Tu-Th 12:30 - 1:15 pm
1024 Lincoln Hall
office: 251 English Building
office phone: (217) 305-0067
office hours: Tu & Th 11:00 - 12:00 and by appointment
Laws are made of language, and so in this class we will consider both how legal texts make meaning, and how we, and the courts, interpret that meaning. 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).
We will also consider language as the object of the law: how governments, schools, and businesses create policies that privilege, protect, or restrict the use of language by citizens, students, employees, and consumers. We'll look at First Amendment cases from the Alien and Sedition Acts to George Carlin’s “7 Dirty Words You Can’t Say on TV” revisited in the recent Supreme Court decision on the right to lie, to picket military funerals, ), 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.
Moot Court: Students will sign up for one of four Moot Court events: on privacy, free speech, language rights, and official language legislation. A group of students will argue each side, with the rest of the class serving as judges who may ask questions during the presentation and then render a verdict. Following each moot court, all students will submit a short essay (900-1300 words) arguing their position, answering objections raised by the other side, or explaining their verdict in the case.
Grading: Moot Court presentation: 15%; essay 1: 15%; essays 2, 3, and 4, 20% each; class participation, 10% (simply showing up is not class participation; you must actually participate to earn participation credit).
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 Aug 26 The many forms of language and the law
Laws telling us what we can't say:
SLAPP lawsuit over Yelp! review
Illinois anti-SLAPP law
Suburban Express lawsuits reappear in Cook County
Call center worker fired for cursing
But it's a free country, I can say anything I want:
Sixteen people fired for inappropriate tweets
Facebook and Twitter users more likely to self-censor after Snowden revelations
French town bans mademoiselle
Think there's no "undo" on the internet? In Europe you have the right to be forgotten:
The European Union is on track to pass a new data protection law, which would give everyone the right to delete online information about them that is inaccurate, out of date, or prejudicial:
Costeja González and a memorable fight for the 'right to be forgotten'
Determining what words mean:
How Merriam-Webster's Collegiate Dictionary, 11th ed., defines 'marriage'
How federal law defined 'marriage' before US v. Windsor (2013)
Making language official:
How would you vote?
I have heard that [soon after the American Revolution] the decision for English as the official language of the US was reached with a very close majority, the alternative being German. Could you please tell me if this is true, when and where the decision took place and what the vote was.
Hannes Vogler, Vienna Austria
The legendary English-only vote of 1795, or was it 1776?.
Bill seeks to make English official language of Wisconsin
Breaking now: Canadian Foreign Minister investigated by language police--he tweets too much English
The mythical importance of a comma:
In Alliant v. Rogers Communication, a comma might have made all the difference...
... except that Rogers won on appeal
Thurs Aug 28 A recent issue involving language and the law: the 2009 presidential oaths of office.
When is language binding?
Four Weddings and a Funeral: When is language binding?
Video of the third oath, the official oath beginning Obama's second term (Jan. 20, 2013)
Video of the fourth oath, the ceremonial one taken at the Capitol on Jan. 21, 2013. The president, swearing on two Bibles,
stumbles on the word "States," but he does recover and say it, and besides, he took the official oath the day before:
Tues Sep 2 Should dictionaries be illegal?
Attorneys and judges regularly turn to dictionaries like Webster's Third, the OED, or the American Heritage Dictionary to find out what the law means. Is that wise? Dictionaries aren't created with the courts in mind (except of course for legal dictionaries, like Black's Law Dictionary), and both legal scholars and lexicographers are voicing their concerns about using dictionaries as proof in court.
In U.S. v. Costello (11-2917, 2012), Judge Richard Posner, of the US 7th Circuit Court of Appeals, 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 conviction for harboring, 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.
Read: Baron, "Dictionaries and the Law"
Read U.S. v. Costello
Thurs Sep 4 Case study: How the law makes meaning
District of Columbia v. Heller, deciding the meaning of the Second Amendment (the one about guns)
Early printed version of what would become the Second Amendment
Connecticut Gazette, Sept. 4, 1789, p. 2
Read: Baron, "Guns and Grammar: Linguistic authority and legal interpretation in Washington, D.C., v. Heller."
Guns and grammar slide show
The Heller Decision
Understanding the Second Amendment
Garry Wills: To Keep and Bear Arms
The Linguists' Brief
Tues Sep 9 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 in the United States a century after the adoption of the Constiution, in a classic 1890 essay in the Harvard Law Review warning that the latest technological advances of newspapers and photography could invade and destroy traditional notions of privacy, or the "right to be let alone." Although privacy is now a well-entrenched legal concept, today's technologies force us to re-examine the right to privacy once again.
Read: Samuel D. Warren and Louis D. Brandeis, The Right to Privacy
Questions about "the right to privacy" to consider as you read:
- 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?
- In what way can you apply Warren and Brandeis to the age of the internet and the cell phone video?
- 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?
Resource page: Right to privacy
Right to privacy slides
Restatement of torts on the rights of privacy and publicity
Thurs Sep 11
Read: Baron, "The right to be let alone: The rise of communication privacy"
Privacy Moot Court assigned: Does the government have the right to warrantless searches of your cell phone data held by third-party carriers?
Tues Sep 16 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.
- Read: Daniel J. Solove, ch. 7: Privacy in an overexposed world
- United States v. Jones In this case the Supreme Court rules unanimously that when the police attached a GPS tracker to the underside of Jones's car without a proper warrant, they were invading the privacy of this suspected drug dealer.
Above: Oxford University CCTV surveillance. Right: Does reporting on FB a conversation overheard at a coffee shop constitute an invasion of privacy?
Thurs Sep 18 Oyez, oyez, oyez. Privacy Moot Court today.
First Amendment Moot Court assigned. Question: Does the War on Terror justify an abridgment of the First Amendment?
Tues Sep 3 It’s a free country: the First Amendment and the abridgement of speech
The First Amendment: what it says and what it doesn't say
- the First Amendment
- the Alien and Sedition Acts
- The USA Patriot Act of 2001 A defense against the dark arts, or just picking up where the Alien and Sedition Acts left off?
- National Security Letter ruled in violation of 1st and 4th amendments, Doe v. Ashcroft 334 F. Supp. 2d 471(2002)
Where your free speech rights end: Shouting fire in a crowded theater
- Summary of key First Amendment cases
- Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed.2d. (1919)
The leaflet that Schenck printed and distributed
Where the First Amendment stops: Student arrested for falsely shouting bingo in a crowded bingo hall, and causing a riot
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.
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?
Free speech protects the right to express an idea; it doesn't protect the speaker from the consequences of speech.
Slides: The First Amendment and Student 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 who were expelled for wearing black armbands to school ito protest the Vietnam War.
Morse v. Frederick 127 S.Ct. 2618 (2007). Referred to as the "Bong hits for Jesus" case. Can the school ban student speech off school premises when that speech advocates drug use?
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 Sep 25 -- ROSH HASHANAH -- no class today
Tues Sep 30 Unprotected speech: The First Amendment and obscenity
Slides: 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 theme 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) (obscenity defined as something "utterly without redeeming social value").
- Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d. 419 (1973)
A three-part definition of obscenity. 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 Oct 2 Broadcasting or tweeting bad language
FCC V. Pacifica Foundation, 438 U.S. 726 (1978)--George Carlin's Seven dirty words you can't say on TV
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.
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? The Hays Code
British law takes a different view of free speech. In Britain it is illegal to send electronic messages that are indecent, obscene, menacing, or false (sec. 127 of the Communications Act of 2003). The European Convention on Human Rights considers free speech as a balance of rights and responsibilities: ECHR 10 (2) has been used in England to supplement the Communications Act in order to prosecute racist electronic messages.
Tues Oct 7
The First Amendment and the right to publish: The Pentagon Papers and WikiLeaks
Slides: The First Amendment and the Press
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:
- Don't Look, Don't Read: Government employees told not to read the leaked material
- OMB email telling government employees to avert their eyes
- U.S. Government subpoenas Twitter accounts of WikiLeaks-- New York Times
- Salon column on the Twitter subpoenas
- Link to a copy of the subpoena (Salon site) -- the subpoena was initially sealed, but it was later unsealed at Twitter's request so that it could notify affected subscribers and allow them to file a protest.
Oyez, oyez, oyez. First Amendment Moot Court.
Thurs Oct 9First Amendment Moot Court
Week 8 Official English
Official English from the Schoolhouse to the White House.
Official English and the protection of minority language rights
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?
Moot Court on official language, DATE
Tues Oct 14 The schools go to court over the rights of speakers of minority languages and dialects
- Meyer v. Nebraska (1923) The Supreme Court rules on a Nebraska law forbidding the teaching of foreign languages to students below the eighth grade.
- Lau v. Nichols (1974) The Supreme Court rules that language discrimination is a form of national origin discrimination in violation of the 14th amendment, and that schools must take positive steps to deal with nonanglophone students
- Iowa, "the English-only State," suspends student for refusing English proficiency test
- New Jersey High School bans foreign languages, then eats its words
- Speak English, get out of jail free
- No more Autobus Magico, as Nevada school district bans Spanish on the bus
- Vatican 2.2? Wichita Catholic School goes English-only
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 Oct 16 Minority dialects and Standard English: Discrimination by speakers of English against speakers of English
- Martin Luther King, Jr., Elementary School Children v. Ann Arbor School District Board1979 A Federal District Court rules that a minority dialect can constitute a language barrier, and that the school must take action to eliminate that barrier.
- Richard W. Bailey, "Litigation and Literacy: The Black English Case."
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.
Tues Oct 21 Defense of English Moot Court. (Essay on official English due DATE)
Thurs Oct 23 Language as property: Trademark and the ownership of words and phrases
- Ron Butters, "Trademarks and other proprietary terms"
- Apple's patent for a "Text-based communication control for personal communication device"
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.
- Apple's original application for a registered TM for "APP STORE" click "document retrieval" link once you get to the site.
- Butters declaration for Microsoft opposing Apple TM for "APP STORE"
- Leonard declaration supporting Apple TM for "APP STORE"
- Link to PTO site containing declarations of Butters (for MS) and Leonard (for APPLE) as well as other materials in the case
- Ben Zimmer, "The Great Language Land Grab" a linguist with no stake in the case comments on the struggle over the phrase, app store.
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?
Week 10 Owning the language
Tues Oct 28 (Essay on official English due today)
Plagiarism, intellectual property rights, and owning your own words
- Slides on plagiarism and copyright
- Stuart P. Green, "Plagiarism, Norms, and the Limits of Theft Law."
- Ronald B. Standler, "Copyright Law"
- Harvard Law blog post on plagiarism detection services and the law of copyright
Questions to consider: 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.
Thurs Oct 30
Some issues of word-ownership
- Google clashes with Swedish lexicography group
- The Webster Dictionary cases
- McDonald's tells Webster, "Take this McJob and shove it"
- Facebook says, "All your face are belong to us." A report on FB's attempt to trademark "face."
- RIAA copycat? A law firm specializing in "copyright trolling" sues bloggers for ripping newspaper content and reprinting it.
- Buying Copyrights, Then Patrolling the Web for Infringement - NYTimes.com
- WordNet and Teflon: Did WordNet give in too easily to this claim of infringement?
- 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.
Tues Nov 4 Language as property, concluded
Final moot court assigned: Case TBA
The internet and the notion of "owning" words
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?
Thurs Nov 6 Employee privacy and employer eavesdropping on telephone and digital communication
- Employee monitoring: summary of rights and practices
- Miriam Schulman, "Little Brother Is Watching You."
- MONITORING EMPLOYEE E-MAIL: EFFICIENT WORKPLACES VS. EMPLOYEE PRIVACY
- American Management Assn 2007 employee monitoring survey -- press release
- Workplace privacy rights summary
- National Labor Relations Board defends employees rights on social network sites
- Should social media activity cost you your job?
Tues Nov 11 Language in the workplace: Employee language rights
When can employers tell you what language to use at work?
- EEOC Facts about National Origin Discrimination
- Salvation Army fires 2 workers for inadequate English
- Republicans want EEOC to speak only English
- Not just freedom fries at this English-only drive-in?
- Andrew J. Robinson, "Language, national origin, and employment discrimination
- Driving while Spanish nets trucker $500 fine
- Are laws requiring English signs discriminatory?
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.
Language discrimination slides
Thurs Nov 13 Corporate Free Speech
Some other recent First Amendment decisions:
- Snyder v. Phelps Hate speech at a funeral.
- Brown v. Entertainment Merchants Association Whether a state can prohibit sales of violent video games to minors.
- Citizens United v. Federal Election Commission: Whether a corporation can enjoy First Amendment speech protections.
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.)
Tues Nov 18 Forensic linguistics
Thurs Nov 20 Language and the law around the world
Nov 21 - 30 Fall Break
Tues Dec 1 Reading Miranda
Thurs Dec 3 Final Moot Court
Tues Dec 5 Last class: Closing argumentsThe short url for this website is: http://bit.ly/V1Ag73 or http://go.illinois.edu/baron380