The History of the First Amendment

This course will consist of two intertwining parts -- the history of freedom of expression in the United States, and a focus on how this has been playing out in this country in the 21st century. The history will begin with the enactment and meaning of the First Amendment, and proceed through the Sedition Act, freedom of the press in the Civil War, the “Clear and Present Danger” 1919 Supreme Court decision, the creation of the FCC, and obscenity and pornography in media including the Internet. Current issues will include Putin’s denunciation of the truth about his attack on the Ukraine as fake news, Donald Trump and his followers’ continuing attack on the press as fake news, and what’s to be done about social media that disseminate disinformation about the COVID pandemic that endangers human lives.

The historical issues will be examined via the required readings and viewing of videos (see Required Readings at the end of syllabus) and live Zoom lectures and discussions. Readings for contemporary issues are also listed in Required Readings. Each student will be required to choose a topic or issue to investigate -- historical or current -- and give a 10-15- minute presentation to the class via recorded video in the second week of the course, and another 10-15-minute presentation via recorded video near the end of the term. In addition, each student will submit a 10-page paper on the topic in the third week of the term, and a 20-page paper for the final assignment (which should incorporate and build upon the prior 10-page paper).

New, current issues with relevant online readings may be added to the weekly outline.

Method: Our class will be conducted entirely online -- with (1) synchronous (live) lectures by me and discussion with you, all via Zoom, and (2) asynchronously recorded videos by you, emailed to me and posted online, with online written commentary and discussion by me and you.

Our class will begin with two live sessions, July 5 and July 7, conducted via Zoom (I’ll send you the link). We’ll use these sessions to get to know each other. I’ll be delivering the first two lectures, and you will be selecting your research topics for the term (see next paragraph). Our class is listed as meeting from 6pm to 9pm, but since the University recommends that live Zoom sessions not be longer than 90 minutes, we will meet instead from 6pm to 7:30pm Eastern time (Daylight Savings Time). Your first round of asynchronous status reports on your research (see next paragraph for appropriate topics) will be presented via recorded videos and written reports emailed to me via Gmail, and will be due beginning on July 11. In this asynchronous mode, you can send your video reports to me any time during July 11-18. Of course, the sooner you send those to me, the less work you’ll have to do later in the week. I’ll be providing asynchronous commentary via Gmail to the class on your video status reports. Your first round of

written reports, emailed to me, will be due July 18. We’ll then have another two live Zoom sessions, in which I’ll give some general feedback on your status reports, with lectures on new topics. These live sessions (via Zoom) will occur July 19 and July 20, 6pm to 7:30pm Eastern time (Daylight Savings Time). The Second and Final Round of your asynchronous video status reports (10-15-minute video, emailed to me) will take place July 25 – August 1. We’ll then have two final live sessions via Zoom on August 2 and August 4, in which I’ll give you feedback and deliver lectures on current developments related to freedom of expression, and summarize what we’ve learned in this course. Your final written 20-page paper (which builds upon your first 10-page paper) will be due via email to me no later than August 5.

Each student will investigate a freedom of expression issue -- either one of those listed in the syllabus below, or a new one which may arise at the start of the term. Media of “expression” can be speech, writing, print, radio, television, social media, streaming media, or any combination of those media. “Freedom” pertains to government or corporate or other actual or potential limitations or obstructions of expression.

Schedule

Live lectures from professor via Zoom, July 5 and July 7:

1. July 5 (via Zoom): The First Amendment … what Jefferson and Madison intended. Roots in John Milton. Comparison to other amendments (e.g., the Second Amendment). The Sedition Act and its challenge to the First Amendment. Adams vs. Jefferson. Historical precedents: the problem of Socrates … Bellarmine vs. Galileo. READING: Freedom of Speech in the United States, Chapters 1, 2

2. July 7: (via Zoom): Lincoln, the press, and the First Amendment. John Stuart

Mill and classic libertarian philosophy. “clear and present danger” decision … falsely shouting fire in a crowded theater … differing subsequent opinions from Brandeis, Black, and Douglas READING: Freedom of Speech in the United States, READING: Freedom of Speech in the United States Chapter 3, Section I

1st round student status reports (videos 10-15 mins): July 9-18; (written reports 10 pp.) July 18

Live lectures from professor via Zoom, July 19 and July 21:

3. July 19 (via Zoom): The creation of the FCC … are electronic media not entitled to

First Amendment protection? … George Carlin “seven dirty words” case … equal time

and the Fairness Doctrine … obscenity, pornography, and its legality … adults vs. children …

motion picture and music rating systems … Janet Jackson and the Super Bowl “costume reveal” … videogames and violence. READING: Freedom of Speech in the United States Chapter 3, Section II; VIDEO (with transcript): “The Flouting of the First Amendment”

4. July 21 (via Zoom): First Amendment and the Internet … the Communications Decency Act … can the Internet be child-proofed? … the First Amendment and the street (the right of people to peaceably assemble) … Occupy Wall Street and the First Amendment … are “citizen journalists” entitled to First Amendment protections? … the Josh Wolf case … the Alexander Arbuckle case … McLuhan’s “medium is the message” and its application to what is a journalist. READING: Freedom of Speech in the United States Chapter 3, Section III; “I’m a First Amendment scholar – and I think Big Tech should be left alone” VIDEO (with transcript): “The Flouting of the First Amendment”;

2nd (Final) round of student status reports (videos 10-15 mins): July 25-August 1

Live lectures from professor via Zoom, August 2 and August 4

5. August 2 (via Zoom): Wikileaks, Julian Assange, and the Pentagon Papers … Supreme Court decision on Pentagon Papers case … does this decision apply to and protect Edward Snowden? … Assange’s publication of Democratic National Committee hacks … shield laws: First Amendment vs. Sixth Amendment? … Myron Farber case … Judith Miller case … truth vs. justice READING: Fake News in Real Context

6. August 4 (via Zoom): Donald Trump and the press: should our libel laws be revised so reporters can be sued? … the attack on the press as “fake news” … Historical precedents: Lügenpresseand the press as “enemy of the people” … hate speech in political campaigns, rallies, and on campus … ultimate limitations, if any, to freedom of expression? … Lying about COVID: what is the best way of stopping that? Roe v Wade and the First Amendment READINGS: Fake News in Real Context; special issue of Contribution to Humanities: The Future of Social Media (July 2022); “The Talmud vs. the Supreme Court Decision Overturning Roe v. Wade”

Final written reports (20 pages): August 5

Required texts:

Freedom of Speech in the United States, 8th edition (2017) Thomas Tedford & Dale Herbeck [Note: Though the 8th edition is, of course, more current, you could get by with Freedom of Speech in the United States, 7th edition (2013)]

(free) Video of Speech & Transcript: The Flouting of the First Amendment (2005) Paul Levinson

Fake News in Real Context (2016/2021) Paul Levinson

(free) Levinson, Paul (2021) “I’m a First Amendment scholar – and I think Big Tech should be left alone,” The Conversation, 20 January.

(free) special issue Contribution to Humanities: The Future of Social Media (July 2022), with essays by Paul Levinson, William Merrin, and five others. Abstracts (full articles will be on this site before the start of our course in July)

(free) https://www.hollywoodreporter.com/news/politics-news/russia-censorship-law-duma-ukraine-dozhd-1235104216

Recommended texts (read at your leisure throughout the term)

On Liberty (1859/2010) John Stuart Mill

(free) Paul Levinson “The First Amendment in the Post-Truth Age,” Garrison Institute, 15 May

2018 https://www.garrisoninstitute.org/blog/the-first-amendment-in-the-post-truth-age/

(free) Paul Levinson “The Talmud vs. the Supreme Court Decision Overturning Roe v. Wade,”

Vocal Media, 25 June 2022 https://vocal.media/theSwamp/the-talmud-vs-the-supreme-court-decision-overturning-roe-v-wade

Final grade: 50% final paper and video presentation; 25% first paper and video report;

25% class participation

Learning Objectives: Build a nexus of professional research, over 3+ months, on the history of the First Amendment and its crucial role in our current society. Express this research throughout the term via one status report, and a final paper that uses the status report as a foundation for a conclusion and suggestions for further work. Explain this research via verbal summaries of the status report and the final report to the class. Engage in dialogue about the research via questions from the professor and students in the class.