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Department of Politics

222. FOUNDATIONS OF THE FIRST AMENDMENT

November 2006

Dr. Robert W. Sutherland, Instructor

Reading assignments are subject to change, so the online syllabus is the only definitive version. Changes in reading assignments will not be made within 24 hours immediately preceding class meetings. For your convenience in printing, a PDF file link follows: Printer Friendly Please do not neglect to consult the online syllabus frequently for changes!!

HOW TO REACH THE INSTRUCTOR: My office is South 304; my extension is 4226. The best time to see me for a brief conversation is immediately before class in the Commons. Other times are available by appointment arranged before and after class or by e-mail. I rarely check my voice mail and often forward my calls to the South Hall Faculty Secretary, so a prompt response from me is best gained by e-mail.rsutherland@cornellcollege.edu

CLASS MEETINGS: 9:00 am daily in the Athens Room of the Common except on exam days when the class will meet at 9 am in the 2nd floor of the Library. See the schedule below.

TEXTS: J. S. Mill, On Liberty (on line edition); David Lowenthal, Present Dangers (Bookstore)

GRADES:

  • PAPER-30%
  • EXAMS & QUIZZES--70%, two midterms (15, 20%) and a final exam (25%) plus various unannounced quizzes (10%). Quizzes may not be made up, except for documented (e.g. trauma center registration) emergencies. Both the final exam and the final paper remain with me for future reference in revising and improving the course. They can be picked up at my office immediately after Politics 222 is offered again.
  • Portions of the Catalog on adding and dropping courses and portions of the Compass on dishonesty in academic work are incorporated here by reference. A discount of 5% per hour will be applied to the grades of late papers, except for documented emergencies. The grading scale for the course is A = 1750-2000, A- = 1650-1749, B+ = 1550-1649, B = 1450-1549, B- = 1350-1449, C+ = 1250-1349, C = 1150-1249, C- = 1050-1149, D+ = 950-1049, D = 850-949, D- = 750-849, F = 000-749. The number of points possible on any given exam or paper can be calculated by multiplying 20 points (A++) by the value (a percentage) of the exam or paper in determining the final grade. For letter grade equivalents, multiply the percentage times: 18 = A, 17 = A-, 16 = B+, 15 = B, 14 = B-, 13 = C+, 12 = C, 11 = C-, 10 = D+, 9 = D, 8 = D-.
  • Accomodating disabilities

ASSIGNMENTS--To be done before class on the day indicated:
Wk DAY TIME READING EXAM/PAPER
I
2
 9:00 Shenck v. U.S.; Brandenburg v. Ohio; On Liberty, Ch. 1  
3
 9:00 On Liberty, Ch. 2 + NYT article  
4
 9:00 On Liberty, Ch. 2-3 + links  
 
5
 9:00 On Liberty, Ch. 4 + links  
II
6
 9:00 On Liberty, Ch. 5 + WSJ article 1st Exam, Library Fl 2
 
7
 9:00 Present Dangers, pp. ix-xxxii, 3-44  
 
8
 9:00 Present Dangers, pp. 45-86  
 
9
 9:00 Present Dangers, pp. 89-137  
 
10
 9:00 Present Dangers, pp. 138-178  
III
11
 9:00 Come to 2nd Floor Library 2nd Exam
 
12
 9:00 Present Dangers, pp.181-233  
 
13
 9:00 Present Dangers, pp.234-270  
 
14
 9:00 Present Dangers, pp.271-283 + article  
 
15
 5:00 Optional Rough Draft of Final Paper Due Paper Copy Only  
IV
16
 9:00 Libel in Britain, Jameel v. WSJ  
 
17
 9:00 Come to 2nd FL Library Final Exam
 
18
 NOON Paper Copy Only Paper Due

FIRST AMENDMENT TEXT

"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."

STUDY GUIDE QUESTIONS & OUTLINES

Note: These questions are designed to help you get the most out of what you read. They should be largely ignored during your first reading of the assignment but carefully studied during a second reading in order to identify main ideas and to fix them securely in mind. Notes based on these questions may be used on quizzes but not on exams.

SCHENCK V.US:

  1. What is the indictment, including specific counts & the finding for each?
  2. What arguments and objections were made in behalf of the defendant?
  3. What conclusion does Holmes draw about the their intention and expected effect?
  4. Why weren't public figures that said the same things as the defendant similarly charged?
  5. What is the action of the Court?
BRANDENBURG V. OHIO:
  1. What is the indictment & the action of the lower court?
  2. What argument was made in behalf of the defendant?
  3. What principle or test does the Court invoke to decide the case?
  4. What conclusion and action follows?
  5. What is Douglas's caveat and by what means does he explain it?

ON LIBERTY

Chapter #1--

  1. What has been the progress of liberty up to Mill's day? (3 stages)
  2. What is the gravest threat to further progress; what question must be answered before the threat can be addressed?
  3. Why has so little additional progress been made? (4 reasons)
  4. In what sense is religion an exception?
  5. What answer does Mill give to the questions referred to in #2 above?
  6. What exceptions apply? What limitation?
  7. What three implications may be drawn from the answer?
  8. How urgent is the need for further progress?
Chapter #2--
  1. What are four objections to free speech for dissenters who are right in what they say and how does Mill reply to each?
  2. What are three objections to free speech for dissenters who are wrong? Mill's replies?
  3. Which relationship between right and wrong is most common in politics and what conclusion does Mill draw from its prevalence?
  4. What free-speech controversies have raged at Columbia Universiy; explain each briefly.
  5. What larger issue is posed by Mr. Lukianoff's complaint about Teachers College and its graduate program.
  6. Explain the "litmus test" charge. What is meant by "thought reform?" How have leaders and defenders of the Teachers College defended their position?
Chapter #3--
  1. What force stands opposed to individuality, what is Mill's criticism of it, and what objection does he anticipate?
  2. What is the utility of individuality to the one who has it?
  3. What two great benefits does individuality offer to those who don't have it?

Chapter #4--

  1. How does Mill respond to the charge that he promotes "selfish indifference?"
  2. What response is appropriate in the case of objectionable self-regarding actions?
  3. What objection does he anticipate to the distinction between self & other regarding actions?
  4. What two replies does Mill offer to it? What examples support the second?
  5. What is the mission and strategy of SAF and how is it related to the Academic Bill of Rights?
  6. What criticism does Professor Larkin offer to David Horowitz's efforts to advance his cause?

Chapter #5--
  1. What two maxims form the subject here?
  2. What limitations pertain to which?
  3. What issues lie on the boundary between them?
  4. What self-regarding actions are forbidden?
  5. What "misapplied notions (at least two) of liberty" does Mill address in this chapter?
  6. What three reasons does Mill give for restrictions on government interference?
  7. What incidents are the focus for Ms. Noonan's concern?
  8. What pattern does she find and why is she bothered by it?

Present Dangers

First Assignment, pp. ix-xxxii, 3-44

  1. What three questions form the "basis for the tripartite organization of this book?" p. xxiii
  2. What is the "internal coherence" of the 1st Amendment and how is it related to Locke's philosophy of government?
  3. How are "founders" distinguished from "framers"? Who is a "libertarian"?
  4. Why has the author put his discussion of religion and the 1st Amendment last rather than first and how is the shift related to recent events?
  5. What is the more general purpose of the book and why should it be read, even by those who disagree with some of the author's specific interpretations?
  6. What is the current understanding of the 1st Amendment's protection for revolutionary groups and why is it dangerous to freedom?
  7. What understanding preceded the current one and why is more likely to preserve freedom? Be specific about Blackstone as a source of such understanding and how it was reflected in the the constitutions of both the US and the states but also in the Alien and Sedition Acts of 1798? What was Hamilton's understanding of the "liberty of the press?" To what extent was it still recognized as late as 1917?
  8. What early sources provided a partial basis for the current understanding? What "constitutional revolution" led to the current understanding, who led it, when and how did it succeed?

Second Assignment, pp. 45-86

  1. Who is the "new founding father" and how faithful was he to either the basic principle of independence he asserts or to the Declaration of Independence? What expectations render his creation flawed from the beginning? Nedah & Nicholas
  2. How was the reinterpretation of the Constitution accomplished? What was the key concept and who were its promoters? Sarah & Joy
  3. Why is it fair to consider the results dangerous? What is the danger and how does Justice Jackson attempt to address it in Dennis? To what extent is it confirmed by Berns? Victor, Rebecca, & Kelly
  4. How does history and current events confirm their concerns? Lance
  5. What are the ten defects of the "clear and present danger" rule? Ben Sebers
  6. What does the author propose doing and why? Dylan

Third Assignment, pp. 89-137

  1. What is the "moral revolution," how long ago did it become a force, and what promotes it? Maggie
  2. How do Washington and Jefferson point the nation in a very different direction? Clint
  3. Against what background must the Supreme Court's consideration of obscenity be understood? Kate
  4. What cases apply, what standards do they offer, and how adequate are they in the face of the harm done by obscenity, especially in the mass media? John & Sid
  5. What role have D. H. Lawrence, the Kronhausens, and J. S. Mill played in preparing the way for the direction in which Justice Douglas would lead the Court and the nation? Chris

Fourth Assignment, pp. 138-178

  1. What advances in the Court's understanding of obscenity are reflected in the Paris Adult Theater and Miller cases and what were the practical effects? Brian
  2. To what extent does the author both agree and disagree with Justice Burger's principles in these cases and why is a renewal of judicial federalism an attractive prospect? Ben Johansen & Rachel
  3. What changes in the definition of obscenity does the author propose? Chris Farrer
  4. What impact on movies and television are projected by the author in the reregulation of obscenity? Trevor
  5. What kind of statutes would advance efforts to renew society and how might they be related to Milton's understanding of moral education? Emily
  6. What are the leading concerns of civil liberterians at the ACLU and in the Progressive? Robert & Laconnie

Fifth Assignment, pp. 181-233

  1. What is the "wall of separation" principle, what are its origins, and what extensions or applications of it did advocates of the principle on the Court wish to see?
  2. What was Jefferson's understanding of the relation between religion and public education and how does it differ from later efforts to advance other principles?
  3. What did the "establishment of religion" and "free exercise" clauses mean to the generation who first embraced the Constitution?
  4. What variety in uses of the term "religion" characterized our early decades and what singular conviction underlay such variety. Why is that conviction important for the debate between public and private morality?
  5. What recent opinions have undermined such a basic conviction?
  6. What is the "incorporation" controversy and why is it important for the establishment provision of the First Amendment?

Sixth Assignment, pp. 234-270

  1. Explain briefly Lowenthal's account of the Constitution's "establishment clause" and the simplest issues arising from its national application.
  2. Explain also federal aid to education in parochial schools and to religion itself.
  3. Explain the issues at stake in public school prayer and other activities associated with democratic citizenship.
  4. What errors does Lowenthal claim to find in Justice Black's opinion for Engel v. Vitale?
  5. How does Lowenthal's position escape, in his view, the equal protection requirements of the 14th Amendments?
  6. What does the Court understand "free exercise" to mean in Cantwell v. Connecticut, why is it important, and what concerns does Lowenthal express with it?
  7. Why does Lowenthal insist that the Court is likely to make matters worse in future flag salute cases rather than better?
  8. What evidence of judicial "presumption" does Lowenthal cite in the last 12 pages of the chapter?

Seventh Assignment, pp. 271-283

  1. What background does Lowenthal offer to his assessment of the modern Court's interpretation of the 1st Amendment? Nedah
  2. What is the fundamental error that Lowenthal finds underlying the Court's treatment of 1st Amendment questions? Nicholas
  3. What simple remedy does Lowenthal propose and how does it directly lead to a better interpretation of the 1st Amendment? Sarah
  4. Why is Lowenthal likely to be pleased with the Court's opinion in Kelo? Joy
  5. Why does the Court's ruling in Roper v. Simmons confirm the concerns that Lowenthal expresses at the end of his book? Victor
  6. How had the "judicial power" evolved before Justice Scalia arrived on the Court and what previous efforts to change directions are discussed by Eastland Rebecca
  7. What are the features of a "good judge" as explained by the Eastland's account of Justice Scalia's understanding? Kelly
  8. What are the implications of "judicial power" in the Constitution for statutory law, according to Eastland's account of Justice Scalia's views? Lance
  9. What does the term "textualist" mean when applied to Justice Scalia's constitutional jurisprudence? Ben
  10. What does the term "originalist" mean when applied to Justice Scalia's constitutional jurisprudence? Dylan
  11. How does Justice's Scalia's jurisprudence influence his approach to "due process of law" and a "livng Constitution?" Maggie
  12. What does Justice Scalia mean by a "Rule of Law as a Law of Rules." Clint
  13. What consideration does Justice Scalia give to "legislative history" when interpreting statutes?
  14. What has been Justice Scalia's impact on the court? Be specific Kate
  15. What criticisms has Justice Scalia drawn and why? John
  16. What is "split the difference jurisprudence" and how has it worked on the Rehnquist Court? Sid

Last Assignment, Libel in Britain, Jameel v. WSJ

  1. What are the facts of the case? What are the two issues in the appeal, according to Lord Bingham? What does he main by the "Reynolds Privilege?" Chris Knudsen
  2. What does Lord Hoffmann consider the issue to be and how does his discussion of precedent differ somewhat from Lord Bingham's? Brian
  3. Explain Lord Hope's discussion of "Damage" and the "Reynolds privilege." Ben
  4. What does Lord Scott add to the case? Rachael
  5. How does Baroness Hale differ from the opinions of the other Lords? Chris Farrer
  6. What considerations would Lowenthal stress and why? Trevor

TOPIC: Explain what Peggy Noonan means by "civic grace, democratic grace . . . ." To what extent does Lowenthal share Noonan's views? To what extent does Mill in On Liberty lay the foundations for such grace ["The Sounds of Silencing," The Wall Street Journal, Saturday/Sunday, October 14-15, 2006, P18.]

INSTRUCTIONS:

  • No additional research needed, except, perhaps,for reading again the article by Arenson & Lewin in the NYT.
  • Quality counts much more than quantity; most papers will be about 1000 words..
  • Be sure to proofread your paper well; grammar, style, and usage count in this assignment.
  • Documentation requiements are simple: use page references in parentheses in the text, if the title of the source from which you are borrowing is clear from the context.

CRITERIA FOR EVALUATING PAPERS

An "A" paper has the following elements:

  1. Good, clear, complete discussion of major parts of the topic
  2. A penetrating thesis statement connecting the parts,
  3. Accurate, skillful use of argument and evidence in supporting the thesis,
  4. A strong conclusion anchored in a tightly drawn organization of thesis, argument, and evidence, plus
  5. No more than one error per page of the sort outlined in English Simplified.

A "B" paper has the following:

  1. Adequate discussion of the parts, using familiar phrases from the class discussion & the readings,
  2. Clear thesis but more weakly stated than in an "A" paper,
  3. Argument and evidence systematically offered but not finely gauged to the difficulty or complexity of the issue; transitions become increasingly tentative,
  4. Broad, general conclusion based on adequate organization with no more than two errors per page of the sort outlined in English Simplified.

A "C" paper has:

  1. Incomplete discussion with weak thesis followed by loosely related arguments or evidence to which objections are obvious, missing transitions,
  2. Brief conclusion, sketchy organization, no more than three errors per page

A "D" paper: Garbled, inaccurate discussion, no thesis, little evidence or argument, abuse of quotations, assertion in place of conclusion, gaps in organization, no more than four errors per page.
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