Communication 139A: Law, Communication, and Freedom of Expression
Winter 2002
Prof. Tarleton Gillespie
Course Synopsis
This course examines the legal framework of the freedom of expression in the United States. We analyze First Amendment law through the study of key cases in their historical context. We cover the fundamentals of First Amendment law, including cases of national security, prior restraint, incitement, and fighting words; we examine the complications of regulating public and private speech; we begin to ask why different media forms (in this case print and broadcast) are treated differently by the law. The fundamentals are then deployed to discuss some hard cases, where the resolve of legal and critical thought are put to the test: obscenity, pornography, hate speech, libel, symbolic speech and expressive conduct, money as speech, and commercial expression.
Course Requirements
The most important assignment is to complete all of the reading assigned; comprehension of the case law and the arguments about it is crucial to your success in this course. Be prepared to read a lot of cases. At some time during the quarter you will be responsible for writing a legal brief of one of the cases we read; you will be assigned to one in the first week of class, and it will be due the day your case is assigned. But the majority of the course grade will be based on an in-class midterm in the ninth meeting, and a take-home final due during the scheduled exam period. The midterm will cover the basic concepts introduced in the first half of the course; the take-home final will require students to draw from the materials of the course to assess and contribute to the arguments about the the most problematic free speech issues. Further explanation for these assignments will be provided in class.
Attendance
Attendance will be taken at every class meeting. While attendance does not count specifically towards your grade, you cannot pass this class if you miss more than four sessions.
Legal brief: 20%
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Midterm: 30%
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Final: 50%
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Books (available at Groundworks Books)
Owen Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (Westview Press, 1996)
Terry Eastland, ed. Freedom of Expression in the Supreme Court: The Defining Cases (Rowan & Littlefield, 2000)
There is also a required course reader, which will be sold at the end of the first two class meetings. If you miss purchasing it in class, contact University Reader Printing Service at 540-8789 or by e-mail at bhamadeh@aol.com to make arrangements.
Course Schedule
Tues., January 8 -- introduction
Thurs., January 10 -- early history of First Amendment law (pre WWI)
READER: John Keane, "Liberty of the Press," Ch. 1 of The Media and Democracy [1991]
EASTLAND: introduction (pp. xiii-xxviii)
Tues., January 15 -- philosophies of the freedom of speech
FISS: chapter 1 (pp. 7-30)
WEB: John Stuart Mill, "On the Liberty of Thought and Discussion", Ch. 2 of On Liberty [1869]
READER: Alexander Meiklejohn, "The Rulers and the Ruled," Ch. 1 of Political Freedom [1948]
Thomas I. Emerson, "The Formulation of Legal Doctrine: In General," from Toward a General Theory of the First Amendment[1963]
Stanley Fish, "There's No Such Thing As Free Speech, and It's a Good Thing, Too" Ch. 8 of There's No Such Thing as Free Speech [1994]
Thurs., January 17 -- sedition, incitement, and the "clear and present danger" test
READER: Alien and Sedition Acts of 1798
Espionage Act of 1917
WEB: Schenk v. United States, 1919
EASTLAND: Abrams v. United States, 1919 (pp. 7-11)
Tues., January 22 -- sedition, incitement, and the "clear and present danger" test
READER: Harold Josephson, "Political Justice During the Red Scare: The Trial of Benjamin Gitlow" [1994]
EASTLAND: Gitlow v. New York, 1925 (pp. 12-19)
Whitney v. California, 1927 (pp. 20-23)
WEB: Smith Act of 1940
EASTLAND: Dennis v. United States, 1951 (pp. 112-122)
Brandenburg v. Ohio, 1969 (pp. 192-194)
Thurs., January 24 -- restricting speech to preserve public order: fighting words
EASTLAND: Chaplinsky v. New Hampshire, 1942 (pp. 54-55)
Terminiello v. Chicago, 1949 (pp. 88-95)
Feiner v. New York, 1951 (pp. 102-106)
Tues., January 29 -- national security, "balancing" tests, and prior restraint
Screening: "The Constitution, That Delicate Balance"
FISS: Chapter 7 (pp. 121-138)
EASTLAND: Near v. Minnesota, 1931 (pp. 26-31)
Barenblatt v. United States, 1959 (pp. 148-154)
WEB: New York Times Co. v. United States, 1971
Thurs., January 31 -- the "public forum"
FISS: Chapter 3 (pp. 47-66)
WEB: Jennifer Coffin, "The United Mall of America: Free Speech, State Constitutions, and the Growing Fortress of Private Property" [2000] University of Michigan Journal of Law Reform
READER: Police Department of the City of Chicago v. Mosley, 1971
Pruneyard Shopping Center v. Robins, 1980
Society for Krishna Consciousness v. Lee, 1992
Tues., February 5 -- MIDTERM
Thurs., February 7 -- restricting speech in the interests of order and morality
WEB: Cohen v. California, 1971
READER: Randall P. Bezanson, "The Jacket," Ch. 1 of Speech Stories [1998]
Tues., February 12 -- obscenity
READER: Lynn Hunt, "Introduction: Obscenity and the Origins of Modernity, 1500-1800" [1993]
EASTLAND: Roth v. United States, 1957 (pp. 137-143)
Miller v. California, 1973 and Paris Adult Theatre I v. Slaton, 1973 (pp. 218-234)
New York v. Ferber, 1982 (pp. 274-278)
Renton v. Playtime Theatres, 1986 (pp. 284-290)
Thurs., February 14 -- pornography
FISS: Chapter 4 (pp. 67-88)
READER: Catharine MacKinnon, "Not a Moral Issue," Ch. 13 of Feminism Unmodified [1987]
Nadine Strossen, "Sexual Speech and the Law," Ch. 2 of Defending Pornography [1995]
WEB: American Booksellers v. Hudnut, 1985
Tues., February 19 -- libel
Screening: "The People vs. Larry Flynt", excerpts
WEB: New York Times Co. v. Sullivan, 1964
EASTLAND: Hustler Magazine v. Falwell, 1998 (pp. 298-301)
READER: Stanley Fish, "Jerry Falwell's Mother, or, What's the Harm?" Ch. 9 of There's No Such Thing as Free Speech [1994]
Thurs., February 21 -- hate speech
FISS: Chapter 6 (pp. 109-120)
READER: Village of Skokie vs. National Socialist Part of America, 1978
Carl Cohen, ACLU "Skokie -- The Extreme Test" [1978]
Mari Matsuda, "Public Response to Racist Speech: Considering the Victim's Story" [1989] Michigan Law Review
EASTLAND: R.A.V. vs. St. Paul, 1992 (pp. 331-344)
Tues., February 26 -- symbolic speech
READER: Garner v. Louisiana, 1961
EASTLAND: Stromberg vs. California, 1931 (pp. 24-25)
West Virginia Board of Education v. Barnette, 1943 (pp. 56-64)
Tinker v. Des Moines Independent Community School District, 1969 (pp. 185-191)
Thurs., February 28 -- symbolic speech
WEB: United States v. O'Brien, 1968
EASTLAND: Texas v. Johnson, 1989 (pp. 308-317)
Tues., March 5 -- money as speech
EASTLAND: Buckley v. Valeo, 1976 (pp. 240-251)
READER: First National Bank of Boston v. Bellotti, 1978
Herbert I. Schiller, "The Corporation and the Law," Ch. 3 of Culture, Inc. [1989]
Thurs., March 7 -- commercial speech
READER: C. Edwin Baker, "Commercial Speech: A Problem in the Theory of Freedom," Ch. 9 of Human Liberty and Freedom of Speech [1989]
EASTLAND: Virginia Pharmacy Board v. Virginia Consumer Council, 1976 (pp. 252-260)
44 Liquormart, Inc v. Rhode Island, 1996 (pp. 350-362)
Tues., March 12 -- terrorism, war, and "homeland security"
National Organization Against Censorship, Free Expression after Sept 11, an Online Index
Read Sections 411 and 802 of the USA PATRIOT Act (You donothave to read the entire bill.)
ACLU, How Section 802 converts "dissent" into "domestic terrorism"
Nat Hentoff, Village Voice, Nov 9, 2001 "Terrorizing the Bill of Rights"
American Council of Trustees and Alumni (ACTA) introductory press release
ACTA "Defending Civilization"
Nat Hentoff, Village Voice, Feb 28, 2002 "Judge Ross vs. Free Speech"
Brendan Nyhan, Salon, March 5, 2002 "Bully Brigade"
Thurs., March 14 -- speech on campus; conclusion
READER: Samuel Walker, "The Campus Speech Codes: Hate Speech in the 1980s and 1990s," Ch. 7 of Hate Speech [1994]
The FINAL EXAM will be a take home, due during the official exam period.