The Supreme Court has written that the freedom protected by the First Amendment—of speech, of the press, of association, of assembly and petition—is “the matrix, the indispensable condition of nearly every other form of freedom.” And yet, from the banning of books in schools to online hate attacks, targeting political speech as ‘terroristic’ and brutally suppressing public protest, the freedoms guaranteed by the U.S. constitution have never felt more precarious. With major television networks mired in legal and regulatory scandals—ABC and CBS have each paid $16 million settlements to President Trump for alleged defamation and political interference—the idea of the media as the guarantor of free speech appears more remote than ever. How have Americans arrived at this crisis point? And what legal and political tools do we have—and what tools are needed—to guarantee a free and democratic society?
This course will examine the legal and philosophical idea of free speech, considering its uses and justifications, developments and challenges, and ultimately its promise for a free society. We will take a long view of our current moment by examining the history of the First Amendment in the United States and its expansion in the 1920s and 1960s in landmark cases like New York Times Co. v. Sullivan, which protected criticism of public officials, and Brandenberg v. Ohio, which upheld protections for offensive speech. We will ask: How has the media’s changing relationship with political power been shaped by law? How can the legal history of the First Amendment help us understand the law’s relationship to our current culture of repression and intimidation? How has social media changed the legal and political landscape of ‘inciteful’ hate speech, obscenity, and censorship? Finally, can the legal system serve as a bulwark against threats to speech, both in the streets and in the media, or will the courts allow private interests and ‘national security’ to override long-established protections? Readings will be drawn from legal decisions, documentary film, and political theory, and will cover contemporary debates including LGBT+ speech in schools, hate speech, terrorism, and protections for protesters and journalists.
