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                                                    First Amendment Syllabus[1]

Fall 2004

 

Taylor Flynn

·          Room 39

·          E-mail: ta.flynn@neu.edu

·          Office phone: 617 - 373 - 5405

 

 

Casebook & Materials   

·          Casebook: Sullivan & Gunther, First Amendment, 2nd  ed. (2003). Unless otherwise indicated, all page numbers refer to the casebook.

 

·          Supplement (“Supp.”): Sullivan & Gunther, First Amendment Supplement

 

·          Gnoman Packet (“Gnoman”)

 

Call the bookstore (617/373-2286) or Gnomon Copy (617/536-4600) to determine if the course materials are available in advance.

 

LexisNexis Web Course

Assignments also will be available online on the LexisNexis Web Course site. To access the site, register your LexisNexis ID (if you haven’t already) at www.lexisnexis.com/lawschool/register. Then go to www.lexisnexis.com/lawschool/webcourses. Sign-on and click on the Login button. Next click on “Browse Course Catalog” and click on Northeastern’s name, then find “First Amendment” listed within the catalog.

 

Attendance

Per Northeastern and ABA policy, class attendance is mandatory. Failure to regularly attend class may result in failure of the course. Please let me know ahead of time if you are unable to attend class.

 

Group Presentations

Every student is required to give a brief (~10 -12 minutes per group) group presentation (typically, about 4-5 students per group) at the beginning of each class. The group will present the materials assigned for that day. The goal is to present the day’s materials as a whole; the presenters should not simply tell us the facts, holding, and rationale of each case. While some of these details are likely to be incorporated into the presentation, I would like the presenters to “step back” from the cases and discuss themes and larger issues which they believe are raised by the cases. This can include critiques of the Court’s reasoning, discussion of the applicability of the doctrine to contemporary issues (if the cases are older), etc.. I would like each presenter in the group to speak.

I will pass around a sign-up sheet for students to select a presentation date. If you need to re-schedule your presentation date, it is your responsibility to make arrangements with another student who will “trade” presentation dates with you. Failure to participate in a group presentation will negatively affect a student’s evaluation, including the possibility of failing or marginally passing the course.

 

Class Participation

Particularly in a First Amendment class, I want to encourage widespread participation to strengthen the “marketplace of ideas.” To that end, thoughtful, in-class participation is likely to improve a student’s course evaluation.

 

Exam or Final Paper

You have the option of choosing between a take home exam or writing a paper; the latter is eligible to meet your upper level writing requirement. If you initially opt to write a paper and then decide to take the exam instead, please let me know no later than November 8th.

 

Take Home Exam Option

For those who choose the take home, the exam is designed to give you some time for reflection while limiting the amount of time you can spend on the exam.

 

·                      You may have the exam in your possession for up to 48 hours and may work on the exam for up to 8 hours during that time period. Your work must be independent; you may not speak with other students about the exam question.

 

·                      Page limit: Your exam answer cannot exceed 13 double-spaced, typed pages in 12 point font, with 1" margins. Writing clarity (including succinctness) plays an important part role in my evaluation of your work; 13 pages is meant as a maximum, not as a goal (i.e., a well-written 10 page paper that covers all the bases will receive a stronger evaluation than a rambling or repetitive13 page paper.

 

·                      You may pick up the exam from the Office of Student & Academic Affairs on November 15th - 18th.  When you pick up the exam, you will sign in, noting the date and time, and will sign out when you return it. All exam answers must be returned to the Office of Student Affairs no later than the end of their work day on November 19th.

 

Final Paper Option

For those who choose to write a final paper, the paper should be approximately 25 pages long on a topic of your choosing. To qualify for the upper level writing requirement, the paper must comply with The Bluebook Uniform System of Citation and meet the standards set forth by the Office of Student & Academic Affairs. Because I want to ensure that you are on the right track throughout the quarter, the following are required deadlines for those choosing to do a final paper:

 

·                      Sept. 22nd :

·                      Proposed topics are due. The topic proposal only needs to be a few sentences long. This is the last day to let me know if you are intend to choose the paper option.          

 

·                      Oct. 20th : “Outline” due: (1 - 3 pages). You do not have to turn in a formal outline: what I am looking for is a brief description of the main issues you wish to discuss and some of the cases and other sources you plan to rely on. This can be in the form of an outline, bullet points, partial or complete sentences – whatever works best for you.

 

·                      November 19th: Final paper due.          


            Policy on Extensions: I understand that a quarter is a short amount of time in which to write a paper, so I will grant reasonable extensions upon request. You must make extension requests for any given deadline ahead of time.

 

                                                                  ASSIGNMENTS**

 

**I have grouped the assignments by topics; some topics may take more or less than one class day.

 

I.                    First Amendment: An Overview and Clear and Present Danger

1-13 (First Amendment History, Theory and Jurisprudence)

13-29 (Schenck, Frohwerk, Debs, Abrams, Masses)

 

II.         From Clear and Present Danger to the Modern Incitement Test

29-55 (Gitlow, Whitney, Dennis; Yates, Scales & Noto; Aptheker, Bond, Watts; Brandenburg,                                   Hess, Claiborne Hardware)

Handout: (Patriot Act)

 

III.       Fighting Words and Hostile Audiences

55-70 (Cantwell, Chaplinsky, Cohen, Terminiello, Feiner, Edwards, Cox, Gregory, Kunz, Forsyth)

Handout: : (heckler’s veto)

 

IV.       Group Libel, Libel, and Intentional Infliction of Emotional Distress

70-86 n.1 (Beauharnais, New York Times, Butts, Walker, Rosenbloom, Gertz, Falwell)

 

V.        Content-Based vs. Content-Neutral Regulations and Symbolic Expression

211-220 (Mosely, Carey, Simon & Schuster, Burson v. Freeman, Boos)

220-243 (O'Brien, Street, Smith, Spence, Johnson, Eichman, Barnes, Pap’s A.M.)

Gnoman: p. 1 (DARE t-shirt)

 

VI.       Overbreadth and Vagueness

346-361 (Broadrick, Ferber, Free Speech Coalition, Brockett, Schaumburg, Munson, Oakes,                                           Osborne, Houston v. Hill, Jews for Jesus, Coates, Finley)

Supp. 14-16 (Virginia v. Hicks, Illinois v. Telemarketing Associates)

 

VII.      Hate Speech

91-106 (National Socialist Party v. Skokie, Smith v. Collin, R.A.V., Wisconsin v. Mitchell)

Supp. 1-9 (Virginia v. Black)

Gnoman: 2-17 (Lawrence art.)

 

VIII.     Sexual Harassment & the First Amendment

Gnoman: 18-31 (Browne & MacKinnon arts.)

 

IX.       Obscenity & Pornography

106-138 (Roth, Kingsley, Stanley, Reidel, Miller, Paris Adult Theatre, Post-Miller decisions,                              Ferber, Osborne, Free Speech Coalition, Hudnut)

Gnoman: 32-39 (Schauer & MacKinnon arts.)

ASSIGNMENTS (cont’d.)

 

X.        Sexually Explicit But Non-Obscene Expression

138-177 (Erznoznik, Schad, American Mini Theatres, Renton, Pacifica, Rowan, Con.Edison,                Bolger, Sable, Alameda Books, Denver Area Ed’l. Telecomm. Consortium, Playboy,               Reno v. ACLU, Ashcroft v. ACLU)

 

XI.       Commercial Speech

177-210 (Valentine, Virginia Pharmacy, Bolger, Fox, Linmark, Carey, lawyer advertising, Central         Hudson, Fox, Metromedia, Discovery Network, United Reporting, Tourism Co. of Puerto       Rico, Edge Broadcasting, Coors Brewing, 44 Liquormart, Wileman Bros., Greater New          Orleans, Broadcasting, Lorillard Tobacco, Thompson)

 

XII.     Rights Ancillary to Freedom of Speech

Compelled Speech:

384-389, 394-397 (Minersville, Barnette, Wooley, Talley, McIntyre, Hurley)

Gnoman: 40 (Acevedo)

 

Membership Disclosure & Restrictions on Organizational Activity:

397-412 (NAACP v. AL, Shelton, Gibson, Button, Railroad Trainmen, United Mine                                                      Workers, Claiborne Hardware, Int’l. Longshoreman’s Ass’n.)

Gnoman: 41-2 (Terror List/Blacklist)

 

Right to Exclude:

426-427 (Jaycees, Rotary)

Gnoman:43-75 (Dale, Hunter art); Optional:76-85 (Crossfire transcript)

 

XIII      Prior Restraints on Speech

361-381 (Lovell, Lakewood, Freedman, FW/PBS, Thomas, Poulos, Kingsley, Near, Walker,                                           Carroll, Pentagon Papers, Progressive, Inc.,)

 

XIV.    Speech in Public Schools and Speech by Public Employees

308-326 (Tinker, Pico, Fraser, Kuhlmeier, Pickering, Connick, Rankin, Waters, National Treasury                     Employees Union) 

Gnoman 86-105 (Gamwell, Queers Kick Ash, Shahar)

 

XV.      Speech in Public Forums and other Government Property

243-281 (Davis, Hague, Saia, Cox v. NH, Schneider, Martin, Kovacs, City of Ladue, Watchtower                      Bible & Tract Society, Cox v. LA, Heffron v. ISKCON, Metromedia, Vincent, Clark,                         Ward, Frisby, Madsen, Schenck, Hill, Grace) 

Gnoman: 106-115 (Black Tea Society, protest restrictions)

 

 

 

 

 

ASSIGNMENTS (cont’d.)

 

 

 

XVI.    Speaker Access to Public Places Other than Streets and Parks

281-303 (Brown, Adderly, Grayned, Lehman, Conrad, Greer, U.S. Postal Service, Perry, Cornelius,                              Kokinda, ISKCON v. Lee, Lee v. ISKCON, Forbes)

Supp. 10-14 (US v. Amer. Library Assn)

Gnoman:116-123 (Hood Rat)

 

XVII.   Campaign Finance Reform

430-441 n.2, 446-448 (Buckley, Nixon, Belotti)

Supp.: 17-18

 


[1]Please note that this syllabus is likely to be modified as we go along and that handouts may be distributed periodically. Although I will not be distributing a revised syllabus or list of handouts at the end of the course, you should be able to keep track of  modifications to the reading on the Lexis Web-Course, discussed above.