First Amendment Seminar: Pluralism and Difference
Course details (Fall 2018)
Wednesdays, 1:08 - 3:00
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 graduate, a demographic for which all of you qualify. Your legal training will allow us to deepen our inquiry into these subjects by reading case law and legal scholarship.
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.
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
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)
ABA Standard 310
ABA Standard 310 requires “not less than one hour of classroom or direct faculty instruction and two hours of out-of-class student work per week or the equivalent amount of work over a different amount of time” for each credit hour awarded. This course is designed to meet this requirement, and each student is expected to spend on average no less than 3.5 hours per week (in a combination of in-class time and out-of-class student work) per credit hour.
John Inazu, Confident Pluralism: Surviving and Thriving Through Deep Difference (University of Chicago Press, 2018) (paperback edition with new preface)
Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion (New York: Vintage Books, 2012)
Corey Brettschneider, When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality (Princeton University Press, 2012)
Greg Lukianoff, Unlearning Liberty: Campus Censorship and the End of American Debate (Encounter Books, 2013)
Eboo Patel, Out of Many Faiths: Religious Diversity and the American Promise (Princeton University Press, 2018)
Selected articles and essays
Assignments and Course Grade
Class Participation: 20%
Your class participation grade will be based upon four factors:
Your participation in the class discussion;
Two 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.
The critical summaries are intended to push you to be more precise in your reading, writing, and thinking. They should be more critique than summary, briefly synthesizing the main arguments of the assigned readings and then raising questions or critiques about those readings. Each summary 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 by email at least 24 hours before our class meeting. I may distribute copies of your summaries to the class, and we may focus critically on both the substance and clarity of your writing during our class time.
Given that we will need to spread these reviews across the semester to ensure that everyone has an opportunity to present, I will distribute a signup sheet on the first day of class—you might want to preview the syllabus and select several possible readings of interest in case your top choices are taken by others.
Research Paper: 80%
The bulk of your course grade will be determined by a research paper 15-20 pages in length 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 at least ten pages to me by Thursday, October 18th. You are also welcome to turn in the draft before you leave for fall break—I want to accommodate those who want to head to the break free and clear and those who plan on using it to catch up on work. I will provide feedback on your drafts and suggestions for further research and revisions.
Your final draft will be due to me and two of your classmates (whom I will select in advance) by Friday, November 16th. I will not read your drafts at this point, but I will skim them to make sure they are legitimate drafts rather than speculative musings. This draft should be at least twenty pages in length. (The length exceeds the minimum length of the final paper because I anticipate that most of you will need to tighten parts of your papers and because many of you will have sections or arguments that you will end up cutting from your final paper.)
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 Wednesday, November 23rd. Reviewers should copy me on these comments, which I will review for thoroughness and thoughtfulness.
Your final paper will be due to me at the end of the exam period. You are also free to submit your final paper at an earlier time (any time after you have incorporated your peer review).
You will be expected to follow my writing guidelines for all written submissions for this course.
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 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.
You should also take the class discussion seriously. Each of you should come prepared to discuss the readings and engage with your classmates. If your tendency is to dominate discussion, then restrain yourself to an appropriate level. If your tendency is not to speak in class, then push yourself to contribute.
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.
The best way to schedule an appointment is through this site. If you cannot find a time that works, you can email me.
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.
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.
Class Schedule (Fall 2018)
August 29 – Introduction
September 5 – Our Modest Unity
September 12 – NO CLASS
September 19 – The Right of Association
September 26 – The Public Forum (Guest: Professor Greg Magarian)
October 3 – Public Funding
October 10 – Civic Aspirations (Guest: Professor Guy-Uriel Charles)
October 17 – NO CLASS (Fall Break)
October 24 – NO CLASS
October 31 – Speech
November 7 – Special Class: Kristina Arriaga
November 14 – Collective Action
November 21 – NO CLASS (Thanksgiving)
November 28 – Relationships Across Difference
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
Guest: Professor Greg Magarian
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 – 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, Out of Many Faiths: Religious Diversity and the American Promise (2018)
Guest: Professor Guy-Uriel Charles (Duke)
Class 7 – 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, Unlearning Liberty: Campus Censorship and the End of American Debate (Encounter Books, 2013) (Introduction and Chapters 2, 8, 9, and 10)
Class 8 – 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)
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)
Ross Douthat, “The Case of Brendan Eich,” New York Times (April 8, 2014)
Class 9 – 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
Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion (New York: Vintage Books, 2012)