Professor Jack M. Balkin The First Amendment -- Spring 2003 Syllabus

The First Amendment

Prof. Jack M. Balkin

Note: All references to page numbers refer to Stone, Seidman, Sunstein and Tushnet, The First Amendment (1st ed. 1999). References to the Supplemental Materials contained in this packet are noted as "Supp."

Part I-- Introduction

1. Introduction: Early History of the First Amendment

Note: Terrorism and the First Amendment, Supp. pp. 1-2
Notes and Shaffer v. United States, pp. 19-21
Masses Publishing Co. v. Patten and Notes, pp. 21-23
Schenck v. United States and Notes, pp. 23-27
Frohwerk v. United States, pp. 27-28
Debs v. United States, pp. 28-29
Abrams v. United States and Notes, pp. 29-34
Notes on the history of the first amendment, pp. 3-8
Notes on justifications for free speech, pp. 8-16

2. The Early Twentieth Century and the McCarthy Era

Gitlow v. United States and Notes, pp. 34-40
Whitney v. California and Notes, pp. 40-47
Dennis v. United States and Notes, pp. 47-55

3. The Modern Formulation-- Seditious Advocacy and True Threats

Notes and Brandenburg v. Ohio, pp. 55-61
Bridges v. California and Notes, pp. 61-66
Note on Rice v. Palladin Enterprises and the Nuremberg Files, Supp., p. 3
Planned Parenthood v. ACLA, Supp., pp. 4-6

4. Vagueness and Overbreadth

Notes and Gooding v. Wilson, pp. 105-116

5. Prior Restraints

Note on Prior Restraint, p. 116-117
Near v. Minnesota and Notes, pp. 123-130
Nebraska Press Association v. Stuart and Notes, pp. 88-90
New York Times Co. v. United States and Notes, pp. 90-101
Note on the Progressive Controversy, pp. 101-104
Lovell v. Griffin and Notes, pp. 117-118
Freedman v. Maryland and Notes, pp. 121-123

6. What is Speech?

Notes and United States v. O'Brien, pp. 349-359
Notes and Texas v. Johnson, pp. 359-364
Barnes v. Glen Theatre, pp. 364-367
City of Erie v. Pap's A.M., Supp., pp. 7-9
Note on Political Boycotts, pp. 367-369
Village of Schaumberg v. Citizens for a Better Environment and Notes, pp. 369-371
Bernstein v. United States Department of Justice, Supp., pp. 10-18

Part II-- Regulation of Content

7. Defamation and Privacy

Note on "Low Value Speech", pp. 131
New York Times v. Sullivan and Notes, pp. 132-142
Curtis Publishing Co. v. Butts and Notes, pp. 142-143
Gertz v. Robert Welch and Notes, pp. 143-151
Dun and Bradstreet v. Greenmoss Builders and Notes, pp. 151-154
Hustler Magazine v. Falwell and Notes, pp. 154-156
Cox Broadcasting v. Cohn and Notes, pp. 156-161
Landmark Communications, Inc. v. Virginia and Notes, pp. 86-88
Bartnicki v. Volper, Supp., pp. 19-20
Note on privacy and the collection of personal and consumer data, Supp., p. 21

8. Fighting Words and the Hostile Audience

Chaplinsky v. New Hampshire and Notes, pp. 78-84
Terminello v. Chicago, p. 67
Cantwell v. Connecticut and Notes, pp. 67-71
Feiner v. New York and Notes, pp. 71-75
Edwards v. South Carolina and Notes, pp. 75-76
Cox v. Louisiana, pp. 76-77
Gregory v. City of Chicago and Notes, p. 77-78

9. Pornography and Obscenity

Notes and Roth v. United States, pp. 188-197
Miller v. United States, pp. 197-200
Paris Adult Theatre I v. Slaton and Notes, pp. 200-209
Ashcroft v. ACLU, Supp., pp. 22
New York v. Ferber and Notes, pp. 209-211
Ashcroft v. The Free Speech Coallition, Supp., pp. 23-26
Notes on Procedural Features of the Regulation of Obscenity, pp. 211-213
Note on Pornography and the Victimization of Women, pp. 267-272
MacKinnon, Only Words, Supp., pp. 27-47
Dworkin, Women and Pornography, Supp., pp. 48-52
Posner, Review of MacKinnon, Supp., pp. 53-58

10. Secondary Effects and Zoning of Sexually Explicit Expression

Young v. American Mini Theatres, pp. 240-244
City of Renton v. Playtime Theatres and Notes, pp. 244-247
City of Los Angeles v. Alameda Books, Supp., pp. 59-60

11. Offensive Speech and the Captive Audience

Cohen v. California and Notes, pp. 214-222
Erznoznick v. City of Jacksonville, pp. 222-223

12. Offensive Speech and the Protection of Children

FCC v. Pacifica Foundation and Notes, pp. 223-230
Sable Communications v. FCC and Notes, pp. 1297
Action for Children's Television v. FCC (ACT III), Supp., pp. 61-82
Balkin, Media Filters and the V-Chip, Supp., pp. 83-105
TV Parental Guidelines, Supp., pp. 106
Meese v. Keene, Supp., pp. 107-109
Denver Area Educational Telecommunications Consortium, Inc. v. FCC, pp. 236-240
Reno v. ACLU, pp. 230-236
ACLU v. Reno (The COPA Case), Supp., pp. 110-127
Note on Ashcroft v. ACLU (Reversing 3d circuit decision in ACLU v. Reno), Supp., pp. 128
United States v. Playboy Entertainment Group, Inc., Supp., pp. 129-131
American Amusement Machine Assn., v. Kendrick, Supp., pp. 132

13. Group Libel and Racist Speech

Beauharnais v. Illinois and Notes, pp. 247-255
Notes on the Skokie Controversy, pp. 84-86
R.A.V. v. St. Paul, pp. 255-262
Wisconsin v. Mitchell and Notes, pp. 262-267
Black v. Commonwealth of Virginia, Supp., pp. 133-151

14. Sexual and Racial Harassment in the Workplace

Note on Workplace Harassment, pp. 266-67
Balkin, Some Realism about Pluralism, Supp., pp. 152-180
Balkin, Free Speech and Hostile Environments, Supp., pp. 181-208
Avis Rent A Car System, Inc., v. Aguilar, Supp., pp. 209-212
Note on Labor Disputes and the First Amendment, pp. 186-187

15. Commercial Speech

Note and Virginia State Board of Pharmacy v. Virginia Citizens Council, pp. 161-171
Note on Truthful, Nondeceptive Commercial Advertising, pp. 171-172
Central Hudson Gas v. Public Service Commission of New York, pp. 172-173
Metromedia, Inc. v. San Diego, pp. 173-174
Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico and Notes, pp. 174-175
Florida Bar v. Went For It and Notes, pp. 176-179
Liquormart Inc. v. Rhode Island and Notes, pp. 179-181
Greater New Orleans Broadcasting Ass'n, Inc., v. United States, Supp., p. 213
Note on Additional Limitations on the Protection of Commercial Speech, pp. 182-186
Thompson v. Western States Medical Center, Supp., pp. 214-217
Lorillard Tobacco Co. v. Reilly and Notes, Supp., pp. 218-221
Glickman v. Wileman Brothers & Elliott; United States v. United Foods, Supp., pp. 222
Kasky v. Nike, Supp., pp. 223-258

Part III-- Regulation of Access and Manner of Expression

16. Time, Place and Manner Regulation

Notes and Schneider v. State, pp. 275-276
Martin v. City of Struthers, pp. 276-277
Kovacs v. Cooper, pp. 277-278
Metromedia, Inc. v. San Diego and Notes, pp. 278-280
City of Ladue v. Gilleo, pp. 280-283
Note on Content Neutrality, pp. 283-286
Notes and Police Department of Chicago v. Mosley, pp. 309-316

17. The Public Forum

Note and Commonwealth v. Davis, pp. 286-287
Hague v. CIO and Notes, pp. 287-288
Schneider v. State and Notes, pp. 288-289
Notes on Regulating the Public Forum, pp. 289-290
Thomas v. Chicago Park District; Watchtower Bible & Tract Society v. Village of Stratton, Supp., p. 259
Frisby v. Shultz, pp. 290-291
Clark v. Committee for Creative Non-Violence, pp. 291
Ward v. Rock Against Racism, pp. 291-292
Madsen v. Women's Health Center, Inc., p. 292
Schenck v. Pro-Choice Network of Western New York, pp. 293-294
Hill v. Colorado, Supp., pp. 260-261
Cox v. New Hampshire and Notes, pp. 294-295
Murdock v. Pennsylvania and Notes, pp. 295-296
Balkin, Some Realism about Pluralism, Supp. pp. 152-180

18. Access to Government Property-- Nonpublic forums

Note and Adderly v. Florida, pp. 296-299
Greer v. Spock, pp.299-300
Heffron v. International Society for Krishna Consciousness and Notes, pp. 300-301
U.S. Postal Service v. Council of Greenburgh Civic Associations, p. 301
Lehman v. City of Shaker Heights and notes, pp. 316-322
City Council of Los Angeles v. Taxpayers for Vincent, p. 302
United States v. Kokinda and Notes, pp. 302-303
International Society for Krishna Consciousness v. Lee, pp. 303-306
Perry Educators' Association v. Perry Local Educator's Association and Notes, pp. 322-324
Cornelius v. NAACP Legal Defense & Educational Fund, pp. 324-325
United States v. Kokinda, pp. 325-326
Lambs Chapel v. Moriches Union Free School District, pp. 326-327
Rosenberger v. Rector and Visitors of University of Virginia and Notes, pp. 327-330
Good News Club v. Milford Central School, Supp., pp. 262-263
Arkansas Educational Television Commission v. Forbes, pp. 330-333

19. Speech on Private Property and Private Fora

Note on Private Forums, pp. 306-309
Amy Harmon, Worries about Big Brother at America Online, Supp., pp. 264-267
AOL Terms of Service, Supp., pp. 268-170

20. Compelled Affirmation of Belief

West Virginia Board of Education v. Barnette, p. 433-434
Wooley v. Maynard, pp. 434-435
Pruneyard Shopping Center v. Robins, pp. 435-436
Pacific Gas and Electric Co. v. Public Utilities Commission, p. 436-437
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, pp. 437-438
Elrod v. Burns, p. 438
Abood v. Detroit Board of Education and Notes, pp. 438-442
California Democratic Primary v. Jones, Supp., p. 271
Board of Regents of the University of Wisconsin System v. Southworth, Supp., pp. 272-273

21. Freedom of Association

NAACP v. Button and Notes, pp. 393-397
Roberts v. U.S. Jaycees and Notes, pp. 397-400
Boy Scouts of America v. Dale, and Notes Supp., pp. 191-196 [Additional pages of notes],
274-301
NAACP v. Alabama and Notes, pp. 442-444
Talley v. California, p. 444
McIntyre v. Ohio Elections Commission, pp. 444-445
Buckley v. Valeo and Notes, pp. 445-447
Shelton v. Tucker, pp. 447-448
Konigsberg v. State Bar and Notes, pp. 448-450
Cases and Notes on Legislative and Other Government Investigations, pp. 450-452
Gibson v. Florida Legislative Investigative Committee and Notes, pp. 452-455
Notes and Adler v. Board of Education, pp. 424-425
Elfbrandt v. Russell and Notes, pp. 425-428

22. Freedom of the Press

Notes and Branzburg v. Hayes, pp. 455-465
Pell v. Procunier and Notes, pp. 465-466
Houchins v. KQED and Notes, pp. 466-470
Richmond Newspapers v. Virginia, pp. 470-474
Globe Newspaper Co. v. Superior Court and Notes, pp. 474-476
North Jersey Media Group, Inc. v. Ashcroft, Supp., pp. 302-326
Notes and Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, pp. 476-481

Part IV-- The First Amendment in the Welfare State

23. Government Subsidies to Speech and Government Speech

Spieser v. Randall, p. 427
Regan v. Taxation with Representation and Notes, pp. 337-338
Rust v. Sullivan and Notes, pp. 338-344
Southeastern Promotions v. Conrad, pp. 333-335
NEA v. Finley, pp. 344-348
Post Subsidized Speech, Supp., pp. 327-333
Fiss, The Irony of Free Speech, Supp., pp. 334-345
Legal Services Corp. v. Velazquez and Notes, Supp., pp. 346-349

24. Broadcast Regulation: Traditional Debates

Miami Herald v. Tornillo and Notes, pp. 481-482
Red Lion v. FCC and Notes, pp. 482-492
Balkin, Populism and Progressivism as Constitutional Categories, Supp., pp. 350-379

25. Telecommunications Regulation: After Scarcity

Turner Broadcasting System v. FCC (Turner I) and Notes, pp. 493-496
Turner Broadcasting System v. FCC (Turner II), pp. 496-499
Opinion of Breyer, J, in Turner II, Supp., pp. 380-382
Denver Area Education Telecommunications Consortium v. FCC, pp. 236-240 (Review)
Reno v. ACLU, pp. 230-236 (Review)

26. Campaign Finance

Buckley v. Valeo and Notes, pp. 371-386
First National Bank of Boston v. Bellotti and Notes, pp. 386-388
Austin v. Michigan Chamber of Commerce and Notes, pp. 388-393
Nixon v. Shrink Missouri Government PAC, Supp., p. 383
Note on the Bipartisan Campaign Finance Reform Act of 2002, Supp., pp. 384-385
Republican Party of Minnesota v. White and Notes, Supp., pp. 386-387

27. Intellectual Property

Netanel, Locating Copyright Within the First Amendment Skein, Supp., pp. 388-413
Universal Studios v. Corley, Supp., pp. 414-441

28. Speech in Educational Institutions

Tinker v. Des Moines School District and Notes, pp. 403-406
Board of Education v. Pico, pp. 335-337
West Virginia Board of Education v. Barnette, pp. 433-434 (review)
Children's Internet Protection Act, Supp., p. 442
Mainstream Loudon v. Board of Trustees of the Loudon County Library, Supp., pp. 443-467
American Library Association v. United States, Supp., p. 468

29. Government Employment

Notes and U.S. Civil Service Commission v. National Association of Letter Carriers, pp. 408-413
United States v. National Treasury Employees Union, pp. 412-414
Pickering v. Board of Education and Notes, pp. 414-420
Elrod v. Burns and Notes, pp. 420-423
Branti v. Finkel, p. 423-424
Notes on Subversive Advocacy and Associations, pp. 424-428
Snepp v. United States and Notes, pp. 428-433

Part V-- Religious Liberty

30. The Establishment Clause-- School Prayer, Public Displays and De Facto Establishments

Everson v. Board of Education and Notes, pp. 507-517
Note on General Approaches to the Religion Clauses, pp. 517-520
Note on Defining Religion, pp. 520-523
Lemon v. Kurtzman, p. 525
Notes and Lee v. Wiseman, pp. 525-536
Santa Fe Independent School District v. Doe, Supp., p. 469
Waltz v. Tax Commission and Notes, p. 1557-1559
Lynch v. Donnelly and Notes, pp. 536- 543
County of Allegheny v. American Civil Liberties Union and Notes, pp. 544-545 (note in particular Justice O'Connor's test of reasonableness)
Capitol Square Review and Advisory Board v. Pinette, pp. 545-547
McGowan v. Maryland and Notes, pp. 547-550
Stone v. Graham, p. 551
Engel v. Vitale, p 551
School District of Abington Township v. Schempp. p. 551
Wallace v. Jaffree, pp. 551-552
Larson v. Valente and Notes, pp. 552-554
Epperson v. Arkansas, p. 554-555
Edwards v. Aguillard, pp. 555

31. Government Aid to Religious Institutions

Notes and Muller v. Allen, pp. 556-562
Agostini v. Felton and Notes, pp. 562-568
Witters v. Washington Department of Services for the Blind, p. 568
Zobrest v. Catalina Foothills School District, pp. 568-569
Rosenberger v. Rectors and Visitors of the University of Virginia, p. 569-570
Bowen v. Kendrick and Notes, pp 570-572
Mitchell v. Helms, Supp., pp. 470-480
Zelman v. Simmons-Harris, Supp., pp. 481-514

32. Permissible Accommodations of Religion

Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos and Notes, pp. 597-602
Texas Monthly v. Bullock and Notes, pp. 603-604
Board of Education of Kiryas Joel School District v. Grumet and Notes pp. 604-611
Good News Club v. Milford Central School, Supp., p. 262-263

33. The Free Exercise Clause

Note and Reynolds v. U.S. pp. 573-574
Braunfeld v. Brown, pp. 574-575
Sherbert v. Verner, pp. 575-576
Note on Defining Religion, pp. 520-523
Wisconsin v. Yoder and Notes, pp. 576-578
United States v. Lee, p. 578
Goldman v. Weinberger, pp. 579-579
O'Lone v. Estate of Shabazz, p. 580
Bowen v. Roy, p. 580
Lyng v. Northwest Indian Cemetery Protective Association, pp. 580-581
Employment Division v. Smith and Notes, pp. 581-591
Church of the Lukumi Babalu Aye v. City of Hialeah, pp. 591-592
Religious Freedom Restoration Act, and City of Boerne v. Flores, pp. 592-593
Notes on Religion as Expression, pp. 593-595

Prof. Jack M. Balkin

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