104 English Building
office: 251 English Building
office hours: Thurs 1:15 - 3 pm and by appointment
Laws are made of language, and so 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 inFCC 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.
Moot Court: Students will sign up for one of four Moot Court events: on privacy, free speech, employee language rights, and official language legislation. 4-5 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 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 Jan 15 The many forms of language and the law:
SLAPP lawsuit over Yelp! review
The Babel Proclamation: -- in 1918 the governor of Iowa bans foreign languages
We're more enlightened today, or are we? Court rules 'Talking while Spanish' grounds for expulsion at Kansas school
Does using your cellphone to take a picture of a page in a book violate copyright?
French town bans mademoiselle
In Alliant v. Rogers Communication, a comma might have made all the difference...
... except that Rogers won on appeal
Thurs Jan 17 A recent issue involving language and the law: the 2009 presidential oaths of office.
- From the Web of Language: Strict constructionist Chief Justice flubs oath, Obama presidency survives unscathed
- Toobin on the Obama Oaths of Office in 2009
- PDF on "the Oaths of Office"
- Link to the first second term oath
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 (Obama, 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 Jan 22 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 U.S. v. Costello
Read: Baron, "Dictionaries and the Law"
Read: Werbach, "Looking it up" (1994) (On the Supreme Court's increasing dependence on dictionaries)
Thurs Jan 24 How to read the law: are we bound by the letter, or the spirit, or by both?
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 the "living Constitution," the 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?
In Heller, which challenged Washington, D.C.'s, 27-year-old ban on handguns, supporters of gun regulation sought to read the Second Amendment--the one about the right to bear arms--from an "originalist" perspective, limiting the scope of the Amendment to militia and other military uses of weapons. Although the Second Amendment and the rest of the Constitution are silent on the right of self-defense, those who argued for an individual right to bear arms, and against gun control, read the Amendment as part of a "living Constitution," one whose meaning changes with the times. Anticipating Wayne LaPierre's recent insistence that the only thing that can stop a bad guy with a gun is a good guy with a gun, they oppose gun control because "it's dangerous out there in the urban jungle." As Richard Posner and others have observed, in the Heller decision, an activist conservative majority on the Supreme Court didn't interpret law, they made law.
Guns and grammar slide show
Documents relating to Heller
Tues Jan 29 Heller commentary as an introduction to two approaches to legal interpretation: originalism (textualism) and the living Constitution
- Richard Posner: In Defense of Looseness
- Jeffrey Rosen, What an "originalist" Constitution might look like
- The Heritage Foundation's description of originalism
- Timothy Egan, "The myth of the hero gunslinger"
- Justice Scalia's controversial discussion of constitutional meaning at Hastings Law School
- Stone: Heller does not ban gun control
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 31 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
The Oxford English Dictionary cites the Warren and Brandeis 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).
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.
Right: 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 is Prince Albert, husband of Queen Victoria; the courts sometimes treat the privacy of public figures differently from that of ordinary folk.)
Here's a link to Albert v. Strange (1849) Prince Albert and Queen Victoria made etchings as a hobby, displaying them in private rooms in the palace and showing them only to friends. Strange came into possession of copies of these etchings and wanted to exhibit them in a gallery and also to publish a catalogue describing them. Prince Albert sought, and was granted, an injunction to prevent the exhibition of the etchings, and also to prevent the publication of the catalogue which simply described the etchings, without reproducing them.
The Court considered the etchings to be what we now call intellectual property, and it recognized the right to keep this intellectual property private: "That there is property in the ideas which pass in a man's mind is consistent with all the authorities in English law. Incidental to that right is the right of deciding when and how they shall first be made known to the public. Privacy is a part, and an essential part, of this species of property."
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?
- On Thursday, Feb. 7, we will have a Privacy Moot Court in class.
- Resource page: Right to privacy
- Right to privacy slides
- Restatement of torts on the rights of privacy and publicity
Privacy Moot Court assigned. Question for Feb. 7: Does the government have the right to warrantless searches of your cell phone data held by third-party carriers?
Tues Feb 5 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 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 7 Oyez, oyez, oyez. Privacy Moot Court today.
First Amendment Moot Court assigned. Question for Feb. 26: Does the War on Terror justify an abridgment of the First Amendment?
Tues Feb 12 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)
Justice Oliver Wendell Holmes stated in Schenck 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 Schenck 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 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. 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?
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 (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,
Morse v. Frederick 127 S.Ct. 2618 (2007). Can the school ban 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 14 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) (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 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.
Tues Feb 19 The First Amendment, the media, the smartphone: 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
In a case that considered the First Amendment protections extended to a radio station's daytime broadcast of comedian George 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.
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
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.
Thurs Feb 21The 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.
Tues Feb 26 Oyez, oyez, oyez. First Amendment Moot Court.
Thurs Feb 28 Official English from the Schoolhouse to the White House.
- Translating federal laws and the myth of German: read The legendary English-only vote of 1795, or was it 1776? English never did beat out German by one vote.
- Official English from the Schoolhouse to the White House
- A modest proposal: Don't Make English Official, Ban It Instead
- Official language laws of various states
Official English and the protection of minority language rights
- Defending the native tongue
- Language and the law
- The English Language Unity Act of 2011
- The English Language Unity Act of 2007: It takes more than a language to unify a nation
- English: The official national language of the United States
- The English Language Unity Act: Big government that only a Tea Partier could love
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 8 Official English
Moot Court on official language, Tues., March 12.
Tues Mar 5 The schools go to court over the rights of speakers of minority languages and dialects
- English, the law, and the schools
- Meyer v. Nebraska (1923) The Supreme Court rules on a Nebraska law forbidding the teaching of foreign languages to students below the eighth grade.
- Yu Cong Eng v. Trinidad (1926) The status of Chinese in the American-ruled Philippines.
- 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
- Official English in Bogota, New Jersey?
- Another of Maryland's English-speaking towns poised (from the French) to go English-only
- 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
- Illinois School that already bans Spanish in some classrooms, wants to ban Spanish in the lunchroom
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 7 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 Mar 12 Defense of English Moot Court. (Essay on official English due Mar. 26)
Thurs Mar 14 Language as property: Trademark and the ownership of words and phrases
- Dennis Baron, "Word Law."
- 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?
***** Spring Break Mar 16--24 *****
Week 10 Owning the language
Tues Mar 26 (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."
- Federal Judge Makes Harry Potter Plagiarism Suit Disappear
- Ronald B. Standler, "Copyright Law"
- Harvard Law blog post on plagiarism detection services and the law of copyright
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 Mar 28
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: Dear WordNet users, Lawyers representing DuPont contacted us recently and expressed their dissatisfaction with WordNet’s current entry for Teflon®, which does not indicate that is a registered trademark. To settle, we agreed to remove the relevant entry from the WordNet database (which will be reflected in the all future public releases) and to notify you via the user group of this change. [WordNet email, 2/17/2012]
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 Apr 2 Language as property, concluded
Defense of Marriage Moot Court Assigned. Question for April 25: How do legal and popular definitions of marriage play out in legislation and in the courts; how do such definitions impact the two marriage equality cases before the Supreme Court this term?
Oral arguments on March 26: Hollingsworth v. Perry: audio
Oral arguments on March 27: United States v. Windsor audio
The internet has made it possible for us to access vast stores of data, including music, videos, images, and words. This in turn has led internet users to assume that if something's online, you can take it, regardless of who may "own" it. People who would never walk out of a store with a cd or dvd under their coat, because that would be theft, think nothing of ripping a file that they find online. Our laws about copyright and intellectual property have not really kept up with this change in the public's attitude toward intellectual property.
It's not just the RIAA and the MPAA that go after content downloaders and content sharers. JSTOR, the online repository for vast numbers of academic journal articles, recently filed a complaint against Aaron Swartz, a young computer wizard (he co-wrote the first RSS standard when he was 14 and was more recently instrumental in creating Reddit) for hacking into the MIT computer system and downloading over 4 million journal articles. While MIT and JSTOR dropped their civil suits against Swartz, the Boston US Attorney continued to pursue criminal charges against him, with maximum penalties of 35 years in prison and $1 million in fines. Swartz, who suffered from depression, committed suicide this January at the age of 26. It's not clear to what extent the JSTOR suit was a factor in his suicide. But it's clear that moves to limit "online piracy" (as copyright holders refer to it) or "file sharing" (as internet users tend to regard it) highlight the ways in which the internet has changed our notions of private intellectual property.
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 Apr 4 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
- The New Yorker's James Surowiecki argues that a little web distraction may actually be productive
- National Labor Relations Board defends employees rights on social network sites
- Should social media activity cost you your job?
Tues Apr 9 Language in the workplace: Employee language rights
When can employers tell you what language to use at work?
- EEOC Facts about National Origin Discrimination
- Put a nickel on the drum, but no pesos. At the Salvation Army, it's all-English, all-the-time
- 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 Apr 11 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 Apr 16 Forensic linguistics
Tiersma: The linguist on the witness stand
Identifying anonymous posters, trolls, and hackers
The FBI affidavit in the Unabomber case
Thurs Apr 18 Language and the law around the world
The Estonian Language Law
Charter of the French Language (Bill 101): English version
European Charter for Regional or Minority Languages
Tiersma: Language rights, bilingualism, and official English
Tues Apr 23 Reading Miranda
You have the right to remain silent: variants on the Miranda warning
Miranda v. Arizona -- this is where it all began.
Salinas v. Texas, U.S. Supreme Court, No. 12-246--Question at issue: Whether silence during voluntary questioning before arrest can be used as evidence of guilt at trial. Oral arguments were Weds., April 17. Link to transcripts when available.
SCOTUSBlog analysis of Salinas
Oral Arguments in Salinas
2010 Department of Justice Memo about public safety exception to Miranda
Thurs Apr 25 Defense of Marriage Act Moot Court
Tues Apr 30 Closing argumentsThe short url for this website is: http://bit.ly/V1Ag73or http://go.illinois.edu/baron380