LSHV 444 - Free Speech and Supreme Court

Free Speech is very much about line-drawing. We are generally agreed that political speech, no matter how heated, is the hallmark of an open society, and highly protected under the First Amendment. We are also generally agreed (per Justice Holmes) that you can't cry fire in a crowded theater when there is no fire; and that child pornography is bereft of any constitutional protection. Those are easy. What about the gray areas, where unfettered speech is a threat to safety, to reputation, to national security, to morality? In pushing the free speech envelope, how far is too far? Where (if at all) should society -- and the Supreme Court -- draw the line? Justice Brandeis, a champion of free speech, noted that "freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth." Justice Jackson, also a proponent, nonetheless cautioned that speech free of reasonable fetter, if unchecked, can lead to anarchy and convert the Bill of Rights "into a suicide pact." Who is right? Or are they all right? When is speech so uncivil that domestic tranquility takes precedence? What is lost and what is gained as a society in resolving these tensions? This course grapples with these issues. Through historical analysis and case study of the leading Supreme Court speech cases from the Founding to the present, we will examine the interplay between speech and censorship, liberty and order; majoritarianism and libertarianism; and the legal, societal and ethical implications of the Supreme Court's First Amendment pronouncements in this volatile, contentious/perpetually vexing area.