Communication Law
and Free Speech
INTRODUCTORY MATTER
THE U.S. COURT SYSTEM
“READING” THE LAW
Welcome!
First Amendment’s
Freedom of Speech Right
“Congress
shall make no law respecting
an establishment of religion, or prohibiting the free
exercise thereof; or
abridging the freedom
of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the
Government for a redress of grievances.”
~ First Amendment, US Constitution
Free Speech / Expression

“Free Speech” /
“Free Expression”
is:



Questions we’ll consider:

What kinds of activity count as “speech”?

How are these activities “free”?

And why is preserving that freedom important?

What historical struggles and causes has the
idea of free speech developed in and
through?

What institutions and technologies shape it,
and should it shape?

What judicial doctrines has the Supreme Court
created to regulate speech?

What constitutes a “chilling effect” on speech?

What is “hate” speech and is it protected?

What types of speech are not protected?

Do students have freedom of speech /
expression?
a philosophical
idea


a legal tradition
a polemical slogan
a historical struggle
Free Speech / Expression
 To
answer these questions, we will
engage a range of philosophical
and academic texts, court cases,
popular essays, and other digital
documents.
In our lecture today, we will discuss:

The U.S. Court System

How to “Read” / Interpret the Law
The U.S.
Court System
The Branches of Government

Legislature: makes the law

Executive: enforces the law

Judiciary: interprets the law
What is the Law?

Constitutions, charters, treatises, contracts,
executive orders, legislative statues

Different types:

Common Law

Statutory Law

Constitutional Law
Article III of the US Constitution

Section 1:

“The judicial power of the United States, shall be
vested in one Supreme Court, and in such inferior
courts as the Congress may from time to time ordain
and establish. The judges, both of the supreme and
inferior courts, shall hold their offices during good
behaviour, and shall, at stated times, receive for their
services, a compensation, which shall not be
diminished during their continuance in office.”
Article III, Section 2

“The judicial power shall extend to all cases, in law and equity, arising
under this Constitution, the laws of the United States, and treaties
made, or which shall be made, under their authority;--to all cases
affecting ambassadors, other public ministers and consuls;--to all
cases of admiralty and maritime jurisdiction;--to controversies to which
the United States shall be a party;--to controversies between two or
more states;--between a state and citizens of another state;-between citizens of different states;--between citizens of the same
state claiming lands under grants of different states, and between a
state, or the citizens thereof, and foreign states, citizens or subjects.”
Federalist 78:
The Least Dangerous Branch

“Whoever attentively considers the different departments of power must
perceive, that, in a government in which they are separated from each other,
the judiciary, from the nature of its functions, will always be the least dangerous
to the political rights of the Constitution; because it will be least in a capacity to
annoy or injure them. The Executive not only dispenses the honors, but holds the
sword of the community. The legislature not only commands the purse, but
prescribes the rules by which the duties and rights of every citizen are to be
regulated. The judiciary, on the contrary, has no influence over either the sword
or the purse; no direction either of the strength or of the wealth of the society;
and can take no active resolution whatever. It may truly be said to have neither
FORCE nor WILL, but merely judgment; and must ultimately depend upon the
aid of the executive arm even for the efficacy of its judgments.
Alexis de Tocqueville
Democracy in America (1838)

Chapter XVI: Causes Which Mitigate the Tyranny
of the Majority in the United States
 “Scarcely
any political
question arises in the
United States that is not
resolved, sooner or later,
into a judicial question.”
Circuit
Courts
Misc. Details about the USSC

9 justices

Original vs. Appellate Jurisdiction

Writ of Certiorari

Oral Arguments


Typically Oct-April

3 days / wk.
Conference Friday

Straw vote; schedule opinion
Current Court

Front row, left to right: Associate Justice Samuel A. Alito, Associate Justice Clarence
Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Stephen G. Breyer (replaced
by Associate Justice Ketanji Brown Jackson), Associate Justice Sonia Sotomayor.

Back row: Associate Justice Brett M. Kavanaugh, Associate Justice Elena Kagan, Associate
Justice Neil M. Gorsuch, Associate Justice Amy Coney Barrett.
How the Appellate System Works

Different Types of Courts:
 Court
of Original Jurisdiction:
 answers
1
questions of fact
judge; possible jury trial
 Appellate
 answers
 Panel
 Rule
Court:
questions of law
of judges (3-9)
of 4: 4 judges need to agree to hear a case
Misc. Things


Different Parties

Appellant, Respondent

Amicus Curiae (“friend of the court”)
Decisions

Uphold lower court

Overturn lower court

Remand back to lower court to do something (ex:
retry the case, include / exclude information, etc.)
How to
“Read” /
Interpret the
Law
The Relationship
Between Rhetoric & Law

Extends back to the beginning of rhetoric

500 b.c.e.

Tyrants overthrown in Athens, Greece

People needed to represent themselves in court
What is Rhetoric?

Steve Brown: “Trying to define rhetoric is like nailing jello
to a wall.”

Plato (4th century b.c.e.): Persuasion is “the art of winning the soul
by discourse.”

Aristotle (4th century b.c.e.): Rhetoric is “the faculty of discovering
in any particular case all of the available means of persuasion.”

Cicero (1st century b.c.e.): Rhetoric is “speech designed to
persuade.”

Quintilian (1st century b.c.e.): “Rhetoric is the art of speaking well.”

Francis Bacon (17th century c.e.): “Rhetoric is the application of
reason to imagination ‘for the better moving of the will.’”

Kenneth Burke (20th century c.e.): “Rhetoric is rooted in an
essential function of language itself, a function that is wholly
realistic and continually born anew: the use of language as a
symbolic means of inducing cooperation in beings that by nature
respond to symbols.”
The Law & Literature Movement

Developed in the early 1980s

Interested in:
1.
the study of literary interpretations (hermeneutics)
2.
the representation of law in literature & popular culture
3.
the relationship b/t narrative theory & legal reasoning
James Boyd White

“Law as Language: Reading Law and Reading Language”

Work spawned two lines of investigation:
1. Law as literature
2. Law in literature
Law as Literature

Applies concepts of literary criticism to legal texts

Scholars might ask: “how do metaphor and narrative
function in legal text?”

Ex: What does it mean for something to have a
metaphoric “chilling effect” on speech?

Ex: Loyalty oaths can have a chilling effect on speech.
Law in Literature

Examines the public discourse of law in literature, mass
media, / pop culture

Scholars might ask: “how is a trial publicized in the news
media?”

Ex: O.J. Simpson / Kobe Bryant trial / “Scopes” monkey trial

Ex: How does How to Get Away with Murder or Suits portray
the legal process?
Judge Posner’s Critique

In Law and Literature Posner argues:

“Law and literature have significant
commonalities and intersections, but the
differences are as important. Law is a system of
social control as well as a body of texts, and its
operation is illuminated by the social sciences
and judged by ethical criteria. Literature is art,
and the best methods for interpreting and
evaluating it are aesthetic.”
Legal Rhetoric

Rhetorical scholars have been frustrated by the lack of
careful attention to the distinction b/t “literature” and
“rhetoric”

Literature: focuses upon the aesthetics of language
construction & use

Rhetoric: concerned with the strategic use of language to
constitute and reconstitute meaning
Scholars of Legal Rhetoric

Are Interested In:

1. Rhetorical criticism of judicial opinions

2. Historical studies of the relationship b/t rhetorical theory
& legal reasoning / education

3. Attempts to use rhetorical theory to critique theories of
jurisprudence
A Case is a “Story” About a Conflict

We learn that “the law” is by observing what appellate courts

The Supreme Court and other appellate courts resolve the
conflict by:

1) letting a lower court decision stand (often if an issue is not yet
“ripe”),

2) applying “precedent” (arguing that the case at hand is
essentially like a set of cases with a similar fact pattern previously
settled in a consistent way),

3) clarifying or creating a new precedent by “distinguishing” the
case at hand from previous cases.
How to “Brief” / Analyze a Case