FREE SPEECH AND THE MEDIA
MDST 4559
SPRING 2014
Nau Hall 142
T 2:30-5:00 pm
INSTRUCTOR:
Prof. Jennifer Petersen
Office Hours: T 9-10 am; Th 1:15-2:30
Office: Wilson 222
Email: jenp@virginia.edu
Course Description:
Should computer code and hyperlinks be considered speech, protected by the First Amendment? Silent
film? These are just some of the questions that new communication technologies have spurred for free
speech law in the United States. In this class, we will explore how the law has responded to new media
from film to computer algorithms and video games. Along the way, we will discuss how different media
have been incorporated into the First Amendment and discuss in-depth some of the different legal
issues associated with communications media, including censorship, corporate speech, conflicts
between copyright and free expression, and expressive conduct.
This course can be applied toward the MDST media policy and ethics concentration.
Course Texts
Required readings are available online, in the resources section of Collab and/or linked on the syllabus.
A supplementary book on First Amendment law is recommended:
Barron, J, and Dienes, T. (2008) First Amendment Law in a Nutshell (4th ed.) St. Paul, MN: West
Publishing
Assessment
Your final grade for this class will be assessed via the assignments and expectations listed below. All
grades are calculated on the following scale: 88-89=B+, 83-87=B, 80-82=B-, etc.
Participation
Presentation
Short Assignments
Mid-Term Exam
Final Paper
20%
10%
10%
20%
40%
Participation includes contribution to group discussions, short writing assignments, and out of class
preparation for class debates. You are expected to come to class having read the assigned readings and
ready to discuss them. Your participation will be assessed on amount and quality of your contributions
to class. Remember that this is an inter-disciplinary class and that your knowledge from other classes,
and disciplines; personal experiences and curiosity are integral to this seminar.
Presentation: Working in groups, you will all present on a legal case that we are going to read. This will
require a bit of historical research. You should tell us about the cultural context of the case, the
technology and/or events at issue in the case as well as the legal issues. Where possible, you should also
summarize the arguments the lawyers on each side made in the case.
Short Assignments: There will be several short assignments in the class, to assess and give you feedback
on your writing and research skills as well as your comprehension of course materials. These
assignments may include basic searches for legal cases, summaries of legal decisions and/or law articles,
and short position papers on free speech debates. These assignments will be announced in class.
Mid-Term: There will be a mid-term to assess your understanding of course material and key debates.
The mid-term will be a take-home exam week 9 of the semester; we will not meet as a class that week.
Final Paper: Your final paper should be an original research paper relevant to the course topics and
discussion. I expect you to base your research in the course materials and discussions, but to extend
your research and thinking beyond what we have discussed in class. You will turn in a thesis statement
early in the semester; I will give you feedback on your proposed project. You will also turn in an
annotated bibliography in the last third of the semester. These assignments are intended to get you
thinking about and working on your paper early in the semester and as an opportunity for you to get
feedback early on. The thesis statement and bibliography are broken out as 5% of your final grade (so
that the actual paper is 35% of your grade).
POLICIES:
Late Assignments: You are expected to hand in all assignments in class the day they are due. If there is
any reason you will be unable to do so, it is your responsibility to make arrangements with me before
the paper is due. Late assignments will be penalized by 10% for every day they are late.
Plagiarism: This course follows UVA’s Honor Code. I expect you to include the pledge on all assignments
for this class, unless otherwise noted. Purchasing papers, using someone else’s words without
attribution, failing to cite sources, and turning in work that you have completed for another class are all
forms of plagiarism. All infringements will be reported and pursued to the full extent of the Code.
Attendance: Your first two absences will be “no questions asked.” However, as this is a seminar course,
your absence from discussion will be missed and you will not receive credit for your participation. After
two absences, each day you miss will result in a 2% deduction from your final grade. If you expect to
have absences due to University-sponsored events, it is your responsibility to alert me of these absences
during the first week of class and to notify me of each University-sponsored absence before it takes
place.
Students with Special Needs: Students with special needs should meet with me during the first two
weeks of the semester to speak with me so that I can arrange appropriate accommodations.
Contacting me: I am happy to answer any questions about the course, requirements, readings, or
individual work after class, in my office hours, or by appointment. My office is 450 New Cabell; my
phone there is 924-3121. In general, email is the best way to get in touch with me; however major
concerns are often better addressed in office hours. I usually am able to return emails within 48 hours.
Please do not hesitate to contact me.
The planned course schedule is as follows; I reserve the right to make amendments. I will post course
announcements, assignments, and related materials on Collab.
Schedule of Classes
Week 1: Introduction: What is Free Speech? When is speech?
1/14 First Amendment Timeline: http://www.firstamendmentcenter.org/first-amendmenttimeline
Week 2: Core tenets and themes of free speech law and thought
1/21 Read: Schauer, “The First Amendment as Ideology”
Read: Sunstein, “Political Speech and the Two-Tier First Amendment”
Read: Stein, “The First Amendment and Speech Rights in Democratic Societies”
Read: Dworkin, “Law as interpretation”
Read: Kerr, “How to read a legal opinion” (sections I-III, pp. 51-61)
Recommended: Chapter 1, First Amendment Law in a Nutshell
Week 3: A brief history of free speech
1/28 Read: Kairys, “Freedom of Speech II” from The Politics of Law
Read: Anderson, “The Formative Period of First Amendment Theory, 1870- 1915”
Read: Rabban, “WWI and the Creation of the Modern Civil Liberties Movement” and “Holmes,
Brandeis and the Judicial Transformation of the First Amendment after WWI”
Read: Smith, “Schenck v. United States and Abrams v. United States”
Case: Schenck v. United States (1919): background (http://www.oyez.org/cases/19011939/1918/1918_437) and decision
(http://supreme.justia.com/cases/federal/us/249/47/case.html)
Assignment #1 due
Week 4: Silent Film: Are Moving Images Speech?
2/4 Read: Jowett, “’Capacity for Evil’: The 1915 Supreme Court Mutual Decision”
Read: Greiveson, Fighting Films: Race, Morality, and the Governing of Cinema, 1912-1915.”
Cinema Journal 38(1): 40-72 (1998).
Read: Adler, “The First Amendment and the Second Commandment”
Case: Mutual Film v. Industrial Commission of Ohio (1915):
http://www.digitalhistory.uh.edu/historyonline/mutual_film.cfm
Case: Pathe Exchange v. Cobb (1922)
Week 5: Censorship, obscenity and indecency: some limits on free speech (or what speech is less
valuable?)
2/11 Read: Heins, “Policing the Airwaves” and “The Rein of Decency”
Read: Rivera-Sanchez, “Origins of Indecency in the 1927 Radio Act”
Read: Peters, “Homeopathic Machismo in Free Speech Thought”
Recommended: Chapter 4, 5, 8 First Amendment Law in a Nutshell
Week 6: Censorship debates continued: Video Game Violence and Free Speech
2/18 Read: TBA
Read: Mott, “ Game Over for Regulating Violent Video Games? The Effect of Brown v.
Entertainment Merchants Assn. on First Amendment Jurisprudence”
Read: Saunders, “The History of Obscenity Law and the Development of its Limitation to
Depictions of Sex”
Case: Brown v. EMA (skim Thomas’ dissent, read all other opinions)
Final Paper initial Proposal Due
Week 7: Radio and TV: Defining speech rights in a new medium
2/25 Read: Smolla, “Information, Imagery, and the First Amendment: A Case for Expansive
Protection of Commercial Speech”
Read: Collins and Skover, “Commercial speech”
Read: Stein, “Social Mediation in Print and Broadcast Media”
Case: Red Lion v. FCC (1969)
Case: KFKB v. FRC (1931)
Recommended: Chapter 7, First Amendment Law in a Nutshell
Week 8: TV and cable: Who’s a speaker?
3/4 Read: Streeter, “Broadcast Copyright and the Vicissitudes of Authorship in Electronic Culture”
Read: Horowitz, “The First Amendment Meets Some New Technologies: Broadcasting,
Common Carriers, and Free Speech in the 1990s”
Read: Baker, “New Media Technologies, the First Amendment, and Public Policy”
Case: Turner Broadcasting v. FCC (1994)
SPRING BREAK
Week 9: No Class Meeting
3/18 Mid-term (take-home)
Week 10: Corporate speech and speakers (can talk about cable and public access here)
3/25 Read: Bezanson, “Corporations as Speakers”
Read: Mayer, “Personalizing the Impersonal: Corporations and the Bill of Rights”
Read: Hellman, “Money Talks But It Isn’t Speech”
Read: Moyers,” The 1% Court,” The Nation
Case: Citizens United v. FEC (2011)
Week 11 Ownership v. Expression
4/1 Read: Vadhyanathan, “The Digital Moment: The End of Copyright?”
Read: Boyle, “Private Censors, Transgenic Slavery and Electronic Indenture,”
Read: Baker, First Amendment Limits on Copyright
Paper Thesis and Bilbliography due
Week 12: “Speech Plus”: Expressive Conduct
4/8 Read: Bezanson, “Sources of expression: Boy Scouts of America v. Dale”
Read: La Salle, “The Other 99% of the Expressive Conduct Doctrine: The Occupy Wall Street
Movement and the Importance of Recognizing the Contribution of Conduct to Speech.”
Read: Marvin, “Theorizing the Flagbody: Symbolic Dimensions of the Flag Desecration Debate,
or why the Bill of Rights Does Not Fly in the Ballpark
Case: Texas v. Johnson (1989)
Recommended: Chapter 10, First Amendment Law in a Nutshell
Week 13 Hyperlinks and Code: Pure Speech or Expressive Conduct?
4/15 Read: Gillespie, “The Copyright Balance and the Weight of DRM” (skim) and
“Protecting DVDs: Locks, Licenses and Laws,” (read)
Read: Coleman, selections from Coding Freedom: The Ethics and Aesthetics of Hacking
Case: Universal City Studios v. Corley (2001) (transcripts and case)
Recommended: Universal City Studios v. Remeirdes (2000)
Week 14 Algorithms and Machine Speech
4/22 Read: Lithwick, “Google-Opoly” Slate
http://www.slate.com/articles/news_and_politics/jurisprudence/2003/01/googleopoly
_the_game_no_one_but_google_can_play.html
Read: Lee “Do you lose speech rights if you speak using a computer?” Ars Techica:
http://arstechnica.com/tech-policy/2012/06/do-you-lose-free-speech-rights-if-youspeak-using-a-computer/
Read: Wu, “Machine Speech”
Read: Volokh and Falk, “First Amendment Protection for Search Engine Results”
Week 15 More Machine Speech, Paper Workshop; Wrap-up
4/29 Read: Bramman, “Posthuman Law”
Read: Jack M. Balkin, “Digital Speech and Democratic Culture: A Theory of Freedom of
Expression for the Information Society”
Final Paper Rough Draft Due
5/7
Final Paper due on Collab (drop box)