In this first part of the course, we'll be focusing on a series of connected issues that have to do with free speech, hate speech, and the First Amendment. This topic has been featured so heavily in many current events, including:

 

• The case of a Google engineer who was fired for writing an essay in which he argued that women were naturally not suited to engineering;

• The case of Colin Kaepernick and other athletes who “take a knee;”

• The controversy of the ACLU defending neo-Nazis in the context of the Charlottesville incident;

• Debates over free speech and hate speech on college campuses, especially at The University of Californian, Berkeley;

• Controversies over hate speech on the Internet;

• President Trump’s attacks on the press and the principle of free speech;

• The recent Supreme Court case on Masterpiece Cakeshop.

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There are several good resources on the First Amendment you may find worthwhile:

• The Legal Information Institute's resources of the First Amendment

• The Constitution Center on the First Amendment

• Find Law resources on the First Amendment

• Exploring Constitutional Law

• First Amendment Center

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I've also posted to our Moodle site links to a number of worthwhile podcasts addressing free speech and hate speech issues. You may find it helpful to listen to some of these podcasts.

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WEDS/JAN 22

Read: Documents on free speech and hate speech

As this is our first day of class, there is no writing assignment due today. You should be prepared to discuss some of the issues addressed in our first readings about free speech and hate speech.

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FRI/JAN 24

Read:​​

• Erwin Chemerinsky: Hate speech is protected speech, even on college campuses

• Robert C. Post: There is no 1st Amendment right to speak on a college campus

As you read these essays by Chemerinsky and Post, try to identify the claims they are arguing for and the elements of their arguments. A careful reader will annotate and take notes while reading and begin to rehearse ideas in his or her head. If you're interested, UC Berkeley has an extensive website devoted to free speech. 

Micro Essay: Write a brief essay in which you address the question: who do you find more persuasive, Chemerinsky or Post, and why? Remember, your micro essay should be composed on a 4 x 6 index card and should be completed prior to the start of class.

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MON/JAN 27

Read:

• Introduction to the Free Speech Clause

• What is "Speech" Within the Meaning of the First Amendment?

Listen: American Hate & the Law: Discourse Disrupters

These two documents come from the Exploring Constitutional Law website, an excellent source of information on key constitutional issues. We'll be using it heavily in this first portion of the course. You are, of course, free to explore the many links included in these two documents, but you are only required to read the two linked documents. The IQ2 podcast is an excellent podcast. This discussion addresses the issue how the American legal system should cope with a new era of hate speech. In this episode, host John Donvan sits down two top legal minds thinking about free speech today. Join former ACLU president Nadine Strossen and New York University professor Thane Rosenbaum for an in-depth discussion on the future and limits of free speech in America. Strossen has written a letter to readers summarizing the key themes of her book HATE.

Micro Essay: ​Let's see if we can reconstruct the basic arguments of Strossen and Rosenbaum. What is their core position in regard to the matter of free speech and hate speech and can you identify two or three reasons each cites in support of their position?

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WEDS/JAN 29

Read: John Stuart Mill, On Liberty. Read pages 1 - 11. HERE are some notes on the Mill reading.

You might be interested in reading Chapter V, on applications, but the reading is not required. There is a Mill selection included in Culver: Readings in the Philosophy of Law, pages 329 - 342, but I prefer the different edited version I linked to. Mill continues to be one of the most influential dead philosophers around. David Brooks discussed Mill in a recent op-ed and he continues to be a "must-read" for students interested in liberty and free speech issues. Culver includes an introduction to the reading on pages 321 - 323 which is not required, but may be helpful. If you're interested in more information about Mill, click here.

Micro Essay: Imagine that Mill had read Laura Beth Nielsen's op-ed "The Case for Restricting Hate Speech" and he decided to post a comment on it in the newspaper's comment section. What do you think he would write in his comment? How do you think he would respond to her op-ed?

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FRI/JAN 31

Read: Joel Feinberg, Hard Cases for the Harm Principle

Joel Feinberg was a political and social philosopher who did groundbreaking work in the fields of individual rights and the authority of the state. His major work was ''The Moral Limits of the Criminal Law'' (Oxford University Press), which was published in four volumes. His approach in that work was explained by Jody S. Kraus, a former student of Professor Feinberg's and a professor of both law and philosophy at the University of Virginia Law School: "Following John Stuart Mill, Feinberg believed that political philosophy begins with a normative presumption in favor of individual liberty. The task of justifying political coercion, then, consists in identifying so-called liberty-limiting principles, which set out the conditions under which that presumption is overridden and the state is justified in exercising coercion. Each volume of 'Moral Limits' is devoted to an extensive analysis of one of four such principles that might justify the imposition of criminal sanctions.'' In each volume -- ''Harm to Others'' (1984), ''Offense to Others'' (1985), ''Harm to Self''' (1986) and ''Harmless Wrongdoing'' (1988) -- Professor Feinberg found the state's justification for setting limits on freedom ''less and less persuasive,'' Professor Kraus said. (From the NYTimes)

Micro Essay: Building on Mill's analysis of the harm principle, Feinberg considers whether we need any additional liberty limiting principles. In each of the four sections of his essay, he examines a different principle. You'll be assigned to read one section of the essay and then asked to address the following micro essay: how would you define the principle Feinberg examines in your section? Does Feinberg think we need such a principle? Why or why not?

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MON/FEB 3

Read:

• Flag Burning and Other Acts Deemed Disrespectful of American Symbols 

• Texas v. Johnson

• Pay attention to the arguments appearing in the majority and dissenting opinions and be prepared to identify the core elements of those arguments. Think about what constitutes expressive conduct and whether Johnson's burning of the flag constitutes expressive conduct. 

Micro Essay: Do you think the United States has an interest in preserving the flag as a symbol of nationhood and national unity? Does that interest imply we should prohibit an individual from desecrating it?

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WEDS/FEB 5

Read:

• Regulation of Fighting Words and Hate Speech

• Hustler Magazine and Larry C. Flynt, Petitioners v. Jerry Falwell

If you're interested in an interesting account of the Flynt versus Falwell trials, with lots of supporting documents, check out The Jerry Falwell v Larry Flynt Trial: An Account, by Douglas Linder. The podcast Unprecedented did an episode on Falwell and Flynt, which you can listen to HERE.

Micro Essay: We have been discussing the status of hate speech and the claim, made by some, that hate speech necessitates a rethinking of the First Amendment. Given Rehnquist's reasoning in Hustler and Flynt v. Falwell, what, if any, do you think the implications are for hate speech and the First Amendment?

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FRI/FEB 7

Read: Frank COLLIN and the National Socialist Party of America, Plaintiffs‑Appellees, v. Village of Skokie, Illinois, a Municipal Corporation, Defendants‑Appellants.

Micro Essay: Our reading for Collin v. Skokie doesn't include a dissenting opinion, but let's see if we can brainstorm a bit and hypothesize a foundation for such a dissent. Imagine you're a dissenting justice and you want to fashion a foundation for the claim that the First Amendment doesn't protect the activity in which Collin wishes to engage. Can you come up with an argument that might support such a claim?

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MON/FEB 10

Read: Mari Matsuda, "Public Response to Racist Speech" (NOTE that you only need to read selected pages from this article, as indicated in the document.)

Micro Essay: Can you describe the key elements of Matsuda's response to racist speech?

We might think about Matsuda's response to Skokie and whether we find her respond to racist speech more generally persuasive. As we look ahead to R.A.V. on Wednesday, we might consider how she would evaluate Scalia's argument. You might also be interested in Hate Speech: What Price Tolerance?, in which Matsuda engages in a dialogue with Nadine Strossen and Gary Gilden.

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WEDS/FEB 12

If you are a fan of podcasts (one of my favorites is More Perfect--all about the law) then you might be interested in listening to Heightened Scrutiny's podcast on R.A.V. It's worthwhile and ends with a good summary of the issues we have been addressing. 

Read: R. A. V., PETITIONER v. CITY OF ST. PAUL, MINNESOTA

Micro Essay: One way to understand the issue behind this case is as follows: whether a city ought to be able to prohibit fighting words that contain messages of bias-motivated hatred. In his majority opinion, Scalia argues that a city cannot prohibit such speech. Do you find his argument persuasive? Why or why not?

The podcast Unprecedented did a terrific episode on a second cross burning case, Virginia v. Black, which you can listen to HERE. 

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FRI/FEB 14

For information on Steven Heyman, check out his faculty webpage. If you click on SSRN Author Page, that will take you to some of his writings available online. You can also access additional writings of his HERE. Heyman defends a liberal humanist view of free speech that emphasizes the positive values promoted by free speech, fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. Today's reading is chapter 10 from Heyman's Free Speech and Human Dignity. While it is just one chapter and makes reference to previous chapters, his argument is relatively self-contained and can be discerned in these pages.

Read: Steven J. Heyman, Hate Speech

Micro Essay: Heyman's conclusion to his argument in this chapter is that public hate speech is not deserving of constitutional protection. Can you concisely (and yet accurately) reconstruct his argument in support of this claim?

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MON/FEB 17

I've put together some information on Obscenity Law that you might find helpful. If you're interested, read Obscenity Law. I've also put together a document on feminism and pornography. You can access it HERE. 

Read: 

•  Regulation of Obscenity

• Miller v. California

• If you were the juror...

   

Micro Essay: After reviewing the material collected by Frontline on "If you were the juror..." (including "If you were the juror..." AND "highlights from the defense and prosecution") compose a brief essay in which you vote on this obscenity trial and support your vote with a rationale.

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You might take some time to familiarize yourself more with some of the issues surrounding the obscenity debate. In 2002, Frontline, the PBS documentary unit, broadcast an episode on American Porn. It's website has some worthwhile information. You can find it HERE. The Stanford Encyclopedia of Philosophy has an article on Pornography and Censorship addressing the core issue whether a government can legitimately prohibit citizens from publishing or viewing pornography, or would this be an unjustified violation of basic freedoms?

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WEDS/FEB 19

Read: Reno v. ACLU

Micro Essay: Let's once again practice the skill of reconstructing arguments. Reconstruct Stevens' majority opinion in Reno v. ACLU.  Identify the issue ("whether....), a precise formulation of Stevens' conclusion, and identify the core premises, stating them concisely and placing them in a logical order.

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FRI/FEB 21

If you're interested in Catherine MacKinnon's background, read her faculty biography HERE. She recently published an op-ed in The New York Times on sexual harassment and the #MeToo movement. Read it HERE. You can watch a video of MacKinnon discussing her book Only Words with Charlie Rose HERE. 

Read: Catherine MacKinnon, Only Words, selection

Micro Essay: Let's imagine that MacKinnon has to write our first writing assignment. Briefly and accurately, on the basis of your reading of this selection from Only Words, how do you think she would address our issue, "whether we need to rethink the First Amendment and freedom of speech"?

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MON/FEB 24

Read:

• Whitney v. California, Justice Brandeis (Read only Brandeis' concurrence in this case)

• FRANKLYN HAIMAN, "The Remedy is More Speech"

Micro Essay: Do you agree that the remedy for hate speech is more speech?

As you work on your micro essay, you might think about how Catherine MacKinnon would respond to the claim that the remedy for hate speech is more speech. What would be her analysis of this claim?

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WEDS/FEB 26

Laura Beth Nielsen is a Research Professor at the American Bar Foundation as well as a Professor of Sociology and Director of the Center for Legal Studies at Northwestern University. She is a sociologist and lawyer with degrees from the University of California, Berkeley. For more, see her Faculty Biography. We've previously read and discussed Nielsen's op-ed "The Case for Restricting Hate Speech."

Read: Laura Beth Nielsen, Power in Public: Reactions, Responses, and Resistance to Offensive Public Speech {Note: I've edited this essay considerably to keep it shorter. If you are interested in reading the unedited version, you can access it HERE.}

Micro Essay: Erwin Chemerinsky and Franklyn Haiman have claimed that the response to hate speech should not be censorship but ought to be more speech. Based on your reading of this essay by Nielsen, how would she reply?

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You might also be interested in Greg Lukianoff and Jonathan Haidt, "The Coddling of the American Mind": "In the name of emotional well-being, college students are increasingly demanding protection from words and ideas they don’t like. Here’s why that’s disastrous for education—and mental health."

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FRI/FEB 28

Writing Assignment One

Today we are going to engage in a peer review process. You should bring a hard copy of your first writing assignment to class. There is no micro essay for today. You will be asked to submit your draft and your peer evaluation with your final draft. Failure to participate in the peer review process will result in a 10 point grade penalty. Recall that I have prepared a couple of documents to help you with the writing process: Grading Rubric and  Philosophy Writing Resources.