SS 3660 -- American Constitutional Law

Schedule of Course Readings and Topics Part II

Susanna Peters

Office: 218 Academic Office Bldg

Office Phone: 487-2391

Office Hours: T/Th 1-2, Weds 2-3, or by appt.

Class Meets: T/Th 2:05 -3:20

PART II SCHEDULE 2008

Individual Rights and Liberties - updated 3/28/2008

This schedule is subject to change as course and student demands evolve.

Thurs Feb 28 Religion: Free Exercise

Text Chap 12, pp. 337-358. (includes Sherbert v. Verner p. 342 Employment Div v. Smith (1990) p. 348 (current test)) .

Goldman v. Wienberger (1986) (CQ website).

In class -- Discuss Supreme Court Argument Choices

Dorf: The Supreme Court's Unanimous Decision Recognizing a Religious Right to Use Hallucinogenic Tea, Feb 27 2006 http://writ.news.findlaw.com/dorf/20060227.html

Case Study: Children and Medical Treatment

Skim

Religious Tollerance.org – site on Faith Healing http://www.religioustolerance.org/medical1.htm#free

Lee Black, Limiting Parents Rights in Medical Decision Making, AMA Journal of Ethics, Oct 2006 http://virtualmentor.ama-assn.org/2006/10/hlaw1-0610.html

AM Rogers, “Saving sick Children from State Science” http://server.fee.org/publications/the-freeman/article.asp?aid=1847

Religious Objections to Treatment: E Ethics http://www.parkridgecenter.org/Page567.html

Jehovah’s Witness Kid Dies After refusing Treatment: Nov 2007 NPR story on 14 y.o. Dennis Lindberg http://www.npr.org/templates/story/story.php?storyId=16763280

Optional Reading:

Church of Lukumi Babau Aye (1993)(prohibition on animal sacrifice was invalid) http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/lukumi.html)

,City of Boerne v. Flores (1997) (overturning RFRA)

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/boerne.html

Doug Linder: Free Exercise -- http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/freeexercise.htm

Gonzales v. O Centro (all on CQ website)

Marci Hamilton, God v. Gavel Chap 2 pp. 13-21 and p 31-40 (see readings page)

Tues March 4 Establishment Clause (also Choose Supreme Court Arguments)

Text p. 358-392 (includes Lemon, Zelman v. Smith Harris, Abington v. Schemp), add Lee v. Wiseman (from CQ website)

Skim: Muslim Student Groups, a Debate over inclusion, NYT 2/21,/08http://www.nytimes.com/2008/02/21/education/21muslim.html?_r=1&pagewanted=all&oref=slogin

Read Sabato Chap 3.

Due: Assn 4 – Establishment Clause Point –Counter Point

Thurs March 6 Start -- Speech Chap 13 – Illegal Advocacy and other problems of free speech.

Skim 393-413, Read 413-23,

· Brandenburg v. Ohio (1969) (CQ text site or http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/brandenburg.html

· Cohen v. California (1971) (“F*#! the draft”) (CQ site or http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/cohen.html)

· Text -- Read Texas v. Johnson p. 413 (flag burning – symbolic speech) Chaplinsky p. 419 (true threats – da**#d fascist))

Skim:

· Rice v. Palidin Press (HitMan Case) http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/rice.html

In Class: Listen to Texas v. Johnson,

March 8-17 Spring Break

Tues March 18 Speech – Chap. 13 cont

In class – watch Skokie, exams, groups meet.

Read Sabato Chap 4

Read Text p 423 -440

· RAV v. City of St Paul p. 423 (hate speech regs)

· W. Va v. Barnette (p. 430-34) (freedom not to speak)

· BoyScouts v. Dale p. 436 (association)

· Read one of these articles: (1) “Outrage at Funeral Protests causes Lawmakers to Act,” NYT 4/17/2006 http://www.nytimes.com/2006/04/17/us/17picket.html?_r=1&oref=slogin (2) Funeral Protests: AP News, “Legislature Propose Bills Barring Protests at Funerals” http://www.firstamendmentcenter.org/news.aspx?id=16064 or (3) Church Ordered to Pay 10.9 million for Funeral Protest (Oct 31 2007) CNN.Com http://www.cnn.com/2007/US/law/10/31/funeral.protests.ap/index.html

Thurs March 20 Press – Prior Restraint & Libel (p. 441-456, and 466-473) (we will be skipping obscenity and journalist privilege for now)

Due Assn 5 (see assignments section)

Read Prior Restraint Cases:

· Near v. Minnesota (1931) p. 442

· NYT v. United States (Pentagon Papers Case) (discussed in text pp. 447-49)

· The Progressive, 467 F. Supp. 990 (1979) http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/progressive.html (the information was eventually published overseas -- all this info is now on Wikipedia and the actual 1979 issue of the Progressive is now available online at http://progressive.org/?q=node/2252)

· Optional: Julie Hilden, “Is Wikileaks Case Really like the Pentagon Papers Case..” 3/19/2008, Findlaw Commentary available at http://writ.lp.findlaw.com/hilden/20080319.htm and see wikileaks at http://www.wikileaks.org/wiki/Category:United_States

Read Libel Cases and articles

· NYT v. Sullivan p. 466-473 and

· Hustler v. Falwell (1988) http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/hustler.html

· AP News, “College Website Posts Sex Gossip Hate and Rumour,” CNN.com, Feb 18, 2008 http://www.cnn.com/2008/TECH/02/18/juicy.website.ap/index.html?eref=rss_topstories . NJ Attorney General Targets Juicy Campus Website, AP News 3/19/2008 (posted on FAC.org at http://www.fac.org/news.aspx?id=19820

· “”First Amendment Protects Forum Trolls too” Ars Technica, Feb 7, 2008 http://arstechnica.com/news.ars/post/20080207-appeals-court-first-amendment-protects-forum-trolls-too.html

More Questions to Ponder:

1. For purposes of applying the actual malice standard, who should be considered public officials? A county prosecutor? A public defender? A dogcatcher? A school teacher? What about the university football team’s quarterback? Officers of the USG? President of a campus club such as Christian Fellowship or Society of Women Engineers?

2. For purposes of applying the actual malice standard, what should be considered comment concerning official conduct? A story about a governor's habit of having two-martini lunches? A story about an affair that a governor is having? A story about how the football players and USG officers do nothing but party and never come to class?

3.If the court had allowed liability to be imposed for a parody ad such as the ad in at stake in Hustler v. Falwell, would this have to mean that political cartoons, John Stewart’s jokes, and Saturday Night Live satire would all be subject to liability as well. Is there a theory that would allow liability to be imposed against Hustler for a parody ad such as it ran about Rev. Falwell but not against Saturday Night Live etc?

Optional – Online Privacy and Libel Issues

Jim Sanders, “Law is of Little Help to Parents fighting use of children’s photos on the web” Sacaramento Bee, 3/17/2008 http://www.siliconvalley.com/ci_8600436?source=email

Sara Lipka “The Digital Limits of ‘In Loco Parentis’ -Students Online Exploits Raise Old Questions in New Ways,” Chronicle of Higher Education March 7, 2008 (see reserve)

Julie Hilden, Can Websites' Reputational Rules and Rights of Reply Provide a Reputation-Protection System Superior To Libel Law?: Part Two in a Two-Part Series of Columns, http://writ.news.findlaw.com/hilden/20080222.html

(read Krinsky v. Doe – edited version – Tba)

Maryclaire Dale, “Penn law grad countersues over Web posts about women law students” AP news, March 6, 2008, http://www.boston.com/news/local/connecticut/articles/2008/03/06/penn_law_grad_countersues_over_web_posts_about_women_law_students/

More thoughts on autoadmit suit http://volokh.com/posts/1181709221.shtml and here from the Wall Street Journal blog 11/2007 http://blogs.wsj.com/law/2007/11/09/autoadmit-lawsuit-update-ciolli-dropped/ and “Yale Students Unable to ID anonymous forum bashers” Ars Technica, Jan 27, 2008, http://arstechnica.com/news.ars/post/20080127-yale-students-unable-to-identify-anonymous-forum-bashers.html

Douglas Lee, “ABC Predator Lawsuit, Journalism on Trial” FAC commentary, March 8, 2008 http://www.fac.org/commentary.aspx?id=19753, and “Court allows NBC predator Story to go to Trial,” 2/20/2008 http://www.fac.org/news.aspx?id=19730

Optional -- Students Schools and Threats

Student Speech – Tinker, Morse, Bethel

More Limits on Student Speech – see 11/2007 http://www.fac.org/commentary.aspx?id=19363 (describing 5th Circuit decision in Ponce v. Socorro Schools – HS Sophomore student expelled after school learned he had a diary recording fantasies/stories to engage in Columbine style shooting when he graduated – expelled under zero tolerance policy for threat to students.

David Hudson, 2^nd Circuit School Can Punish Student for Off Campus Web Activity (school could suspend 8^th grade student for posting online message, ‘kill Mr. …” – his English teacher) FAC.org, 8/7/07 http://www.fac.org/analysis.aspx?id=18883 case is called Wisniewski v. Board of Education. (2d Cir 2007)

Jackie Cheng, Online Comments made by minors protected by Constitution”, April 12, 2007, Ars Technica, http://arstechnica.com/news.ars/post/20070412-judges-online-comments-by-minors-protected-under-constitution.html?rel

Indecency and Obscenity

456-66– Miller (p. 460-66) and Reno v. ACLU (p. 475-480), new Media – Reno v. ACLU p. 475, Cohen v. California
Obscenity Prosecution – do you know it when you read it? WSJ http://blogs.wsj.com/law/2008/02/01/obscenity-prosecution-do-you-know-it-when-you-read-it/ Feb 1, 2008
Tony Mauro, “Justices to Examine Fleeting Expletives,” 3/18/2008 First Amendment Center, http://www.fac.org/analysis.aspx?id=19811
FCC v. Pacifica, 428 US 736 (178) http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/pacifica.html (to see a transcript of George Carlin’s Monologue “Seven Filthy Words” http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/filthywords.html)
FCC decision in the Janet Jackson Case (2004) http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/FCCjackson.html
Fox v. FCC (2d Cir, June 2007) (overturned FCC fines for Bono’s use of ‘F* ing Brilliant’ during the golden globe awards)
David Savage, Supreme Court May Rethink Broadcast Indecency, March 2 2008 (LA Times) http://www.latimes.com/news/nationworld/nation/la-na-expletive2mar02,0,7115069.story

Media rights – journalist’s privilege Branzburg v. Hayes p. 450-456

Tues March 25 Privacy Chap. 15 (481-522) (Abortion, Private Sexual Activity)

READ

· Griswold v. Ct, p. 483-88,

· Roe v. Wade p. 491-500

· Skim - aftermath of Roe – Casey etc. (consent laws – 500-509)

· Lawrence v. Texas – p. 511-518

· Sabato Chap 5

Questions to Ponder –

1) If you believe that the Constitution doesn't protect the right to choose an abortion, does it prevent a state from requiring that all couples be sterilized after the birth of their second child? If the Constitution does prevent the latter, where is the prohibition found?

2)Why isn't the state interest in protecting life compelling until viability?

3)Is there a state interest in preserving respect for life that is weakened by allowing abortions? If abortions are not immoral, would you call them morally dubious? Why is infanticide morally wrong (if you believe that to be the case) and abortion not immoral?

Optional Readings:

Goodridge v. Dept of Public Health (2003)(finding ban Homosexual unions to be unconstitutional in Mass) (linked to cases and readings on website)or see Linder”Right to Marry” for case links http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/righttomarry.htm

Cruzan v. Missouri p. 518 – right to die

Ferguson v. City of Charleston, 532 US 67 (2001) – maternal

drug testing policy

Planned Parenthood v. Casey 505 US 833 1992 http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/casey.html

Gonzales v. Carhart (2007) (upholding congress ban on “partial birth abortion’ procedure – relied on congress’ findings re lack of medical necessity)

Thurs March 27 Discrimination Chap. 18

Due Assn 6 –see assignments page

READ

Discrimination Based on Race – text p. 601-612

· Plessey v. Ferguson p. 601, Brown v. Bd. of Education (p.607-612).

Remedying Discrimination:

· Affirmative Action p. 632-647 (Grutter v. Bollinger (2003)

· Parents Involved in Community Schools v. Seattle School District (2007) (see course and text website for opinion) or http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/ParentsInvolvedvSeattle.html

· Michigan Proposal 2: Ballot language and Text here http://www.michigancivilrights.org/ballotlanguage.html

article?AID=2008802070433

Optional readings (for more information on Prop 2 challenge):

· Michael Dorf, “Universities Adjust to State Affirmative Action Bans: Are they Legal? Are they a good idea?” Findlaw, Jan 29, 2007 http://writ.news.findlaw.com/dorf/20070129.html

· Scott Gerber, “Michigan’s Controversial Proposition 2” Nov 16, 2006 Findlaw’s Writ (commentary) http://writ.news.findlaw.com/commentary/20061116_gerber.html

· ACLU description of Legal Challenges to Proposal 2: Cantrell v. Granholm (argued in district Court on Feb 6, 2008) http://www.aclumich.org/modules.php?name=News&file=article&sid=565

· Center for Individual Rights Urges court to end Mich Prop 2 challenge: http://www.cir-usa.org/releases/98.html

Monday March 31: 7:30 Rosza, Free Lecture by Mark Seddon “The Clash of Civilizations will the 21^st Century be America’s Century”

Tues April 1: Guest Speaker – Sherri Kauppi on MTU and affirmative Action, exam review, discuss oral arguments

Cancelled: Chap 19 – Voting and Representation

Read p. 651-674

· Bush v. Gore p. 652-660,

· Tentative: South Carolina v. Katzenbach (1966) p.664

· McConnell v. FEC (2003) p. 668-72

Questions to Ponder:
1) In Bush v. Gore, what justification did the majority opinion give for overruling the Florida Supreme Court and halting the recount? Next, why did the dissenters argue that the U.S. Supreme Court should not have heard the case?

2). How strong is the government interest in preventing very wealthy individuals or corporations from having undue influence over election outcomes or effectively "buying access" to candidates by supporting them financially? Is this a first amendment issue?

3) In 2007, the Roberts Court signaled a new willingness to strike down campaign finance regulations. In Federal Election Commission v Wisconsin Right to Life, the Court voted 5 to 4 to invalidate a key section of the McCain-Feingold Act (the act upheld in McConnell) that banned corporations and unions from buying broadcast ads that mention the names of candidates for federal office in the weeks immediately before an election. That decision is on the course website – a summary is available here with links to the case itself, http://docket.medill.northwestern.edu/archives/004268.php

Thurs April 3 Exam 2 – In class

Tues April 8 Class Cancelled – meet with debate groups or sp

Thurs April 10 Debates/ Presentations (1, 2 and 3 if time)

Judging by Panels II and IV

Due: Assn 7 – Brief of Lower Court Opinion in Case you are arguing.

Tues April 15 Debates/Presentations (3 &4 )

Judging by Panels I and III

Thurs April 17 Debates/Presentations (5 & 6)

Judging by Panels II and IV

Due Assn 8: Case Analysis/Argument Summary for all groups cases.

Tues April 22 Final Debates (7 and 8) and – Evals/Wrap Up

Judging by panels III and I

Thurs April 24 Wrap Up as needed.

Due Assn 9: Your Mock Judicial Opinions for one of the cases you judged – write opinion as your assigned Justice and as yourself, include short informative bio of ‘your’ Justice and explain what characteristics of the justice make it so that he or she would decide this way. If you can not predict explain why.