Topic 1: What are the historical roots of the First Amendment? What societal functions does the First Amendments serve? Which of these functions are most important? Is the free speech clause absolute? Does "no law" mean no law? Should free speech interests be balanced against government interests? What is "the freedom of speech"?

E-Casebook:  Introduction to the Free Speech Clause

Topic 2: How did the Supreme Court's approach to reviewing speech restrictions evolve from a "bad tendency" test to a "clear and present danger" test? What constitutes a clear and present danger? Is there an argument for applying different standards of review to federal and state laws?

E-Casebook: The "Clear & Present Danger" Test for Subversive Advocacy

Topic 3: Do even Nazis and Klansmen have First Amendment rights? What is the modern test for subversive advocacy? Should the Constitution protect extremist speech? Are some ideas so offensive (e.g., advocating racial genocide) that no protection for their expression should be afforded? How far does First Amendment protection extend for speech that encourages or facilitates illegal activity?

E-Casebook: Advocacy of Unlawful Action and the Incitement Test

Topic 4:  What is the difference between as as applied First Amendment challenge and a facial First Amendment challenge? What is the doctrine of substantial overbreadth?  When might a law regulating speech or speech-related conduct be void for vagueness?

E-Casebook:  The Substantial Overbreadth Doctrine

Topic 5: What is a "prior restraint"? Should the First Amendment treat instances of prior restraints differently than instances of subsequent punishment? When, if ever, should a prior restraint be constitutional?

E-Casebook: Prior Restraints and The Presumption of Unconstitutionality

Topic 6:  How should courts balance the defendant's right to a fair trial against the First Amendment rights of the press to report on matters of public concern?  Do courts have the power to gag attorneys? witnesses? police officers?

E-Casebook: The Press & Fair Trial Issues

Topic 7: What is the difference between "indecent" speech and "obscenity"?  How has society's tolerance for racy or indecent speech changed over time?  How has the law relating to speech of this sort changed over time?  Do you have a First Amendment right to wear a jacket that says "F--- the Draft" (or Law School)? Does expression ever become unprotected simply because it is vulgar or trivial?

E-Casebook: A Free Speech History Lesson: The Trial of Lenny Bruce;   Four-Letter Words and Other Indecent Speech

Topic 8: What limitations does the First Amendment place on hateful speech?  How does the First Amendment apply to statutes that attempt to punish speech that degrades women or creates a hostile work environment?

E-Casebook: Regulation of Hate Speech

Topic 9: What IS "speech" within the meaning of the First Amendment? What is "symbolic speech" and how should the First Amendment apply to conduct that may also communicate a political message? Is a distinction between speech and conduct tenable? Does the First Amendment allow for punishment of flag desecration?  (Note: You may omit Spence v Washington from your readings.)

E-Casebook: Desecrating Flags and Other Attacks on American Symbols

Topic 10: Does the First Amendment place limitations on civil liability?  Does it protect even falsehoods? What social purpose is there in protecting false statements injurious to a person's reputation?  Should the same burdens apply to all defamation plaintiffs? What are the reasons for applying a less stringent standard to suits by private persons? How does the First Amendment apply to other theories of liability used by plaintiffs suing media defendants, such as breach of contract and negligence?

E-Casebook: First Amendment Limitations on Civil Law Liability

Topic 11: Can the government require the media to provide opportunities for replies to personal attacks? Should the print and electronic media have equal rights under the First Amendment? How persuasive are the reasons for allowing more extensive regulation of content for the electronic media?  How should the Internet and video games be treated for First Amendment purposes?

E-Casebook: Different Tests for Different Media?

Topic 12: What is "the public forum doctrine"? 

E-Casebook:  Speech Restrictions in the Traditional Public Forum

Topic 13: Must cities allow nudity in a municipal theater? Must a university allow a student religious organization to use to its student center? How do we determine what constitutes a designated public forum?  What speech restrictions are permissible in places under government control that are not public forums?

E-Casebook: Speech Restrictions in the Designated Public Forum;  Speech Restrictions in the Non-Public Forum

Topic 14:  Should different standards apply when the government is attempting to regulate the time, place or manner of speech, rather than its content? What are reasonable time, place, and manner restrictions? How should we determine whether a speech regulation is or is not content-based? Do cities have the power to ban signs from all public property? May cities restrict the placement of signs on private property? Do you have a First Amendment right to play loud rock music? Do different First Amendment standards apply to reviewing injunctions that restrict the time, place, or manner of speech than would apply to ordinances that do so? How should the First Amendment interests of abortion clinic protesters be evaluated? May cities charge fees for parades and marches? May cities pay groups not to march?

E-Casebook:  Time, Place, and Manner Regulations

E-Casebook: Student Speech Rights

Topic 16: Is there a freedom not to speak? What constitutes impermissible government coercion of speech?

E-Casebook:  Government-Compelled Speech

Topic 17:  What is "government speech"? What is "the doctrine of unconstitutional conditions"? Does the First Amendment allow governments to ban books from public libraries? From school libraries? From classrooms? What sort of principles can be found to limit book censorship in these contexts?

E-Casebook:  Government Speech & Speech-Related Conditions Attached to Government Spending

Topic 18: Does the First Amendment allow the government to impose speech restrictions on public employees that it could not impose on the public at large? Do public employees have the right to speak out on certain topics and keep their jobs? What is the right-privilege distinction? Does the First Amendment protect public employees who are discharged because of their partisan affiliation?

E-Casebook:  Free Speech Rights of Public Employees

Topic 19:  Does the First Amendment guarantee the press some sort of access to places under government control, such as prisons or courtrooms?  Does the First Amendment protect the press when the government seeks access to information held by the press, such as the names of sources or potentially incriminating information in newsroom files?

E-Casebook:  Access to (and Protection of) Press Sources

Topic 20: Is commercial speech entitled to First Amendment protection? Should it be entitled to the same degree of protection as other forms of speech? What is the Supreme Court's standard for reviewing restrictions on commercial speech?

E-Casebook:  The Right Not to Associate

Topic 22: Should obscenity be treated differently than other forms of speech? If so, why? How do we know what is obscene and what isn't? Should "community standards" be a factor in a test for obscenity? May communities prohibit the sale of obscene materials, but not their possession? Can the state restrict the sale of certain materials to minors which the First Amendment protects in the case of sale to adults? May government treat adult theaters and bookstores differently than it does other types of businesses? May it ban them altogether? Zone them together? Is nude dancing constitutionally protected?

E-Casebook:  The Regulation of Obscenity;   Regulating Sexually-Oriented Businesses & the "Secondary Effects" Test

Topic 23: How does the state action doctrine apply in various First Amendment contexts? Do persons have a right to leaflet in company towns? In shopping centers? 

E-Casebook:  The First Amendment and the State Action Requirement

Topic 24: What was the original understanding of the establishment clause? What is the general test that the Supreme Court first developed for reviewing alleged violations of the establishment clause? What is a religion within the meaning of the First Amendment? How should religion be defined for constitutional purposes? When is prayer permissible in public places?  Do the same standards apply to prayer in elementary schools that would apply to prayer in a university?  Does it matter if the prayer is initiated by students rather than by school administrators?

E-Casebook: Introduction to the Establishment Clause;  Prayer in the Public Schools

Topic 25:  What financial support can government provide to religious schools?  Are vouchers constitutional?  Does it matter whether almost all the government funds support tuition payments at religious--as opposed to other private--schools?  Does it matter whether the government funds go to parents or directly to the religious schools?  What Establishment Clause test is appropriate to use to decide these cases?

E-Casebook:  Vouchers & Other Aid to Religious Schools 

Topic 26:  Does the First Amendment allow states to ban the teaching of the theory of evolution?  To require that if evolution is taught, the theory of creationism must be taught as well?  Does a biology teacher have a right to teach creationism, if that is what he or she believes explains the existence of life on earth?

E-Casebook: The Evolution/Creationism Controversy

Topic 27: What is a theocracy? Does the establishment clause forbid the state from making a religious law its law?

E-Casebook: Theocracy Issues: Looking for Secular Purposes

Topic 28: What is the "two plastic animals rule"? Are there principled lines that can be drawn in this area? Where is the Supreme Court going with its establishment clause jurisprudence?

E-Casebook: Religious Symbols in Public Places

Topic 29: What protection is afforded by the First Amendment's Free Exercise Clause? Are Mormons free to practice polygamy? Can Jehovah's Witnesses deny their children necessary blood transfusions? May native Americans smoke marijuana as part of their religious services? What does the free exercise clause protect after Smith?

E-Casebook: Government Regulations Burdening Religious Conduct

Topic 30: Review

E-Casebook: Exams