Controlling Dissent: Legal and Ethical Restraints on Expression in American Society

Controlling Dissent: Societal Restraints on Expression in American Society

JMC 381 Fall 2014 MW: 9:30-10:45 a.m. HON 155

(DRAFT) David S. Allen 576 Bolton Phone: The department no longer provides office phones to faculty. In an emergency, students can leave a message at the departmental main office, 414-229-4436. [email protected] Office hours: 3:30-4:30 p.m. Mondays and Wednesdays and by appointment.

Course Objectives

The purpose of this seminar is to critically examine the purpose of dissent in American society, as well as the ideas and rationales that underlie attempts to control that dissent. While the wording of the First Amendment suggests an absolute right to speak without government interference, that interpretation has rarely enjoyed much support. Instead, American society has fashioned rules and practices that allow the government to restrict certain kinds of speech under certain conditions. Those rules and practices bring with them not only legal obligations, but also expectations about how citizens ought to behave and what function speech plays in democracy. One example of this is the increased popularity of so-called free speech zones that allow the government to partition protestors behind barricades or fences far away from the events that are the focus of their protest. This seminar will critically examine the methods used in American society to manage dissent. Through this examination, it is hoped that students will think critically about the purpose of dissent in American society, but also about the way that society ought to deal with dissenting voices. Ultimately, it is hoped that students will develop a deeper understanding of the relationship between free speech and democracy.

Course Materials

There are three required texts for this class. They are:

Fred W. Friendly. Minnesota Rag: Corruption, Yellow Journalism, and the Case that Saved Freedom of the Press. Minneapolis: University of Minnesota Press (2003) (ISBN: 0816641617. Price: $16.95). Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. New York: Vintage Books (1992) (ISBN: 0679739394, $14). Mill, John Stuart. On Liberty. (Any copy, about $5.) Sunstein, Cass R. Why Societies Need Dissent. Cambridge, MA: Harvard University Press, 2003) (ISBN: 0674017684, $23).

In addition, there are several readings available through the course’s D2L site:

Allen, David S. (2014). “The Ethical Roots of the Public Forum: Pragmatism, Expressive Freedom, and Grenville Clark.” Journal of Mass Media Ethics, 29: 1-15. Balkin, Jack M. (2004). “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society.” New York University Law Review, 79 (1): 1-58. Coleman, E. Gabriella (2013). “Introduction: A Tale of Two Worlds.” In Coding Freedom: The Ethics and Aesthetics of Hacking. Princeton, NJ: Princeton University Press, 1-22. DeLuca, Kevin Michael, and Jennifer Peeples (2002). “From Public Sphere to Public Screen: Democracy, Activism, and the ‘Violence’ of Seattle.” Critical Studies in Media Communication, 19 (2): 125-151. Garvey, John H., and Frederick Schauer (1996). “Philosophical Foundations of Freedom of Speech.” In The First Amendment: A Reader (2d ed.). St. Paul, MN: West Publishing Co., 58-142. King, Gary, Jennifer Pan, and Margaret E. Roberts (2013). “How Censorship in China Allows Government Criticism but Silences Collective Expression.” American Political Science Review, 107 (2): 326-343. Lessig, Lawrence (2010). “Free Speech.” In Code 2.0. New York: SoHo Books, 233-275. Rabban, David M. (1997). “The Courts and Free Speech.” In Free Speech: In Its Forgotten Years. New York: Cambridge University Press, 129- 176. Zick, Timothy (2004). “Inscribed Places.” In Speech Out of Doors: Preserving First Amendment Liberties in Public Places. New York: Cambridge University Press, 182-219.

Paper Requirements

Students will be required to write a research paper. Paper requirements will be discussed in more detail in class. Briefly, it will require each student to adopt a specific theory of the First Amendment and apply that theory to a general area of concern in the area of speech or press law. Various theories of the First Amendment will be reviewed in class during the first weeks of the semester. The first part of this final paper detailing a specific theory of the First Amendment will be due on Wednesday, March 16. It is expected that students will meet with the instructor outside of class to work on their final papers. In addition, students will be required to give a short presentation to the class on their project during the last several weeks of the semester. In addition, students will be required to write short critiques of two books, Anthony Lewis’ Make No Law and Fred W. Friendly’s Minnesota Rag. More details on these assignments will be provided in class. Please note that I consider deadlines to be just that -- deadlines! It is imperative that papers be turned in by the announced deadline unless the instructor has approved a delay. No late assignments will be accepted unless approved prior to the due date.

Class Discussions and Attendance

Generally, we will concentrate on one topic a week (see attached schedule). It is assumed that students will have read the week's assigned readings prior to class meetings. Students will be responsible for information contained in the readings, class lectures, and handouts. Class discussion is expected. That means I expect more from you than questions, although questions are welcome at anytime. I want your opinions, your ideas, and your comments. I expect you to bring possible discussion topics to class. I realize that not all people feel comfortable expressing their opinions in front of groups. One of my goals is to help you overcome that fear by creating an atmosphere conducive to discourse. If, however, for some reason you do not believe you can participate in class discussions, please see me the first week of class.

All students will be asked to lead class discussions at some point during the semester. This will require students to bring to class several questions/issues based on the reading for that particular class. Some of the subjects that we will be discussing are likely to generate strong feelings for some members of the class. I strive to be open to divergent ideas and comments and I expect all members of the class to be similarly receptive. This does not mean you must agree, only that you treat people with respect and civility.

Attendance

Attendance will be taken on a daily basis. If you are not in class at the beginning of class when attendance is taken, it is the responsibility of the student to make sure that his or her attendance has been recorded. Missing too many classes will have consequences. Points will be deducted based on the following:

0-4 classes missed = 0 points 5-8 classes missed = -20 points 9-12 classes missed = -40 points 13-16 classes missed = -60 points 17 or more classes missed = -80 points

As you can see, you are allowed to miss up to four classes with no consequences. Please use these wisely. Appropriate documentation will be required to excuse any absences after four missed classes. Please talk with me about what constitutes appropriate documentation.

Special Accommodations

Students who need special accommodations are encouraged to talk with me as soon as possible. They should also contact the Student Accessibility Center. More information is available at this link: http://www4.uwm.edu/sac/ . Students will be permitted to make up assignments missed because of religious observances when (a) there is a scheduling conflict between the student's sincerely held religious beliefs and taking the examination or meeting the academic requirements; and (b) the student has notified the instructor, within the first three weeks of the beginning of classes of the specific days or dates on which he or she will request relief from an examination or academic requirement.

Academic Misconduct

It is essential that all work you submit for this seminar be your own and/or contains proper attribution. UWM’s academic misconduct policy is as follows: “The university has a responsibility to promote academic honesty and integrity and to develop procedures to deal effectively with instances of academic dishonesty. Students are responsible for the honest completion and representation of their work, for the appropriate citation of sources, and for respect of others’ academic endeavors.” I will refer cases of academic misconduct with a recommendation for disciplinary action. A more detailed description of Student Academic Disciplinary Procedures can be found in Regents Policy, UWS Chapter 14 and UWM Faculty Document #1686. Please do not let this happen. If you have questions about this policy, please talk with me.

Points

Points will be awarded based on the following:

Theory paper: 100 points Minnesota Rag critique: 50 points Fighting Faiths critique: 50 points Final paper: 200 points Presentation: 20 points Leading class discussion: 20 points

Total points: 440 points

Letter grades will be awarded based on final point totals. Grades will generally be awarded based on the following:

A = 100-95 percent A- = 94-90 percent B+ = 89-87 percent B = 86-83 percent B- = 82-80 percent C+ = 79-77 percent C = 76-73 percent C- = 72-70 percent D+ = 69-67 percent D = 66-63 percent D- = 62-60 percent F = 59 percent and below

A word to the wise . . .

Freedom of expression can be a confusing, complicated, and often frustrating area of study. Students often find its lack of certainty confounding. By the end of the semester, I hope you will come to appreciate and see the advantages of that lack of certainty for a dynamic society. In the meantime, should you find yourself overwhelmed or confused, please do not hesitate to see me. Class Schedule

Week Topic Readings

9-2 Introduction No assigned readings.

9-8 The Purpose of Dissent Sunstein

9-15 Theorizing Dissent and Expression Mill—On Liberty

9-22 Theorizing Dissent and Expression In Garvey and Schauer: pp. 77-80 (Owen Fiss); pp. 86-90 (Martin Redish); pp. 114-123 (Cass Sunstein); pp. 127- 132 (Thomas Scanlon); pp. 132-137 (Steven Shiffrin), and pp. 137- 142 (Lee Bollinger) Balkin

9-29 Dissent, Property, and the Bad Rabban Tendency Test

10-6 No in-class meetings; individual meetings Start reading Minnesota Rag by to discuss theory paper Friendly

10-13 Prior Restraint and Dissent Finish reading Minnesota Rag by Friendly Critique of Minnesota Rag due on 10-15.

10-20 Pragmatism, Progressivism, and Dissent Allen

Theory paper due in class on 10-22.

Class Schedule

Week Topic Readings

10-27 Locating Dissent in the “Right” Zick Place and Time

11-3 No in-class meetings; individual Start reading Make No Law by meetings to discuss application Lewis of theory for final paper

11-10 Dissent and the Sullivan decision Finish reading Make No Law by Lewis

Critique of Make No Law due in class on 11-12.

11-17 New Challenges to Dissent: DeLuca and Peeples; King, et al. Screens and Social Media

11-24 New Challenges to Dissent: Lessig; Coleman Code and Ethics

12-1 Presentations Read drafts of student papers, available through D2L

12-8 Presentations Read drafts of student papers, available through D2L

We will meet during the final exam period to complete student presentations. Also, final papers will be due at the beginning of the final exam period.