Free Speech (PSC 300.M102) (Spring 2024)

Instructor: Professor Thomas Keck

Teaching Assistant: Kincaid Leonard

Day/Time/Location

Class meets T/Th 2:00-3:20pm in Maxwell Auditorium. Professor Keck’s office hours will meet M 2-3pm and W 1-2pm in Eggers 313, with a Zoom option. (Zoom links on Blackboard, under the Content tab.) TA Kincaid Leonard’s office hours will meet Tu/Fr 12:30-1:30pm in Eggers 035, TA Bay 024/025. If the regularly scheduled office hours don’t fit your schedule, the professor and TA are both available by appointment as well; just email the two of us with some potential day/time windows, and one of us will get back to you with an appointment.

Class Delivery Format

As of now, our class is scheduled to meet fully in person. If public health conditions necessitate, we may switch to online or hybrid models as the semester proceeds. If/when we do so, our online platform will be Zoom. Zoom will also be our platform for online office hours. If you haven’t done so already, please go to zoom.syr.edu, log in with your NetID to enable your account, and install Zoom on all devices that you will be using to access our online class sessions (if necessary) and office hours. Zoom can be run directly from a web browser, but we may use some features (such as breakout groups) that work only if Zoom is installed on your device. Zoom links for office hours (and class sessions, if necessary) will be available on Blackboard.

Course Content

In this class, students will investigate when, where, why, and how courts have protected the freedom of speech, and when, where, why, and how courts should protect the freedom of speech. In other words, we will critically evaluate the performance of courts in protecting free speech when it should be protected and allowing restrictions on speech when it should be restricted. Much of the class will focus on decisions issued by the U.S. Supreme Court, but we will also consider how courts in Canada, Europe, and perhaps elsewhere have resolved similar disputes. We will pay particular attention to current legal conflicts regarding the optimal scope of free expression on large social media platforms.

Learning Objectives

By the end of the semester, students will have widened and deepened their understanding of both the theory and practice of free expression. Students will know a lot more than they do now about the best arguments in favor of robust protection for free speech, along with the best arguments in favor of restricting speech in some contexts. As a result, students will be better prepared to make their own informed judgments about when, where, why, and how free speech should be protected. Students will also hone their critical thinking, writing, and speaking skills.

Course Readings

There is no required textbook. Course readings will be made available online or via Blackboard.

Course Expectations

Grades will be based on your demonstrated active engagement with the course material, a series of “free speech in the wild” assignments, an in-class moot court presentation, one conventional academic paper, and a final exam.

Active engagement with the course material (15% of your grade)

This portion of your grade will be based on your demonstrated commitment to active engagement with the course material. You can demonstrate this engagement in a variety of ways, detailed below. TL;dr: the closer you come to eating, sleeping, and breathing free speech arguments over the next few months, the better you will do.

One important component is attendance in class. If you are not physically present, you are missing an important opportunity to talk with the rest of us about the course material. This course will include a heavy discussion component, but even when I am mostly lecturing, your presence enables you to answer my questions and to ask questions of your own. Sometimes even a quick question to me on the way out of the classroom can be a spark for enhanced understanding.

In addition to your physical presence, active engagement requires diligent preparation. Nobody is perfect, but if you regularly complete the assigned readings prior to the relevant class session, your comprehension of our lectures and discussions will be enhanced, and you will be in much better position to make thoughtful contributions of your own. We may occasionally have some in-class writing assignments (typically unannounced). These assignments will provide additional opportunities for you to demonstrate your preparation and engagement with the course material.

Outside of class, I recommend verbally discussing the course material as often as possible, with as many different people as possible. Obviously, you can discuss the material with me or the TA; we are best situated to answer your questions, and doing so also demonstrates your engagement. But I also recommend discussing it with friends and family as often as they will tolerate; doing so will enhance your own understanding, guaranteed. In other words, you can learn some things by completing required readings silently in the library, but you will learn more things by doing the reading and then telling your roommate about what you read. Guaranteed.

Your active engagement grade will be assigned as follows: On the last day of class, you should submit a one-page self-assessment in which you assign yourself a letter grade (A-, B+, etc.) for this component of the course and write a couple paragraphs explaining and justifying that grade. In this self-assessment, you should address the following questions:

  • How many times were you absent from class? When and why? (Please list the dates, with an explanation for each one.) If it was excused, did you notify Prof. Keck? When you missed class, what steps did you take to learn the material that you missed?
  • How often did you participate in class discussions? Is there a specific class session or two where you remember contributing? What were those conversations about? When you didn’t participate, were you nonetheless alert and prepared for class? If so, then why didn’t you speak up on those occasions?
  • Approximately how many pages of notes did you take during each class session? When and how did you review those notes later on? How helpful did you find them?
  • During class, how often did you do anything that might have distracted your fellow students (e.g., chatting, sleeping, texting, opening your laptop, arriving late, leaving the room during class)?
  • How often did you visit the professor or teaching assistant during office hours? How helpful were these visits? In what ways?
  • How often did you discuss the course material with friends or family outside of class? What did you talk about, and how did others respond?

“What free speech means to me” assignment (formerly “free speech in the wild” assignment) (10%)

Throughout the semester, each student must create and regularly update a document that includes three columns with the following headers:

  • speech acts that should be constitutionally protected
  • speech acts that should not be constitutionally protected
  • speech acts that I’m not sure about

Within each column, you should keep a running list of speech acts (e.g., handing out an anti-war flyer during wartime, falsely shouting fire in a crowded theater, burning an American flag outside the Republican National Convention). You should regularly update your lists throughout the semester. You should add examples that come up in the course readings or during class discussions, along with examples that you watch, listen to, read about, participate in, or witness outside of class.

This assignment will be assessed as follows:

  • you should always have your lists with you in class; if/when Prof. Keck calls on you to share, you should have a new example to report from one or more of your columns;
  • at least once by the end of February, you should come to office hours and discuss with Prof. Keck or the TA at least one real-world example, from outside our course (i.e., not from class readings or discussions) that you have added to one of your lists;
  • at least one additional time by the end of March, you should either come to office hours again or share your lists by email with the TA; if you choose email, you should include an attachment or a link to your full three columns, along with a one-paragraph description of one recently added example, with an indication of which column you placed it in and why (this can be a real-world example or an example from our course);
  • at least one additional time by the end of April (so 3 times in total), you should either come to office hours again or share your lists by email with the TA; if you choose email, you should include an attachment or a link to your full three columns, along with a one-paragraph description of one recently added example, with an indication of which column you placed it in and why (this can be a real-world example or an example from our course).

In-class moot court presentation (15%)

Each student has to sign up to participate in brief in-class oral arguments for one case listed on the syllabus. If extra slots are available, signing up for a second slot will provide optional extra credit.

More details will be provided in class, but the gist of the assignment is as follows: During the class for which each assigned case is scheduled, one student will represent each party in the case. Each student will briefly present the key facts and legal arguments that support their client’s position and will respond to questions from the “judges” (i.e., their classmates and the professor and TA). You should be prepared with at least 5 minutes of good talking points, but depending how many questions you get, you may be on stage for up to 15 min. or so.

Your deadline for this assignment will depend on which case you sign up for; i.e., it will be the day that case appears in the course schedule below. Your grade will be based on two components: your in-class performance and your demonstrated preparation beforehand. Anytime prior to the class in which you are scheduled to present, you should submit on Blackboard 1-2 pages (2 pages is the maximum allowed) of notes that you have prepared about your assigned case. If your presentation goes well, we will assign a grade based primarily on your in-class performance; but if you freeze up in front of the class, we will also consider the advance preparation that is demonstrated by the notes you had submitted.

Free speech and social media paper (40% total, but divided into 2 parts)

The U.S. Supreme Court is scheduled to decide five different cases this term involving free expression and social media. (They are all listed on the course schedule below, towards the bottom.) You can find more information about all of them here.

Choose one of them. In a paper of roughly 7-8 pages, advance an argument that indicates how you think the Court will decide the case and how you think the Court should decide the case. I.e., if you were on the Court, which way would you vote and do you think you would be in the majority or dissent? In support of your argument, your paper should reference a) at least two documents drawn from the case you’ve selected (e.g., the lower court opinion and/or one or more of the briefs filed in the case), b) at least five prior decisions from the U.S. Supreme Court, at least one of which appears on this syllabus, c) at least one decision issued by a court outside the United States, and d) at least two scholarly books or articles.

Prior to Spring Break, each student must submit a 2-page partial draft of this assignment. This partial draft should identify your case, briefly summarize the key issue in your own words, briefly articulate your argument as to how the case should come out (this can be tentative), and list at least 5 sources that seem promising (note the various kinds of relevant sources above). This partial draft is due by midnight on March 7 and counts for 10% of your final grade. The full 7-8 page paper is due by midnight on April 23 and counts for 30%.

Final exam (20%)

At the end of the semester, we will have a comprehensive final exam. I will provide more details as the semester proceeds.

Course Policies

Attendance: Attendance and participation will have a significant impact on your grade, both directly and indirectly. As noted in the active engagement section above, you are required to track your own attendance; as such, any time you miss a class, you need to write down when and why. You will report these dates and reasons in your active engagement self-assessment at the end of the term.

In accordance with SU policy, I will excuse any absences that result from religious observances, provided that you notify me in advance of the planned absence. Likewise if you’re sick and might be contagious, your absence will be excused, but you should notify me as soon as you’re able.

Grading policy: Some of the written assignments for this course will be graded by a teaching assistant. If you have any questions about these written assignments, either before or after they are due, you are welcome to speak with either me or the TA. If you are dissatisfied with your grade on any assignment graded by a TA, you may appeal that grade to me. When you do so, I will re-grade the paper from scratch. This means that you could receive a grade that is lower, higher, or the same as the grade originally assigned.

Late paper policy: Late papers are discouraged, but I was a student once upon a time, and I remember that crises sometimes come up. If you will have trouble producing your best work by the relevant deadline, come discuss the situation with me (not with the TA). If and when I agree to offer an extension, I will grade the late-arriving paper myself.

Academic integrity: Syracuse University’s Academic Integrity Policy reflects the high value that we, as a university community, place on honesty in academic work. The policy holds students accountable for the integrity of all work they submit. Among other things, it governs citations and use of sources and mandates honesty in all academic matters, including course attendance and participation. The policy also prohibits students from: 1) submitting the same work in more than one class without receiving advance written authorization from both instructors and, 2) using websites that charge fees or require uploading of course materials to obtain exam solutions or assignments completed by others and present the work as their own. Upholding Academic Integrity includes abiding by instructors’ individual course expectations, which may include the protection of their intellectual property. Students should not upload, distribute, or otherwise share instructors’ course materials without permission. Students found in violation of the policy are subject to grade sanctions determined by the course instructor and non-grade sanctions determined by the School or College where the course is offered, as described in the Violation and Sanction Classification Rubric. Students are required to read an online summary of the University’s academic integrity expectations and provide an electronic signature agreeing to abide by them twice a year during pre-term check-in on MySlice.

Serious sanctions can result from academic dishonesty of any sort, but in my experience, the most common form of such dishonesty is plagiarism, which consists of the failure to properly credit the sources of anyone else’s ideas, information, or language that are incorporated into your own work. In this class, an established instance of plagiarism or other violations of the academic integrity policy may result in grade sanctions up to and including a failing grade for the course.

Students may not use ChatGPT or other artificial intelligence (AI) tools to complete assignments in this course without full disclosure to the professor. The goals of the writing assignments in this course are a) to enhance your learning by having you critically engage with difficult constitutional debates; and b) to assess your ability to do so effectively. Neither of those goals is furthered when you submit text that was written by a bot.

All papers for this course will be submitted electronically through Turnitin.com, a resource which aids students in assessing whether they have properly cited all sources and aids instructors in identifying instances of plagiarism and AI-generated writing. You should be aware that all papers you submit for this class will become part of the Turnitin.com reference database for the purpose of detecting future plagiarism.

Future use of student academic work: Any work that you produce as part of your participation in this course may be used for educational purposes in future courses. For example, if you write a very good paper, I may distribute it in future classes as a model. If and when I do so, I will always remove your name so that the work is rendered anonymous. In addition, as noted above, Turnitin.com will maintain copies of all submitted papers in order to enhance its efforts to detect future plagiarism.

Reasonable accommodations: If you believe that you need accommodations for a disability, please contact the Center for Disability Resources (CDR), located in Huntington Hall (443-4498). CDR is responsible for coordinating disability-related accommodations and will issue Accommodation Authorization Letters when appropriate. Since accommodations may require early planning and generally are not provided retroactively, please contact CDR as soon as possible.

Office hours and email communication: The scheduled office hours appear at the top of this syllabus. Some of them will be conducted by the instructor, some by the TA. Some will be in person, some on Zoom. Zoom links are available on Blackboard. As noted in the description of the “free speech in the wild” assignment above, all students are required to visit office hours at least once by the end of February. We we hope you will come more often, but you have to come at least once.

If you have a quick question that can likely be answered by email, send it to both me and the TA; whichever one of us gets to it first will reply-all. Note also that I will sometimes use Blackboard’s “Send email” feature to contact all members of the class. As such, you are responsible for regularly checking your SU email account.

Resources for Students

Academic support services: SU provides a variety of tutoring and academic support services, and I encourage you to avail yourself of these resources. Doing so may help you learn the course material better, determine the best strategies for studying that material, improve your writing skills, and reduce stress about your success in the course. Further details are available from the Center for Learning and Student Success.

Mental health services: Mental health and overall well-being are significant predictors of academic success. As such it is essential that during your college experience you develop the skills and resources effectively to navigate stress, anxiety, depression and other mental health concerns. Please familiarize yourself with the range of resources the Barnes Center provides (ese.syr.edu/bewell) and seek out support for mental health concerns as needed. Counseling services are available 24/7, 365 days a year, at 315.443.8000. I encourage you to explore the resources available through the Wellness Leadership Institute.

Course Schedule

I. Foundations

Tues., Jan. 16: Introduction to the Course

Thurs., Jan. 18: John Stuart Mill

Below, I’ve provided two different links to Mill’s influential argument for free speech in On Liberty. I think the links will both take you right to the beginning of Ch. II: Of the Liberty of Thought and Discussion, but if not, you should find your way there before you start reading. (Or read the whole book if you have time!) Come to class with some good notes and/or highlighted passages, because I’m going to ask you which parts of Mill’s argument you found most persuasive.

Tues., Jan. 23: Free Speech and the Framers

What did free speech mean to the framers of the U.S. Constitution? That’s a big question, and we’re going to cover it in one day. To answer it, we’ll look at what some key framers said about free speech, but we’ll also devote our attention to some key prior documents and events that seem to have influenced the framers’ thinking, especially Cato’s Letter No. 15: Of Freedom of Speech, written by Thomas Gordon in 1720, and the 1734 trial of John Peter Zenger for libel in colonial New York. If time allows, we may also discuss the Sedition Act of 1798, which sparked the first major national free speech fight under the new U.S. Constitution. The Mchangama chapter is posted to Blackboard, under the Content tab.

  • Jacob Mchangama, Free Speech, ch. 6 (on Blackboard)

Thurs., Jan. 25: Justice Oliver Wendell Holmes, Jr.

Starting today, much of our reading will consist of free expression decisions issued by the U.S. Supreme Court. Where I have access to an edited version of the Court’s opinions (like those that appear in Con Law casebooks), I will link to those. Where I don’t have such a version, I will link to the full text; these versions will of course be longer, and you should hone your skills at skimming to find the key passages. I will also do my best to provide some guidance regarding which parts to focus on. If you do not have much prior experience reading judicial opinions, I recommend this article by Orin S. Kerr on “How to Read a Legal Opinion”; it’s written for first-year law students, but I think it will be helpful for us as well.

For today, note that Justice Holmes wrote the Court’s majority opinion in all three assigned cases, and he declined to protect someone’s free speech in each of them. See if you can figure out why.

Tues., Jan. 30: Holmes & Brandeis

We’ll continue our focus on Holmes today, along with his colleague Justice Brandeis. In the three cases linked below, focus on their arguments for free speech, all of which appear in concurring or dissenting opinions. Note that Holmes’s Abrams dissent, issued in the Fall of 1919, is the first noteworthy defense of free speech advanced by a U.S. Supreme Court justice in a published opinion, and that it came just six months after Holmes’s much less speech-protective opinions for the Court in Debs and Schenck. Why do you think he changed direction? Do Holmes and Brandeis offer the same justifications for free speech or different ones? For further reading, I recommend Thomas Healy’s The Great Dissent, Alexander Meikeljohn’s Free Speech and Its Relation to Self-Government, and chapters 1-2 of Jeff Koseff’s Liar in a Crowded Theater.

II. Modern Free Expression Doctrine (mostly in the U.S., but with some comparative reference points)

A. Incitement (and Extremist Speech)

Thurs., Feb. 1: Terminiello and Feiner

Two mid-century First Amendment decisions for today, one of which involved an SU undergrad (Irving Feiner). Two key questions to think about as you read the cases: 1) The Court protected Terminiello’s speech, but not Feiner’s. Can you make out why? 2) Dissenting in Terminiello, Justice Jackson advanced a lengthy argument against free speech in this context. How compelling did you find it, and to what extent does it seem relevant today?

Tues., Feb. 6: Militant Democracy in Europe

Starting today, we’re going to read some decisions from courts outside the U.S. First up is the European Court of Human Rights (ECtHR), with a decision from Turkey. As with U.S. Supreme Court decisions, I will often have to post the full text, so you should continue to hone your skills at skimming until you find what appear to be key passages, then reading those closely. In addition to the ECtHR judgment from Turkey linked below, I also recommend United Communist Party of Turkey v. Turkey (ECtHR 1998). For further reading on “militant democracy,” I recommend Alexander Kirshner’s A Theory of Militant Democracy.

B. Hate Speech in the U.S. and Canada

Thurs., Feb. 8: Hate Speech in the U.S.

Read the Court’s opinion in Brandenburg. Why did the Court decide that Brandenburg’s racist, anti-Semitic, and violently anti-government speech was protected under the First Amendment? What legal test did the Court adopt for determining whether incitement can be punished? What are some key situations in which the Court’s Brandenburg test is relevant today? (Hint: How does it apply to Donald Trump’s speech on Jan. 6, 2021?) For another influential decision regarding hate speech and incitement (involving a planned Nazi march in Skokie, Illinois), see Collin v. Smith (7th Cir. 1978).

Tues., Feb. 13: Hate Speech in Canada

Today’s case is a decision from the Supreme Court of Canada involving anti-Semitic hate speech. How does the Canadian Court’s approach differ from what we’ve seen from SCOTUS so far?

C. Seditious Libel (aka Libel of Public Officials)

Thurs., Feb. 15: Seditious Libel in the U.S.

Tues., Feb. 20: Libel of Public Officials in Europe

In addition to the case linked below, I recommend Pedersen and Baadsgaard v. Denmark (ECtHR 2004).

D. STATE ACTION AND PRIVATE THREATS TO SPEECH

Thurs., Feb. 22: Free Speech on Private Property

In addition to the case linked below, I recommend Marsh v. Alabama (1946), Lloyd Corp. v. Tanner (1972), and Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995).

Mon., Feb. 26: Note that the Supreme Court is scheduled to hear arguments in Moody v. NetChoice and NetChoice v. Paxton today. I encourage everyone to follow these cases in the news, as we’ll be discussing them in detail later in the term. And just a quick reminder here that your first “what free speech means to me” assignment, which requires a visit to office hours, is due by the end of February.

Tues., Feb. 27: Free Speech and Media Pluralism

Which party in the Tornillo case is on the side of free speech? How does the Court’s 1974 holding here relate to the two NetChoice cases currently on the Court’s docket?

E. OBSCENITY/PORNOGRAPHY

Thurs., Feb. 29: Obscenity and Pornography in the U.S.

Does the First Amendment protect sexually explicit speech sometimes, always, or never? Does the answer depend on the medium of communication? In addition to the cases linked below, I recommend Roth v. U.S. (1957) and FCC v. Pacifica Foundation (1978).

Tues., Mar. 5: Obscenity and Pornography in Canada

In addition to the case linked below, I recommend Little Sisters Book and Art Emporium v. Canada (Minister of Justice) (Can. 2000). For a U.S. case that explores arguments similar to those in Butler, I recommend American Booksellers Association v. Hudnut (7th Cir. 1985). I also recommend Catherine MacKinnon’s Only Words.

III. Contemporary Free Speech Controversies

A. Paid Advertising, Political Expenditures, and Free Speech

Thurs., Mar. 7: Campaign Finance in the U.S. and the U.K.

Note that the two-page partial draft of your free speech and social media paper is due by midnight tonight.

Tue. & Thur., Mar. 12 &14: Spring break. No class.

B. False Speech

Tues., Mar. 19: Intentional Falsehoods in the U.S. and France

Note that the full text of the Garaudy judgment is available only in French; the link below will bring you to English-language excerpts.

C. Sex, Gender, Religion, and Free Speech

Thurs., Mar. 21: Drag performance and the First Amendment

Over the past couple years, a number of state legislatures have sought to regulate or even ban drag performance. The Federal District Court decision linked below involves a challenge to a law enacted by Tennessee in early 2023. Note that the opinion is quite long. I recommend focusing on the opening section (including footnotes 1-4) and then the section headed “Merits,” which begins about halfway down and runs through several subsections; keep going until you get to the “Remedy” header.

Tues., Mar. 26: Anti-Gay Speech

In recent years, the Supreme Court has decided a number of cases involving free speech claims advanced by religious conservatives, including McCullen v. Coakley (2014), National Institute of Family and Life Advocates v. Becerra (2018), and 303 Creative LLC v. Elenis (2023). Do these case present any distinctive First Amendment issues? Snyder v. Phelps is about anti-gay speech, but also anti-Catholic speech and religious offense more generally. Vejdeland is an ECtHR case about anti-gay speech; for more on the ECtHR’s approach to religious offense, check out Otto-Preminger-Institut v. Austria (ECtHR 1994), Wingrove v. United Kingdom (ECtHR 1996), or E.S. v. Austria (ECtHR 2018).

Thurs., Mar. 28: Online Harassment

Note that the Beizaras and Levickas case includes extensive quotation of hateful and violent anti-gay comments. Is this case about free speech or something else? Pay particular attention to paragraphs 67 and 84-130 of the ECtHR judgment. And what do you think of the balance struck by the U.S. Supreme Court in Counterman? Reminder that everyone should complete a second “what free speech means to me” assignment by the end of March.

D. Free Speech in Schools and Universities 

Tues., Apr. 2: Speech by Public School Students, In and Out of School

In addition to the two cases linked below, I also recommend Tinker v. Des Moines (1969).

Thurs., Apr. 4: Free Speech and Academic Freedom on Campus

What’s the best way to think about the relationship between the concepts of free speech and academic freedom? The required reading below is a Fall 2022 federal court decision regarding Florida’s Stop WOKE Act. Note that the document is 100+ pages; I recommend reading the beginning, then jumping down to pp. 85-108. If you’re interested in further reading on this topic, I recommend reviewing one or more campus policies regarding free speech and academic freedom, such as those adopted by MIT, UVA, the University of Wisconsin-Madison, BU, Princeton, the University of California, Colgate University, and the University of Chicago. The Supreme Court has never weighed in directly on campus speech codes, but Doe v. University of Michigan (E.D. Mich. 1989) is a representative lower court judgment that does so.

E. Free Expression and Social Media

Our primary focus for the remainder of the semester is a series of interrelated questions regarding free expression on social media. There’s a lot of good recent scholarship in this area. Here are two recent articles if you’re interested: Danielle Keats Citron, “How to Fix Section 230” (2023); Jeff Kosseff, “What Was the Purpose of Section 230? That’s a Tough Question” (2023). If you’re up for a whole book, I recommend Danielle Citron’s Hate Crimes in Cyberspace, David Kaye’s Speech Police, and Jeff Kosseff’s Liar in a Crowded Theater.

Tues., Apr. 9: Online Interactions Between Constituents and Office Holders

Can public officials block constituents from accessing the officials’ social media feeds? Alternatively, can public officials be held responsible for replies or comments posted by constituents? SCOTUS issued its decisions in Lindke and O’Connor-Ratcliff on 15 March 2024. For each of these two cases below, I’ve kept the original link to a SCOTUSblog information page, but have also added a direct link to the opinions. For students who are not presenting today, I recommend focusing on those latter links.

For students who are presenting today, please proceed as follows. For Lindke, please provide a standard presentation of the arguments for and against speech protection. For O’Connor-Ratcliff, note that SCOTUS simply vacated the lower court opinion and remanded the case to the lower court for further proceedings consistent with what the Court said in Lindke. Please focus your presentation on how the standard announced in Lindke should be applied to the facts of O’Connor-Ratcliff. For Sanchez, please proceed as normal.

Thurs., Apr. 11: The Biden Administration and Content Moderation

Can federal policy makers encourage private social media companies to deplatform or deamplify content that the policy makers consider harmful? What’s the line between encouragement and coercion in this context? The link below will bring you to the SCOTUSBlog page for a case currently pending at the Supreme Court. Lots of relevant case documents are linked from that page; browse as many of them as you’re able to before class. I also recommend the oral argument transcript, available here.

Tues., Apr. 16: Red-State Legislatures and Content Moderation

Can state legislatures force private social media companies to platform and amplify content that violates their terms of service? Note that today is our last day for in-class moot court arguments. These cases pit the states of Florida and Texas against the world’s largest social media platforms. Which party has the First Amendment on their side? Note also that the links below bring you to a SCOTUSBlog resource page about each case. From there, you will find links to lots of relevant documents, including the lower court opinion in each case, the briefs filed by each of the parties, and a number of additional amicus curiae (“friend of the court”) briefs.

F. Wrapping up

Thurs., Apr. 18: Free Speech on Campus Today

For our final session, we’ll focus our discussion on some campus free speech conflicts that have taken place over the past week or two. Everyone should read the New York Times accounts of an incident that took place at the home of the Dean of the UC-Berkeley law school and a decision by USC to cancel a graduation speech by the university’s valedictorian. (Those are both gift links, so hopefully they work for everyone.) In addition, everyone should find and read at least one additional article about these or related incidents at one or more U.S. colleges or universities. For each incident that you read about, record it in one of your “what free speech means to me” columns and write down a list of key facts that seem relevant to understanding whether and to what degree the speech at issue should be protected. (Who was the speaker, what were they trying to say, when and where, etc.?) Come to class prepared to share and discuss these facts.

If anyone has final thoughts and questions about the free speech implications of then-President Donald Trump’s actions on Jan. 6, 2021, I’m happy to entertain those as well. No required readings on this front, but I recommend Special Counsel Jack Smith’s August 2023 indictment of Trump for conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, and conspiracy against voting rights.

  • Readings TBD

Tues., Apr. 23: Exam Review

Note: Free speech and social media papers are due by midnight tonight.

Thur., Apr. 25: In-Class Final Exam

Today we’ll hold an in-class final exam at our regular time and location. I’ll provide more details as the data approaches. Note also that your active engagement self-assessments are due by midnight tonight and your third “what free speech means to me” assignment is due by the end of April. Instructions for both of these assignments are provided under Course Expectations above.

Fri., May 3, 10:15 am – 12:15 pm: Make-Up Final Exam

If anyone misses the final exam on April 25, this day and time will be the opportunity for a make-up exam.