PO 502

Civil Liberties and the Constitution

Summer 2000

Instructor: Steven Brown

Office: 7006 Haley (844-6154)

Email: brown32@mail.auburn.edu

Office Hours: Tues, Thus 1-3 and

by appointment
 

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Amendment I


 


The course examines the constitutional protections offered by the First Amendment. Using Supreme Court decisions as a basis for discussion, we will consider in detail the evolving interpretations of First Amendment civil liberties. To what types of speech has the Supreme Court accorded constitutional protection? May the press be constitutionally subject to restrictions? Are Americans free to discriminate against others in their associative relationships? Does the Constitution protect one’s free exercise of religion or does it insist upon a clear break between the sacred and the secular? These and other questions will inform our discussion of the Court, the Constitution, and civil liberties throughout this quarter.
 
 

REQUIREMENTS

All students are required to:

(1) attend each class prepared to discuss the assigned reading. Attendance (no more than three unexcused absences) and participation constitute 10% of your final grade.

(2) write a paper for and participate in a moot court case currently pending before the Supreme Court of the United States. (Further details will be provided in the next few weeks). The moot court paper (20%) and participation (10%) will count for 30% of your final grade.

(3) take a midterm and final examination. These exams will test your understanding of First Amendment case law and each counts for 30% of your final grade.
 
 

REQUIRED TEXTS:

O’ Brien, David M. Constitutional Law and Politics, Volume Two: Civil Rights and Liberties, 4th Edition. New York: W.W. Norton & Company, 2000.

O’Brien, David M. Supreme Court Watch -- 1999. New York: W.W. Norton & Company, 2000.

U.S. Constitution, Pocket Edition
 
 

COURSE SCHEDULE:

I. CONSTITUTIONAL INTERPRETATION AND THE FIRST AMENDMENT

WEEK 1

Introduction; Establishing and Review Contesting the Power of Judicial Review; Theories of Constitutional Interpretation; Substantive Due Process and Constitutional Double Standards; Theories of Incorporation

READ: The Constitution of the United States with attention to the First Amendment of the Bill of Rights

Cases: Marbury v. Madison (1803) pp. 46-56; Barron v. Baltimore (1833) pp. 313-315; Hurtado v. California (1884) pp. 315-319; Palko v. Connecticut (1937) pp. 319-323; Adamson v. California (1947) pp. 323-328; Rochin v. California (1952) pp. 328-333; Griswold v. Connecticut (1965) pp. 333-342 WEEK 2

Historical Background of and Judicial Approaches to the First Amendment

READ: Schenck v. U.S. (1919) pp. 389-391; Gitlow v. New York (1925) pp. 391-396; Dennis v. U.S. (1951) pp. 396-408; Brandenburg v. Ohio (1969) pp. 408-411
  II. BALANCING DEFINITIONS: CONSTITUTIONALLY PROTECTED "SPEECH"

WEEK 2 (cont.)

Obscenity and Pornography

READ In CL&P: Roth v. U.S. (1957) pp. 429-433; Stanley v. Georgia (1969) pp. 433-435; Miller v. California (1973) pp. 435-440; Paris Adult Theatre v. Slaton (1973) pp. 440-447; New York v. Ferber (1982) pp. 447-4450; Barnes v. Glen Theatre (1991) pp. 451-455; Erie, PA v. Paps, A.M. (2000) FIND ONLINE OR IN STACKS; National Endowment for the Arts v. Finley (1998) pp. 463-472 WEEK 3

Fighting Words and Offensive Speech; Libel; Commercial Speech

READ: In CL&P: Cohen v. California (1971) pp. 478-482; FCC v. Pacifica Foundation (1978) pp. 483-489; Bethel School District v. Fraser (1986) pp. 489-494; R.A.V. v. City of St. Paul (1992) pp. 494-503; Wisconsin v. Mitchell (1993) pp. 503-505; Board of Regents of the University of Wisconsin v. Southworth (2000), FIND ONLINE OR IN STACKS; New York Times v. Sullivan (1964) pp. 516-522; Gertz v. Robert Welch (1974) pp. 523-529; Masson v. The New Yorker Magazine (1991) pp. 529-532; Cox v. Cohen (1975) pp. 533-535; Bigelow v. Virginia (1975) pp. 543-547; 44 Liquormart, Inc. v. Rhode Island (1996) pp. 547-556 July 3-4 Fourth of July Holiday – No Class

WEEKS 4 and 5

Symbolic Speech, Speech-Plus Conduct; Speech and Technology

READ: In CL&P: West Virginia State Board of Education v. Barnette (1943) pp. 616-626; Tinker v. Des Moines Independent School District (1969) pp. 627-629; Texas v. Johnson (1989) pp. 629-636; Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995); Madsen v. Women’s Health Center (1994) FIND ONLINE OR IN STACKS; Hill v. Colorado (2000) FIND ONLINE OR IN STACKS; Denver Area Educational Telecommunications Consortium, Inc. v. FCC (1996) pp. 597-604; Reno v. ACLU (1997) pp. 455-463; U.S. v. Playboy Entertainment Group (2000) FIND ONLINE OR IN STACKS
 
 

July 14 - MIDTERM (covers ALL cases assigned up to this point)
 
 

III. FREEDOM OF THE PRESS

Week 6

No Prior Restraint; Indirect Prior Restraint; Free Press and Due Process

READ: In CL&P: Near v. Minnesota (1930) pp. 561-564 New York Times Co. v. U.S. (1971) pp. 565-573; Alexander v. U.S. (1993) pp. 573-576; Branzburg v. Hayes (1972) pp.579-585; Houchins v. KQED (1978) pp. 585-589; Globe Newspapers Co. v. Superior Court of the County of Norfolk (1982) pp. 609-612; Hazlewood School District v. Kuhlmeier (1988) FIND ONLINE OR IN STACKS
  IV. THE ESTABLISHMENT OF RELIGION

Week 7

Freedom of and From Religion

READ: In CL&P: Everson v. Board of Education (1947) pp. 680-686; Engle v. Vitale (1962) pp. 687-692; School District of Abington Township v. Schempp (1963) pp. 692-697; Lemon v. Kurtzman (1971) pp. 697-705 Wallace v. Jaffree (1985) pp. 705-715; Lee v. Weisman (1992) pp. 715-721; Zobrest v. Catalina Foothills School District (1993) pp. 722-725; Board of Education of Kiryas Joel Village School District v. Grumet (1994) pp. 725-736; Rosenberger v. Rector and Visitors of the University of Virginia (1995) pp. 736-750 Agostini v. Felton (1997) pp. 750-759; Mitchell v. Helms (2000) FIND ONLINE OR IN STACKS; Santa Fe Independent School District v. Doe (2000), FIND ONLINE OR IN STACKS
  Week of July 31-August 4 MOOT COURT (exact date to be determined later)
 
 

V. THE FREE EXERCISE OF RELIGION

Week 8

Free Exercise of Religion

READ: In CL&P: Sherbert v. Verner (1963) pp. 766-774; Wisconsin v. Yoder (1972) pp. 776-780; Oregon v. Smith (1990) pp. 780-789; Church of Lukumi Babalu Aye v. Hialeah (1993) pp. 789-797; City of Boerne v. Flores (1997) pp. 797-808 VI. FREEDOM OF ASSOCIATION AND THE FIRST AMENDMENT IN REVIEW

WEEK 9

Freedom of Association

READ: In CL&P: NAACP v. Alabama (1958) pp. 649-652; Roberts v. U.S. Jaycees (1984) pp. 652-654; Boy Scouts of America v. Dale (2000) FIND ONLINE OR IN STACKS

August 10

Final Exam (covers ALL cases since the midterm)

11 am - 1:30 pm
 
 

Online sources for research:

http://www.findlaw.com

Good site overall. Provides complete access to Supreme Court cases as well as good but not complete access to lower federal court decisions.

http://oyez.nwu.edu/cases/cases.cgi

Oyez Project out of Northwestern University. Offers access to decisions, historical data, etc. related to the Supreme Court

http://www.usscplus.com

Emphasis on Supreme Court decisions

http://supct.law.cornell.edu/supct

Cornell’s Legal Information Institute lists historic decisions of the Court and has links to oral argument sites. Good overall site but
comprehensive only back to 1990 as far as Supreme Court decisions are concerned.

http://www.fedworld.gov

Government site for court decisions and other legal information.

http://www.law.vill.edu

Villanova University School of Law site. Provides access to many different legal resources.

http://jurist.law.pitt.edu

JURIST home page. Provides access to Supreme Court decisions, law reviews, and many other different sources of legal information.
 

REMEMBER -- Auburn’s library also provides access to WESTLAW -- the electronic database that puts every possible source of legal information at your disposal. Talk to the librarians on the third floor to get you started. It is not particularly intuitive but once you have been on WESTLAW for a few hours, it becomes extremely easy to use.