CIVIL LIBERTIES

Po 334 4 CREDITS SPRING 2006

This course will investigate the relationship between the individual and the state in American politics, primarily as it has been developed through constitutional theory and litigation. Specifically, we will be concerned with two of the fundamental values of American politics, liberty (here defined negatively, as the absence of external constraints upon individual conduct imposed by government), and equality (understood here as the right to full status and to a legitimate share in opportunities for participation in the community). We will test the traditional American understanding of these values, and how they must be related to the need for social order. This will be accomplished through the study of some recent controversies concerning the liberties of thought and expression, of religious conscience and of controversies surrounding discrimination by race, gender or sexual orientation. Because of the special role assumed by the United States Supreme Court in these issues during the past half century, our focus will be largely upon the recent constitutional interpretations offered by that august tribunal. We will also study several philosophical texts and a few academic scribblings that have influenced our thought on these issues.

The following textbooks are assigned and should be purchased at the SMC Bookstore:

AMERICAN CONSTITUTIONAL INTERPRETATION, 3rd edition, by Walter Murphy, James Fleming, Stephen Macedo and Sotirios Barber

ONLY WORDS, by Catherine MacKinnon

Some cases omitted from the casebook or decided since publication have been edited by the instructor and placed on a web page for your convenient access. Any case on the web may be accessed from the on-line syllabus (see URL at top). You may read it on-screen, save it to a file for later use, or print a copy.

We will make frequent reference to the fine web site, CONSTITUTIONAL CONFLICTS, maintained by Professor Doug Linder, of the University of Missouri-Kansas City School lf Law. Additional items will be delivered via SMC email, as they arise. These might particularly concern cases currently under consideration before the Supreme Court. Check your email often, as it will be assumed that these have been read. If you use another email account, it is your responsibility to set your SMC account to forward email to your ISP.

Class attendance is mandatory. Students will be permitted a maximum of four (4) unexcused absences. Once this quota has been exceeded, a penalty of one letter grade for each additional unexcused absence will be exacted. Three exams are planned. All SMC policies concerning plagiarism will be enforced. (No, it is not constitutionally protected free expression.)

Should you need to reach me for any reason this semester, my office is in SE 346, or call at 654-2245. I usually check my e-mail in the evening, so if you have a problem or a question about the readings, this is a good way to get in touch with me. I will normally have an answer later that evening or by the next morning.

A syllabus of topics for discussion and specific reading assignments follows. Materials should generally be read in the order presented. Waste no time in beginning, for we have much work to do this semester.

SYLLABUS

I. Introduction to Constitutionalism and the General Problem of Civil Liberties

John Stuart Mill, On Liberty, "Introductory" (http://www.bartleby.com/130/1.html)

Robert Bork, Slouching Toward Gomorrah, ch. 3, “The Rage for liberty and the Pursuit of Happiness,” pg. 56-65 (Library Reserve)

West Virginia v. Barnette, ACI 1275

II. "Congress shall make no law...abridging the Freedom of Speech, or of the Press"

A. Background and Values of Free Thought & Expression

ACI 692-701

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/firstaminto.htm

John Stuart Mill, On Liberty, chapter 1 (http://www.bartleby.com/130/2.html)

Robert Bork, Slouching Toward Gomorrah, ch. 8, “The Case for Censorship”, pg. 140-153 (Library Reserve)

Catherine MacKinnon, Only Words, Ch. 3, “Equality and Speech, Pg. 71-91

B. Illegal Advocacy

Whitney v. California, ACI 713

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/clear&pdanger.htm

Dennis v. United States, ACI 719

Konigsburg v. California, dissent of Justice Black

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incitement.htm

Brandenburg v. Ohio, ACI 728

Practical Application Exercise: Go to http://ftp.die.net/mirror/hitman/ and read the Prologue and some of chapter 2. Evaluate the book’s status under the first amendment. illegal advocacy doctrine, as applied to these pages?

United States v. Rahman

Pending Supreme Court Decision: The 800 lb. Gorilla in the Marketplace of Ideas

Rust v. Sullivan, ACI 788

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/govdollars.html

Rumsfeld v. Forum for Academic and Institutional Rights

FIRST EXAMINATION

C. The Two-Level Theory of Free Speech: Obscenity

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/obscenity.htm

Miller v. California

American Booksellers Association v. Hudnut, ACI 767

Catherine MacKinnon, Only Words, Ch. 1, “Defamation and Discrimination”

Practical Application Exercise: the Case of Robert Mapplethorpe

D. Fighting Words and Offensive Speech

Chaplinsky v. New Hampshire, ACI 733

Cohen v. California, ACI 762

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/indecentspeech.htm

Harris v. Forklift Systems

E. Hate Speech

Beauharnais v. Illinois, ACI 736

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/hatespeech.htm

R.A.V. v. St. Paul, ACI 742

F. Defamation

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/commonlaw.htm

New York Times v. Sullivan, ACI 704

Hustler Magazine, Inc. v. Falwell, ACI 774

G. Electronic Media

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/mediatests.htm

FCC v. Pacifica Foundation

Reno v. ACLU

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/commercial.htm

H. Association for Collective Advocacy

ACI 796-805

NAACP v. Alabama, ACI 847

Roberts v. United States Jaycees, ACI 8853

Boy Scouts of America v. Dale, ACI 863

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/association.htm

I. Demonstrative Expression, the Public Forum. Limited Public Forum and the Non-Public Forum

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/tradforum.htm

Feiner v, New York

Frisby v. Schultz

Hill v. Colorado

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/nonpublicforum.htm

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/designatedforum.htm

J. Symbolic Expression

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/flagburning.htm

United States v. O'Brien, ACI 775

United States v. Eichman, ACI 780

Practical Application Exercise: An Ordinance Under Consideration by the Burlington City Council Would:

* ban all public assemblies--protests, vigils, speak-outs, marches,
political street theater--on 75% of the Church Street Marketplace,
including the block in front of City Hall and the block where Congressman
Bernie Sanders has his office. In the block that includes the Burlington
Town Center (the indoor mall), all public assemblies on weekends would
also be banned.

* require a permit for public assemblies on any city street, sidewalk, or
park with a $50 fee to be charged for each permit request. Additional
charges can also be assessed by city police, fire, and other departments
at their own discretion.

* require 60 days notice for any public assembly of more than 100 people
and seven days notice for any assembly of fewer than 100. City
officials could, at their discretion, grant a permit within a 72-hour time
frame, no spontaneous march or vigil would be allowed.