Freedom of Expression in the United States
KHC LW 103 Semester Fall 2016 Instructor name : Professor Pnina Lahav Office hours Office location : BU Law School, 765 Commonwealth Ave, Boston Ma 02445. Office no. 1601. Course Description This seminar will take a multi-layered approach to the concept of freedom of expression
embedded in the first amendment to the US constitution. The first amendment states that
“Congress Shall Make No Law Abridging the Freedom of Speech or of the Press”. What does it
mean? We shall explore the theories underlying the principle that speech should be protected and
the various Supreme Court cases that address this issue. We shall discuss whether the first
amendment applies only to the federal government or also to the states, whether it addresses only
political speech or may be extended to such subjects as artistic expression, obscenity, defamation
or racist speech and whether it may be extended to certain activities such as flag burning. We
shall also address the question of how much protection the amendment, as interpreted by the
Court, extends to the press.
Course Objectives Upon completion of this course you should be able to: 1. Understand the structure of the US constitution and the role of the first amendment within it 2. Understand the reasons why a liberal and democratic society believes in the value of freedom of speech 3. Be able to argue about any desired limitations on freedom of expression 4. Be able to read court opinions and apply some of the doctrines (rules and standards) they develop to resolve the controversies involving freedom of expression 5. Be able to evaluate the respective role of the three branches of the government (legislative, executive, judicial) in interpreting and applying the first amendment Required Texts 1. Excerpts from Supreme Court opinions 2. Excerpts from books and articles Attendance Attendance in class is required Academic Dishonesty http://www.bu.edu/academics/resources/academic-­‐conduct-­‐code/ Grading 
Assignment 1 : short paper 
Assignment 2 : short paper 
Assignment 3 : longer paper Course Outline & Readings Week 1.
Expression: what is it? What are its limits? What is the role of the US constitution in defining these issues? Date Readings:  2 hypotheticals will be presented  Excerpts from: Amar: the constitution: a biography  Copy of US constitution (to be provided)  Week 2.
The justifications of freedom of expression Date Readings: Foundational Cases: Schenk v. US; Abrams v. Us; Whitney v. California  Mill, On Liberty (excerpts); Pericles’ Funeral Oration; Emerson: Towards a General Theory of the First Amendment; Excerpts from Meikeljohn, Political Freedom Week 3.
The emerging doctrine (legal rules and standards): clear and present danger, incitement and beyond Date Readings:  Same foundational cases, the Masses case, Brandenburg v. Ohio Week 4.
The Cold War, McCarthyism, the Warren Court Date Readings: 2 
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Dennis v. Us; Scales v. US; Yates v. US Documentaries about the McCarthy years and the phenomenon of McCarthyism Week 5.
Symbolic speech: flag salute, flag burning, patriotism and dissent Date Readings:  Minersville School Dist. V. Gobitis; West Virginia v. Barnette; O’Brien v. US; Texas v. Johnson; US v. Eichmann  Congressional efforts to pass a constitutional amendment protecting the flag Week 6.
Censorship (prior restraint) and the criminal law (subsequent punishment) Date Readings:  Blackstone: the doctrine against prior restraint; excerpts, Levy, Legacy of suppression; excerpts, Levy, The emergence of a Free Press; The Pentagon Papers case.  Film, The Most dangerous man in America Week 7.
Leaks, bulk leak, government and the free press Date Readings:  Stewart, Or of the Press; Sterling v. US; The Manning affair; The Snowden Affair  Film: Fair Game; Film: Citizenfour Week 8.
Expression that provokes a hostile audience, the heckler’s veto Date Readings:  Feiner v. New York; National Socialist Party v. Skokie Shakespeare, Mark Anthony’s funeral oration for Julius Caesar; http://www.youtube.com/watch?v=RJHDZc45xow
The text of the entire scene (Julius Caesar, Act 1, scene 2) can be found
here: http://shakespeare.mit.edu/julius_caesar/julius_caesar.3.2.html
 Week 9.
Readings: Hate Speech, Racist speech, Political correctness Date 3 
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Beauharnais v. Illinois; RAV v. St Paul; Prophet Muhammed Cartoon controversy: the comparative dimension Week 10.
Defamation Date Readings:  New York Times v. Sullivan; Gertz v. Welsh  Excerpts, Anthony Lewis, Make No Law Week 11.
Obscenity: sex and violence Date Readings:  Miller v. California; New York v. Ferber; Brown v. Entertainment Merchants Assn  Excerpts, Stone, Sex, Violence and the First Amendment, 74 U Chi L Rev 1857 (2007) Week 12.
Pornography and the status of women Date Readings:  American Booksellers v. Hudnut ; Canadian case: R. v. Butler  Excerpts, MacKinnon, Not a moral issue: 2 Yale Law and Pol’cy review,321 (1984) ; excerpts, Kagan, regulation of hate speech and pornography, 60 U.Chi.L Review 873 (1993) Week 13.
The high school context: should expression be regulated? What should be the limits? Date Readings:  Tinker v. Des Moines; Bethel School district v. Fraser; Hazelwood School Dist v. Kuhlmeier; Morse v. Frederick  Cohen v. California; Briefs Amici submitted to the S CT in Morse. Week 14.
The Right to demonstrate: the public forum doctrine Date Readings:  Hague v. CIO; Schneider v. State; Snyder v. Phelps  A comparative assessment: two states’ ordinances regulating public gatherings;  Devices for regulation: licensing; fees. 4 Week 15.
Review Date 5