Ideas of the First Amendment

This course is not organized along conventional doctrinal lines and does not aspire to cover the full range of contemporary doctrines. Rather, each segment of the course (usually two weeks, sometimes one) is devoted to a close examination of an historically important and rhetorically sophisticated argument that developed a rationale for and vision of the freedom of speech. We study John Milton's Areopagitica, James Madison's Virginia Report challenging the Alien and Sedition Acts, John Stuart Mill's On Liberty, the landmark First Amendment opinions of Learned Hand, Oliver Wendell Holmes, and Louis Brandeis, and Alexander Meiklejohn's Free Speech and its Relation to Self-government. The course concludes with a study of various recent efforts to ground the freedom of speech in a notion of individual autonomy or flourishing.

Throughout the course, we test the general ideas developed in the classic essays and judicial opinions by exploring how they might help one to think about various contemporary issues. For this purpose we read Supreme Court decisions, many of them recent, on the advocacy of revolution, the publishing of classified documents, flagburning, libel, obscenity and profanity, hate speech, funding for the arts, speech on the internet, nude dancing, commercial advertising, labor picketing, discriminatory membership practices by expressive associations, campaign spending by corporations, violent video games, depictions of animal torture, targeted protests at abortion clinics and funerals, and teaching foreign terrorist organizations how to engage in peaceful petitioning. The cases so examined are studied in depth, the opinions much more lightly edited than is common in modern casebooks.

The luxury of devoting one or two weeks to a single argument provides an opportunity to examine in a systematic fashion how some of the masters of the craft went about trying to persuade the doubters of their day. We compare the different types of arguments employed: from consequences, from commitment, from coherence, from distrust, from experience, from institutional design, from necessity, from nature, from identity, etc. We study the art of making concessions, choosing illustrations, delimiting contentions, ordering one's arguments, rationing rhetoric, and not overreaching. In part, this is a course in the skills of argumentation.

In lieu of a traditional examination, students are required to write a closely reasoned ten-page critique (not a research paper) comparing two of the classic essays or judicial opinions, due during the twelfth week of the semester. In addition, to demonstrate basic familiarity with each of the authors studied, students must submit one-page papers on each of the seven major thinkers in the course, each due immediately after the class sessions devoted to the particular thinker, identifying what the student considers to be the weakest claim or largest gap in the classic essay or judicial opinion of that thinker.