Balkin– First Amendment Spring 2022 Syllabus

The First Amendment

Spring Semester 2022

Note: Unless otherwise noted, all references to page numbers refer to Stone, Seidman, Sunstein, Tushnet and Karlan, The First Amendment (6th ed. 2020).

Part I– Religious Liberty

1. The Text of the First Amendment; Introduction to the Religion Clauses (01/24/2022)

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 (01/25/2022)

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)
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 (01/31/2022)

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 (02/01/2022)

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 Department of Revenue

5. Permissible Accommodations of Religion (02/07/2022)

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
Robin Wilson, Summary of the Utah Compromise

Part II– Freedom of Speech– Content Regulation

6. Introduction to Freedom of Speech; Seditious Advocacy (02/08/2022)

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
Note on the Brandenburg formulation, pp. 60-64

Additional Reading

Balkin, Cultural Democracy and the First Amendment

7. Seditious Advocacy and Terrorism (02/14/2022)

Holder v. Humanitarian Law Project, pp. 64-66
Note on Abridgement of Speech Other Than by Direct Criminal Prohibition, pp. 66-72
First Amendment Legal Scholars Brief in Swalwell v. Trump (also on Canvas)
Kathleen Ann Ruane, Congressional Research Service, The Advocacy of Terrorism on the Internet
Marty Lederman, The Begolly Indictment and the First Amendment
Benjamin Wittes, David Cole and Peter Margulies: An Exchange on Tarek Mehanna
Benjamin Wittes and Zoe Bedell, Tweeting Terrorists, Part I, Part II, and Part III
Matthew Weybracht, Free Speech in an Era of Self-Radicalization
18 USC Section 231
18 USC Section 2339A
18 USC Section 2339B

8. Vagueness, Overbreadth, and Prior Restraint (02/15/2022)

Notes and Gooding v. Wilson, pp. 109-112
Note on Overbreadth, pp.112-115
Note on Vagueness, pp. 115-116
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

Additional Reading

Balkin, Old School/New School Speech Regulation

9. Disclosure of Classified, Sensitive, and Dangerous Information; Fighting Words and Threats (02/21/2022)

A. Classified, Sensitive, and Dangerous Information

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
Boehner v. McDermott
United States v. Rosen
Jack Goldsmith, Seven Thoughts on Wikileaks
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)
18 USC Section 798

B. 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

C. 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

10 and 11. Defamation and False Speech (02/22/2022, 02/28/2022)

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 Notes on Section 230 (on Canvas)

C. False Speech and Propaganda

Note on other false statements of fact, pp. 146-148
United States v. Alavarez, pp 148-151
Cass Sunstein, Falsehoods and the First Amendment
Citron and Chesney, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security

D. Intentional Infliction of Emotional Distress

Hustler Magazine v. Falwell and Notes, pp. 152-153
Snyder v. Phelps, pp. 90-93

12. Pornography and Obscenity (03/01/2022)

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

C. Cruelty to Animals

United States v. Stevens, pp. 218-222

13 and 14. Offensive and Indecent Speech (03/07/2022, 03/08/2022)

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

C. Violence

Brown v. Entertainment Merchants Association, pp. 222-226

D. 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 (03/14/2022)

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

Additional Reading

16. What is Speech? (03/15/2022)

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 (03/28/2022)

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
Note on United States v. Caronia (also on Canvas)
Note on American Meat Institute v. USDA (also on Canvas)
Claudia Haupt, The Limits of Professional Speech (also on Canvas)

Additional Reading

18. Privacy (03/29/2022)

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
Balkin, Information Fiduciaries and the First Amendment
Citron and Franks, Criminalizing Revenge Porn
Minnesota v. Casillas

Additional Reading

Part III– Regulation of Time, Place, and Manner

19. Time, Place and Manner Regulation (04/04/2022)

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
Barr v American Association of Political Consultants, Inc. (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 (04/05/2022)

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
Reed v. Town of Gilbert, pp. 351-352
Lyrissa Lidsky, Government Sponsored Social Media

Part IV– The First Amendment in the Regulatory and Welfare State

21. Government Speech and Government Subsidies to Speech (04/11/2022)

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

22. Freedom of Association and Compelled Affirmation of Belief (04/12/2022)

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
Americans for Prosperity Foundation v Bonta (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)
Agency for International Development v. Alliance for Open Society International II (AOSI II) (on Canvas)

23. Goverment Employment, Speech in Schools (04/18/2022)

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)

B. Speech in Schools

Mahanoy Area School District v B L by and through Levy

24. Campaign Finance (04/19/2022)

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

25. Freedom of the Press; Telecommunications Regulation (04/25/2022)

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 (04/26/2022)

A. Telecommunications Regulation and the Internet

United States Telecom Association v. FCC
Notes on The First Amendment in Cyberspace, pp. 511-518
Manhattan Community Access Corporation v Halleck (on Canvas)

B. Platform Regulation