English 380: Language and Law

Dennis Baron

Fall 2014
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

Early printed version of the Bill of Rights, The Connecticut Gazette. September 4, 1789, p.2. To put this exercise of freedom in perspective, on p. 4 of the Gazette that day an ad offers a $10 reward for the return of a runaway slave. That's about $250 today.

Description:

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.

Syllabus

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:

In US v. Windsor, the Supreme Court changed the definition of 'marriage'

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
guardian.co.uk

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?

Chief Justice Roberts administers the oath of office to Barack Obama

Video of the third oath, the official oath beginning Obama's second term (Jan. 20, 2013)

Obama takes oath for second term

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:

Ceremonial oath

Week 2

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.

Werbach dictionary look-upsIn 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"

Additional reading:

Read U.S. v. Costello

Dictionary slides

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

Additional reading:

The Heller Decision

Understanding the Second Amendment
Loughner's comment that the government controls our grammar

Garry Wills: To Keep and Bear Arms

The Linguists' Brief

Week 3

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:

  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?

Additional reading:

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?

Week 4

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. overheard

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.

Week 5

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 Civil Liberties in Wartime

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

Rep. Giffords reading the First Amendment

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

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 Bingo

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.Bong Hits for Jesus

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

Week 6

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 Fanny Hilltheme of the material, taken as a whole, appeals to prurient interest.

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

Court Bans 7 Dirty Words

 

 

 

 

 

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.

Communication Act of 2003ECHR art 10 sec 2

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Week 7

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:

Oyez, oyez, oyez. First Amendment Moot Court.

Thurs Oct 9

First Amendment Moot Court

Week 8 Official English

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?

Moot Court on official language, DATE

Tues Oct 14 The schools go to court over the rights of speakers of minority languages and dialects

Guide to America's English-Only towns and cities

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 Goddess English

Ebonics slides

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.

Week 9

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

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?

Week 10 Owning the language

Tues Oct 28 (Essay on official English due today)

Plagiarism, intellectual property rights, and owning your own words

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

Week 11

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 monitor software

Week 12

Tues Nov 11 Language in the workplace: Employee language rights

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.

Language discrimination slides

Thurs Nov 13 Corporate Free Speech

Some other recent First Amendment decisions:

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.)

Week 13

Tues Nov 18 Forensic linguistics

Thurs Nov 20 Language and the law around the world

Nov 21 - 30 Fall Break

Week 14

Tues Dec 1 Reading Miranda

Miranda slides

Thurs Dec 3 Final Moot Court

Week 15

Tues Dec 5 Last class: Closing arguments

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