Tara A Smith

Course Description: PHL 375M - Philosophy of the First Amendment Tara Smith

Philosophy Department

Spring 2022

Description:

The US Constitution’s First Amendment names five kinds of freedom: of speech, religion, press, assembly, and petition. This seminar will examine the philosophy beneath a legal system’s respecting these types of freedom and, correspondingly, the proper understanding and application of these freedoms to specific legal disputes.

To begin, we will consider the broad philosophical underpinnings of intellectual freedom as such, as found in the works of John Locke and some of the Founding Fathers’ writings. Then we will turn to focus on three of the Amendment’s specific areas of concern: assembly (more popularly referred to as freedom of association), religious freedom, and press freedom. (We will not devote time directly to speech or petition per se, although both will factor into our consideration of intellectual freedom and the Amendment as a whole.)

With each of these three, we will first consider the essential nature of the relevant activity – e.g., what constitutes the press, or a journalist? What forms of association does “assembly” encompass and exclude? What makes a body of beliefs or a set of practices a religion, and how does that differ from a (non-religious) philosophy?

We will then examine some of the central arguments for competing understandings of the freedom’s meaning, rationale, and application to contemporary conflicts. Among the specific questions we will consider:

Does freedom of association include the freedom to dis-associate? And thereby, the freedom to discriminate on certain grounds? (e.g., should the Boy Scouts be free to exclude girls?) What are the implications of demands for transparency and debates over privacy for freedom of association? Would mandatory disclosure of certain personal information, for instance (such as of your membership in particular organizations or of your financial contributions to political candidates) compromise your privacy and indirectly inhibit your freedom of association?

What does state “neutrality” in the treatment of citizens demand? When is a government’s quest to avoid supporting a religion (and thereby violating the establishment clause) a case of its imposing an undue burden on that religion? Should business owners with certain religious views be legally compelled to serve clients of whom they morally disapprove? (e.g., bake a wedding cake for a gay couple?) Are religious exemptions from particular legal requirements (such as having your child vaccinated, or from a dress code) a necessary component of religious liberty?

Are the proper boundaries of press freedom any different from the proper boundaries of speech freedom? Is the press a “public service” institution? And as such, subject to different legal privileges and responsibilities? Should the press enjoy greater access to information than others do, for instance? Should the press be permitted to publish certain information (classified information) that others may not? Should working in journalism require a license? Should the press be government-subsidized? Should “shield” laws protect journalists from prosecution for defying court subpoenas and refusing to reveal the identity of their sources?

While we will naturally consider specifics to address many of these questions, throughout, the discussions will be firmly grounded by our efforts to understand the governing principles. Philosophically, what are the through-lines that justify particular understandings and applications of these ideals?

Readings: Still Tentative

Selections will be taken primarily from the following authors and works, but two or three others may still be added. Don’t be alarmed by the length of this list – the number and length of assigned readings will be pared to manageable proportions. As befits a seminar, our focus will be on drilling into very select readings, rather than superficially “covering” a large swath of territory. (It also remains possible that a few of these works will be omitted all together.)

  John Locke, A Letter Concerning Toleration Jonathan Rauch, Kindly Inquisitors

 Jeremy Waldron, “Locke: Toleration and the Rationality of Persecution”

Onkar Ghate, “A Wall of Separation between Church and State – Understanding This Principle’s Supporting

Arguments and Far-Reaching Implications”

Margaret M. Russell, ed., Freedom of Assembly & Petition

Andrew Koppelman, A Right to Discriminate? How the Case of Boy Scouts of America v. James Dale Warped the

Law of Free Association

David Hume, Of the Liberty of the Press

William Brennan, “Liberty of the Press”

Lee Bollinger, Uninhibited, Robust, & Wide Open

Garrett Epps, ed., Freedom of the Press – Its Constitutional History and Contemporary Debate

Thomas Jefferson, The Statute of Virginia for Religious Freedom

Brian Leiter, Why Tolerate Religion?

Tara Smith, "What Good is Religious Freedom? Locke, Rand, and the Non-Religious Case for Respecting It" Tara Smith, “Religious Liberty or Religious License? Legal Schizophrenia and the Case Against Exemptions”

Excerpts from court cases, such as Masterpiece Cakeshop, Hobby Lobby, NAACP v. Alabama, New York Times v. Sullivan, Branzburg v Hayes, Telescope Media

_____________

Requirements (still tentative)

Two papers and a final take-home essay exam.

[Paper 1: 20%; Paper 2: 40%; Exam: 25%; Participation 15%]

The second paper will be a substantial “independent inquiry” project. Each student must choose one of the three freedoms of focus (association, religion, or press), build a rigorous case for its most sensible meaning, and show how that interpretation should be applied to resolve a relevant contemporary controversy.

Before submitting the final paper, students will give oral presentations of their (tentative) major conclusions and arguments, and should then use the feedback to inform their final revisions.

The earlier, shorter paper will undergo peer or professor review of drafts.

The exam will be comprehensive, intended to ensure that students acquire a solid understanding of all subjects examined in the seminar.

Description

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, or invasive, or pornographic, 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 ofspeech?

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 debates over campaign finance);
•Offensive Speech and Hate Speech (particular emphasis will be given to campus speech)
•Freedom of the Press (e.g., should journalists enjoy a wider “shield” to protect the confidentiality of sources?)

Required Texts

Alberto Manguel, A History of Reading
John Milton, Aereopagitica
John Locke A Letter on Toleration
John Stuart Mill, chapter 2 of On Liberty
Nigel Warburton, Free Speech –A Very Short Introduction
Jonathan Rauch, Kindly Inquisitors
Lee Bollinger, Uninhibited, Robust, and Wide-Open: A Free Press for a New Century
First Amendment Anthology, eds. Donald E. Lively, Dorothy E. Roberts, Russell L. Weaver
The First Amendment: Freedom of Speech, ed. V. Amar

Course Requirements

Paper (4-5 pages) –20% –along with an ArgumentOutline due in advance
Paper (8-10 pages) –30% –along with an Argument Outline due in advance Optional:Revised Paper
Midterm Essay Exam –15%
Final Essay Exam –20%
Homework, Attendance & Oral Participation –15%

This seminar will examine the philosophy beneath the freedoms protected by the First Amendment and correspondingly, the proper understanding and application of those freedoms to concrete legal disputes.

We will devote time to examining each of the Amendment’s five elements (speech, religion, press, assembly, petition), with slightly greater emphasis on religion and press freedom. With each of the five, we will consider some of the central arguments for competing understandings of the freedom’s rationale and application to contemporary conflicts.

Among the specific questions we will consider: What distinguishes the five freedoms enumerated in the First Amendment from others protected in our legal system? Should a legal system treat intellectual activity differently from other activity? What does state “neutrality” in the treatment of citizens demand? Are religious exemptions a necessary component of religious liberty? What qualifies as a religion? What qualifies as speech, and what crosses the line into action – action that is legitimately subject to restrictions? (e.g., is kneeling in protest speech or action?) If the press is to enjoy any special freedoms, who should qualify as the press, in an era of do-it-yourself blogging/ recording/ posting? Is Facebook, for instance, a platform, or a publisher?

Does the right to freedom of assembly entail freedom of association? What are the implications of free association for individuals’ right to privacy? How might these be implicated in debates over disclosure requirements of funding sources, or campaign finance laws? Do conflicts emerge between any of these freedoms, under particular interpretations of them? Or between First Amendment freedoms and other provisions of the Constitution? (e.g., between religious freedom and the 14th Amendment assurance of equal protection, or between the right to freedom of association and a right not to be discriminated against).

While we will naturally consider specifics to address many of these questions, the discussions will be firmly grounded throughout by our efforts to understand the governing principles.

Freedom of Speech: Historical Development, Philosophical Foundations, Legal Implementation

Description:

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, incendiary, invasive, pornographic, 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 debates over campaign finance); Offensive speech and hate speech (particular emphasis will be given to academic/campus speech); Freedom of the press (e.g., should journalists enjoy a wider “shield” to protect the confidentiality of sources?)

Excerpts from several books and essay collections, including (but not limited to) readings from:

Alberto Manguel, A History of Reading

John Milton, Aereopagitica 1644

John Locke A Letter on Toleration

John Stuart Mill, chapter 2 of On Liberty

Nigel Warburton, Free Speech – A Very Short Introduction

Jonathan Rauch, Kindly Inquisitors

Lee Bollinger, Uninhibited, Robust, and Wide-Open: A Free Press for a New Century

First Amendment Anthology, eds. Donald E. Lively, Dorothy E. Roberts, Russell L. Weaver

The First Amendment: Freedom of Speech, ed. V. Amar

Course Requirements: (still tentative)

Paper (4-5 pages) – 15% – along with an Argument Outline due in advance

Paper (10-13 pages) – 35% – along with an Argument Outline due in advance

Optional: Revised Paper

Midterm Essay Exam – 15%

Final Essay Exam – 20%

Homework, Attendance & Oral Participation – 15%

About the Instructor:

Tara Smith has been at UT since 1989 and has taught numerous courses for Plan II, including, most recently, the freshman seminar “Art, Sport, & the Meaning of Life,” which explores value in the arts, in sports, and the basic nature of value, more broadly.

Smith’s research focuses on questions in moral, political, and legal philosophy, with a great deal of recent work on objectivity in judicial review and the proper understanding of the First Amendment. In that vein, she organizes the annual UT Essay Contest on Freedom of Speech, frequently brings guest speakers to campus, and is partnering with Plan II to launch the First Amendment Scholars Program. Current research is in ethics, particularly on the interplay of a person’s philosophical beliefs with psychological habits in the leading of a good life.

Beyond academic work, Smith makes time for football, theater, reading, and celebrations of words.

This course will examine fundamental questions about the nature, authority, and proper application of law. We will begin by considering the purpose and the authority of a legal system. What function is the law to fill? What does the ideal of the Rule of Law demand, and what is the role of a constitution in securing that ideal? Must laws meet certain moral criteria in order to carry genuine authority?

The second and third units will concentrate on questions concerning the application of law in the judicial system. Unit 2 will focus on judicial review – specifically, the methods by which courts should interpret the law and reason about the law in order to resolve disputes concerning law’s proper application in particular cases. What constitutes inappropriate judicial “activism?” What constitutes inappropriate passivism? We will consider several competing theories, such as those that urge adherence to lawmakers’ original intent, to text, to moral principles, popular will, and precedent.

Finally, Unit 3 will focus on juries. What, properly, is their role in the administration of justice? What are the reasons for having juries (as opposed to judges or other government officials) reach verdicts and determine sentences? How should juries be constituted? Is jury nullification ever a justifiable practice?

Tentative:

Grades will be determined on the basis of three exams, a paper, and a few brief written homework assignments.

Readings will be taken from:

Jeffrey Abramson, We the Jury

Antonin Scalia, A Matter of Interpretation

Possibly: John Arthur & William H. Shaw, Readings in the Philosophy of Law, 5th edition 

Possibly: a few additional readings, either in a course packet, posted as pdfs, or available online

Freedom of Speech: Historical Development, Philosophical Foundations, Legal Implementation

Description:

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, incendiary, invasive, pornographic, 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 debates over campaign finance); Offensive speech and hate speech (particular emphasis will be given to academic/campus speech); Freedom of the press (e.g., should journalists enjoy a wider “shield” to protect the confidentiality of sources?)

Excerpts from several books and essay collections, including (but not limited to) readings from:

Alberto Manguel, A History of Reading

John Milton, Aereopagitica 1644

John Locke A Letter on Toleration

John Stuart Mill, chapter 2 of On Liberty

Nigel Warburton, Free Speech – A Very Short Introduction

Jonathan Rauch, Kindly Inquisitors

Lee Bollinger, Uninhibited, Robust, and Wide-Open: A Free Press for a New Century

First Amendment Anthology, eds. Donald E. Lively, Dorothy E. Roberts, Russell L. Weaver

The First Amendment: Freedom of Speech, ed. V. Amar

Course Requirements: (still tentative)

Paper (4-5 pages) – 15% – along with an Argument Outline due in advance

Paper (10-13 pages) – 35% – along with an Argument Outline due in advance

Optional: Revised Paper

Midterm Essay Exam – 15%

Final Essay Exam – 20%

Homework, Attendance & Oral Participation – 15%

About the Instructor:

Tara Smith has been at UT since 1989 and has taught numerous courses for Plan II, including, most recently, the freshman seminar “Art, Sport, & the Meaning of Life,” which explores value in the arts, in sports, and the basic nature of value, more broadly.

Smith’s research focuses on questions in moral, political, and legal philosophy, with a great deal of recent work on objectivity in judicial review and the proper understanding of the First Amendment. In that vein, she organizes the annual UT Essay Contest on Freedom of Speech, frequently brings guest speakers to campus, and is partnering with Plan II to launch the First Amendment Scholars Program. Current research is in ethics, particularly on the interplay of a person’s philosophical beliefs with psychological habits in the leading of a good life.

Beyond academic work, Smith makes time for football, theater, reading, and celebrations of words.

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, incendiary, invasive, pornographic, 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 debates over campaign finance)
• Offensive speech and hate speech (particular emphasis will be given to academic/campus speech)
• Freedom of the press (e.g., should journalists enjoy a wider “shield” to protect the confidentiality of sources?)

Readings

Excerpts from several books and essay collections, including (but not limited to) readings from:

Alberto Manguel, A History of Reading

John Milton, Aereopagitica 1644

John Locke A Letter on Toleration

John Stuart Mill, chapter 2 of On Liberty 

Nigel Warburton, Free Speech – A Very Short Introduction 

Jonathan Rauch, Kindly Inquisitors

Lee Bollinger, Uninhibited, Robust, and Wide-Open: A Free Press for a New Century 

First Amendment Anthology, eds. Donald E. Lively, Dorothy E. Roberts, Russell L. Weaver 

The First Amendment: Freedom of Speech, ed. V. Amar

Course Requirements: (still tentative)

Paper (4-6 pages) - 10%

Paper (8-10 pages) - 20%

Paper (9-11 pages) - 35%

Final exam (take-home, all-essay) - 25%

Oral Presentation on a major research paper, Oral presentation and participation – 10%

The third paper will be an in-depth project that blends 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, and has concentrated recent research in questions of legal meaning and objective law. She is currently writing on the proper understanding of religious freedom. Smith’s most recent other 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.

This course will examine fundamental questions about the nature, authority, and proper application of law. We will begin by considering the purpose and the authority of a legal system. What function is the law to fill? What does the ideal of the Rule of Law demand, and what is the role of a constitution in securing that ideal? Must laws meet certain moral criteria in order to carry genuine authority?

The second and third units will concentrate on questions concerning the application of law in the judicial system. Unit 2 will focus on judicial review – specifically, the methods by which courts should interpret the law and reason about the law in order to resolve disputes concerning law’s proper application in particular cases. What constitutes inappropriate judicial “activism?” What constitutes inappropriate passivism? We will consider several competing theories, such as those that urge adherence to lawmakers’ original intent, to text, to moral principles, popular will, and precedent.

Finally, Unit 3 will focus on juries. What, properly, is their role in the administration of justice? What are the reasons for having juries (as opposed to judges or other government officials) reach verdicts and determine sentences? How should juries be constituted? Is jury nullification ever a justifiable practice?

Tentative:

Grades will be determined on the basis of three exams, a paper, and a few brief written homework assignments.

Readings will be taken from:

Jeffrey Abramson, We the Jury

Antonin Scalia, A Matter of Interpretation

Possibly: John Arthur & William H. Shaw, Readings in the Philosophy of Law, 5th edition 

Possibly: a few additional readings, either in a course packet, posted as pdfs, or available online

TC 358  Fall 2016

Freedom of Speech: Historical Development, Philosophical Foundations, Legal Implementation

Professor Tara Smith

Course Description

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, incendiary, invasive, pornographic, 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 debates over campaign finance)
• Offensive speech and hate speech (particular emphasis will be given to academic/campus speech)
• Freedom of the press (e.g., should journalists enjoy a wider “shield” to protect the confidentiality of sources?)

Readings

Excerpts from several books and essay collections, including (but not limited to) readings from:

Alberto Manguel, A History of Reading

John Milton, Aereopagitica 1644

John Locke A Letter on Toleration

John Stuart Mill, chapter 2 of On Liberty 

Nigel Warburton, Free Speech – A Very Short Introduction 

Jonathan Rauch, Kindly Inquisitors

First Amendment Anthology, eds. Donald E. Lively, Dorothy E. Roberts, Russell L. Weaver 

The First Amendment: Freedom of Speech, ed. V. Amar

Course Requirements: (still tentative)

Paper (4-6 pages) - 10%

Paper (8-10 pages) - 20%

Paper (9-11 pages) - 35%

Final exam (take-home, all-essay) - 25%

Oral Presentation on a major research paper, Oral presentation and participation – 10%

The third paper will be an in-depth project that blends 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, and has concentrated recent research in questions of legal meaning and objective law. She is currently writing on the proper understanding of religious freedom. Smith’s most recent other 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.

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.

This course will examine fundamental questions about the nature, authority, and proper application of law. We will begin by considering the purpose and the authority of a legal system. What function is the law to fill? What does the ideal of the Rule of Law demand, and what is the role of a constitution in securing that ideal? Must laws meet certain moral criteria in order to carry genuine authority?

The second and third units will concentrate on questions concerning the application of law in the judicial system. Unit 2 will focus on judicial review – specifically, the methods by which courts should interpret the law and reason about the law in order to resolve particular cases. What constitutes inappropriate judicial “activism?” What constitutes inappropriate passivism? We will investigate several competing theories, such as those that urge adherence to lawmakers’ original intent, to text, to moral principles, popular will, and precedent.

Finally, Unit 3 will focus on juries. What is their proper role in the administration of justice? What are the reasons for having juries (as opposed to judges or other legal professionals) reach verdicts and determine sentences? How should juries be constituted? Is jury nullification ever a justifiable practice?

Description:

This course will explore the meaning and value of two unusual human activities – the creation and contemplation of art and the playing and watching of sports – and aim to situate them in the larger framework of how human beings should lead their lives.  What, in particular, is truly valuable in a human life?  What is most valuable?  And what might art or sport have to do with that?

In different forms, both art and sport have been around for ages. Why is that?  “It’s just a story,” after all; “it’s only a game.”  Both realms are artificial and even the finest displays in each stand removed from people’s practical concerns.  Neither offers a utilitarian service, such as baking bread or curing the sick.  Yet numerous people the world over devote countless hours and often care passionately about a work of art or a particular team.  (Think about your favorite music, or a painting that you loathe, or the OU game.)  Should they care so much about such … trivialities?

Is human interest in art or sport a matter of personal preference or taste, or does either speak to some sort of need in the human psyche?  If so, what is the exact nature of this need?  What is it a need for?  Can we have non-physical needs?

People enjoy many forms of rest and less structured forms of play than those provided by art and sport.  Nature offers considerable beauty and people’s lives (as well as history) offer plenty of stories to contemplate.  Given this, what is it about the creation or contemplation of art or about being a spectator or player of sport that is distinctively gratifying?  And what is the point of these activities?  Is art valuable in order to teach lessons, for instance, or to convey a moral?  Is sport worthwhile as a means of building character or developing specific skills or traits, such as discipline, persistence, or teamwork, as many have claimed?  Is either art or sport simply an end in itself? What makes anything an end in itself?  And what bestows value on anything, for that matter?

By seeking to understand the unusual kind of value that art and sport offer (along with significant similarities and differences in their value), we will be led to consider the nature of values, as such.  Correspondingly, by exploring the meaning of art and the meaning of sport, we will explore the age-old question of the meaning of life – and the value of things within a person’s life.

Texts/Readings:

 Susan Wolf, Meaning in Life & Why it Matters

Yasmina Reza, Art (a play)

Additional readings will be required in the form of a course packet, PDF’s posted to Blackboard, and online articles.

Assignments (probable): 

Paper 1 and draft – 4 pages – 15%

Paper 2 and draft – 4 pages – 20%

Paper 3 and draft – 6-8 pages – 25% (this draft will be graded by the prof. & must be substantially revised)

Final Exam (take home, all essays) – 25%

Oral presentation, brief homework assignments, attendance, thoughtful participation – 15%

About the Professor:

Tara Smith works primarily in moral, legal, and political philosophy. She is most interested in the nature of values, virtues, happiness, and the requirements of objective law.  She has just finished a book on proper judicial decision-making within an objective legal system. Previous books are Ayn Rand's Normative Ethics – The Virtuous Egoist (2006), Viable Values – A Study of Life as the Root and Reward of Morality (2000), and Moral Rights and Political Freedom (1995). Her articles span such topics as honesty, justice, forgiveness, friendship, pride, moral perfection, intrinsic value, the nature of objectivity, rights “conflicts,” and the Rule of Law. She holds the BB&T Chair for the Study of Objectivism and is a lifelong New York Giants fan.

Prerequisites

Graduate standing and consent of Graduate Advisor or instructor required.

Course Description

This seminar will examine the relationship between a legal system’s basic authority and the proper methodology for judicial review (appellate courts’ interpretation and application of law). If proper judicial decision-making maintains fidelity to the law, it clearly presupposes an account of what the law is.That, in turn, depends on understanding the roots of law’s authority – what possesses the requisite authority to constitute genuine law? Thus we will examine the fundamental nature of a legal system’s authority (including its possible moral authority) to ground guidelines for the proper conduct of judicial review.

We will focus particularly on two widespread models of legal authority: constitutional and common law. By probing the bases and limitations of each, we’ll gain a firmer grasp of the character of legal authority, as such. We will then consider how differing conceptions of the law’s authority shape some of the leading accounts of proper judicial review, again, narrowing our focus to two influential approaches: Judicial Minimalism and Dworkinian Perfectionism.

Grading

2 papers and one oral presentation

Texts

extended excerpts from:

Douglas Edlin, Judges & Unjust Laws

David Strauss, The Living Constitution 

Cass Sunstein, A Constitution of Many Minds; One Case at a Time

Ronald Dworkin, Law’s Empire; Justice in Robes

Probably also some additional material from:

Jack Balkin, Living Originalism

Richard Epstein, The Classical Liberal Constitution

WJ Waluchow, A Common Law Theory of Judicial Review

Clark Neily, Terms of Engagement

This course satisfies the Ethics requirement

Art, Sport & Meaning of Life

Tara Smith

Description:

This course will explore the meaning and value of two unusual human activities – the creation and contemplation of art and the playing and watching of sports – and aim to situate them in the larger framework of how human beings should lead their lives.  What, in particular, is truly valuable in a human life?  What is most valuable?  And what might art or sport have to do with that?

In different forms, both art and sport have been around for millennia.  In part, we will address the question: why?  “It’s just a story,” after all; “it’s only a game.”  Both realms are artificial and even the finest displays in each stand removed from ordinary, practical concerns.  Neither offers a utilitarian service, such as baking bread or curing the sick.  Yet people devote countless hours and often care passionately about a work of art or a particular team.  (Think about your favorite music, or a painting that you loathe, or the OU game.)  Should they care so much about such … trivialities?

Is interest in art or sport a matter of personal preference or taste, or does either speak to some sort of need in the human psyche?  If so, what is the exact nature of this need?  What is it a need for?  Can we really have non-physical needs?

People enjoy many forms of rest and less structured forms of play than those provided by art and sport.  Nature offers considerable beauty and people’s lives (as well as history) offer plenty of stories to contemplate.  Given this, what is it about the creation or contemplation of art or about being a spectator or player of sport that is distinctively gratifying?  And what is the point of these activities?  Is art valuable in order to teach lessons, for instance, or to convey a moral?  Is sport worthwhile as a means of building character or developing specific skills or traits, such as discipline, persistence, or teamwork, as many have claimed?  Is either art or sport simply an end in itself? What makes anything an end in itself?  And what bestows value on anything, for that matter?

By seeking to understand the unusual kind of value that art and sport offer (along with significant similarities and differences in their value), we will be led to consider the nature of values, as such.  Correspondingly, by exploring the meaning of art and the meaning of sport, we will explore the age-old question of the meaning of life.  And the meaning and value of things within a person’s life.

Texts/Readings:

Susan Wolf, Meaning in Life & Why it Matters

Additional readings will be required in the form of a course packet, PDF’s posted to Blackboard, and online articles.

Assignments (probable):

Paper 1 and draft – 4 pages – 15%

Paper 2 and draft – 4 pages – 20%

Paper 3 and draft – 6-8 pages – 25% (this draft will be graded by the prof. & must be substantially revised)

Final Exam (take home, all essays) – 25%

Oral presentation, brief homework assignments, attendance, thoughtful participation – 15%

About the Professor:

Professor Tara Smith’s main interests concern the nature of values, virtues, and the requirements of objective law.  She is currently writing a book on objective law and its proper interpretation by courts. Smith is the author of Ayn Rand's Normative Ethics – The Virtuous Egoist (2006), Viable Values – A Study of Life as the Root and Reward of Morality (2000), and Moral Rights and Political Freedom (1995), as well as numerous articles spanning such topics as honesty, justice, forgiveness, friendship, pride, moral perfection, intrinsic value, the nature of objectivity, rights “conflicts,” judicial Originalism, and the Rule of Law. She holds the BB&T Chair for the Study of Objectivism and is a lifelong New York Giants fan.

Description:

This course will explore the meaning and value of two unusual human activities – the creation and contemplation of art and the playing and watching of sports – and aim to situate them in the larger framework of how human beings should lead their lives.  What, in particular, is truly valuable in a human life?  What is most valuable?  And what might art or sport have to do with that?

In different forms, both art and sport have been around for millennia.  In part, we will address the question: why?  “It’s just a story,” after all; “it’s only a game.”  Both realms are artificial and even the finest displays in each stand removed from ordinary, practical concerns.  Neither offers a utilitarian service, such as baking bread or curing the sick.  Yet people devote countless hours and often care passionately about a work of art or a particular team.  (Think about your favorite music, or a painting that you loathe, or the OU game.)  Should they care so much about such … trivialities?

Is interest in art or sport a matter of personal preference or taste, or does either speak to some sort of need in the human psyche?  If so, what is the exact nature of this need?  What is it a need for?  Can we really have non-physical needs?

People enjoy many forms of rest and less structured forms of play than those provided by art and sport.  Nature offers considerable beauty and people’s lives (as well as history) offer plenty of stories to contemplate.  Given this, what is it about the creation or contemplation of art or about being a spectator or player of sport that is distinctively gratifying?  And what is the point of these activities?  Is art valuable in order to teach lessons, for instance, or to convey a moral?  Is sport worthwhile as a means of building character or developing specific skills or traits, such as discipline, persistence, or teamwork, as many have claimed?  Is either art or sport simply an end in itself? What makes anything an end in itself?  And what bestows value on anything, for that matter?

By seeking to understand the unusual kind of value that art and sport offer (along with significant similarities and differences in their value), we will be led to consider the nature of values, as such.  Correspondingly, by exploring the meaning of art and the meaning of sport, we will explore the age-old question of the meaning of life.  And the meaning and value of things within a person’s life.

Texts/Readings:

 Susan Wolf, Meaning in Life & Why it Matters

 Additional readings will be required in the form of a course packet, PDF’s posted to Blackboard, and online articles.

Assignments (probable): 

 Paper 1 and draft – 4 pages – 15%

 Paper 2 and draft – 4 pages – 20%

 Paper 3 and draft – 6-8 pages – 25% (this draft will be graded by the prof. & must be substantially revised)

 Final Exam (take home, all essays) – 25%

 Oral presentation, brief homework assignments, attendance, thoughtful participation – 15%

About the Professor:

Professor Tara Smith’s main interests concern the nature of values, virtues, and the requirements of objective law.  She is currently writing a book on objective law and its proper interpretation by courts. Smith is the author of Ayn Rand's Normative Ethics – The Virtuous Egoist (2006), Viable Values – A Study of Life as the Root and Reward of Morality (2000), and Moral Rights and Political Freedom (1995), as well as numerous articles spanning such topics as honesty, justice, forgiveness, friendship, pride, moral perfection, intrinsic value, the nature of objectivity, rights “conflicts,” judicial Originalism, and the Rule of Law. She holds the BB&T Chair for the Study of Objectivism and is a lifelong New York Giants fan.

This course will explore the meaning and value of two unusual human activities – the creation and contemplation of art and the playing and watching of sports – and aim to situate them in the larger framework of how human beings should lead their lives.  What, in particular, is truly valuable in a human life?  What is most valuable?  And what might art or sport have to do with that?

In different forms, both art and sport have been around for millennia.  In part, we will address the question: why?  “It’s just a story,” after all; “it’s only a game.”  Both realms are artificial and even the finest displays in each stand removed from ordinary, practical concerns.  Neither offers a utilitarian service, such as baking bread or curing the sick.  Yet people devote countless hours and often care passionately about a work or art or a particular team.  (Think about your favorite music, or a painting that you loathe, or the OU game.)  Should they?

Is interest in art or sport a matter of personal preference or taste, or does either speak to some sort of need in the human psyche?  If so, what is the exact nature of this need?  What is it a need for?  Does man have non-physical needs?

People enjoy many forms of rest and less structured forms of play than those provided by art and sport.  Nature offers considerable beauty and people’s lives (as well as history) offer plenty of stories to contemplate.  Given this, what is it about the creation or contemplation of art or about being a spectator or player of sport that is distinctly gratifying?  And what is the point of these activities?  Is art valuable in order to teach lessons, for instance, to convey a moral?  Is sport worthwhile as a means of building character of developing specific skills or traits, such as discipline, persistence, or teamwork, as many have claimed?  Is either art or sport simply an end in itself? What makes anything and end in itself?  And what bestows value on anything, for that matter?

By seeking to understand the unusual kind of value that art and sport offer (along with significant similarities and differences in their value), we will be led to consider the nature of values, as such.  Correspondingly, by exploring the meaning of art and the meaning of sport, we will explore the age-old question of the meaning of life.  And the meaning and value of things in a person’s life.

Texts/Readings:

Susan Wolf, Meaning in Life & Why it Matters

Additional readings will be required in the form of a course packet, PDF’s posted to blackboard and online articles

Assignments: 

Paper 1 and draft – 4 pages – 15%

Paper 2 and draft – 4 pages – 20%

Paper 3 and draft – 6-8 pages – 25% (this draft will be graded by the prof. & must be substantially revised)

Final Exam (take home, all essays) – 25%

Oral presentation, brief homework assignments, attendance, thoughtful participation – 15%

About the Professor:

Professor Tara Smith’s main interests concern the nature of values, virtues, and the requirements of objective law.  She is currently writing a book on proper methodology in judicial review. Smith is author of Ayn Rand's Normative Ethics – The Virtuous Egoist (2006), Viable Values – A Study of Life as the Root and Reward of Morality (2000), and Moral Rights and Political Freedom (1995), as well as a number of articles in such venues as The Journal of Philosophy, American Philosophical Quarterly, Law and Philosophy, and Social Philosophy and Policy.  Recent publications include “Reckless Caution: The Perils of Judicial Minimalism,” NYU Journal of Law & Liberty, 2010, and “Originalism’s Misplaced Fidelity: 'Original' Meaning is Not Objective," Constitutional Commentary, 2009. She is the BB&T Chair for the Study of Objectivism and also holds the Anthem Foundation Fellowship and is a lifelong, devoted New York Giants fan. 

In-depth examination of philosophical questions and issues in a seminar setting for advanced Philosophy students.

TC 302: Art, Sport, & the Meaning of Life Tara SmithGeneral Description:This course would explore the meaning and value of two unusual human activities – the creation and contemplation of art and the playing and watching of sports – and aim to situate them in the larger framework of how human beings should lead their lives. What, in particular, is truly valuable in a human life? What is most valuable? And what might art or sport have to do with that?In different forms, both art and sport have been around for millennia. In part, we will address the question: why? “It’s just a story,” after all; “it’s only a game.” Both realms present artificial constructs, and their pursuits stand removed from ordinary, practical concerns. Neither offers a utilitarian service, such as baking the bread or curing the sick. Yet people devote countless hours and often care passionately about a work of art (think of one that you loathe) or a particular team. Should they?Might either of these phenomena speak to some sort of need in the human psyche? A need that is spiritual, rather than physical? A need for what, though? There are other forms of rest and less structured forms of “play;” nature offers plenty of beauty, and people’s lives and history offer plenty of stories, to contemplate. What is it about the creation or contemplation of art or about the participation in or being a spectator of sport that is gratifying? And what is the point of these activities – is art to teach lessons, for instance, convey a moral? Is sport to build character, or develop skills of teamwork? Is either, in any legitimate sense, simply an end in itself?What makes anything an end in itself? And what bestows any value on anything, for that matter?  By exploring these and further questions – including some of the differences as well as the salient similarities between the two realms – we will try to understand the significance of art, sport, and the meaning and value of how one lives his life.

Texts/ Readings:  articles and excerpts from many authors Note: this reading list will be tweaked considerably Nicholas Davidoff, The Crowd Sounds Happy: A Story of Love, Madness, and Baseball.Daniel A. Dombrowski, Contemporary Athletics & Ancient Greek Ideals, 2009 Hans Ulrich Gumbrecht, In Praise of Athletic Beauty Michael Mandelbaum, The Meaning of Sports: Why Americans Watch Baseball, Basketball and Football and What They See When They DoWilliam Morgan, Why Sports Really Matter 2006 RoutledgePaul Weiss, Sport: A Philosophic InquiryDoris Kearns Goodwin, Wait Till Next YearCraig Lambert, Mind Over WaterDrew A. Hyland, Philosophy of Sport Drew Hyland, “And That is the Best Part of Us: Human Being & Play” Kenneth Schmitz, “Sport & Play: Suspension of the Ordinary” Kurt Riezler, “Play & Seriousness” McNamee, M.J., “Schadenfreude in sport; envy, justice and self-esteem”Probably also some pieces on sportsmanship, ritual, heroes, and enhancement-performing drugs (insofar as arguments about that reflect on the point of the game) Noah Adams, Piano LessonsAristotle, Aesthetics Jill Dolan, Utopia in PerformanceDenis Dutton, The Art Instinct Joseph Epstein, AstaireMichael Kimmelman, The Accidental Masterpiece – On the Art of Life & Vice Versa Ayn Rand, The Romantic ManifestoWitold Rybczinbski, Looking Around Twyla Tharp, The Creative Habit Paul Woodruff The Necessity of Theater  

Requirements: paper – 4 pages – plus draft, read and edited by peers – 15%paper – 4 pages – plus draft, read and edited by peers – 20%paper – 6-8 pages – after being graded, students required to submit revised paper – 25%final exam – essays (take-home) encompassing all major themes of the course – 25%oral presentation & alert participation throughout – 15%

Brief Biography: Tara Smith specializes in moral, legal, and political philosophy. She has worked considerably on the foundations of value and the moral virtues – in particular, those that compose a rationally self-interested life – and has published books and dozens of articles on these as well as such topics as friendship, romantic love, individual rights, the value of money, and the nature of objectivity. Her recent work focuses in jurisprudence on questions of proper interpretation of the law by judges and moral broadly, on the nature of objective law. Smith holds the BB&T Chair for the Study of Objectivism, and is a lifelong, devoted New York Giants fan.

PHL 387 – Legal Authority:

Its Foundations & Its Exercise in the Judiciary

Requirements

Graduate Standing and Consent of Graduate Advisor required.

Course Description:

This seminar will examine legal authority in relation to adjudication. Insofar as proper judicial decision-making maintains fidelity to the law, its requirements depend on what the law is, and that, in turn, depends on the roots of law’s authority. Thus we will study the fundamental nature of legal authority, of moral authority, and the relationship between the two in this context.

Our examination will focus particularly on two widespread and in many ways successful forms of legal authority: constitutional and common law. By probing the sources and limitations of these, we will gain a firmer grasp of the character of legal authority as such. We will then consider how differing conceptions of the law’s authority shape some of the leading accounts of proper adjudication, focusing on Judicial Minimalism (increasingly advocated by thinkers across the ideological spectrum) and Dworkinian perfectionism.

Readings (tentative):

             extended excerpts from:

Douglas Edlin, Judges & Unjust Laws

David Strauss, The Living Constitution 

Cass Sunstein, A Constitution of Many Minds; One Case at a Time

Ronald Dworkin, Law’s Empire; Justice in Robes

Randy Barnett, Restoring the Lost Constitution

Larry Alexander, ed., Constitutionalism

Possibly a few additional articles & excerpts

Assignments (tentative):

2 papers and 1 oral presentation

This course, intended to introduce students to certain basic issues in philosophy of law, will be organized around the question: What should a legal system be? What are the fundamental features and instruments that are vital to a proper legal system, and what are some of the competing understandings of what these are?

By reading both historical and contemporary authors, we will seek to grasp the theoretical bases of proper law as well as the appropriate practical implementation of key ideals in legal systems today. In the course of answering our overarching question, we will examine a number of key concepts that are arguably crucial to a proper legal system, such as:

• A Constitution   
• Common law
• Precedent
• The Rule of Law
• Legal Authority
• Democracy
• Representation
• Rights
• Equality
• Popular sovereignty
• Liberty

Readings:

Randy Barnett, Restoring the Lost Constitution

Scott Gerber, To Secure these Rights

Madison, Hamilton, & Jay, Federalist Papers

Packet including pieces by a range of historical and contemporary authors, probably including,

among others: John Adams, James Otis, Akhil Amar, Robert Bork, Joseph Raz, Michael

Perry, Lani Guinier 

Grading: (still tentative)

3 Exams (two in-term and one final) (20%, 20%, & 25%)

1 Paper (25%)

2 or 3 brief writing homework (such as critical summaries of readings) (10%)

attached

Methods and aims of selected sciences, arts, and philosophy in the attainment of knowledge and in providing the basis for valuation.

Methods and aims of selected sciences, arts, and philosophy in the attainment of knowledge and in providing the basis for valuation.

Past topics include contemporary ethical theory; theories of justice; philosophy of law; social contract theories; political philosophy. 

In-depth examination of philosophical questions and issues in a seminar setting for advanced Philosophy students.

Study of basic principles of the moral life, with critical examination of traditional and contemporary theories of the nature of goodness, happiness, duty, and freedom.

Topic courses focusing on philosophy in a particular context.

Study of basic principles of the moral life, with critical examination of traditional and contemporary theories of the nature of goodness, happiness, duty, and freedom.

Study of basic principles of the moral life, with critical examination of traditional and contemporary theories of the nature of goodness, happiness, duty, and freedom.

Past topics include contemporary ethical theory; theories of justice; philosophy of law; social contract theories; political philosophy. 

Methods and aims of selected sciences, arts, and philosophy in the attainment of knowledge and in providing the basis for valuation.

Past topics include basic issues in epistemology; theories of belief and rationality; justification and truth. Three hours a week for one semester.

Methods and aims of selected sciences, arts, and philosophy in the attainment of knowledge and in providing the basis for valuation.

In-depth examination of philosophical questions and issues in a seminar setting for advanced Philosophy students.

Views of major political philosophers on humanity, nature, and society; discussions of contemporary political ideologies.

Past topics include contemporary ethical theory; theories of justice; philosophy of law; social contract theories; political philosophy. 

Critical examination of leading theories of the state, including analysis of such concepts as sovreignty, obligation, rights, and freedom.