Communication 139A: Law, Communication And Freedom Of Expression

UCSD Department of Communication
Winter 2001
Tues - Thurs 2:05 - 3:25 pm

MCC 205
Office Hours: Tues 10-11:15, Thurs 11-12:15, and by appointment

About the course

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 historical context. We cover the fundamentals of First Amendment law, including issues of prior restraint, incitement, obscenity, libel, fighting words, and we examine the complications of the type of forum and of time, place, and manner restrictions. Finally, we begin to ask why different media forms, in this case broadcast and print, are treated differently by the law. The fundamentals are then deployed to discuss some hard cases toward the end of the course: money as speech, commercial speech, hate speech and violent pornography, Be prepared to read a lot of cases.

Required texts

(available at Groundwork Bookstore)

Terry Eastland, ed., Freedom of Expression in the Supreme Court: The Defining Cases (Rowman & Littlefield Publishers, 2000).

Owen M. Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (Westview Press, 1996).

A packet of photocopied cases and essays.

The reading packet will be available for purchase at class during the first two weeks of the quarter. Thereafter you must call URPS at 540-8789 or contact URPS by e-mail (bhamadeh@aol.com) and make arrangements.

Course requirements

The course is designed to be a cross between a seminar and a lecture class. Regular attendance is required. Students with more than 3 unexcused absences will be docked half a grade (e.g., from a B to a B minus); students with more than 5 unexcused absences will be dropped a full grade (e.g., from a B to a C). I expect class discussion and I will engage in socratic method to stimulate it. That means I call on students. You may take a "pass" if you are unprepared that day. But two passes in a row (which include an absence) will result in an automatic half-grade penalty.

Written work and grades

There will be three written assignments: a "brief" of a case (assigned sometime during the first four weeks and worth 10%); an in-class exam on February 13 (35%); a take-home essay exam due on the day of the scheduled final exam (55%). Class participation will be used to award or deny the benefit of the doubt in computing final grades. On grade disputes: I am happy to reconsider a grade and re-read an exam; we all make mistakes. But I do not approve of "fishing expeditions." Be aware that if you ask me to re-read an exam, the grade can go down as well as go up.

Calendar

January 9
Introduction to the course

January 11
Condensed early history of freedom of expression prior to World War I

Required reading
READING PACKET: John Keane, "Liberty of the Press," from The Media and Democracy (Polity Press, 1991), pp. 2-50.
Terry Eastland, Freedom of Expression in the Supreme Court: The Defining Cases [hereinafter EASTLAND], Introduction (pp. xiii-xxviii), Near v. Minnesota (pp. 26-31).
Recommended:
Nat Hentoff, The First Freedom (Delacorte Press, 1980).
C. Edwin Baker, Human Liberty and Freedom of Speech (Oxford, 1989).
David M. Rabban, "The First Amendment in its Forgotten Years," Yale Law Journal 90 (January, 1981).

January 16
Philosophies of freedom of speech

Required reading
READING PACKET: Excerpts from John Stuart Mill, On Liberty (1859); Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1948); Thomas I. Emerson, Toward a General Theory of the First Amendment (1966); Stanley Fish, "There is No Such Thing as Free Speech," an interview with Stanley Fish by Peter Lowe & Annamarie Jonson (1994).
Owen Fiss, Liberalism Divided, Ch. 1.
Recommended:
Leonard Levy, Emergence of a Free Press (Oxford, 1985).

January 18, 23
Political heresy: sedition, incitement, and the "clear and present danger" test

Required reading
READING PACKET: Alien and Sedition Acts of 1798; Espionage Act of 1917; Harold Josephson, "Political Justice During the Red Scare: The Trial of Benjamin Gitlow," from Michal Belknap, ed., American Political Trials (Greenwood Press, 1994); Hess v. Indiana.
EASTLAND: Schenck v. United States (pp. 1-6); Abrams v. United States (pp. 7-11); Gitlow v. New York (pp. 12-19); Whitney v. California (pp. 20-23); Herndon v. Lowry (pp. 39-44); Dennis v. United States (pp. 112-122); Brandenburg v. Ohio (pp. 192-194).
Recommended:
Richard Polenberg, Fighting Faiths: The Abrams Case, the Supreme Court and Free Speech (Viking Press, 1987).

January 25
National security, "balancing" tests, and prior restraints

Required reading
EASTLAND: Barenblatt v. United States (pp. 148-154); New York Times Co. v. United States (pp. 198-208). Owen Fiss, Liberalism Divided, Ch. 7.
Screening:
"The Constitution, That Delicate Balance."
Recommended:
Philip Agee, Inside the Company: CIA Diary (Penguin, 1975).

January 30
Restrictions on the speech content to preserve public order: fighting words

Required reading
EASTLAND: Chaplinsky v. New Hampshire (pp. 54-55); Terminiello v. Chicago (pp. 88-95); Feiner v. New York (pp. 102-106). Recommended:
Franklyn S. Haiman, Speech and Law in a Free Society (Chicago, 1981).

February 1
Symbolic speech, expressive conduct, and "speech plus"

Required reading
READING PACKET: Garner v. Louisiana.
EASTLAND: West Virginia Board of Education v. Barnette (pp. 56-64); Tinker v. Des Moines Independent Community School District (pp. 185-191); United States v. O'Brien (pp. 173-177).
Recommended:
Harry Kalven, The Negro and the First Amendment (Ohio State, 1965).

February 6
Public forum and time, place and manner restrictions

Required reading
READING PACKET: Police v. Mosley; Pruneyard Shopping Center v. Robins; Society for Krishna Consciousness v. Lee.
Owen Fiss, Liberalism Divided, Ch. 3.
Recommended:
Robert C. Post, "Between Governance and Management: The History and Theory of the Public Forum," UCLA Law Review (Vol. 34, No. 4, 1987).

February 8
Libel (and a theoretical interlude)

Required reading
EASTLAND: New York Times v. Sullivan (pp. 158-165).
READING PACKET: Gertz v. Welch (excerpts); Cass R. Sunstein, Democracy and the Problem of Free Speech (Free Press, 1993), pp. 17-51. Recommended:
Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (Random House, 1991).

February 13 -- IN-CLASS MIDTERM EXAM
Will cover all course materials up to and including February 8. Please bring two blue books.

February 15
Restrictions on the content of speech in the interests of order and morality?

Required reading
EASTLAND: Cohen v. California (pp. 195-197).
READING PACKET: Gooding v. Wilson.
Recommended:
Donald A. Downs, Nazis in Skokie: Freedom, Community, and the First Amendment (University of Notre Dame Press, 1985).

February 20
Obscenity

Required reading
READING PACKET: Lynn Hunt, "Introduction: Obscenity and the Origins of Modernity, 1500-1800," from Hunt, ed., The Invention of Pornography: Obscenity and the Origins of Modernity, 1500-1800 (Zone Books, 1993).
EASTLAND: Roth v. United States (pp. 137-143); Miller v. California and Paris Adult Theatre I v. Slaton (218-234); New York v. Ferber (pp. 274-278); Renton v. Playtime Theatres (pp. 284-290).

February 22
Commercial speech

Required reading
EASTLAND: Virginia Pharmacy Board v.Virginia Consumer Council (pp. 252-260); 44 Liquormart, Inc. v. Rhode Island (pp. 350-362).
READING PACKET: Excerpt from Thomas Tedford, Freedom of Speech in the United States, pp. 191-199.

February 27, March 1
Hard case 1: Money as speech and the question of political equality

Required reading
EASTLAND: Buckley v. Valeo (pp. 240-251).
READING PACKET: Frankel? First National Bank of Boston v. Bellotti.

March 1, 6
Hard case 2: Hate speech

Required reading
READING PACKET: David Hamlin, "Swastikas and Survivors: Inside the Skokie-Nazi Free Speech Case," in The Civil Liberties Review (March/April, 1978); Mari Matsuda, "Public Response to Racist Speech: Considering the Victim's Story," in Michigan Law Review (August, 1989)
EASTLAND: Beauharnais v. Illinois (pp. 123-132); R.A.V. v. St. Paul (pp. 331-344).
Owen Fiss, Liberalism Divided, Ch. 6.
Recommended:
Samuel Walker, Hate Speech: The History of an American Controversy (Nebraska, 1994).

March 8, 13
Hard case 3: Pornography and equal protection claims

Required reading
READING PACKET: Catharine A. MacKinnon, "Not a Moral Issue," in MacKinnon, Feminism Unmodified (Harvard, 1987); American Booksellers v. Hudnut.
Owen Fiss, Liberalism Divided, Ch. 4.
Recommended:
Linda Williams, Hard Core: Power, Pleasure, and the 'Frenzy of the Visible' (University of California Press, 1989).

March 13, 15
Hard case 4: Associational freedom, public accommodations, and equal protection

Required reading
EASTLAND: Roberts v. United States Jaycees (pp. 279-283); Hurley v. Irish-American Gay Group of Boston (pp. 345-349).
READING PACKET: Boy Scouts of America v. Dale, No. 99-699 (decided June 28, 2000).

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