48C:176g: Freedom of Speech
Given only one oral argument is happening, significant changed have occured in the last 6 weeks of class. Class readings, etc. have been altered. Also, please note that the oral argument date has been set (November 28). If you printed out a version of the syllabus already, you might want to print another.
Graduate Students: seminar reading assignments are listed in teal at the end of the week during which we meet.
Fall 2006, Tuesday evening, 6-8:50 Lang 345
Dr. Cate Palczewski, Lang 341, x32714, email: palczewski@uni.edu
New information will appear in pink
assignment due dates are in red
links are in blue
Office Hours:
Tues 3:15-4:45
Thurs 11:00-12:00
I also am available for quick questions at the following times (when other students have scheduled regular meetings with me):
Tues 1:00-1:30
Weds 11:00-12:00, 2:00-3:00
Lang 218 debate office hours:
Weds 4:00-6:00
Description: This course explores the case law and theories surrounding freedom of speech within the U.S. The course approaches the issue from a legal argument perspective, developing an understanding of how the judicial appellate system operates, and how courts develop decisions which are able to carry the power of persuasion within them. Ultimately, we will examine whether free speech law has kept up with developing communication theory and technology, and whether the present approach to free speech jurisprudence guarantees freedom of speech for all.
Goals:
Readings:
Assignments: Three tracks of assignments exist. For undergraduates, there is a 1) law school track that will focus on recall of court cases and apellate advocacy and a 2) communication theory track that will focus on the interaction between communication theory and free speech law. The third track is for graduate students. By the end of the second week of class, you should have turned in an assignment proposal that includes, 1) name of assignment, 2) description, 3) due date, 4) point worth (model it after the assignment descriptions in the syllabus). Graduate students also will meet an additional hour each week for an intensive seminar, at a time to be determined by your schedules. Additional readings may be required for these meetings.As part of their assignment track, they may choose to do some of the assignments in tracks 1 and 2.
ASSIGNMENTS SHARED BY TRACKS 1 (oral argument) AND 2 (paper). Note: given that the oral advocacy folks are doing that assignment in order to fulfill an argumentation requirement, that will be the only assignment difference for them. All tests will be the same.
1. Discussion foundation: [2 at 10 points each] You will provide a foundation for class discussion two times during the semester. Sign up will occur during the first day of class, and will be posted on the web syllabus.
A. Discussion foundation 1: Tetford & Herbeck readings (do one of the following two options)
1. Court decision. The format for this presentation is:
a. Facts of the case
b. Judicial history
c. Findings of the court (include a description of the vote, the rationale for the decision, and a description of dissenting opinions)
d. Effect on case law (Does this decision overrule a precedent? Does this decision add to existing tests? Etc.)
2. General information. Specific questions coming out of the chapter readings will be posed. Some of these will involve external research (like discovering Iowa's FOIA standards, or if there is an Iowa shield law). No specific format would apply to all the different options. If you have questions, ask.
B. Discussion foundation 2: MacKinnon, Matsuda et al., or Butler readings (one). The format for this presentation is:
1. Main thesis
2. Sub theses
3. Interaction between readings (this may require you to talk to people who are reading the other two books you are not).
4. Questions raised
Each presentation should last 10 minutes. This time limit will be strictly enforced, just as time limits are enforced in appellate litigation. Students should turn in a typed outline of their presentations, including a list of questions that could be used to generate discussion. Grades will be assessed based on the following:
The goal of the presentation is not to spew out as many facts as possible, but to develop your ability to eloquently present difficult information to a large audience in such a way that it leaves room for discussion. Notes are allowed, but remember that the goal of this assignment is to develop your oral presentation skills. Reading a manuscript does not tend to enhance comprehension or the audience’s ability to digest information.
To complete this assignment, as well as the oral argument one, you are expected to conduct additional research. I encourage you to familiarize yourself with Lexis/Nexis, particularly the law review library as well as the judicial decision library. Other helpful cites include:
oyez (contains audio of the oral arguments)
the textbook website
2. Discussion [20 points]. Discussion participation is an integral part of this course, and assumes that you will have completed the readings prior to class. In the case of those who are on track 1, you should expect to be asked to provide concise case summaries. For those on track 2, you should expect to be asked to identify broad, synthetic trends in freedom of speech law. For more details on discussion, see this link.
3. see below
4. Midterm: [10 points]. This track will focus more on recall of case facts, names and findings. Due October 10.
5. Final [10points] 5:00-6:50, Tuesday, December 12.
ORAL ARGUNMENT ASSIGNMENT 3
3. Oral Argument: [40 points total] You and five colleagues will conduct an oral argument in appellate format in front of the class. This format will be used in those cases where a strong dissent was present, therefore, the possibility to revisit argument exists even though the case has been decided. The roles between the five should be split as follows: appellant, appellee, and a panel of three judges. Your group should work together researching the decision, as well as briefs in support of it and law reviews concerning it. The format of your arguments will follow that used by the appellant courts (such as the Supreme Court), although in a shorter form. Oral arguments will always occur on the days scheduled, toward the end of the semester.
The oral argument may be regarding one of the following decisions:
1. The Florida Star v. BJF (privacy of rape victims)
2. Dworkin v. Hustler – or – Hustler v. Falwell (defamation and libel)
3. Reno v. ACLU (internet regulation)
4. U.S. v. Eichman (flag burning) – or – NEA v. Finley (NEA funding)
5. ABA v. Hudnut (pornography)
6. RAV v. St. Paul (hate speech)
7. U.S. v. Baker 890 F. Supp. 1375 (E.D. Mich. 1995) (threatening emails posted on a bulletin board)
8. Planned Parenthood of the Columbia/Willamette, Inc. v. ACLA 23 F. Supp. 2d 1182 (1998) (posting of abortion providers names and addresses on internet "most wanted" list)
9. Another free speech case you find interesting. . . must be approved by the professor.
Your grade will be assessed based on:
A. Written work [25 points]: legal citation format should be used.
1. Oral argument proposal [5 points]. This is simply a one page document indicating which case will be argued, who will play which role. A bibliogrpahy should be attached listing all the sources to be used in developing cases and writing opinions. Due September 12.
2. Brief/decision [10 points]:
a. if you are a litigant -- a 5 page legal brief you submit to the class one week prior to your oral argument . The class is expected to read this along side the court decision. Due November 21.
b. if you are a judge – a 5 page decision, based on the legal briefs, the law, and the oral arguments, due one week after the oral arguments are presented. Due December 5.
3. Presentation outline [10 points]. Due November 28.
a. if you are a litigant, the outline for your presentation, including a bibliography
b. if you are a judge, the outline of possible questions and details of relevant case law from which you would draw questions, including a bibliography
B. Oral argument [10 points]. November 28. Judges play a central role in oral argument, interrupting and clarifying case law. Therefore, although all members of a group should work together, they also ought to strive to maintain the extemporaneous nature of oral argument. In order to guarantee this, questions might also be posed by the class or by me. Although judges will not talk as long as the lawyers, their contribution is just as vital. Questions must be precise, at the appropriate moment, challenging, and grounded in case law. Your grade will not be determined by who wins or loses the oral argument. Instead, this part of the grade is determined by the degree to which the oral arguments represent the complexity of the case and clarify the case law regarding it. The format for the oral argument is as follows: Appellant: 20 minute presentation. Appellee: 20 minute presentation. The twenty minutes include that time during which the judges ask questions.
If you plan on doing this track, I strongly recommend that you listen to an example of oral argument. Perhaps the best example from a recent case is Neal Katyal's oral argument in Hamdan. This is not a freedom of speech case, but the point in listening is to get a sense of how to do oral argument, both the presentation and the questioning. Katyal's oral argument: audio link and transcript link.
C. Group work [5 points]. The overall quality of the presentation will be assessed. This part of the grade will be identical for all members of the group insofar as it reflects the overall group dynamics. I would like each group, the class period after the oral argument, to provide a 1 page summary description of the group’s work dynamics. Due December 5.
PAPER ASSIGNMENT 3
3. Research paper. [40 points total]. The final paper should be 20 pages long (excluding the bibliography) and use APA or MLA. It should explore some controversy in freedom of speech to which communication research can add insight.
A. Paper proposal and bibliography [7.5 points] This short paper should provide a summary of the issues to be explored in the longer paper, as well as an extensive bibliography. The bibliography should include all possible citations concerning the subject, and hence will require the use of a variety of bibliographic sources: Lexis/Nexis, CIOS.org, Project Muse, Ingenta, Unistar, etc. Due September 12.
B. Peer editing [7.5 points]. A near final draft of the paper should be completed by November 14. Bring 3 copies to class. Papers will be exchanged with other class members who will have one week to complete a detailed edit of the paper. If you fail to bring a near final draft, you will lose the right to earn points by peer editing others.
C. Final paper [25 points]. Due November 28 .
General Information: see my website, at www.uni.edu/palczews/general.htm. This site includes my late policy, the university accommodation policy, as well as paper format descriptions. If you lose this syllabus, a copy is available on my website: www.uni.edu/palczews
Syllabus:
Week 1, August 22: Introduction to the course
Freedom of speech in a democratic system, general rules governing free speech law, understanding the judicial system, etc.
Read: FSUS 1-2, 15
Abrams v. United States 250 US 616 (1919) “marketplace of ideas”
Key terms: seditious libel, private libel, blasphemous libel, obscene libel, Blackstone’s conception of freedom of speech, key moments of conflict over civil liberties, bad tendency rule, Alien and Sedition acts, Chafee, Meiklejohn, Emerson, Haiman, Baker, Post
Key cases: Abrams v. United States
Week 2, August 29: Political heresy
Read: FSUS 3
Read one of the following:
Schenck v. United States 249 US 47 (1919) “clear and present danger”
Brandenburg v. Ohio 395 US 444 (1969) “imminent danger”
Key terms: Espionage act, political heresy (which forms receive more or less protection)
Key cases: Schenck v. United States, Abrams v. United States, Gitlow v. New York, Whitney v. California, Fiske v. Kansas, DeJonge v. Oregon, Dennis v. United States, Yates v. United States, Brandenburg v. Ohio
Exercises: 4, 5, 6
Week 3, September 5: Commercial speech
Read: FSUS 7
Key terms: role and rules of FTC, FDA, FCC; consumer interest and social interest, current 4 part test
Key cases: Valentine v. Chrestensen, Bigelow v. Virginia, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), Bates v. State Bar of Arizona (1977), Central Hudson Gas and Electric v. Public Service Commission (1980), Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986), Board of Trustees SUNY v. Foxx
Exercises: 3
Discussion foundation 1:
_____________________ Valentine v. Chrestensen
_____________________ Bigelow v. Virginia
Week 4, September 12: Prior Restraint
Read: FSUS 8
Read one of the following:
Near v. Minnesota 283 US 697 (1931)
New York Times v. United States 403 US 713 (1971)
U.S. v. Progressive 467 F. Supp 990 (7th Cir. 1979)
Key terms: gatekeeping, prior restraint, Hughes on prior restraint, standards film permit systems must meet, new prior restraint tactics, duty to obey, Pentagon Papers
Key cases: Near v. Minnesota, NYT v. US, US v. Progressive, Lovell v. Griffin,
Freedman v. Maryland
Exercises: 1c, 2b, 5, 6
Discussion foundation 1:
_____________________ Near v. Minnesota
_____________________ NYT v. US
_____________________US v. Progressive
Track 1 oral argument proposal due
Track 2 paper proposal due
Week 5, September 19: Free Press
Read: FSUS 9
Key terms: free press v. fair trial balance/constrain media or constrain participants, three part test of press confidentiality privilege, reporters privileges given legislation, FOIA, FOIA exemptions
Key cases: Irvin v. Dowd (1961), Sheppard v. Maxwell (1966), Gannett Company v. DePasquale (1979), Richmond Newspapers v. Virginia (1980), Chandler v. Florida (1981), Press-Enterprise Co. v. Superior Court (I) (1984), Press-Enterprise Co. v. Superior Court (II) (1986), Rice v. Paladin Enterprises (4th Cir. 1997), Nebraska Press Association v. Stuart, Branzburg v. Hayes, Zurcher v. Stanford Daily, Richmond Newspapers, Inc. v. Virginia
Exercises: 4, 8, 9, 10
Discussion foundation 1:
_____________________ FOIA reading room review and report, Iowa FOIA rules
Amy Condon _________ Does Iowa have a "shield law"? Make copies
_____________________ Zurcher v. Stanford Daily
Graduate Students: read MacKinnon, Only Words
Week 6, September 26: Time, place and manner
Read: FSUS 10
Read one of the following:
Texas v. Johnson 491 US 397 (1989) “expressive conduct”
Shenck v. Pro-Choice Network of Western New York 519 US 357 (1997) “buffer zones”
Key terms: basci philosophy of time/place/manner restrictions, open forum on public property, compatible use rule, three part forum rule, open forum on private property (esp. shopping centers), speech plus
Key cases: Hague v. CIO, Jamison v. Texas, Shenck v. Pro-Choice Network of Western New York, Pruneyard Shopping Center v. Robins, Texas v. Johnson, US v. Eichman et al., McIntyre v. Ohio Elections Commission, Grayned v. Rockford (1972), Perry Education Association v. Perry Local Educators' Association, United States v. O'Brien
Exercises: 1a, 2, 3
Discussion foundation 1:
Melissa Cameron_______ Texas v. Johnson
_____________________ Shenck v. Pro-Choice Network of Western New York
Brooke Reth __________ Pruneyard Shopping Center v. Robins
_____________________United States v. O'Brien
Graduate Students: read Words that Wound chapters 1-3
Week 7, October 3: Institutional constraints
Read: FSUS 11
Read:
Tinker v. DesMoines 393 US 503 (1969)
Key terms: the present status of high school student rights, academic freedom, rights of the military, rights of criminals
Key cases: Keyishian v. Board of Regents (1967), Pickering v. Board of Education (1968), Tinker v. Des Moines Independent Community School District (1969), Island Trees Union Free School District v. Pico (1982), Hazelwood School District v. Kuhlmeier (1988), Doe v. Michigan (1989), Rosenberger v. Rector and Visitors of the University of Virginia (1995), Parker v. Levy (1974), Goldman v. DOD Procunier v. Martinez (1974), Pell v. Procunier (1974)
Exercises: 1b, 4
Discussion foundation 1:
Becky Webber ________ Tinker v. Des Moines Independent Community School District
Emily Eisenman_______ Island Trees Union Free School District v. Pico
Sarah Rose___________ Hazelwood School District v. Kuhlmeier
Graduate Students: read Words that Wound chapters 4-6
Week 8, October 10: Copyright and Broadcasting
Read: FSUS 12-13
Read one of the following
Campbell v. Acuff-Rose Music 510 US 569 (1994) (it's really funny!)
FCC v. Pacifica 438 US 726 (1978)
Key terms: what cannot be copyrighted, 4 principles of fair use, works for hire, the constitutional paradox, how copyright accomodates free expression rights, areas of tension between copyright and free expression, 2 key principles concerning airwaves, FCC fairness rule (esp. summary on p. 371), equal opportunity law, hoaxes, indecent v. obscene, current indecency rule, cable v. broadcast TV, must carry rules, intermediate v. strict scrutiny, access theory
Key cases: Sony Corporation v. Universal City Studios, Harper & Row Publishers, Inc. v. Nation Enterprises, Salinger v. Random House, Basic Books, Inc., v. Kinko's Graphic Corp., Campbell v. Acuff-Rose Music, CBS, v. FCC, Wilkinson v. Jones, Denver Area Telecommunications Consortium v. FCC, National Broadcasting v. United States (1943), Red Lion Broadcasting Co. v. FCC (1969), Miami Herald Publishing Co. v. Tornillo (1974), FCC v. Pacifica Foundation (1978), CBS v. FCC (1981), Turner Broadcasting v. FCC
Exercises: Copyright: 1c, 4, 5abc, 6; Broadcasting: 1c, 2a, 9b
Discussion foundation 1:
Kolby Kipp ___________FCC v. Pacifica Foundation
_____________________Campbell v. Acuff-Rose Music
Midterm.
Graduate Students: read Butler, Excitable Speech introduction
Week 9, October 17: The Internet
Read: FSUS 14
Read one of the following:
Reno v. ACLU 117 S.Ct. 2329 (1997) oral argument case
U.S. v. Baker 890 F. Supp. 1375 (E.D. Mich. 1995) oral argument case
Planned Parenthood of the Columbia/Willamette, Inc. v. ACLA 23 F. Supp. 2d 1182 (1998) oral argument case
Key terms: how Internet differs from print and broadcasting, vagueness, overbreadth, which parts of the CDA are still in effect and which are unconstitutional, state of Supreme Court jurisprudence on the Internet, who is responsible for Internet defamation, publisher v. distributor, anonymous communication, ECPA protections, contributory and vicarious copyright infringement
Key cases: Reno v. ACLU, Ashcroft v. ACLU, US v. American Library Association, UMG Recordings v. MPS.com, A&M Records, Inc. v. Napster, Inc., MGM Studios, Inc., v. Grokster, Inc.
Exercises: 1a. 4, 5, 6
Discussion foundation 1:
_____________________ Reno v. ACLU
Travis Schulz___________Ashcroft v. ACLU
Graduate Students: read Butler, Excitable Speech chapter 1
Week 10, October 24: Privacy and defamation
Read: FSUS 4
Read one of the following:
Time v. Hill 385 US 374(1967)
Florida Star v. B.J.F. 491 US 524 (1989) oral argument case
New York Times v. Sullivan 376 US 254 (1964)
Hustler v. Falwell 485 US 46 (1988) oral argument case
Dworkin v. Hustler 867 F.2d 1188 (1989) oral argument case
Key terms: libel per se, libel per quod, civil v. criminal remedies, slander v. libel, basic conditions of a defamation case, defenses in defamation suits, damages, group libel, public v. private person, burden of proof, SLAPP and SLAPPbacks, types of invasion of privacy, defenses in privacy action,
Key cases: Beauharnais v. Illinois (1952, New York Times v. Sullivan (1964), Curtis Publishing Co. v. Butts (1967), Rosenbloom v. Metromedia (1971), Gertz v. Welch (1974), Philadelphia Newspapers v. Hepps (1986), Milkovich v. Lorain Journal (1990), Masson v. New Yorker Magazine (1991), Time v. Hill (1967), Dietemann v. Time (9th Cir. 1971), Gallela v. Onassis (2nd Cir. 1973), Cox Broadcasting v. Cohn (1975), Zacchini v. Scripps-Howard Broadcasting (1977), Florida Star v. B.J.F. (1989), Hustler v. Falwell
Exercises: 2, 5
Discussion foundation 1:
Sarah Tuve ___________New York Times v. Sullivan
_____________________Florida Star v. B.J.F.
Rod Pritchard__________ Hustler v. Falwell
Graduate Students: read Butler, Excitable Speech chapter 2
Week 11, October 31: Obscenity
Read: FSUS 5
Read:
Miller v. California 413 US 15 (1973)
New York v. Ferber 458 US 747 (1982)
American Booksellers Association v. Hudnut 771 F.2d 323 (1985) oral argument case
NEA v. Finley 524 US 569 (1998) oral argument case
Those reading MacKinnon should have it completed.
Key terms: 6 types of relgio-moral heresy, the outcome of the 1973 decisions/Miller/Miller progeny (what are the general standards applying to obscenity presently in operation), RICO,
Key cases: Burstyn v. Wilson, Epperson v. Arkansas, Kingsley International Pictures v. Regents, Roth v. United States (1957), Ginzburg v. United States (1966), Stanley v. Georgia (1969), Miller v. California (1973), Paris Adult Theatre I. v. Slaton (1973), New York v. Ferber (1982), American Booksellers Association v. Hudnut (1985), Alexander v. United States (1993), NEA v. Finley
Exercises: 1a, 2, 3, 8
Discussion foundation 1:
Stephanie Adler ________ Miller v. California
_____________________ New York v. Ferber
_____________________ NEA v. Finley
_____________________ American Booksellers Association v. Hudnut
Discussion foundation 2:
Amy Condon __________ MacKinnon, chapter 1
Malea Luhring _________ MacKinnon, chapter 2
Becci Webber _________ MacKinnon chapter 3
Graduate Students: read Butler, Excitable Speech chapter 4
Week 12, November 7: Fighting words and Words that Wound
Read: FSUS 6, appendix 2
Those reading Matsuda should have chapters 1 and 6 completed.
Read one of the following:
Chaplinsky v. New Hampshire 315 US 568(1942)
R.A.V. v. St. Paul 505 US 377(1992) oral argument case
Cohen v. California 403 US 15 (1971)
Key terms: fighting words, summary of Court’s thinking on provocation to anger, Matsuda’s narrow definition of words that wound, Chaplinsky v. New Hampshire, Cohen v. California, Gooding v. Wilson
key cases: Chaplinsky v. New Hampshire (1942), Terminiello v. Chicago (1949), Feiner v. New York (1951), Cohen v. California (1971), Gooding v. Wilson (1971), R.A.V. v. St. Paul (1992), Wisconsin v. Mitchell (1993)
Exercises: 1c, 3, 4
Discussion foundation 1:
Malea Luhring__________Chaplinsky v. New Hampshire
_____________________ Cohen v. California
_____________________ R.A.V. v. St. Paul
_____________________ Wisconsin v. Mitchell
Discussion foundation 2:
Travis Shulz ___________ Matsuda, chapter 1
Kolby Kipp ___________ Matsuda, chapter 6
Week 13, November 14: NCA
Peer editing of research papers.
Work week for oral arguments (either preparing for future oral argument, or working together on decisions).
Week 14, November 21: Words that wound con’t
Read: Those reading Matsuda should have that book completed.
Discussion foundation 2:
Sarah Tuve ___________ Matsuda, chapter 2
Sarah Rose ___________ Matsuda, chapter 3
Melissa Cameron_______ Matsuda, chapter 4
_____________________Matsuda, chapter 5
Oral argument briefs due
Week 15, November 28: Words that wound completed and Oral argument
Read: Those reading Butler should have the book completed.
Discussion foundation 2:
Emily Eisenman________ Butler, intro
Brooke Reth___________ Butler, chapter 1
_____________________ Butler, chapter 2
_____________________ Butler, chapter 4
Final Papers Due
Week 16, December 5: Conclusion
Read: FSUS 15 revisited, the ethics of speech, synthesize hate speech readings
Discussion foundation 2:
_____________________ Matsuda synthesis*
Stephanie Adler________ MacKinnon synthesis*
_____________________ Butler synthesis*
*these discussion starters will require people to consider discussions from the books they have not read, and how they intersect with the book they did read.
Judicial Decisions due
FINAL, December 12, 5:00-6:50, Tuesday,