GVPT 339A
THE FIRST AMENDMENT IN LAW AND POLITICS
Course Requirements    Briefs   Papers   Course Schedule
Fall 1998

Course Meets: T-Th 9:30-10:45

Instructor: Wayne V. McIntosh

Office: 3140C Tydings Hall

Phone: 405-4134 E-Mail: mcintosh@bss2.umd.edu

Office Hours: T-Th., 8:30-9:30 am

(or by appointment)

Teaching Assistant:
Jani Laskaris - juliol@wam.umd.edu
Office Hours: MW, 1-2pm, 2100 Tydings (BSOS Student Lounge)
 


This course is designed to familiarize students with free speech issues across the First Amendment landscape, as well as to give you some legal research experience. Toward those ends, we will largely, though not exclusively, rely on the major U.S. Supreme Court cases in the field. Although I do not intend to employ the Socratic method (unless compelled to by class silence), your active participation in this class is both vital and required. Some of the course work will be completed in a group format. This we will discuss on or about September 22. Specific requirements follow:

FIRST REQUIREMENT:

Read the remaining requirements thoroughly
 

REMAINING REQUIREMENTS:
 

Required Readings

Available at the bookstores:

1) Van Alstyne, First Amendment: Cases & Materials, 2nd Ed. (Foundation Press, 1995).

2) Van Alstyne, First Amendment: 1998 Supplement.

3) Smolla, Jerry Falwell v. Larry Flynt: The First Amendment on Trial (U. of Ill. Press, 1990).

4) MacKinnon, Only Words (Harvard University Press, 1994).
 

Suggested Reading

Also available at the bookstores:

1) Boyle, Shamans, Software and Spleens. (1996).

2) Katsh, The Electronic Media and the Transformation of Law. (1993). 



Course Requirements                                                                                         Top of Page
 
Attendance: Although attendance is not required in the sense that I'll be taking a formal, daily roll of the class, your regular presence is essential, both in the sense that it will greatly aid your learning and in the "bottom line" sense that class participation counts rather heavily toward your final grade (see below).

Readings: You are responsible for and can expect to be tested on all of the readings, including those in the Van Alstyne case book, the Smolla, and MacKinnon books, and our in-class discussions. In order to facilitate discussion and understanding you of course, read assigned materials prior to class. Moreover, with regard to the major assigned cases, you will be expected to submit case briefs on the day the cases are to be discussed (see below). Of course, you are expected to be prepared to discuss all assigned readings and not just the briefed items. Although the Boyle and Katsh books are listed as suggested, they are both highly recommended for those of you who are really interested in issues related to the politics of free speech.

Participation: It is essential that everyone participate in class discussions. If, for some reason, you feel that you will not be able to actively take part in our discussions on a regular basis, please do not take this course. Of course, much of this subject matter is highly controversial stuff, so I'd expect that everybody would want to get her or his two cents worth in. But, as an added incentive, regular, informed, and thoughtful class participation will constitute 15% of your final grade.

I figure that there will be approximately 26 class sessions which will lend themselves to discussion (for these purposes, I have excluded the two exam dates and the first introductory meeting). Daily participation will be evaluated in the following way: students who make a substantial contribution to the day's discussion will receive a ++ for that day. Students who make a minor contribution will receive a + for the day. And students who do not contribute will receive a -. In the end, a strong majority of ++ days will garner the student an A in participation; a strong majority of + will garner a C; a strong majority of - will garner an F. A mixed record will be graded accordingly.

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Briefs: In order to help you prepare for class discussions you will be asked to submit a case brief on at least one of the major assigned cases (all those marked with an *) for each class. Those briefs will be due on the day the cases are to be discussed. The briefs will constitute 15% of your final grade. You should also, however, brief the non-asterisked cases for your own files. I think you will find that the your briefs will be very useful in preparing both for class discussion and exams. We will address how to brief cases during the first couple of class meetings, and instructions can be found elsewhere on the course website (www.bsos.umd.edu/gvpt/gvpt339).

Each brief is to be neatly typed, and should be no longer than three pages. During the class in which the briefed cases are discussed, you may feel free to make marginal notes based on our conversation. At the end of each class, briefs will be submitted to me, marginal notes and all. I will return them in about a week. Briefs submitted on the day assigned will receive a +; late or missing briefs will receive a -. (Of course, I reserve the right to assign a - to truly sloppy or thoughtless briefs even if submitted on time). Warning: Failure to brief assigned cases will be lethal to your successful completion of this course.

Exams: There will be a mid-term and a final examination. Each will constitute 25% of your final grade. The mid-term is scheduled for Thursday, October 29th, during regular class hours. The final is scheduled for Thursday, December 17th from 10:30am to 12:30pm. One week before each exam you will be given a sample exam from which to study. These sample exams will include a number of questions, some of which will appear on your actual exam. Makeup or early exams will only be administered for the most extreme emergencies.

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Research Papers: You will be asked to do a short research assignment. Your topic and format must be cleared with me by no later than October 1st. And it will be due no later than December 3rd.

Your subject should be chosen from among the topic headings presented in the course outline. While I can be flexible about the precise format, the ultimate goal of the paper will be a more thorough examination of the topic than we are able to cover in class, including additional cases on point (or, perhaps, more exhaustive reflection on dissents/concurrences) and consideration of at least one law review article or one of the recommended texts on the question. Use of WWW sources (only among the links provided) is encouraged, but you must be sure to document carefully. Citation and documentation protocols are thoroughly discussed and outlined on the course webpage. These papers must by typed in 12 pt. font, double-spaced, with standard margins. They should be free of typos, misspellings, and grammatical errors. And they should approximate 20 pages in length. The paper will constitute 20% of your final grade. Although it is not required, submission of a 1st draft is strongly encouraged. Those who select to give me a paper draft by November 25 (fully documented and at least 15 pages in length) will be awarded a bonus (up to 10 points) that will be added into the final grade calculation.
 

Extra-Credit: None!
 

Recap: Evaluation:

Daily participation = 15%

Daily briefs = 15%

Research paper = 20%

Mid-term exam = 25%

Final exam = 25%
 

Important Dates:

Sept. 14 Last day to drop/add

Oct. 1 Last day to clear paper topics

Oct. 29 Mid-term

Nov. 25 1st drafts of papers due

Nov. 26-29 Thanksgiving Recess

Dec. 3 Papers due

Dec. 17 Final Exam (Thursday, 10:30am-12:30pm) 

Course Schedule & Weekly Assignments
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PART I: INTRODUCTION

September 1-3

TOPIC: THE FOUNDERS & THE BILL OF RIGHTS

READINGS: NONE

ASSIGNMENT: NONE
 

PART II: DEVELOPMENT OF FIRST AMENDMENT STANDARDS

(Reminder: All briefs marked with an * are to be turned in on the dates they are scheduled for discussion. You should brief all assigned cases for study purposes)

September 8-10

TOPIC: The Founders & the Bill of Rights

Free Speech v. Public Interest

READINGS: Van Alstyne, pp. 1-34; pp. 35-46, 58-73, 86-89 and cases below.

ASSIGNMENT: Please brief the following cases: Patterson v. Colorado; *Schenck v. U.S.; Abrams v. U.S.; *Gitlow v. NY; *Whitney v. California; Bridges v. California.
 

September 15-17

TOPIC: Same topic continued

READINGS: Van Alstyne, pp. 129, 142-145, and cases below.

ASSIGNMENT: Please brief the following cases: *Sheppard v. Maxwell; Wood v. Georgia; Nebraska Press Association v. Stuart; Seattle Times v. Rhinehart; *Dennis v. U.S.; *Brandenburg v. Ohio.
 

PART III: WHERE YOU "SPEAK" MAKES A DIFFERENCE

September 22-24

TOPIC: Situating the Right to Free Speech

READINGS: Cases below.

ASSIGNMENT: Please brief the following cases: *Pruneyard Shopping Center v. Robins; Forsyth County v. Nationalist Movement; *Society for Krishna Consciousness v. Lee; *South Boston Allied War Veterans' Council v. Irish American Gay, Lesbian and Bisexual Group of Boston; *Lebron v. National RR Passenger Corp.; *Turner Broadcasting System v. FCC (Supplement); *Denver Area Educational Telecommunications Consortium v. FCC (Supplement).

NOTE: Remember, October 1 is the last day to clear your paper topic with me!
 

September 29 - October 1

PART IV: WHO SPEAKS MAY MAKE A DIFFERENCE

TOPIC: Speech & The Government-Related Speaker

READINGS: Cases below.

ASSIGNMENT: Please brief the following cases: Connick v. Myers; *Elrod v. Burns.
 

PART V: FREE SPEECH & CAMPAIGN FINANCE

TOPIC: Regulating the Uses of Money & Speech

READINGS: Cases below and associated text.

ASSIGNMENT: Please brief the following cases: *Buckley v. Valeo; FEC v. NCPAC; *McIntyre v. Ohio Elections Commission; *Colorado Republican Federal Campaign Committee v. FEC (Supplement).
 
 

PART VI: FIGHTING WORDS & OFFENSIVE SPEECH

October 6-8

TOPIC: From "F--- the Draft" to Burning Crosses: How Far Can You Go?

READINGS: Cases below.

ASSIGNMENT: Please brief the following cases: Hess v. Indiana;*Cohen v. California; Rankin v. McPherson; *R.A.V. v. St. Paul; *Wisconsin v. Mitchell.
 

PART VII: SYMBOLIC SPEECH

October 13-15

TOPIC: Dissent & the Use of "Sacred" Symbols

READINGS: Van Alstyne pp. 298-303, 326-329, and cases below.

ASSIGNMENT: Please brief the following cases: Tinker v. Des Moines School District; *U.S. v. O'Brien; Clark v. CCNV; Spence v. Washington; *Texas v. Johnson.

October 20-22

PART VIII: FREE PRESS, PRIVACY & DEFAMATION

TOPIC: The First Amendment & the Law of Libel

READINGS: Van Alstyne pp. 203-204 and cases below.

ASSIGNMENT: Please brief the following cases: *New York Times v. Sullivan; Time v. Hill; Gertz v. Welch, Inc.; *Campbell v. Acuff-Rose Music, Inc.
 

PART IX: SUPPRESSING FUTURE PUBLICATION & SPEECH

TOPIC: Prior Restraints

READINGS: Cases below.

ASSIGNMENT: Please brief the following cases: *New York Times v. U.S.; Southeastern Promotions v. Conrad.
 

October 29

MIDTERM EXAM
 

October 29-November 5

TOPIC: The First Amendment in Practice

READINGS: Smolla, Falwell v. Flynt (whole thing)

ASSIGNMENT: In lieu of any briefs, I would like each of you to submit a short (3 page) summary of the Smolla book. Due today.

NOTE: I assigned this book for two reasons: one, to give you some real persp ective on an actual First Amendment case, and two, to give you a little rest and relaxation from the drudgery of case work. In other words, this should be fun reading (it has everything--sex, politics, religion, even drugs). Nonetheless, while having fun with it, I mean for you to take it seriously--i.e., be prepared to discuss it and to be tested on it.
 

PART X: THE LESSER PROTECTION OF NONPOLITICAL SPEECH

November 10-12

TOPIC: Regulating Commercial Speech

READINGS: Van Alstyne pp. 681-684, 740-754, and cases below.

ASSIGNMENT: Please brief the following cases: Valentine v. Chrestensen; *Bigelow v. Virginia; Posadas v. Tourism Company; City of Cincinnati v. Discovery Network, Inc.; Rubin v. Coors Brewing Company; *44 Liquormart v. Rhode Island (Supplement).

TOPIC: The Obscenity/Pornography Conundrum:

The First Amendment & Community Morals

READINGS: Van Alstyne pp. 754-763 and cases below.

ASSIGNMENT: Please brief the following cases: *Roth v. U.S.; "Memoirs" v. Massachusetts; *Stanley v. Georgia.
 

November 17-24

TOPIC: Same topic continued; contemporary twists

READINGS: Van Alstyne pp. 831-834 and cases below.

ASSIGNMENT: Please brief the following cases: *Miller v. California; *Paris Adult Theatre v. Slaton (pay special attention to Brennan's dissent in this one); New York v. Ferber; *Barnes v. Glen Theatre; *ABA V. Hudnut., *Reno v. ACLU (Supplement).
 

November 26

TOPIC: Thanksgiving

READINGS: Anything you want

ASSIGNMENT: Eat till you drop
 

December 1-8

TOPIC: Mackinnon

READINGS: Mackinnon book in entirety.

ASSIGNMENT: Write a brief summary of the author's arguments (approx. 3 pages).
 
 

PART XII: CONCLUDING THOUGHTS ON THE FIRST AMENDMENT

NOTE 2: YOUR PAPERS ARE DUE DECEMBER 3!!!
 

December 10

TOPIC: Course conclusion

READINGS: None

ASSIGNMENT: None
 

December 17

FINAL EXAM

Thursday, 10:30AM-12:30PM 

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