USC Gould School of Law

First Amendment, Spring 2018

  • Course: LAW 870 / Sections 03640, 04128

Thursday, 9:00 to 11:50 a.m., Room 101

Syllabus, Course Requirements and Grading Criteria

SUSAN E. SEAGER

CLASS PREPARATION AND ATTENDANCE:

Students are expected to attend class and read the assigned materials. Class discussion will commence with the assumption that everyone is thoroughly familiar with the assigned materials. Classes will be recorded, but will only be made available under special circumstances upon request directed to the instructor.

GRADING CRITERIA AND FINAL EXAMINATION:

The grade for this course will be determined by performance on a final examination and class participation, as explained below.

Final Examination

The final examination for this course will consist of essay questions. It will be a “take-home” examination with a word limit. Students will have eight (8) hours to complete the examination. The examination may be taken on any day during the law school’s examination period. The examination will be open book and open note. Plagiarism is strictly prohibited. Sharing or discussing the examination questions and/or answers with fellow students who have not yet taken the exam during the exam period is strictly prohibited. The examination will be based on reading assignments and matters discussed in class. The answers to the essay questions for the final examination will be graded on the basis of the thoroughness and effectiveness of the analysis. Answers which merely state conclusions, or answers without an explanation of the reasoning and analytical process, will receive little credit. Similarly, answers that recite abstract principles of law without applying them to the facts of the problem presented in the questions will receive little credit.

In-Class Exercises

In-class exercises will be held on a weekly basis beginning in the second week. Each studentis expected to participate in at leastonein-class exercise during the semester. Class exercises generally consist of students playing the roles of attorneys and/or justices arguing, debating and/or discussing important cases or controversies. Students who exhibit an outstanding performance in an in-class exercise will receive up toatwo-position boostto their final grade in the course. For example, a student who receives a grade of B on the final examination may receive a B+ or A- as their final grade due to an outstanding preparation and performance in the in-class exercise. Students who do not participate or who do not exhibit that they are prepared for their in-class exercise may receive as much as a two-position drop to their final grade in the course. For example, a student who receives a B on the final examination may receive a B-or a C+due to a sub-par performance, or failure to participate, in the in-class exercise. Students may perform a second in-class exercise but only after each student has participated in an in-class exercise. Students will be evaluated based on their best in-class exercise if they participate in more than one.

OFFICE HOURS:

The best way to reach me with your questions is to ask me after class or email me at or call my cell at (310) 890-8991. If I cannot handle the matter after class, by phone or e-mail, we can set up a separate appointment to meet in person. If we do not respond to an email within 24 hours, please call me or email me again because it is possible that your email may go into a spam folder.

REQUIRED TEXT:

Erwin Chemerinsky, Constitutional Law, Aspen Publishers, Fifth Edition (cited as "Constitutional Law" in this syllabus), plus the 2017 Supplement. I have added a few other cases in the course readings below, which students can find on the internet (Google Scholar is a great resource, also oyez.com), Westlaw or LexisNexis.

CLASS SCHEDULE AND READING ASSIGNMENTS FOR EACH CLASS

Classes meet on Thursdays from 9:00 to 11:50 am. The reading assignments are in a chart on the following pages.

DATE / SUBJECT MATTER / READING ASSIGNMENT
PART 1. Speech, Assembly, Press
January 11
Class 1 / A. History and Theories of Free Speech Clause
• History
• Free speech theory
B. Analyzing Government Controlson Speech
• Prior restraints
• Court orders as prior restraints
• Licensing as a prior restraint / Constitutional Law, pages 1235-1243, 1290-1320
January 18
Class 2 / • Content-neutral vs. content-based regulations on speech
• Government speech
• Vagueness
• Overbreadth
Exercise: New York Times v. U.S. (Pentagon Papers) / Constitutional Law, pages 1243-1320 and Balboa Island Village Inn v. Lemen, Cal. Sup. Ct., Case No. S127904 (Apr. 26, 2007);
January25
Class 3 / • What constitutes an infringement of speech?
• Civil liability
• Denials of compensation
• Compelled speech
• Unconstitutional conditions
• Government pressures
Exercise: Matal v. Tam / Constitutional Law, pages 1320-1351; Supplement, pages 57-66
February 1
Class 4 / C. Unprotected Speech and Less-Protected Speech
Incitement to illegal conduct
• Fighting words
• Hostile audience
• Racist speech
Exercise: Brandenburg v. Ohio / Constitutional Law, pages 1351-1411
Look up 2016 incitement case against Donald Trump
(complaint, opp. brief, ruling)
February8
Class 5 / • Sexually oriented speech
• Obscenity
• Child pornography
• “Low value” sexual speech
• Profanity
• Indecency
Exercise: FCC v. Pacifica Found. / Constitutional Law, pages 1411-1457
and Packingham v. North Carolina,
U.S. Sup. Ct., Case No. 15-1194 (June 19, 2017)
February15
Class 6 / • Violent speech
• Commercial speech
• Blurred lines (sponsored content)
Exercise: Brown v. EMA / Constitutional Law, pages 1457-1509
Find FTC v. Warner Bros case re “sponsored content”
February22
Class 7 / D. Tort Liability for Speech
• Defamation
• Infliction of emotional distress
• Public disclosure of private facts
• Right of publicity
Exercise:Olivia DeHavilland v. FX / Constitutional Law, pages 1509-1538;
Mostchenbacher v. R.J. Reynolds, 498 F.2d 921 (9th Cir. 1974); Guglielmi v. Spelling-Goldberg Prod., 25 Cal.3d 860 (Cal. 1979);
Midler v. Ford Motor, 849 F.2d 460 (9th Cir. 1988); White v. Samsung,971 F.2d 1395 (9th Cir. 1992); Comedy III Prod. v. Gary Saderup, 25 Cal. 4th 387 (Cal. 2001); Tyne v. Time Warner,901 So.2d 802 (Fla. 2005).
Look upOlivia De Havilland v. FXright of publicity case (Cal. Ct. App.)
March 1
Class 8 / E. Conduct that Communicates
• What conduct is speech?
• Flag desecration
• Campaign expenditures
Exercise: Citizens United v. FEC / Constitutional Law, pages 1538-1588
March8
Class 9 / F. Government Property & Speech
• Public forums
• Limited public forums
• Non-public forums
• Private property and speech
• Speech in authoritarian places I
• Military
• Prisons
Exercise: McCullen v. Coakley / Constitutional Law, pages 1588-1638
March 12-16 / Spring Break / No Class
March22
Class 10 / • Speech in authoritarian places II
• Schools
• Government employees
G. Freedom of Association/Assembly
• Restricting memberships
• Disclosure of membership
• Compelled association
• Prohibitions on discrimination
Exercise: Garcetti v. Ceballos / Constitutional Law, pages 1638-1690
March29
Class 11 / H. Freedom of the Press
• Special rights for the press?
• Defining the press
• Press Clause as a shield
• Press Clause as a sword
Exercise: Branzburg v. Hayes / Constitutional Law, pages 1690-1719. Look up California reporter’s shield laws
PART 2. Religion Clauses
April 5
Class 12 / A.Introduction to Religion Clauses
• What is religion?
B. Free Exercise Clause
Exercise: Masterpiece Cake v. Colo. / Constitutional Law, pages 1721-1759
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, U.S. Sup. Ct., CaseNo. 16-111 (argued in 2017)
April12
Class 13 / C. Establishment Clause I
• Competing theories
• Discrimination among religions
• Lemon test
• Religious speech
Exercise: Santa Fe Sch. Dist. v. Doe / Constitutional Law, 1759-1805
April19
Class 14
Last Class! / D. Establishment Clause II
• Religion as part of government
activities
• Government aid to religion
Exercise: Town of Greece v. Galloway / Constitutional Law, pages 1805-1860

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