FULL TITLE: Freedom of Speech: Historical Development, Philosophical Foundations, Legal Implementation
This seminar will examine freedom of speech through the lenses of history, philosophy, and law.
Most people are eager advocates of freedom of speech – in principle. In practice, however, important differences emerge about exactly how much this freedom properly protects and the boundaries determining when one person’s speech violates the rights of another (due to its being offensive, pornographic, incendiary, invasive, fraudulent, libelous, etc.).
We will begin with a brief survey of the way that freedom of expression has emerged historically around the world, tracing rulers’ efforts to suppress speech (e.g., banned books, artistic and educational censorship, speech licensing). What is it that makes the expression of opinion particularly threatening to those in power? What is the power of speech?
We will then consider the two broadest philosophical rationales for freedom of speech, namely, utilitarian and libertarian: those focused on the benefit to society and those on the rights of the individual. Does either provide speech with wider latitude? or with more robust and more reliable protection? Should different categories of speech (such as political, or artistic, or commercial) enjoy differing levels of protection?
The bulk of the course will focus on a handful of specific battlegrounds over the boundaries of free speech, issues on which the contours of free speech have proven most controversial. We will analyze in depth the legal and philosophical arguments of the competing sides in debates over:
- Political speech (including debaates over campaign finance)
- Offensive speech and hate speech (both deliberate and inadvertent, much expression offends others' sensibilities, religious, or moral convictions, etc...)
- Artistic experssion (on page, stage, song lyrics...)
- Freedom of the press (e.g., should journalists enjoy a wider “shield” to protect the confidentiality of sources?)
- Commercial Expression (advertising, mandated disclosures)
- National Security (should speech be more restricted in times of war or national crisis?)
- Pornography (does the harm it can do infringe on others' rights?)
- Privacy (Does a loss of privacy chill one's freedom of speech? Does one person's privacy inhibit others' rights to speak? Is speech that is compelled by mandatory disclosure laws still free?)
- Right to remain silent (a necessary part of free expression?)
Readings
Excerpts from several books and essay collections, most likely including readings from:
Alberto Manguel, A History of Reading
John Stuart Mill, chapter 2 of On Liberty
John Milton, Aereopagitica 1644
John Locke A Letter on Toleration
Nigel Warburton, Free Speech – A Very Short Introduction
Jonathan Rauch, Kindly Inquisitors
Anthony Lewis, Freedom for the Thought That We Hate
Geoffrey Stone, Perilous Times - Free Speech in Wartime
Anthologies (these conside of pieces primarily from law professors, as well as extended selections from Supreme Court opinions in pivitol cases)
The First Amendment: A Reader, eds. John Garvey & Frederick Schauer
First Amendment Anthology, eds. Donald E. Lively, Dorothy E. Roberts, Russell L. Weaver
The First Amendment: Freedom of Speech, ed. Vikram Amar
Civil Liberties vs. National Security, eds. Darmer, Baird, & Rosenbaum
Course Requirements: (still tentative)
Paper (4-6 pages) - 10%
Paper (8-10 pages) - 20%
Paper (10-13 pages) - 35%
Final exam (take-home, all-essay) - 25%
Oral Presentation on a major research paper, Oral presentation and participation – 10%
The second and third papers will be significant research projects that blend research of specific legal disputes with philosophical analysis of the contesting arguments
Bio
Tara Smith has taught at UT since 1989 and has organized the Dialogues on Free Speech speaker series since 2011. She specializes in moral, political, and legal philosophy (having published three books and a few dozen articles in these areas), and has concentrated recent research in questions of legal meaning and objective law (e.g., how should courts interpret the Constitution?). Her most recent seminar for Plan II has been Art, Sport, & the Meaning of Life, which explores value in the arts and in sports and the nature of value, more broadly. Beyond academic work, Tara makes time for football, theater, reading, and celebrations of words.