LAW 716: First Amendment Rights
Professor Leora Harpaz
Fall 2021
Class Meetings: Online Thursday 6-7:50 p.m.
Course Webpage: http://www.wneclaw.com/firstamendment/firstamendment.html
Professor’s email address: lharpaz@lharpaz.com

Course Description:
This course is a basic introduction to the First Amendment of the United States Constitution, focusing on freedom of expression. Topics to be studied include the special problems of particular kinds of speech, such as advocacy of violence as a political tool for change, libel, obscenity, hate speech, commercial speech, and symbolic speech, for example flag burning. The course will also address specific techniques employed by the government to regulate speech including prior restraints, time, place, and manner regulations, limits on access to public property to exercise free speech rights, and compelled expression. If time allows, the course may also address the two religion clauses of the First Amendment. (Credits may be applied toward Public Interest Practice concentration.)

Required Reading Materials:
Students are not required to purchase any reading materials for this course. Students are, however, required to print out the pages so it is easy to write marginal notes and underline key passages in preparing for class as well as to more effectively participate in class discussions. Reading materials consist of edited cases and explanatory material. The court opinions are heavily edited and most omissions are not marked with ellipses. In addition, when included, footnotes in the opinions do not retain their original numbering. The reading material is provided in the form of a series of PDFs. Below are links to the reading materials including links to each chapter (Chapters I-XI) and single documents that including Chapters I-VI (pages 1-172) and Chapters VII-XI (pages 173-377):

Chapter I of the Reading Materials (assignments 1 and 2)
Chapter II (assignment 3)
Chapter III (assignment 4)
Chapter IV (assignment 5)
Chapter V (assignment 6)
Chapter VI (assignment 7)
Chapter VII (assignment 8)
Chapter VIII (assignment 9)
Chapter IX (assignment 10)
Chapter X (assignment 11 and part of 12)
Chapter XI (part of assignment 12 and assignment 13)

For students who prefer to print multiple chapters at once, below is a link to the first six chapters and one to chapters seven through eleven:
Chapters I - VI
Chapters VII - XI

Questions Before Class:
In connection with each reading assignment, there are posted questions that you should attempt to answer before class. These Questions Before Class are designed to help you prepare for class discussion by focusing on relevant facts, legal analysis, and your own assessment of how the court should treat some of the issues presented in a case. While the actual discussion in class will range beyond the Questions Before Class, they should nevertheless help you to engage in that discussion. These questions will be available on the course website at least several classes in advance: Questions Before Class.

Classroom Materials:
All Classroom Materials prepared for use in class in connection with a reading assignment will be posted on the course website shortly before each class and remain available throughout the semester.

In Lieu of Office Hours:
I will not be available at the law school since I now live in New York City. The best way to communicate with me initially is via email. We can then set up a Zoom meeting or a phone call to avoid extensive emailing. In addition, I will stay online after each class is over to answer questions until all students have signed out of the virtual classroom.

Email Communication:
I generally use email rather than TWEN or other systems to communicate with students. I send the emails from the email address listed at the top of the syllabus,
lharpaz@lharpaz.com, rather than from my wne.edu address which I rarely use. Please try to make sure that emails from my preferred address don’t wind up caught by your spam filter. Each email system has a different way of achieving that. In Outlook, for example, you can add someone to your safe senders. You may also be able to achieve the same result by adding someone to your contact list. Some other email systems use a different vocabulary such as trusted sender.

Assignments:
Below is a partial list of assignments. It will be added to as additional reading material is posted. Each numbered assignment represents the reading for a single class. However, if we do not complete our discussion of the assigned material, we will complete it in the next class before beginning the next assignment. Students should read one full assignment ahead.

Assignment 1
a. Pages 1-17 of Chapter I (Introduction and Advocacy of Lawlessness: Schenck, Frohwerk, Debs, Abrams, Masses Publishing Co.)
b. Be prepared to display or describe an example of speech you believe should be protected by the First Amendment.
c. For each class, there are questions for you to try and answer in advance of class to help with your class preparation. Your answers will not be collected and do not need to be in writing. The 8 questions for Assignment 1 are linked here: Questions Before Class

Assignment 2. Pages 17-32 of Chapter I (Advocacy of Lawlessness: Gitlow, Whitney, Dennis, Brandenberg, Hess)

Assignment 3. Pages 33-60 (Chapter II) (Unprotected Categories of Speech: Chaplinsky, Gooding v. Wilson, Watts, Virginia v. Black, Stevens, Brown v. Entertainment Merchants Assoc., Alvarez)

Assignment 4. Pages 61-90 (Chapter III) (Profanity and Libel: Cohen, New York Times v. Sullivan, Gertz, Hustler Magazine v. Falwell, Snyder v. Phelps)

Assignment 5. Pages 91-114 (Chapter IV) (Obscenity and Child Pornography: Roth, Miller, Paris Adult Theatre, Jenkins v. Georgia, Ferber, Ashcroft v. Free Speech Coalition) 

Assignment 6.  Pages 115-144 (Chapter V) (Commercial Speech: Virginia State Board of Pharmacy, Central Hudson, Discovery Network, Lorillard Tobacco, Compelled Disclosures in Commercial Advertising)

Assignment 7.  Pages 145-172 (Chapter VI) (Symbolic Speech: O'Brien, Spence, Texas v. Johnson, Hurley, Buckley v. Valeo)

Assignment 8. Pages 173-204 (Chapter VII) (Compelled Expression and Compelled Association: Barnette, Wooley v. Maynard, Hurley, Janus, Boy Scouts of America v. Dale, Compelled Disclosure of Members and Donors of Expressive Associations)

Assignment 9. Pages 205-238 (Chapter VIII) (Content Based vs. Content Neutral Regulations: Mosley, Burson v. Freeman, Reed, Iancu v. Brunetti, Heffron v. International Society for Krishna Consciousness, Frisby v. Schultz)

Assignment 10. Pages 239-274 (Chapter IX) (Overbreadth, Vagueness, and Prior Restraints: Broadrick, Virginia v. Hicks, United States v. Stevens, Coates, Near, New York Times v. United States, Shuttlesworth v. City of Birmingham)

Assignment 11. Pages 275-308 (Chapter X) (Public Forum Doctrine: United States v. Grace, Kokinda, Forsyth County v. Nationalist Movement, Lehman v. City of Shaker Heights, Perry Education Assn. v. Perry Local Educators' Assn.)

Assignment 12. Pages 309-322 (Chapter X) and Pages 323-343 (Chapter XI) (Public Forum Doctrine, Government Speech, and Government Employee Speech: Cornelius v. NAACP Legal Defense and Educational Fund, Minnesota Voters Alliance v. Mansky, Pleasant Grove City v. Summum, Pickering, Connick v. Myers, Garcetti)

Assignment 13. Pages 343-377 (Chapter XI) (Public School Student Speech and Medium of Communication: Mahanoy Area School Dist. v. B.L., Miami Herald Publishing Co. v. Tornillo, Red Lion Broadcasting Co. v. FCC, FCC v. Pacifica Foundation, Reno v. ACLU)

Class Participation:
According to American Bar Association Standard 306 for the approval of law schools, credit for a distance education course requires there be “opportunity for regular and substantive interaction between faculty and student and among students.” To satisfy this standard, small groups of students will be pre-assigned to be responsible for 1 or 2 assignments during the course of the semester. Students will be informed at least a week in advance when they have responsibility for a particular assignment. In addition, volunteer participation will be welcome.

The Virtual Classroom:
In order to facilitate a Zoom classroom environment that has some similarity to in-person learning, all students are expected to turn on their video so they can be seen as well as heard by other members of the class. This is a particularly important requirement in a relatively large class where students may believe that the visual presence of any particular student is not necessary. Unfortunately, if a significant number of students adopt this view, it can have a negative effect on the learning environment. If individual students have difficulty meeting this requirement, please contact me.

In addition,  make sure that you are signed in to the Zoom meeting for each class by your full name. You have the ability to change your name on the Zoom participants list by using the Rename feature so you should make sure to use your preferred first name for being called on in class as well as your last name. Your full name is necessary since I take attendance by using a report generated by Zoom that lists everyone who attends a Zoom meeting and when they sign in and out.

Grading:
The course will be graded exclusively by a final exam. The exam will be in the form of a “take-home” exam rather than an in-class exam using the ExamSoft software described on the Law Registrar’s Exam Information webpage. This software allows the exams to be sent to me anonymously. The exam will be fully “open book” and will consist of a number of essay questions. The essay questions will be graded by the use of a grading sheet that assigns a maximum number of points to each issue to be discussed. An example will be provided well before the exam is distributed. After adding the number of points earned on all sections of the exam, the numerical totals will then be curved and converted to the letter grading and grade distribution system used by the law school. The exam will be available on ExamSoft at the beginning of the exam period at 9 a.m. on December 7th and will be due at the end of the exam period no later than 4 p.m. on December 17th. Other than submission by the due date, there is no time limit for completing the exam.

Interim Assessment:
In preparation for the final exam, a practice exam question will be distributed. Students will have a week to answer the question. A grading sheet with points allocated to each part of the answer will then be provided for the question and students will be able to grade their own answers and identify ways to improve their performance.

Ethical Guidelines:
The answers to the take-home exam are to be your own work. Collaborating with someone else is not permitted.

Learning Outcomes:
Students will learn to understand the reasoning in judicial opinions that analyze First Amendment freedom of expression issues. They will learn to identify and understand the legal standards used in court opinions to resolve legal disputes in this area and apply those standards to a variety of different factual situations. They will examine how the courts balance the rights of speakers and members of the public against the interests of the government and consider whether the courts are striking the correct balance. Since almost all of the cases students are assigned to read are decisions of the United States Supreme Court, students will also gain a better understanding of how that Court functions.

Attendance:
Section 401 of the Law Student Handbook includes the following language: “Regular and punctual class attendance is mandatory, as required by the American Bar Association. This policy reflects the belief that dependability is an essential characteristic of a good lawyer. The policy objectives are to ensure academic success, of which attendance is a major component, and to develop standards of professionalism.” It also specifies that “[a]ny student who fails to attend at least 80% of the regularly scheduled class meetings, without excuse acceptable to the faculty member, has not met this Standard.” In this course, applying the 80% requirement, the maximum number of permissible absences without an acceptable excuse is two. Therefore, a student is subject to withdrawal after missing three classes without an acceptable excuse. Attendance in an online course is monitored by students signing in and “attending” the online class. Students should limit missing class to illness and family or other emergencies. Students who must be absent from class can request an excused absence.