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222. FOUNDATIONS OF THE FIRST AMENDMENT

November 2011

Dr. Robert W. Sutherland, Instructor

Reading assignments are subject to change, so the online syllabus is the only definitive version. Check this site regularly, at least once every other day. Changes in reading assignments will not be made within 24 hours immediately preceding class meetings.

HOW TO REACH THE INSTRUCTOR: My office is in South 15; my extension is 4226. The best time to see me for a brief conversation is immediately before or after class. Other times are available by appointment arranged before and after class or by e-mail. Office hours are from 8-9 every weekday morning.

CLASS MEETINGS: 9:15-11:45 in South Hall 302, except for the 1st & last class. The time that a particular class ends may vary. The total of 50 hours of class time includes group meetings and exam reviews set outside of the times posted above. See the schedule below for more details.

TEXTS: J. S. Mill, On Liberty (on line edition); David Lowenthal, Present Dangers (The Cornell Bookstore has photocopied the book, which is currently out of print; pick up your free copy at the Bookstore). The cost of printing readings that you wish to have in hardcopy are the only text expense for the course.

GRADES:

  • EXAMS: Four exams (I-20%, II-15%, III-15%, IV-30%) See Schedule below
  • QUIZZES and GROUP/SUBGROUP PERFORMANCE--20%,
    • The number of unannounced quizzes and the value of each quiz will vary.
    • Time will be reserved in class during weeks 2-4 for assignments that will vary by groups based on the responsibility of groups for three broad First Amendment topics and on the following question: how serious today are the concerns expressed by Professor Lowenthal in Present Dangers?
    • Groups will be responsible for reading assignments, instructions or questions for what to look for in the reading, and discussion of the reading in class. See schedule below
    • Groups will be divided into subgroups representing progressive and conservative views for discussion of Present Dangers. For details, see the schedule below.
    • Outside of class and office hours, especially during the evening when I am less available, help in planning the most effective conservative and progressive readings and discussion is best gained from Neil McCray, a Politics Department work study student who knows this course and the ideas important to it better than almost any one else. He also has a wealth of experience in making effective arguments based on the ideas of the course. The hours that Mr. McCray spends with members of the class are part of his work study assignment. Contact: NMcCray14@cornellcollege.edu
  • CLASS ATTENDANCE POLICY: See the class schedule below in the Assignments spreadsheet. The most serious penalty for missing class is a missed quiz, individual or group class performance, or exam, which usually has significant impact on the final grade. Students who notify me by email BEFORE the class that they will be forced to miss will be allowed ONCE to use the average of scores on their other quizzes or exams in place of the missed quiz or exam. No make-up quizzes, exams, etc. will be given. Documented health absences will be considered on a case by case basis.
  • ACADEMIC HONESTY: Cornell College expects all members of the Cornell community to act with academic integrity. An important aspect of academic integrity is respecting the work of others. A student is expected to explicitly acknowledge ideas, claims, observations, or data of others, unless generally known. When a piece of work is submitted for credit, a student is asserting that the submission is her or his work unless there is a citation of a specific source. If there is no appropriate acknowledgement of sources, whether intended or not, this may constitute a violation of the College's requirement for honesty in academic work and may be treated as a case of academic dishonesty. The procedures regarding how the College deals with cases of academic dishonesty appear in The Compass, our student handbook, under the heading "Academic Policies--Honesty in Academic Work."
  • DISABILITIES POLICY: Students who need accommodations for learning disabilities must provide documentation from a professional qualified to diagnose learning disabilities. For more information, see: http://www.cornellcollege.edu/disabilities/documentation/index.shtml. Students requesting services may schedule a meeting with the disabilities services coordinator as early as possible to discuss the needs and develop an individualized accommodation plan. Ideally, this meeting would take place well before the start of classes. At the beginning of each course, the student must notify the instructor within the first three days of the term of any accommodations needed for the duration of the course.
  • Portions of the Catalog on adding and dropping courses are incorporated here by reference.
  • 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-.

ASSIGNMENTS--To be done before class on the day indicated:
Wk DAY TIME READING EXAM
I 1 9:00 Berkowitz; Thornton; GOPaul  
2
9:15

Shenck v. U.S.; Brandenburg v. Ohio;Snyder v. Phelps

 
3
9:15 On Liberty, Chs. 1-2  
4
9:15 On Liberty, Ch. 2-3  
 
5
9:15

On Liberty, Ch. 4; Selections from Harriet Taylor Mill's writings

 
II
6
9:15

On Liberty, Ch. 5

Day 9 Reading/Questions Due; 1st Exam

 
7
9:15

Exam Review; Present Dangers, pp. ix-xxxii, 3-44;

Day 10 R/Q Due

 
8
9:15

Present Dangers, pp. 45-86; Watson, "The Curious Constitution of Oliver Wendell Holmes, "Constitutional Power Hour;" & "Congress Rediscovers the Constitution" Justice Thomas

 
 
9
9:15

Lowenthal Review;Group I-Subgroup Progressive Reading Assignment

 

 
 
10
9:15

Group I--Subgroup Conservative;Reading Assignment & Questions

2nd Exam Day; Day 12 R/Q Due

III
11
9:15

Exam Review; Present Dangers, pp. 89-137; Flash Mob, Flash Rob, Reflections by the Prime Minister

Day 13 R/Q Due

 
12
9:15

Present Dangers, pp.138-178 Group II-Conservative Readings

 
 
13
9:15

Present Dangers, pp. 181-234 Group II-Progressive Readings; Review

 
 
14
9:15

 

3rd Exam; Day 16 R/Q Due

 
15
9:15

Exam Review; Present Dangers, pp. 234-270

Day 17 R/Q Due

IV
16
9:15

Present Dangers, pp. 271-283 Group III-Progressive Readings

 
 
17
9:15

Group III-Conservative Readings; Reviewing the Progressive/Conservative Distinction.

 
 
8:15 NOTE EARLY START Final Exam

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.

Berkowitz, Thornton, & GOPaul Articles

  1. What problem does Berkowitz's article discuss?
  2. What distinguishes the two intellectual factions that Berkowitz identifies?
  3. What is the remedy he offers?
  4. What association does Thornton draw between the EU and one of the factions identified by Berkowitz? How close and recent is the association? Define terms like "EU social welfare model" and "'postmodern' view of interstate relations."
  5. What is Thorton's initial purpose and how does he seek to fulfill it?
  6. What is the "Eutopian" project and why does he think it has failed?
  7. What philosophical foundations are associated with the project and how do they differ from the foundations of a distinctively American project?
  8. What does Thornton mean by "American exceptionalism," how is it related to Berkowitz's intellectual factions and to the Republican Party today?
  9. How well does the term "American exceptionalism" fit the views of Ron Paul, a Republican Congressman and contender in the race for the Republican presidential nomination? What conclusion about American political parties can be drawn from the answer of this question?

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?

SNYDER V. PHELPS:

  1. What is "tort liability" and how does it figure in the question that the decision the Supreme Court addresses in this case?
  2. What are the essential facts of the case and what judgments in which courts led to the appeal to which the Supreme Court is now responding?
  3. What distinction between "public and private concern" underlies the Court's consideration of the Mr. Phelps' claim in this case?
  4. What does IIED mean and on what grounds does Justice Alito insist that the Court failed to do justice to Mr. Snyder's complaint?

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 limitations?
  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?
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 are Mill's observations and judgments about "Mormanism?"

Selection I-- Harriet Taylor on Toleration

  1. What is the remedy for conformity?
  2. What is the effect of traditional morality on conformity and its remedy?
  3. What "truth" confirms the remedy?
  4. How is the "admiring state of mind" related to the remedy?
  5. From what premise must the education of others begin?
  6. With what prediction does the essay end?

Selection II-- Mill on Writing On Liberty"

  1. What role did Harriet Taylor Mill play in writings attributed to Mill; what was Mill's role?
  2. How was the "Liberty" distinguished from the other writings in the role each played?
  3. What is Mill's estimate of the value of the "Liberty?"

Chapter #5--

  1. What two maxims form the subject here?
  2. What limitations pertain to which?
  3. To which maxim is "police power" more directly related and why is the preventative function of such power more likely to be abused than the "punitory?"
  4. What issues lie on the boundary between them?
  5. What self-regarding actions are forbidden?
  6. What "misapplied notions (at least two) of liberty" does Mill address in this chapter?
  7. What three reasons does Mill give for restrictions on government interference?
  8. Review the Libertarian Party web site in some detail. What connection to On Liberty continues in the Party's statements and activities?

Present Dangers

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

  1. What three questions form the "basis for the tripartite organization of this book?"
  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; the "Curious Constitution of Oliver Wendall Holmes, Jr.;" "Constitutional Power Hour;" & "Congress Rediscovers the Constitution" Justice Thomas

  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?
  2. How was the reinterpretation of the Constitution accomplished? What was the key concept and who were its promoters?
  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?
  4. How does history and current events confirm their concerns?
  5. What are the ten defects of the "clear and present danger" rule?
  6. What does the author propose doing and why?
  7. According to Watson, from what American sources did Holmes draw in developing "legal realism?"
  8. How is such realism reflected in the "clear and present danger" standard?
  9. How is Holmes's realism related to Mill's ideas? How is it related to the philosophical assumptions on which the founders and framers based their work?
  10. How do Progressives in Congress (Waxman and Frank) confirm the Progressive view of the Constitution? What is their purpose? What is the Conservative response and what is their contrasting purpose?
  11. What principle of constitutional interpretation does Justice Thomas advance, how consistently does he do so, and what has been/will be the likely effect on federalism, interstate commerce case law, as well as affirmative action. How does his conduct on the Court match his commitment to principle?

GROUP I: Davis, Linn, Peebles, Randall, Ropkey

QUESTONS ON READINGS RELATED TO THE LIMITS OF FREE EXPRESSION FROM A PROGRESSIVE POINT OF VIEW

  1. According to the articles, what is patriotism, and how (if at all) does it differ from dissent?
  2. What arguments are made against the limitations of dissent? 
  3. What are some of the consequences of limiting dissent during war-time?
  4. What determines whether an opinion is dangerous? (Hint: Look at ACLU article for disagreements on the danger of opinions.)

QUESTONS ON READINGS RELATED TO THE LIMITS OF FREE EXPRESSION FROM A CONSERVATIVE POINT OF VIEW

“Cities Begin Cracking Down on ‘Occupy’ Protests?” By Jesse McKinley and Abby Goodnough and “Wall Street Protestors’ ‘Demands?” By Chattanooga Times/Free Press

1) What was Mayor Kim Reed’s frustration with the protestors’ methods? What is the predicament that faces mayors and officials across the country?

2) What is the claim for why some of the protestors’ actions are not protected by the First Amendment?

3) How does this current situation relate to the concerns Lowenthal expresses within his book? According to his views, should this be considered a serious issue?

“Why Journalists are Not above the Law?” by Gabriel Schoenfeld

1) Why does the author believes The Times is wrong in arguing that the "privilege granted to journalists to protect their sources needs to be bolstered with a strong federal shield law”?

2) How does the answer to #2 relate to Lowenthal’s opinions on the limits that should be placed on free expression, specifically in regards to the internal and external safety of the United States against “anti-democratic conspiracies” and revolutionary/terrorist groups?

3) Why does passing a Shield law that requires prosecutors to “demonstrate significant and actual harm” subvert the U.S. government’s classification system of confidential and secret material?

4) How does the answer to #4 relate to Lowenthal’s discussion and view of the negative side effects of the “clear and present danger” rule?

5) What does the article argue the negative effects and problems of a Shield law would be?

6) How does the proposed Shield legislation violate the “spirit of the First Amendment”?

7) Why does the author believe it was appropriate that Miller was cited for contempt by the court?

8) What connections can be made between this notion of journalists not being “above the law” and Lowenthal’s discussion of Blackstone and freedoms of the press?

Third Assignment, pp. 89-137

  1. What is the "moral revolution," how long ago did it become a force, and what promotes it?
  2. How do Washington and Jefferson point the nation in a very different direction?
  3. Against what background must the Supreme Court's consideration of obscenity be understood?
  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?
  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?
  6. What features distinguish the U. K. riots of August 2011, what explanations are associated with conservatives and progressives, what explanation does the Economist offer?
  7. What is a "flash rob" and how much of a problem are they? To what extent do they confirm one of the views in the question above?
  8. What explanation does Prime Minister Cameron offer, to what extent are politicians responsible and why, what is the "broken society agenda," and what the priorities of the "social fight-back?"

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?
  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?
  3. What changes in the definition of obscenity does the author propose?
  4. What impact on movies and television is projected by the author in the re regulation of obscenity?
  5. What kind of statutes would advance efforts to renew society and how might they be related to Milton's understanding of moral education?

GROUP II: Fields, Juengerman, Messimore, Morrison, Schwenk, Vest, Wherry

QUESTONS ON READINGS RELATED TO MORALITY AND THE FIRST AMENDMENT FROM A CONSERVATIVE POINT OF VIEW

  1. What are some of the parallels that these articles draw to Lowenthal's arguments in "Present Dangers"?
  2. List 2 examples of a conservative limit of the first amendment, and briefly explain the person's support or arguments against this limitation.
  3. How would Lowenthal limit the use of the internet?
  4. What are some of the similarities that these authors bring up? Differences?

QUESTONS ON READINGS RELATED TO MORALITY AND THE FIRST AMENDMENT FROM A PROGRESSIVE POINT OF VIEW

1. What distinctions does Lowenthal make between sexual freedom and harmful obscenity?
2. How does morality play into legislation?
3. What kind of sociopolitical effects result from the types of restrictions discussed in the articles?
4. What are the pros and cons of community standard as discussed by Lowenthal? As discussed by the readings?
5. How would Lowenthal justify the legal measures taken against minors with obscenity chargess (specifically with same-age interactions like sexting, etc.)?

 

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 Amendment?
  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?
  2. What is the fundamental error that Lowenthal finds underlying the Court's treatment of 1st Amendment questions?
  3. What simple remedy does Lowenthal propose and how does it directly lead to a better interpretation of the 1st Amendment?
  4. Be specific about the improvement Lowenthal would expect in a variety of case law subjects, from incorporation to obscenity.

Group III: Beehler, Chenault, Flanagan, Goedken, Kim, Lukin, Oakley, Rosen

QUESTONS ON READINGS RELATED TO RELIGION AND THE FIRST AMENDMENT FROM A PROGRESSIVE POINT OF VIEW

1) Does the government have the right to protect religion from persecution by individuals?
2) What is religious observance/action, protected by the first amendment and what isn't? polygamy? human sacrifice?
3) If religion dictates our morality, and morality dictates our laws, are we ignoring the first amendment?
4) What is the "neutral principle" and why is it important?

QUESTONS ON READINGS RELATED TO RELIGION AND THE FIRST AMENDMENT FROM A CONSERVATIVE POINT OF VIEW

1.) What reasons can be given to justify the conservative's view on condemning both the burning of the Quran and the erection of the ground zero mosque?

2.) How does the use of inflammatory speech, with regard to religion, reflect the 1st Amendment's free excersize clause?

3.) Should the Westboro Baptist Church's protest have been protected, or should it have been broken up due to harrassment? Why or why not?

4.) Are the issues brought up by these articles founded on constitutional concern, or religious bias? Why or why not?

CRITERIA FOR EVALUATING ESSAYS:

An "A" paper has the following elements:

  1. Good, clear, complete discussion of major parts of the essay 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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