1. Agenda for 24rd Class Handouts Slides Freedom of Speech (continued)
Strauss, Living Constitution

2. Assignment for Next Class
Readings and questions to be ed and posted to website tomorrow or Friday.
3rd Longer Writing Assignment
Due tomorrow 4/11

3. Common Law & Finders
Common law evolves as judges adjust rule to meet new circumstances
Rule announced in Armory v Delamirie:
That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner
Certainly would expand to deal with finder of watch
Perhaps rephrase “The finder of personal property….”
Rule may need to be modified
When object is found on private property
When identity is known (e.g. wallet with ID cards)
To deal with conflict between two finders
To deal with people who take property rather than find it
Policies
Facilitate return to original owner
Discourage taking; encourage stability and peace
Reduce law suits
Common law can only adjudicate rights of people before court (the “parties”)
Best solution may require legislation that brings in others
E.g. Japanese law involving police and rewards

4. First Amendment
The First Amendment of the U.S. Constitution (ratified 1791) 
Congress shall make no law … abridging the freedom of speech, or of the press…
Blackstone (1769)
Freedom of Press means no prior restraints
People can be punished for what they say or write
e.g. libel
New York Times v Sullivan (1964)
Persons can be punished for criticizing government officials only if their statements are false and uttered with “actual malice”
“Actual malice” = knowledge of falsity or reckless disregard for truth
Miller v California (1973)
Government can regulate sexually explicit work if
(a) average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest
(b) the work portrays sexual conduct in a patently offensive way, and
(c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

5. Questions
3. To what extent do the decisions in New York Times v Sullivan and Miller v New York rely on the wording of the First Amendment? To what extent do they rely on the history of freedom of the press and freedom of speech and the way those concepts were understood by those who wrote and ratified the First Amendment? To what extent do they rely on other kinds of arguments? How would you describe those other arguments?

6. Questions
4. In what ways is Blackstone’s conception of the liberty of the press similar to ours? In what way is it different? Which do you think is more persuasive? If you think our conception is more persuasive, what reasons do you think Blackstone would offer in defense of his conception?
5. Do you agree with the Supreme Court in New York Times v Sullivan that the First Amendment requires protection of false statements? Why isn’t it sufficient that the defendants could have avoided liability by proving that their statements were true? Would the Alabama law have been constitutional if the plaintiffs had to prove that the advertisement was false?
6. Do you think the Supreme Court enunciated a sensible definition of obscenity in Miller v US? Do you think it is too restrictive? Too permissive? Just right? Do you agree with the majority that the First Amendment permits states to ban obscenity, or do you agree with Justice Douglas that the First Amendment protects obscenity?

7. Questions
7. In the United States, racist speech is generally held to be protected by the First Amendment, unless it is communicated in a way that threatens or endangers specific individuals. So, for example, people are free to write articles arguing that one race is superior or inferior to others or even to insult members of particular races by asserting their inferiority in public and/or to their faces. Based on the materials in this packet, can you formulate arguments supporting the First Amendment protection of racist speech? Based on the materials in this packet, can you formulate arguments that racist speech is not protected by the First Amendment?
8. Suppose a manufacturer or retailer falsely advertises a product as safe. If it turns out that the product is unsafe, is a suit against the manufacturer or retailer based on the false advertisement barred by the First Amendment? Based on the materials in this packet, can you formulate arguments for and against First Amendment protection for false advertising?

8. David Strauss, Living Constitution
Critique of Originalism
Argument for “common law constitutionalism”
Use of First Amendment jurisprudence as illustration

9. David Strauss, Living Constitution
1) What do you think was David Strauss’s most persuasive argument?
2) What do you think was David Strauss’s least persuasive argument?
3) What’s the difference between “moderate originalism” (see pp ) and “living constitutionalism”?
4) In what way is “common law constitutionalism” a good description of the First and Second Amendment cases you have read? Are the First and Second Amendment cases you have read more like product liability cases before MacPherson or more like Justice Traynor’s concurrence in Escola?
5) On p. 34, David Strauss asserts, “the opinions in that case [Heller], which purported to analyze the text and original understanding, actually seem to be motivated more by the justices’ respective policy views about gun control.” Do you agree?

10. David Strauss, Living Constitution
6) In Cohen v. California (1971), the Supreme Court held that a person had a First Amendment right to wear a jacket in a courthouse with the words “Fuck the Draft” printed on the back. Does the First Amendment protect (a) a person who burns a U.S. flag to protest U.S. government policy, (b) someone who burned a draft card to protest the Vietnam War and military conscription or (c) a TV station which airs a sitcom in which a character says, “fuck you.” Use Cohen and other things you have read about the First Amendment in Law 300 to argue for and against First Amendment protection in these three situations.

11. David Strauss, Living Constitution
7) In Virginia Board of Pharmacy v. Virginia Citizens Consumer Council (1976), the Supreme Court held that a pharmacist had a First Amendment right to advertise drug prices, and that a state statute that forbade advertising was unconstitutional. Are the following laws unconstitutional: (a) a law that requires for-profit tour guides to get a government license before giving tours, (b) a law that requires companies to register with the Securities and Exchange Commission and to provide information about their business plans to the public before selling stock to the public, and (c) a law that forbids an electrical utility from disseminating its opinions on issues of public policy to customers in documents that accompany the bills it mails to customers? Use Virginia Board and other things you have read about the First Amendment in Law 300 to argue for and against First Amendment protection in these three situations. If you are inclined to think that only individuals have First Amendment rights, but that corporations do not, consider that the New York Times and the Fox News Group are both corporations.

12. David Strauss, Living Constitution
8) In Buckley v. Valeo (1976), the Supreme Court held that campaign donations were speech protected by the First Amendment, but that Congress could limit the amount that individuals could donate to political campaigns, because doing so enhanced the integrity of elections. It also held that the government could not limit “independent expenditures,” that is amounts that individuals spent on their own to promote a candidate, as long as the money was not given to the candidate, to organizations controlled by the candidate, or spent is ways that were coordinated with the candidate and his/her campaign. Are the following laws unconstitutional: (a) a law prohibiting corporations and unions from making independent expenditures in support of a candidate, (b) a law that prohibited a non-profit corporation from disseminating a movie critical of a presidential candidate within 30 days of a primary election or 60 days of a general election? Use Buckley and other things you have read about the First Amendment in Law 300 to argue for and against First Amendment protection in these two situations.