English 584: Language and Law

First Amendment

Dennis Baron

Spring 2013
Tuesday 1 - 3 pm
1068 Lincoln Hall

office hours:
Thurs 1:15-3:00 pm and by appointment

office phone: 217-305-0067
email: debaron@illinois.edu

Description:
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, with frequent updates — include legislation, court cases, and analyses of various language and law issues.

Papers:

  1. Weekly short response essays (500-750 words) to be read and discussed in class. Bring hard copy with you and email me your response before seminar each week. I give a "response topic" for each week, but feel free to write on any aspect of the week's reading that interests you.
  2. You are also asked to write a seminar paper on a topic related to law and language, and to do a presentation and lead a discussion on that topic. The paper will be due at the end of the semester (last seminar meetings). Your presentation will be of a work in progress, and the discussion should provide useful feedback and direction as you complete the paper.

Syllabus:

Week 1 Tues Jan 15 Performative legal language

Obama takes the oath

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 frequency of Court dictionary look-ups

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 Mexican drug dealer who had already been deported once after doing time 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.

Frequency of Supreme Court dictionary look-ups, Werbach (1994)

Week 2 Tues Jan 22 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? 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 claim 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.

Suggested response topic: It's perfectly normal for us to interpret written text by reading between the lines. Should we do that as well when we interpret the law?

Second Amendment slides

Background links:

Week 3 Tues Jan 29 The right to privacy: When Constitutional meaning is implied, not expressed.

cctvSuggested response topic: write a short essay on a past or current technology and privacy issue for disscussion in class today.

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.

The Oxford English Dictionary cites the Warren and Brandeis article as the earliest occurrence of the phrase "right to privacy." Though the phrase the right of privacy was used as early as the 1830s, their essay did much to enshrine "the right to privacy" as a common legal phrase and as an important concept. 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 of 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.

 

 

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 intended 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."

Week 4 Tues Feb 5 It’s a free country: the First Amendment and the abridgement of speech

Gaby Gifford reads the First Amendment before Congress

First Amendment slides

Write your response on one of these First Amendment issues: prior restraint; clear and present danger; the amendment in the digital age; the notion of protected and unprotected speech; what consitutes speech, constitutionally.

When is speech protected?

Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed.2d. (1919)

Justice Oliver Wendell Holmes stated in this case 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 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

updated in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d. 430 (1969)

Who gets to speak?

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,

Week 5 Tues Feb 12 The First Amendment, Secrecy, and Censorship

Responses: on any issue of national or local govermental prior restraint in the interests of security, or on censorship of obscene speech (viewer discretion is advised).

Civil liberties in war timeNew 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 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 restraints.

Today's update to the Pentagon Papers is WIkiLeaks. Responses to WikiLeaks:

loose lipsBut there are other kinds of government secrecy as well. This winter the National Institutes of Health sought to suppress publication of research on the H1N1 virus because that information could be useful to terrorists:

The First Amendment and unprotected speech (rated M: for mature audiences; under-17 not admitted).

Decency Squabble: The Senate Debates Lady Chatterley's Lover in 1930

Roth v. United States 354 U.S. 476 (1957) The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, 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 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 Memoirs of a Woman of Pleasure (commonly known as Fanny Hill), written by John Cleland in 1749, was adjudged 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 Tropic of Cancerobscenity. 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 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. Court Bans 7 Dirty Words

FCC v. Pacifica Foundation, 438 U.S. 726 (1978)--George Carlin's Seven dirty words you can't say on TV (though the case concerns a radio broadcast of his comedy routine; a transcript of that routine appears in an appendix in the Court's opinion).

In a case that considered the First Amendment protections extended to a radio station's daytime broadcast of comedian George Carlin's "Seven 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.

 

Week 6 Tues Feb 19 The Question of Official English?

English-only zoneThe states and the nation deal with minority language speakers

Illinois School that already bans Spanish in some classrooms, wants to ban Spanish in the lunchroom

Responses: focus on one of the links above.

Week 7 Tues Feb 26 Language as property: IP, copyright, plagiarism, open access

Copyright

Responses: In light of the range of attitudes toward plagiarism, software piracy, music downloading, and ripping text 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?


Week 8 Tues Mar 5 Owning your words

Trademark: copyright deals with ownership of an entire text, while trademark is limited to control of a word or phrase. Trademark law is one of the few areas of jurisprudence where precedent has little application. And yet trademark is one of the most vigorously patrolled intersections of language and law. Xerox, Google, Coca Cola, and other major brands want to be on everyone's lips, yet they don't want us to think of them as generic: not every photocopy is a xerox, not every web search is googled.

Responses: Can you really own a word the same way you can own a house or a car, or a star in a nearby galaxy?

Week 9 Tues Mar 12 Language and the workplace: to what extent can an employer own or control employee speech?

Responses: pick one case and discuss

Spring Break March 16-24

Week 10 Tues Mar 26 Forensic Linguistics

Responses:

Week 11 Tues Apr 2 The implications of Miranda(s)

It's not just judges and lawyers who need to understand legal texts. The police and those they question need to understand as well. How they make meaning of the language they encounter is the subject of one aspect of forensic linguistics. We will read studies of interrogation and response techniques (links to be added), but perhaps the most commonly-recognized legal text in the United States is the Miranda warning. Unfortunately, not all jurisdictions use the formula that has been made popular on TV (after 19 years of Law and Order and its various spin-offs, not to mention other cop shows, you might think that anyone with a TV set might have it memorized). But there are many variants of Miranda, and studies have shown that even though it's a familiar text, it's not one that is readily understood. In addition, concerns arise about how Miranda warnings are understood by the young, by nonanglophones, and by those with mental impairments or deficits.

Week 12 Tues Apr 9 The Defense of Marriage Act

This term the U.S. Supreme Court will decide two cases involving marriage equality (sometimes referred to as "gay marriage" or "same-sex marriage").

This is a great example of a pair of high-profile cases which will turn, in part, on the act of definition. I will provide links to briefs for both sides, and to transcripts of the oral arguments, once they become available.

Oral arguments on March 26: Hollingsworth v. Perry: audio; written transcript:

Oral arguments on March 27: United States v. Windsor audio; written transcript.

Scotusblog site with briefs of petitioners, respondents, and amici

State-by-state marriage laws

Reread the section on defining marriage in "Dictionaries and the Law"

Here are some specific questions for you to consider:

  1. Since the Defense of Marriage Act defines marriage as a heterosexual union, is it necessary, or even possible, for the courts to consider the “ordinary meaning” of marriage in interpreting the law?
  2. Marriage is not the only dictionary definition that people have tried to change by pressuring dictionary editors and publishers. Research some of the others. How useful are petition drives or other kinds of external pressure in getting dictionary makers to change their definitions?
  3. What are the strengths and shortcomings of dictionary definitions (the ones cited above, as well as others that you find) used to support legal interpretation?

Week 13 Tues Apr 16 International issues in language and law

Schilling, Language Rights in the European Union

Hemmer, Language policy, practice and attitudes in the early USSR

Marc Lepretre: Language Policy in the Former Soviet States

The Estonian Language Law

Schiffman: Language policy in France

Costa and Lambert: French language policy

Language policy in Quebec

Week 14 Tues Apr 23 Presentations Pam, Alana

 

Week 15 Tues Apr 30 Presentations and conclusion Aaron, Casey