Balkin– First Amendment Spring 2024 Syllabus
The First Amendment
Spring Semester 2024
Note: Unless otherwise noted, all references to page numbers refer to Stone, Seidman, Sunstein, Tushnet and Karlan, The First Amendment (6th ed. 2020). Shorter cases collected in the 2024 Supplement are noted as “2024 Supplement” and are available on Canvas. Other materials are available on Canvas or are directly linked to.
Part I– Religious Liberty
1. The Text of the First Amendment; Introduction to the Religion Clauses (01/16/2024)
- The First Amendment, p. xxxvi
- Everson v. Board of Education and Notes, pp. 523-526
- Note on history of the Religion Clauses, pp. 526-533
- Note on general approaches to the Religion Clauses, pp. 533-540
- Note on Defining Religion, pp. 540-544
- Note on Lemon v. Kurtzman, p. 545-546
- Notes and Lee v. Wiseman, pp. 546-559
2. State-Sponsored Prayer, Public Displays and De Facto Establishments (01/22/2024)
- Lynch v. Donnelly and Notes, pp. 559-563
- American Legion v. American Humanist Association and Notes, pp. 563-578 (note Town of Greece v. Galloway, pp. 575-577)
- Kennedy v Bremerton School District (on Canvas)
- Trump v. Hawaii and notes, pp. 578-586
- Note on problems with a purpose test, pp. 586-592
- Epperson v. Arkansas and Edwards v. Aguillard, pp. 592-593
- Lee, Kitzmiller v. Dover Area School District: Teaching Intelligent Design in Public Schools (also on Canvas)
3. The Free Exercise Clause (01/23/2024)
- Note and Reynolds v. U.S., pp. 617-618
- Braunfeld v. Brown, pp. 618-619
- Sherbert v. Verner, pp. 619-620
- Wisconsin v. Yoder, pp. 620-622
- Cases on mandatory accommodation, pp. 622-625
- Employment Division v. Smith and Notes, pp. 626-634
- Note on Required Accomodation, pp. 634-637
- Masterpiece Cakeshop Limited v. Colorado Civil Rights Commission, pp. 637-640
- Fulton v. City of Philadelphia and notes (on Canvas)
4. Government Aid to Religious Institutions (01/29/2024)
- Notes and Muller v. Allen, pp. 593-600
- Note on cases from Aguillar to Mitchell, pp. 600-606
- Zelman v. Simmons-Harris and Notes, pp. 606-609
- Note on Purpose and Effect in Aid to Nonpublic Education, pp. 609-615 (note Locke v. Davey, p. 609-610, and Trinity Lutheran Church v. Conner, 610-611)
- Espinoza v. Montana and Carson v. Makin, 2024 Supplement (on Canvas)
5. Permissible Accommodations of Religion (01/30/2024)
- Note and Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, pp. 641-647
- Texas Monthly v. Bullock and Notes, pp. 647-648
- Board of Education of Kiryas Joel School District v. Grumet and Notes pp. 648-651
- Notes on accommodation of religion, pp. 651-655 (note RFRA and RLUIPA, note 6, pp. 654-55)
- Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, pp. 655-656
- Note on Free Exercise, Free Speech, and the Right of Expressive Association, pp. 656-661
Part II– Freedom of Speech– Content Regulation
6. Introduction to Freedom of Speech; Seditious Advocacy (Friday, 02/02/2024, at 2:10pm)
A. Theories of Freedom of Expression
-
Brandenburg v. Ohio and Notes, pp. 57-60
- Notes on the history of the first amendment, pp. 3-8
- Notes on the philosophy of free expression, pp. 9-16
- Abrams v. United States and Notes, pp. 29-35
- Gitlow v. New York and Notes, pp. 35-39
- Whitney v. California and Notes, pp. 40-46
- Dennis v. United States and Notes, pp. 46-57
Additional Reading
7. The Reach of Brandenburg; Vagueness and Overbreadth (02/05/2024, at 4:10pm in Room 124)
- Note on the Brandenburg formulation, pp. 60-64
- Holder v. Humanitarian Law Project, pp. 64-66
- Notes and Gooding v. Wilson, pp. 109-112
- Note on Overbreadth, pp.112-115
- United States v. Hansen, 2024 Supplement (on Canvas)
- Note on Vagueness, pp. 115-116
8. Prior Restraint; Disclosure of Classified, Sensitive, and Dangerous Information (02/06/2024)
- Note on Prior Restraint, p. 116-117
- Lovell v. Griffin and Notes, pp. 117-122
- Near v. Minnesota and Notes, pp. 122-124
- Note on injunctions as prior restraints, pp. 124-127
- New York Times Co. v. United States and Notes, pp. 93-100
- Nebraska Press Association v. Stuart and Notes, p. 154
- United States v. Trump (on Canvas)
- Landmark Communications, Inc. v. Virginia and Notes, pp. 154
- Note on The Pentagon Papers Controversy, pp 100-108 (note Snepp v. United States, p. 103-104)
- Bartnicki v. Vopper, pp. 291-292
Optional Reading
- Balkin, Old School/New School Speech Regulation
- Boehner v. McDermott
- United States v. Rosen
- Statement of Abbe Lowell before House Judiciary Hearing on Wikileaks (On Canvas)
- Statement of Geoffrey R. Stone before House Judiciary Hearing on Wikileaks (On Canvas)
9. Fighting Words and Threats (02/12/2024)
A. Fighting Words and the Hostile Audience
- Chaplinsky v. New Hampshire and Notes, pp. 82-84
- Notes on Fighting Words, pp. 81-84
- Terminello v. Chicago, pp. 72-73
- Cantwell v. Connecticut and Notes, pp. 73-74
- Feiner v. New York and Notes, pp. 74-77
- Note on Mechanisms of Control, pp. 77-82
- Note on Fighting Words, pp. 84-88
- Note on the Skokie Controversy, pp. 88-90
- Snyder v. Phelps, pp. 90-93
B. Threats
- Note and Bridges v. California, pp. 162-163
- Watts v. United States, p. 163-64
- Planned Parenthood v. ACLA, pp. 164-166
- Elonis v. United States, pp. 166-167
- Counterman v. Colorado, 2024 Supplement (on Canvas)
10. Defamation (02/13/2024)
A. Defamation
- Note on “Low Value Speech”, pp. 129-130
- New York Times v. Sullivan and Notes, pp. 130-140
- Curtis Publishing Co. v. Butts and Notes, pp. 140-141
- Gertz v. Robert Welch and Notes, pp. 141-143
- Note on public and private figures, public and private speech, pp. 144-145
- Dun and Bradstreet v. Greenmoss Builders and Notes, p. 146
B. Intermediary Liability and Intermediary Immunity
- Internet Service Provider Liability Exception 47 USC section 230
- Republication in the Internet Age
- Cases and Materials on Section 230 (on Canvas)
11. False Speech and Propaganda (Friday, 02/16/2024, at 2:10pm)
A. Intentional Infliction of Emotional Distress
- Hustler Magazine v. Falwell and Notes, pp. 152-153
- Snyder v. Phelps, pp. 90-93
B. False Speech and Propaganda
- Note on other false statements of fact, pp. 146-148
- United States v. Alavarez, pp 148-151
Optional Reading
12. Pornography and Obscenity (02/19/2024)
A. Obscenity and Pornography
- Note on Obscenity, pp. 189-190
- Roth v. United States and Notes, pp. 190-200
- Miller v. California, pp. 200-203
- Paris Adult Theatre I v. Slaton and Notes, pp. 203-211
- Note on Pornography and the Victimization of Women, pp. 279-282
B. Child Pornography
- New York v. Ferber and Notes, pp. 211-213
- Ashcroft v. Free Speech Coallition, pp. 213-217
- Note on Child Pornography, p. 217-218
13. Offensive and Indecent Speech I (02/20/2024)
A. Captive Audiences
- Cohen v. California and Notes, pp. 226-234
- Erznoznick v. City of Jacksonville, pp. 234-235
B. Protection of Children
- FCC v. Pacifica Foundation and Notes, pp. 235-237
- Note on Fleeting Expletives, pp. 237-38
- Iancu v. Brunetti, pp. 239-240
- Sable Communications v. FCC and Notes, pp. 240
- Action for Children’s Television v. FCC (ACT III)
- Reno v. ACLU, pp. 240-241
- Ashcroft v. ACLU, pp. 241-244
- Note on Indecent Expression, pp. 244-248
14. Offensive and Indecent Speech II (02/26/2024)
A. Cruelty to Animals
-
United States v. Stevens, pp. 218-222
B. Violence
- Brown v. Entertainment Merchants Association, pp. 222-226
C. Secondary Effects and Zoning of Sexually Explicit Expression
- Note on Zoning Theaters with Adult Movies and Bars with Nude Dancing, pp. 248-253
15. Racist Speech and Harassment (02/27/2024)
- Beauharnais v. Illinois and Notes, pp. 253-255
- Note on Group Defamation and Hate Speech, pp. 256-262
- Note on the Skokie Controversy, pp. 88-90
- R.A.V. v. St. Paul, pp. 262-267
- Wisconsin v. Mitchell and Notes, pp. 267-270
- Virginia v. Black and Notes, pp. 270-279
- Note on Pornography and the Victimization of Women, pp. 279-282
- Note on Low Value Speech, pp. 282-284
Optional Reading
16. What is Speech? (03/04/2024)
- Notes and United States v. O’Brien, pp. 376-388
- Note on flag desecration and misuse, pp. 388-394
- Barnes v. Glen Theatre, pp. 394-398
- City of Erie v. Pap’s A.M., pp. 398-399
- Note on other forms of symbolic speech, pp. 399-401
- Village of Schaumberg v. Citizens For A Better Environment (on Canvas)
- Universal Studios v. Corley (2d Cir.) (also on Canvas)
- Defense Distributed v. Department of State (5th Cir.) (on Canvas)
17. Commercial Speech (03/05/2024)
- Virginia State Board of Pharmacy v. Virginia Citizens Council, pp. 167-175
- Note on Virginia Pharmacy and “the Free Flow of Commercial Information,” pp. 175-179
- Central Hudson Gas v. Public Service Commission of New York, pp. 179-180
- Note on Truthful, Nondeceptive Commercial Advertising, pp. 180-185
- Note on Other Regulations of Commercial Advertising, pp. 185-189
- Robert C. Post, Compelled Commercial Speech
- Note on United States v. Caronia (on Canvas)
- Note on American Meat Institute v. USDA (on Canvas)
Optional Reading
- Claudia Haupt, The Limits of Professional Speech (also on Canvas)
18. Privacy (03/11/2024)
- Cox Broadcasting v. Cohn and Notes, pp. 154-157
- Note on invasion of privacy and the first amendment, pp. 157-162
- Jeffrey Toobin, Gawker’s Demise
- Bartnicki v. Vopper, pp. 291-292
- Cohen v. Cowles Media Co., p. 489
- Sorrell v. IMS Health, Inc., pp. 184
- Clearview AI settles suit and agrees to limit sales of facial recognition database, NY Times
- ACLU, Clearview’s Dangerous Misreading of the First Amendment Could Spell the End of Privacy Laws
- Balkin, Information Fiduciaries and the First Amendment (on Canvas)
-
Minnesota v. Casillas (on Canvas)
Optional Reading
-
Citron and Franks, Criminalizing Revenge Porn (on Canvas)
- Margot Kaminski, Privacy and the Right to Record
- Richards, The Dangers of Surveillance
Part III– Regulation of Time, Place, and Manner
19. Time, Place and Manner Regulation (03/12/2024)
A. Content Neutral Regulation
- Notes and Schneider v. State, p. 286
- Martin v. City of Struthers, p. 287
- Kovacs v. Cooper, p. 288
- Metromedia, Inc. v. San Diego and Notes, pp. 289-290
- City of Ladue v. Gilleo, pp. 290-291
- Bartnicki v. Vopper, pp. 291-292
- Note on The Search for Principles, pp. 292-294
- Note on the meaning of content neutrality, pp. 294-298
- C. Edwin Baker, The Independent Significance of the Press Clause (on Canvas)
- Reed v. Town of Gilbert, Barr v. American Association of Political Consultants, and City of Austin, Texas v. Reagan National Advertising of Austin, 2024 Supplement (on Canvas)
B. The Public Forum
- Note and Commonwealth v. Davis, pp. 298-299
- Hague v. CIO and Notes, pp. 300-301
- Schneider v. State and Notes, pp. 301-302
- Notes on regulating the public forum, pp. 302-308
- Note on devices for regulating the public forum, pp. 308-311
20. Public, Limited, and Non-Public Forums (03/25/2024)
A. Limited Public Forums and Non-Public Forums
- Adderley v. Florida and Notes, pp. 311-318
- International Society for Krishna Consciousness v. Lee, and Notes pp. 318-320
- Note on modern public forum doctrine, pp. 321-322
- Note on the right to a private forum, pp. 321-324
- Police Department of Chicago v. Mosley and Notes, pp. 324-329
- Lehman v. City of Shaker Heights and Notes, pp. 330-336
- Perry Educators’ Association v. Perry Local Educator’s Association and Notes, pp. 337-338
- Note on quintessential, designated, and non-public forums, pp. 338-343
- Note on religious expression and the meaning of “viewpoint neutrality”, pp. 343-347
- Christian Legal Society v. Martinez, pp. 347-351
- Lyrissa Lidsky, Government Sponsored Social Media (on Canvas)
Part IV– The First Amendment in the Regulatory and Welfare State
21. Government Speech and Government Subsidies to Speech (03/26/2024)
- Note and Southeastern Promotions v. Conrad, pp. 352-355
- Board of Education v. Pico and Notes, pp. 355-357
- Regan v. Taxation with Representation and Notes, pp. 357-359
- NEA v. Finley, pp. 359-362
- Rust v. Sullivan and Notes, pp. 362-367
- Legal Services Corporation v. Velazquez, pp. 367-368
- Agency for International Development v. Alliance for Open Society International, pp. 368-371
- Agency for International Development v. Alliance for Open Society International II (AOSI II) (on Canvas)
- Note on the reach of government speech: Summum, Walker, and Matal, pp. 371-376
- Jack Daniel’s Properties v. VIP Products, 2024 Supplement (on Canvas)
- Shurtleff v. Boston, 2024 Supplement (on Canvas)
- Lindke v. Freed (on Canvas)
22. Freedom of Association and Compelled Affirmation of Belief (04/01/2024)
A. Associational Formation
- NAACP v. Button and Notes, pp. 402-403
- Note on Litigation and the First Amendment, pp. 403-404
- NAACP v. Alabama and Notes, pp. 404-405
- Talley v. California (discussion note 3), p. 310-311
- Roberts v. U.S. Jaycees and Notes, pp. 405-406
- Note on Association and the First Amendment, pp. 407-408
- Boy Scouts of America v. Dale, and Notes, pp. 408-412
- Talley v. California and McIntyre v. Ohio Elections Commission, p. 310
- Americans for Prosperity Foundation v Bonta, 2024 Supplement (on Canvas)
B. Compelled Affirmation of Belief
- Pruneyard Shopping Center v. Robins, p. 412-413
- Note on Compelled Affirmation of Belief, pp. 413-421
- 303 Creative LLC v. Elenis (on Canvas)
23. Goverment Employment, Speech in Schools (04/02/2024)
A. Government Employment
- Note on Regulating the Political Activities of Public Employees, pp. 473-477
- Note on Abridgment of Speech Other Than by Direct Criminal Prohibition (including regulation of speech and association by government employees), pp. 66-72
- Materials on Government Employee Free Speech Protections (on Canvas)
- Houston Community College System v Wilson, 2024 Supplement (on Canvas)
- Kennedy v Bremerton School District (on Canvas) (note the discussion of government employee speech)
B. Speech in Schools
- Tinker v. Des Moines School District and Morse v. Frederick, pp. 71
- Mahanoy Area School District v. B.L., 2024 Supplement (on Canvas)
- Board of Education v. Pico and Notes, pp. 355-357
- Note on School Book Bans, 2024 Supplement (on Canvas)
24. Campaign Finance (04/15/2024)
- Buckley v. Valeo and Notes, pp. 421-434
- Note on subsidy and disclosure, pp. 434-437
- Note: Campaign Finance Regulation in the Thirty Years After Buckley, pp. 437-441
- McConnell v. FEC (soft money issues), pp 441-444
- Note: Campaign Finance and the Roberts Court, pp. 444-448
- Citizens United v. Federal Election Commission, pp. 449-463
- McCutcheon v. Federal Election Commission, pp. 463-467
- Commentary on the Campaign Finance Cases, pp. 467-471
- Note on Additional Regulation of the Political Process, pp. 471-473
- Bluman v. FEC (on Canvas)
- Federal Elections Commission v. Ted Cruz for Senate, 2024 Supplement (on Canvas)
25. Freedom of the Press; Telecommunications Regulation (04/16/2024)
A. Freedom of the Press
- Note on the Status of the Press, pp. 481-483
- Branzburg v. Hayes and Notes, pp. 483-490
- Note: A Press Right of Access to Information, pp. 490-492
- Richmond Newspapers v. Virginia, pp. 492-494
- Globe Newspaper Co. v. Superior Court, pp. 494-495
- Note on Variations on the Press Right of Access, pp. 495-496
- Note and Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, pp. 496-498
- Note on Differential Treatment, pp. 498-500
B. Telecommunications Regulation
- Miami Herald v. Tornillo and Notes, pp. 501-502
- Red Lion v. FCC and Notes, pp. 502-504
- Note on Regulating the Airwaves, pp. 505-507
- Turner Broadcasting System v. FCC (Turner I) and Notes, pp. 507-511
26. Internet Regulation (04/22/2024)
A. Telecommunications Regulation and the Internet
- United States Telecom Association v. FCC
- Netchoice v. Paxton (read Florida, Texas, NetChoice, and United States’ briefs) (on Canvas)
- Enrique Armijo & Derek Bambauer, Murthy v. Missouri, Government Jawboning, and Our Collective Disinformation Problem
- Notes on The First Amendment in Cyberspace, pp. 511-518
B. Optional Readings on Platform Regulation
- Balkin, Free Speech is a Triangle
- Balkin, To Reform Social Media, Reform Informational Capitalism
- United States Telecom Association v. FCC (denial of rehearing en banc)(read Part II of Kavanaugh dissent on First Amendment issues)
- Murthy v. Missouri (read Electronic Frontier Foundation and United States’s briefs)(on Canvas)