What you can and cannot say or write, and why
MW 2 - 3:15 pm
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
- Fighting words
- 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)
Assignment for Monday Workshop: Free Speech in Charlottesville
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
"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
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
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.
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
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
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
Mon Mar 26 NO CLASS TODAY
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
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?
Making illegal illegal
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.
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
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
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.