right to privacyRight: from The Jurist XIII (1849), discussing the opinion in Albert v. Strange. The decision itself speaks of privacy as a right that has been invaded. (Albert, in the case, is Prince Albert, husband of Queen Victoria; the courts sometimes treat the privacy of public figures differently from that of ordinary folk.) Left: Earliest citation for "right to privacy," from Thomas Starkie, A treatise on the law of slander and libel, 2e London 1830, Vol 1, p. liv.



Questions about "the right to privacy" to consider as you read:

  1. Warren and Brandeis are reacting to the potential for photography and the press to impact the privacy of private individuals (public figures are subject to different privacy rules). How do changes in technology continually redefine the boundaries between the private and the public?
  2. In what way can you apply Warren and Brandeis to the age of the internet and the cell phone video?
  3. Warren and Brandeis argue that the right to privacy disappears upon publication. How does that stand up in the context of email, Facebook, Twitter, and other sorts of online activity, where one has -- at times -- the ability to limit who may read/view/listen to a post? Are privacy controls illusory? Is that what Mark Zuckerberg and others mean when they claim that modern technology has rendered privacy dead?

Week 3

Tues Jan 31 Redefining privacy in the electronic age

Today, technological advances far outstrip anything that Warren and Brandeis imagined in terms of challenges to our privacy. There seems to be no stopping the internet invasion of privacy, and no end of internet discussion about the meaning--if any--of privacy in a digital world. overheard

Left: Oxford University is only one of many places in Great Britain with CCTV surveillance. Chicago is said to have more CCTV cameras--including the notorious "red light" cameras--on the streets than any other American city. Right: Does reporting on FB a conversation overheard at a coffee shop constitute an invasion of privacy? It's one thing not to have an expectation of privacy when you're out in public, but it's something else again to have your words broadcast round the world. Or is it? What if this had been a YouTube video uploaded from a mobile phone instead?



Thurs Feb 2 Writing workshop for essay 1 on privacy..

Hard copy of rough drafts of essay 1, due today for in-class editing session. Final draft due Tues, Feb. 7.

Week 4

Tues Feb 7 It’s a free country: the First Amendment and the abridgement of speech

Essay 1 due before class today via email.

The First Amendment: what it says and what it doesn't say

Thurs Feb 9 Where your free speech rights end: Shouting fire in a crowded theater

Justice Oliver Wendell Holmes stated in this case his famous aphorism about "falsely shouting fire in a theatre" and set forth a "clear and present danger test" to judge whether speech is protected by the First Amendment. "The question," he wrote, "is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent. It is a question of proximity and degree." The Supreme Court affirmed the convictions of the defendants for conspiring to violate certain federal statutes by attempting to incite subordination in the armed forces and interfere with recruitment and enlistment. During wartime, the defendants mailed to new recruits and enlisted men leaflets that compared military conscription to involuntary servitude and urged them to assert constitutional rights.

The "clear and present danger" doctrine was updated in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d. 430 (1969)

In Cohen v. California, 1971, the Supreme Court ruled that obscenity could sometimes count as protected political speech. Paul Robert Cohen, 19, was convicted of disturbing the peace for wearing a jacket with the words "Fuck the Draft" on it inside a California court house. The Supreme Court reversed that conviction on the grounds that the statement was protected political speech and not unprotected obscenity. However, the Supreme Court building itself has been declared by Congress a "protest-free zone," and a number of protestors have been arrested for carrying political signs in or outside the Supreme Court building in Washington. See this blog entry for details. Question: is there any inconsistency in barring the exercise of First Amendment rights to speech, to assemble, to ask for redress of grievances, in the Supreme Court, the institution charged with protecting the First Amendment? What is the legal justification for banning protest at the Supreme Court?

Discussion questions: when are national security and public safety considerations sufficient to warrant the prior restraint of speech? What sorts of "speech" does the First Amendment cover besides actual language?

Week 5

Tues Feb 14 Free speech protects the right to express an idea; it doesn't protect the speaker from the consequences of speech.

Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d. 731 (1969)

In this seminal case considering the First Amendment rights of students (John F. Tinker, Christopher Eckhardt, and Mary Beth Tinker) who were expelled after they wore black armbands to school in symbolic protest of the Vietnam War, the Supreme Court held that students "do not shed their constitutional rights at the schoolhouse gate" and that the First Amendment protects public school students' rights to express political and social views. Yet the right to speech can be controlled by the school both in school and out of school. See the following decision in the "Bong Hits for Jesus" case, otherwise known by its more traditional case name, Bong Hits for Jesus

Morse v. Frederick 127 S.Ct. 2618 (2007) Can the school student speech off school premises when that speech advocates drug use?

Bong Hits 4 Jesus: High Court rules that students who mention drugs are pushing them

Then there's the recent local case in the US 7th Circuit, which we can call the T-shirts of Naperville:

Zamecnik v. Indian River School District Whether a school can prohibit T-shirts with an anti-gay message.

Thurs Feb 16 Does the War on Terror justify an abridgment of the First Amendment?

paper #2 on the First Amendment assigned Rough draft due Thurs, Feb. 23

The First Amendment and the right to publish: The Pentagon Papers and WikiLeaks

New York Times Company v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d. 822 (1971)

In the "Pentagon Papers" case, the U.S. government attempted to enjoin the New York Times and the Washington Post from publishing classified documents concerning the Vietnam War. Applying the doctrine of prior restraint from Near v. Minnesota, the Court found that the government's claims that publication of the documents would interfere with foreign policy and prolong the war were too speculative, and could not overcome the strong presumption against prior restraint.

Responses to WikiLeaks:

Week 6 The First Amendment: when you should not engage in unprotected speech

Tues Feb 21 The First Amendment and obscenity

Decency Squabble: The Senate Debates Lady Chatterley's Lover in 1930

Roth v. United States 354 U.S. 476 (1957) The constitutional standard for judging obscenity is whether, to the average person, applying contemporary community standards, the dominant Fanny Hilltheme of the material, taken as a whole, appeals to prurient interest.

A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Mass, 383 U.S. 413 (1966) (This is an obscenity case in which the novel, Memoirs of a Woman of Pleasure (commonly known as Fanny Hill), written by John Cleland in 1749, was djudged obscene in a proceeding that put on trial the book itself, and not its publisher or distributor. Since a book cannot be proscribed as obscene unless found to be utterly without redeeming social value, the Massachusetts Supreme Judicial Court erroneously interpreted the federal constitutional standard).

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d. 419 (1973)

In this case, the U.S. Supreme Court mapped out its famous three-part definition of Tropic of Cancerobscenity. First, the average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to prurient interests; second, that it depicts or describes, in a patently offensive way, sexual conduct as defined by state law; and third, that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The Court ruled that local rather than national community standards and state statutes that describe sexual depictions to be suppressed could be used to prosecute Miller, who operated one of the largest West Coast mail order businesses dealing in sexually explicit materials.

Thurs Feb 23 Workshop on essay 2. Bring hard copy of your essay to class. Final essay is due Tues, Feb. 28.

Week 7

Tues Feb 28 The First Amendment and the media

Final version of essay 2 due before class today via email.

Broadcasting bad language

FCC V. Pacifica Foundation, 438 U.S. 726 (1978)--George Carlin's Seven dirty words you can't say on TV

In a case that considered the First Amendment protections extended to a radio station's daytime broadcast of comedian Court Bans 7 Dirty WordsGeorge Carlin's "Filthy Words" monologue, the Supreme Court held that Section 326 of the Telecommunications Act, which prohibits the FCC from censoring broadcasts over radio or television, does not limit the FCC's authority to sanction radio or television stations broadcasting material that is obscene, indecent, or profane. Though the censorship ban under Section 326 precludes editing proposed broadcasts in advance, the ban does not deny the FCC the power to review the content of completed broadcasts. In its decision, the Court concluded that broadcast materials have limited First Amendment protection because of the uniquely pervasive presence that radio and television occupy in the lives of people, and the unique ability of children to access radio and television broadcasts. A transcript of the monologue was attached as an appendix to the Court's opinion.

FCC v. FOX In this update to the George Carlin case, the Court is currently being asked by lawyers for FOX and ABC to revisit Pacifica. Here's a link to oral arguments recently heard. The case will be decided later this term. Here's a scotusblog link to the opinion below, briefs for amici, and other documents in FCC v. FOX.

Questions to consider: The Telecommunications Act covers radio and television broadcasts, but it does not cover cable or satellite transmission, both newer technologies than over-the-air transmission. The air waves are federally licensed, on the assumption that the federal government controls the airwaves and the FCC distributes broadcast channels, while cable and satellite broadcasting uses private means of transmission. Is Pacifica rendered moot by the prevalence of new radio and TV technology? No one questions the need to protect children from inadvertently accessing inappropriate programming, but where does the responsibility for such protection lie? What about internet censorship, or rules covering inappropriate cell phone messaging?

Is the alternative to FCC oversight industry self-regulation? Here's an example of what happened when the movie industry imposed a censorship code on itself: The Hays Code

Thurs Mar 1 Some recent First Amendment cases

Questions: In these decisions the Court continues to affirm protection for unpopular and distasteful speech. What are the pros and cons of arguing that the best way to defeat or blunt the impact of such speech is to shine the light of day on it, subject it to discussion in the marketplace of ideas? What happens if, in that give-and-take of public debate, a bad idea actually takes hold? (There are many instances in history where this has happened.)

Assigned for Tuesday:

United States v. Alvarez. This term the Court will decide whether a person who falsely claims to have received a military medal is protected under the First Amendment. On Tuesday, Mar. 6, we will debate this issue. The class will divide into three groups, one to argue the government's case, one to argue Alvarez' case, one to serve as judges. For Tuesday, Mar. 6, prepare a list of points that you will make to support your claim, based on our study of First Amendment precedents. Judges will prepare a list of questions based on relevant First Amendment cases we have looked at. On Tuesday we will argue these points and the judges will decide the outcome.

Oral arguments in U.S. v. Alvarez

Links to the briefs in U.S. v. Alvarez

Here's an op-ed from the New York Times about the case: Is there a right to lie?

Week 8

Tues Mar 6 Oral arguments in U.S. v. Alvarez, and a rush to judgment

Come to class with your talking points; each side will have 20 minutes to argue its case; the judges will ask questions as appropriate. There will be a 5 minute rebuttal by each side. The judges will then "recess" to decide the case (5 minutes) and report their opinions and dissents to the class.

Thurs Mar 8 Official English from the Schoolhouse to the White House.

Official English and the protection of minority language rightsGeno's steaks

Questions: Supporters of offical English, many of them conservative or even libertarian in their social and economic philosophy, often argue that the government should mandate English because it is the glue that holds a diverse nation together. But sharing a common language didn't keep North and South Korea together, or India and Pakistan, or Ireland and Northern Ireland. Nor did it keep the United States from breaking with England in 1776, or from rupturing into the Union and the Confederacy in 1861. To what extent should government mandate or protect languages? How should language laws be structured?



Week 9 Official English

Tues Mar 13 The schools go to court over the rights of speakers of minority languages and dialects

Guide to America's English-Only towns and cities

paper #3, on official English and minority language rights, assigned. Rough draft due in class on Tues, Mar 27.

Questions: Languages in the classroom other than English have often proved controversial. In the mid-19th century, the Illinois Supreme Court affirmed the right of foreign language teachers to use that language to teach that language. That seems like a no-brainer, but some parents actually went to court to protest the practice! Today bilingual education is proving controversial, and some states have begun banning it (California took the lead in this). How have the schools dealt the non-English-speaking students, or those with limited English? How should the issue be handled? Why is it so controversial? What's the role of courts in ensuring the right to an education?


Thurs Mar 15 Discrimination by speakers of English against speakers of English

Questions: Why do we teach English to speakers of English? Does the privileging of one particular variety of English in the schools create or reinforce racial, ethnic, and class distinctions and inequalities, or does it ensure proper education in correct speech and writing? Given that all languages have dialects or varieties that may differ from the standard, what is the role of the school in reinforcing or eradicating such varieties? To what extent is this a legal as well as an educational issue? Is there a constitutional right to education? to literacy? Most language-related lawsuits are brought under the Fourteenth Amendment and/or the Civil Rights Act of 1964, which bans national origin discrimination (language discrimination has been ruled by the courts to be a form of national origin discrimination). We will come up against similar questions when we consider lamguage regulation and discrimination by employers.

***** Spring Break  Mar 17--25 *****

Week 10

Tues Mar 27 Rough draft of paper 3 on official language policy due in class today for discussion. Final draft due Tues, April 3.

Thurs Mar 29 Language rights around the world

Various declarations of linguistic human rights by the United Nations, the European Union, and other groups, all seek to help countries come to terms with language variety within their borders, but nations often distinguish between native languages and those language brought by immigrants. In France, for example, Breton and Provençal are indigenous, while Arabic and Turkish are immigrant tongues, and they are handled quite differently under French law: local languages have some degree of protection, while the speech of foreigners does not. Other countries take an even sharper view, banning any language that is not the national language (Slovakia's new language law does this, in effect). Language laws tend to reflect historical and cultural bias. Is a national language necessary? Historically, humans have always been multilingual. Where does the concept one nation-one language come from? How are we to cope with language diversity in a globalizing world? What is the role of English as a global language? Some countries have set protectionist language rules aimed at stopping the global English juggernaut. When are such protections appropriate? When do they go too far?

Week 11

Goddess EnglishTues Apr 3 Owning the language

Final copy of essay 3 on official language laws due before class today via email.

Trademark and the ownership of words and phrases

In an unrelated case, Apple has applied for a trademark on the phrase "APP STORE." The application is opposed by Microsoft, which argues that the term is generic.

While language belongs to all its speakers, communally, there are also cases where language counts as private property. Why is it beneficial for a business to own the names of its products? If you're in business, you probably want your product's name on everybody's lips. But you don't want that name to become generic, because then you lose the property right to control that name and the ability to prevent competitors from using it. That could cost your business money. Products that once were trade names but became generic include zipper, aspirin, linoleum, and shredded wheat. Trademarks in danger of becoming generic include xerox, google, band-aid, and kleenex. The app store case shows major corporations wrangling over the rights to a phrase consisting of two common English words. Evaluate the case of Apple and of Microsoft. If you were the judge, how would you rule?

Thurs Apr 5 Plagiarism, intellectual property rights, and owning your own words

Do you own what you write? What's the difference between borrowing someone's words (homage) and stealing them (plagiarism)? Does copyright provide a financial incentive for creativity, or is it an obstacle to the free use of common property? All these questions have additional ramifications in the digital age, when downloading, remixing, and reposting are mainstream activities. Do we need to re-evaluate the notion of intellectual property (IP) to take the internet into account? Intellectual property is a modern concept, and a western one. Not all cultures agree that copyright violation is criminal. Even Americans who have grown up with ™ and ©, download songs or videos or cut and paste text or rip graphics from the interwebs without a second thought.

Week 12

Tues Apr 10 Some issues of word-ownership

Copyright case study Read the linked pdf about Stern v. Does, concerning the copyright status of an email, and develop an argument supporting or overturning Judge Gee's opinion that the email in question does not meet the minimum requirements of a copyrightable work.

Thurs Apr 12 Language as property, concluded

Discussion: In light of the range of attitudes toward plagiarism, software piracy, music downloading, and ripping material from the internet, does intellectual property merit the same kinds of legal protection as personal property? If so, how can we draft reasonable laws and codes of behavior? If not, how can we encourage continued creativity if anyone can steal, and claim credit for, your ideas and creations?

Week 13

Employee monitor softwareTues Apr 17 Employee privacy and employer eavesdropping on telephone and digital communication

Thurs Apr 19 No class today

Week 14

Tues Apr 24 Language in the workplace: Employee language rights

Paper #4 on workplace language and the law assigned. Final draft due Tues., May 1.

When can employers tell you what language to use at work?

Just as we saw bilingual education posing a problem, bilingual and non-English-speaking employees often run afoul of employer-mandated language rules. The EEOC is the federal agency charged with ridding the business world of discriminatory language practice, but not everyone in Congress supports the Commission's efforts to protect workers.

Thurs Apr 26 Corporate Free Speech

Week 15

Tues May 1

Final draft of paper #4 on workplace language due today via email before class.

Closing arguments: The judicial attack on dictionaries.

In U.S. v. Costello Judge Richard Posner, of the US 7th Circuit Court of Appeals (remember him from Zamecnik?), argues that dictionaries are museums of words, and so it is unwise to use them when interpreting the law. Costello was convicted of the felony of harboring an illegal alien. The government argued that she "harbored" her live-in boyfriend, a convicted Mexican drug dealer who had already been deported once and who returned to this country illegally and was convicted of yet another drug offense. Reversing Costello's related harboring conviction, Posner finds the government's definition of harbor to be far-fetched when applied to a live-in boyfriend. He rejects the two dictionary definitions that the government relied on and cites his own Google search of the word harbor to demonstrate that dictionaries don't really tell the full story when it comes to what words mean.