English 310

Unprotected Speech:
What you can and cannot say or write, and why

Dennis Baron

Spring 2018

MW 2 - 3:15 pm
104 English
office: 251 English
office hours: MW 11-12:30, and by appointment
office phone: 217-244-0568


Course description: The First Amendment reads, “Congress shall make no law . . . abridging the freedom of speech,” but although much of our speech is protected, a great deal of it is not. The First Amendment has never protected obscene speech, incitement to violence, fighting words, or falsely shouting fire in a crowded theater, though some of these categories have been difficult to define. . . . (read more)

Readings: All readings will be available online.

Assignments: There will be two essays on specific topics to be submitted by email. In addition, students will participate in a moot court session, arguing the role of the appellant or the respondent, or serving on the panel of judges, and writing a third essay on the case, Masterpiece Cakeshop v. Colorado CIvil Rights Commission.

Grading: Essay 1 and 2, 25% each; essay 3, 30%; moot court, 10% and participation, 10% (note: attendance is not participation; you must actually talk).

Some valuable general First Amendment resources:

Cornell's Legal Information Institute: The First Amendment Explained

The Newseum's First Amendment Center

The ACLU Free Speech website

The Electronic Frontier Foundation (EFF) website

PEW: Free speech online (2017 report)


Week 1 It's a free country, but you can't always say what you want

Wed Jan 17 Introduction: It's a free country, but you can't always say what you want . . .

The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

What the First Amendment doesn't protect:

  • Falsely shouting fire in a crowded theater
  • Obscenity
  • Fighting words
  • Threats
  • Commercial speech (in most cases)

What the First Amendment protects:

  • hate speech (and racist, sexist, or otherwise insulting speech)
  • lying (except under oath)
  • obscenity when it's political, not prurient
  • publishing secret information (stealing or leaking that information is not protected)
  • political campaign contributions (because money talks)

1961: Comedian Lenny Bruce arrested for using obscene language in a monologue at San Francisco's Jazz Workshop.

What you still can't say on the air -- in the 21st century.

High school senior pleads innocent of threat to president. (1966)

Post on Facebook, go directly to jail.

After Dallas shootings, police arrest people for criticizing cops on Facebook and Twitter

A 12-year-old girl is facing criminal charges for using certain emoji. She's not alone.

Bookstore "safe space" policy

Scholastic withdraws children's book depicting slaves as happy.

Artist scrawls hate-speech tweets in front of Twitter's Hamburg office.

Global survey on free speech

Australian man arrested for using foul language

Assignment for Monday Workshop: Free Speech in Charlottesville

"This plane is going to Havana": what you can and cannot say while traveling.

Mon Jan 22 Workshop: Free speech in Charlottesville

When the FIrst Amendment met the second

Charlottesville slides

Back to school at the University of Virginia was a lot different last Fall. Is Charlottesville how the First Amendment is supposed to work?

Here are some of the primary legal documents that led to the "Unite the Right" Charlottesville disaster.

Aug. 7, 2017: the City of Charlottesville revoked the permit to hold a demonstration in Emancipation Park.

Aug. 10: ACLU-VA motion for an injunction to reinstate the permit: Jason Kessler v. City of Charlottesville

The City of Charlottesville response opposing the ACLU-VA motion

Aug. 11: Opinion of the Federal District Court for the Western District of Virginia granting the injunction

1934 ACLU pamphlet, "Shall we defend free speech for Nazis in America?

After the fact: ex-gov. McAuliffe blames the city of Charlottesville, though he admits the state knew the danger:

Independent report blames both city and state for failures:

The City was unable to protect the right of free expression and facilitate the permit holder’s offensive speech. This represents a failure of one of government’s core functions—the protection of fundamental rights. Law enforcement also failed to maintain order and protect citizens from harm, injury, and death. Charlottesville preserved neither of those principles on August 12, which has led to deep distrust of government within this community. [report, p. 7]

Wed Jan 24

Read the Newseum Survey: State of the First Amendment 2017

Explore your own experience with protected and prohibited speech: at home; in school, at work, online, face to face.

How Europe and the US differ on free speech:

Je suis Charlie excerpt

A brief Charlie Hebdo timeline

Writers protest free-speech award to Charlie Hebdo

Week 3 Guns and grammar

Mon Jan 29 In Charlottesville, the First Amendment clashed with the Second. How the Supreme Court interpreted the Second Amendment offers important insights into how courts interpret the law . . .

read: Guns and grammar

Versions of the Second Amendment

Wed Jan 31 Interpreting the law: strict, loose, practical construction

Interpreting the law slides

Week 4

Mon Feb 5 Look it up in your Funk & Wagnalls . . .

More than ever, courts rely on dictionaries to define statutory words. Is this a mistake?

Read: Look it up in your Funk & Wagnalls

Wed Feb 7 Clear and present danger

Read: Unprotected speech

Slides: Civil rights in wartime

The Alien and Sedition Acts: John Adams limits political speech

The Espionage Act of 1917

The Sedition Act of 1918

Schenck v. United States: the clear and present danger doctrine

The Schenck leaflet: the draft is unconstitutional; but protesting the draft is illegal

Abrams v. United States: silly leaflet or seditious act?

The Abrams leaflet (Exhibit A, the English version)

Week 5 Fighting the red menace

Mon Feb 12

Whitney v. California: advocating the overthrow of the government

Dennis v. United States: the nation has the right to ban speech that plots its destruction, even if that destruction is not imminent.

Brandenburg v. Ohio -- We've come a long way from Schenck and Abrams.

Cohen v. California: The f-word is not obscene when it's political

Wed Feb 14

The First Amendment in wartime, concluded.

First essay planning session and assignment: Can civil rights be suspended in times of national emergency?

Link to assignment. Essay due Feb. 21.

Week 6

Mon Feb 19 Does online surveillance chill speech?

Surveillance State slides

DHS Social Media Watch (see pp. 20-23)

USA FREEDOM Law of 2015

UK "Snooper's Charter"

French surveillance law

Wed Feb 21 First essay due today, via email. Discussion of your essays.

Week 7 Strong language

Mon FEB 26 The struggle to define obscenity

Read: Strong language

Obscenity slides

Regina v. Hicklin

The trials of Henry Vizetelly

The Senate debates obscenity in 1930

Wed Feb 28 Losing it at the movies

The Hays Code

Roth v. United States: defining obscenity

Miller v. California: refining the definition of obscenity as material "utterly without redeeming social value."

United States v. One Book Called "Ulysses" (1933)

Fanny Hill and the definition of obscene literature

R. v. Penguin Books: Lady Chatterley's Lover on trial

Ginsberg's Howl on trial: obscenity, and juvenile delinquency in San Franciso

Week 8:

Mon Mar 5 The moving target of obscenity

Potter Stewart, "I know it when I see it": Jacobellis v. Ohio

George Carlin and the "7 Dirty Words" routine

FCC v. Fox

How the Oscars bleeped the "salty" moments

The F-word on basic cable

Recent swearing cases

Wed Mar 7 I'm gonna get you . . . The definition of a threat

Read: Threat level orange

Threats are always unprotected speech. The problem is, how to define them.

Threats against the president: the Espionage Act of 1917

World War I era threat prosecutions

Watts v. United States: distinguishing threats, idle threats, and political speech.

Anthony Elonis, Facebook threats, and the notion of criminal intent.

Did candidate Donald Trump just threaten the president? On the 2016 campaign trail.

Tweet level: orange -- Deported for online speech

Week 9: America's war on language

Mon Mar 12 English and Americanization in the early 20th century

Read: Speak English, it's the law

Wed Mar 14 Making English official today

HR 997: The English Language Unity Act of 2017


Week 10: Student speech


Wed Mar 28 Evolving notions of speech on campus

The First Amendment and the schoolhouse gate:

Tinker v. Des Moines

Morse v. Frederick: Bong hits for Jesus

The "T-shirts of Naperville" case

Student speech and the First Amendment: slides

Students punished by colleges for racist, sexist speech

University of Missouri and the First Amendment: "I need some muscle over here." (article links to video)

CBS report on Melissa Click video

Brittney Cooper on safe space and the First Amendment (Salon)

Amherst: Diversity and Free Speech

Dahlia Lithwick on the right to speak and the obligation to listen (Slate)

ACLU statement on First Amendment and speech codes

Contrast the US First Amendment with the European Charter of Fundamental Rights (expand the explanations link to see the balance between rights and responsibilities

Week 11:

Mon Apr 2 Do speech codes violate the First Amendment?

Virginia Tech free speech/hate speech row

First Amendment Center: Student speech rights summarized

Erwin Chermerinsky and Howard Gillman: Don't mock or ignore students' lack of support for free speech. Teach them.

Trump-chalking on campuses: NY Times

Knight Foundation Survey on Free Speech Attitudes

Report on Free Expression at the University of Chicago

Northwestern's president supports 'safe spaces'

University of Wisconsin Regents Student Speech Policy

UC Berkeley Time, Place, and Manner speech rules

Penn State TPM policy

Speech codes slides

Second essay assigned. Due April 9

Wed Apr 4 Forensic linguistics

A Class with a Speech Code: would you sign up?

Forensics slides

Making illegal illegal

Week 12

Mon Apr 9 Employee speech

Second essay due today

Employee communication rights

EEOC employer English-only rules

Wed Apr 11 Requiring speech; advising silence

The Miranda Warning and the Presidential Oath of Office

Read: Required speech

Read: Louisiana Supreme Court denies certiorari in State v. Demesme.

Week 13:

Mon Apr 16: Copyright: I own the words . . .

Read: Lewis Hyde, Common as Air

Trademark and copyright slides

Copyright and copy wrong slides

Swartz: Open access manifesto

Wed Apr 18 Trademark: The Slants and the Redskins

TTAB cancels trademark protection for Washington Redskins team name

A linguist's report on the Slants trademark application

Pro-Football amicus brief

Lee v Tam merits brief, Cato Institute and other deplorables

American Bar Association Amicus Brief in Lee v. Tam supporting neither party

Matal v. Tam Supreme Court opinion

Week 14:

Mon Apr 23: The First Amendment, social media, and access to government:

Knight First Amendment Institute v. Donald J. Trump, President of the United States, et al. No. 17-cv-5205 (NRB), United States District Court for the Southern District of New York

The Knight Institute Complaint

Trump response to complaint

Knight Institute web page about the suit, including documents in the case

Electronic Frontier Foundation amicus brief in support of Knight

First Amendment Legal Scholars amicus brief in support of Knight

Tim Wu (Columbia Univ. School of Law): How Twitter Killed the First Amendment

Summary of the case: The Knight Institute is suing in federal court to prevent Trump from blocking users on his Twitter account, @realDonaldTrump. Knight’s chief argument is that, since social media has become a major way for governments to communicate with the public to announce policy, solicit comments, and discuss important issues of the day, blocking some users because you don't like what they say represents content-based discrimination in violation of the First Amendment.

Trump responds that the Twitter account is a private, personal account, and therefore the First Amendment does not apply. The government response further claims that the Knight Foundation has no standing to bring a suit in this matter.

As an additional question, the Supreme Court has ruled that government speech does not have to be content neutral (the government can promote certain values without giving equal time to opposing positions). But is social media different in that blocking a user restricts public access to government speech on matters of clear public interest?

Wed Apr 25: Moot Court workshop and final paper assignment

SCOTUSblog: Masterpiece Cakeshop case page

Masterpiece Cakeshop slides

Moot Court assignment

Final paper assignment

Week 15:

Mon Apr 30 Moot Court: Masterpiece Cakeshop v. Colorado Civil Rights Commission

Wed May 2 Summation: the line between protected and unprotected speech


Final paper due today.