The First Amendment in an Age of Fracture
Course details (Fall 2024)
Mondays, 3:00 - 5:50pm
Location TBD
Credits: 3.0
Description
The basic outline for this seminar will follow my book, Confident Pluralism. Structuring this seminar around my own book isn’t an effort to make this class about me (though I am aware of the risk of such a misperception) but because I think that doing so is the best way for me to instruct and push you on these ideas. I wrote the book to be read by the smart college-educated person, a demographic for which all of you qualify.
In Confident Pluralism, I argue that we can and must live together peaceably in spite of deep and sometimes irresolvable differences over politics, religion, sexuality, and other important matters. We can do so in two important ways. The first is by insisting upon constitutional commitments in three areas of the law: (1) protecting the voluntary groups of civil society through the rights of assembly and association; (2) facilitating and enabling dissent, disagreement, and diversity in public forums; and (3) ensuring that generally available government funding is not limited by government orthodoxy. The second way of living together is by embodying its aspirations of tolerance, humility, and patience in three civic practices: (1) our speech; (2) our collective action (protests, strikes, and boycotts); and (3) our relationships across difference.
Objectives
Methodological
Understand, appreciate, and craft arguments from different perspectives
Make principled distinctions and defend them
Learn how to ask good questions
Recognize the value of interdisciplinary approaches to law
Write clearly, cogently, and provocatively
Provide lucid and helpful feedback to one another
Substantive
Gain an appreciation for the kinds of tensions that arise in a democratic polity
Understand the key figures and arguments in these debates
Identify and critique the problems inherent in various “solutions” to the fact of pluralism (including mine)
Texts
Corey Brettschneider, When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality (Princeton University Press, 2012)
John Inazu, Confident Pluralism: Surviving and Thriving Through Deep Difference (University of Chicago Press, 2018) (paperback edition with new preface)
John Inazu, Learning to Disagree: The Surprising Path to Navigating Differences with Empathy and Respect (Zondervan, 2024)
Greg Lukianoff, The Canceling of the American Mind (Simon & Schuster, 2023)
Eboo Patel, We Need to Build: Field Notes for Diverse Democracy (Beacon Press, 2022)
Selected articles and essays
Assignments and Course Grade
Class Participation: 20%
Your class participation grade will be based upon five factors:
Your participation in the class discussion;
Critical summaries of the readings over the course of the semester;
Meeting the deadlines for the writing project (unless otherwise specified, all deadlines are at 10:00 pm on the date listed);
Your peer review on draft papers from two of your classmates.
Your presentation of and engagement with draft papers in the final weeks of our class.
You will write three critical summaries on the readings over the course of the semester. These summaries should synthesize the main argument of the reading and raise questions or critiques about that argument. They should be between 300-500 words long. That short word limit means that you will have to choose your wording carefully and precisely. The summaries will not count for a substantial part of your grade, but you will need to submit them to me on time (by 10:00 pm on the day before class). I will also distribute copies of your summaries to the class, and we will focus critically on both the substance and clarity of your writing during our class time. This component of the class is intended to push you to be more precise in your reading, writing, and thinking.
Research Paper: 80% (30% for your first draft and 50% for your final paper)
The bulk of your course grade will be determined by a 15-20 page research paper on a topic that you choose in consultation with me. I encourage you to choose something that interests you and that might develop into a future article or writing sample. (You might need to read ahead or pursue some outside reading to help identify your topic of interest.)
Your writing project will develop along scheduled deadlines that you may not have encountered in other classes. I impose these deadlines to encourage dialogue, feedback, and revisions that will benefit your final written work:
Shortly into the semester, you will need to email me a one-paragraph research proposal of the topic you want to explore and the issues that you anticipate addressing. I will work with you to refine the topic or select a different topic if I anticipate problems with your initial choice. After I have approved all of the proposals, I will circulate them to the class so that you can be aware of what others are doing and provide optional feedback or suggestions.
You will submit a draft of 10-12 pages to me by October 10. I will provide feedback on your drafts and suggestions for further research and revisions. This draft will comprise 30% of your course grade.
Your final draft (at least 15 pages at this point) will be due to me and two of your classmates (whom I will select in advance) on November 15. I will not read your drafts at this point, but I will skim them to make sure they are legitimate drafts rather than early musings.
Your two reviewers will have one week to complete a substantive peer review of your draft. Each reviewer will email comments on your draft to you by November 29.
Reviewers should copy me on these comments, which I will review for thoroughness and thoughtfulness. You should make your comments using the track changes function in Microsoft Word.
Your final paper will be due to me by December 15. You are also free to submit your final paper at an earlier time (any time after you have incorporated your peer review). This paper will comprise 50% of your course grade.
Attendance and Classroom Policies
Your attendance and contribution to the discussion are crucial to making this class successful and a necessary part of engaging with the complex ideas that we’ll encounter. I recognize that many of you will have occasional foreseen and unforeseen conflicts, and I will accommodate those at the margins. But you should not take this course if you think you’ll miss a significant number of classes. If you anticipate missing a class, you should notify me at least 24 hours in advance of our meeting.
Laptop computers, phones, and other gadgets are not permitted in class.
Students who violate the computer or phone use policy may have their semester grades lowered.
Communication
I will make every effort to respond to your emails within one day of your having sent them, with the exception of emails sent over the weekend or holidays, which I will answer by the following business day.
I will hold office hours by appointment (in my law school office or over zoom) on Mondays, Wednesdays, and Thursdays. You can schedule an appointment here. You can also email me to schedule a different time.
You should feel free to use office hours not only to discuss our substantive readings but also to obtain help on your writing, to ask questions about graduate school or law school, or to talk about other academic or career interests.
I have posted some basic writing guidelines and stylistic preferences. You should familiarize yourself with those guidelines, and I will expect you to follow them for all writing in this course. I also commend to you the additional resources listed on that page.
Class Schedule (Fall 2024)
August 26 – Introduction
September 2 - NO CLASS (Labor Day)
September 9 – Our Modest Unity
September 16 – The Right of Association
September 23 – The Public Forum
September 30 – Public Funding
October 7 - NO CLASS (Fall Break)
October 14 – Summarizing Constitutional Principles
October 21 – Civic Aspirations
October 28 - Speech
November 4 – Collective Action
November 11 – Relationships Across Difference
November 18 - Summarizing Civic Aspirations
November 25 - Paper Discussions
December 2 - Paper Discussions
Class Descriptions
Class 1 – Introduction
Our deep differences call into question our constitutional aspiration for “a more perfect union,” our national metaphor of a great “melting pot,” and the promise of our nation’s seal, E pluribus unum. Our differences pervade our backgrounds, preferences, and allegiances. They affect not only what we think, but also how we think, and how we see the world. John Rawls called it the “fact of pluralism.” The fact of pluralism creates a practical problem in need of a political solution. Rousseau offered one possibility: “it is impossible to live at peace with those we regard as damned.” But perhaps Rousseau was wrong. Even if we can’t attain the elusive goal of E pluribus unum, perhaps we can live together in our “many-ness.”
Confident Pluralism, Preface and Introduction
John Rawls, “The Idea of an Overlapping Consensus,” Oxford Journal of Legal Studies 7, no. 1 (1987)
Ruth Padawer, “When Women Become Men at Wellesley,” New York Times (October 15, 2014)
Class 2 – Our Modest Unity
We retain some minimal agreement about our society even in the midst of our deep differences. Part of this agreement recognizes the wisdom of individual rights to guard against state-enforced orthodoxy. Individual rights like speech, assembly, and the free exercise of religion give us the space to create meaning apart from majoritarian norms. Our modest unity includes two basic premises: inclusion and dissent. The inclusion premise is that we seek for those within our boundaries to be part of the political community. The dissent premise is that we allow for people to dissent from the norms established by that community.
Confident Pluralism, Chapter 1
West Virginia v. Barnette, 319 U.S. 624 (1943)
Corey Brettschneider, When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality (Princeton University Press, 2012) (Introduction and Chapters 1 and 2)
Class 3 – The Right of Association
One of the most important constitutional commitments for a pluralistic society is the protection for individuals to form and gather in groups of their choosing. These protections are under pressure from modern changes to the right of association that focus on intimacy and expressiveness. Intimate association protects very few actual groups. Expressive association lacks a coherent framework and leaves certain groups deemed “non-expressive” particularly vulnerable.
Confident Pluralism, Chapter 2
Roberts v. United States Jaycees, 468 U.S. 609 (1984)
Christian Legal Society v. Martinez, 561 U.S. 661 (2011)
Ashutosh Bhagwat, “Associational Speech,” 120 Yale Law Journal 978 (2011)
Class 4 – The Public Forum
Public forums are government-provided spaces where viewpoints become voices. They allow citizens and the groups that they form to advocate, protest, and witness in common spaces—and they are insufficiently protected under current constitutional doctrine. We have seen these weaknesses exposed in a variety of settings, including the crackdown of protests in Ferguson, Missouri, restrictions against labor activism, and regulations of anti-abortion protesters. Correcting these weaknesses will require greater attention to the shortcomings of time, place, and manner restrictions, and to an emerging doctrine known as government speech. A separate challenge arises because public forums are not the only places where we enact the aspirations of living together in a pluralistic society—privately owned spaces like coffee shops, parks, and online service providers increasingly serve this function.
Confident Pluralism, Chapter 3
Gregory P. Magarian, “The First Amendment, the Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate,” 73 George Washington University Law Review 101 (2004)
Timothy Zick, “Speech and Spatial Tactics,” 83 Texas Law Review 581
Class 5 – Public Funding
Some forms of government funding are indispensable to the group’s of civil society. The government’s discretion with its money—or rather, with our money—is not unlimited. When government actors create and maintain generally available funding that facilitates a diversity of viewpoints and ideas, they should not constrain that funding based on viewpoint or ideology.
Confident Pluralism, Chapter 4
Robert M. Cover, “The Supreme Court, 1982 Term—Foreword: Nomos and Narrative,” 97 Harvard Law Review 4 (1983)
Corey Brettschneider, When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality (Princeton University Press, 2012) (Chapters 4 and 5)
Class 6 – Summarizing Constitutional Principles
(No additional reading)
Class 7 - Civic Aspirations
We can move closer toward mutual coexistence by striving to embody three civic aspirations. Tolerance is the recognition that people are for the most part free to pursue their own beliefs and practices, even those beliefs and practices we find morally objectionable. Humility takes the further step of recognizing that others will sometimes find our beliefs and practices morally objectionable, and that we can’t always “prove” that we are right and they are wrong. Patience points toward restraint, persistence, and endurance in our interactions across difference. Importantly, we can pursue these aspirations without agreeing on the reasons for doing so.
Confident Pluralism, Chapter 5
Rebecca L. Brown, “Common Good and Common Ground: The Inevitability of Fundamental Disagreement,” 81 University of Chicago Law Review 397 (2014)
Eboo Patel, We Need to Build: Field Notes for Diverse Democracy (Beacon Press, 2022)
Class 8 – Speech
The First Amendment’s free speech right allows us to say almost anything to almost anyone. But that freedom places a great deal of responsibility on us for what we choose to say. On most of the deeply contested issues at the core of our divisiveness, our efforts toward common ground are hindered by speech that breeds social intolerance by stigmatizing people instead of challenging ideas. We can choose to avoid this stigmatizing speech and instead pursue what law professor James Boyd White calls “living speech.”
Confident Pluralism, Chapter 6
Snyder v. Phelps, 562 U.S. 443 (2011)
Greg Lukianoff, The Canceling of the American Mind (Simon & Schuster, 2023)
Class 9 – Collective Action
Collective action directed against our fellow citizens (including boycotts, strikes, and protests) reveals an inherent and perhaps irresolvable tension for notions of pluralism. On the one hand, collective action can resist and challenge forms of majoritarian power. On the other hand, collective action directed at other private citizens and their institutions exerts a kind of power that silences certain viewpoints. The aspirations of tolerance, humility, and patience do not point to a bright-line rule for our collective action, but they do offer some guidance.
Confident Pluralism, Chapter 7
NAACP v. Claiborne Hardware, 458 U.S. 886 (1982)
Mckesson v. Doe, Brief Amicus Curiae of Professor John D. Inazu in Support of Petitioners) (2023) (represented by Bryan Cave Leighton Paisner, LLP) (supporting certiorari)
Lawrence A. Alexander and Maimon Schwarzschild, “Consumer Boycotts and Freedom of Association: A Comment on a Recently Proposed Theory,” 22 San Diego Law Review 555 (1985)
Class 10 – Relationships Across Difference
Relationships across difference are not always possible—sometimes the best we can do is coexist. But in many cases, we can work together toward common ground in spite of our differences. In fact, these common efforts may not actually bridge any ideological differences—we may remain uncompromising or unchanged in our own views. That’s not to say that either compromise or change is impossible. But it does suggest that meaningful relationships for the sake of shared interests do not depend on either one.
Confident Pluralism, Chapter 8 and Conclusion
John Inazu, Learning to Disagree: The Surprising Path to Navigating Differences with Empathy and Respect (Zondervan, 2024)
Class 11 – Summarizing Civic Aspirations
(No additional reading)