Speech, Conduct, and the First Amendment / Edition 1

by Howard Schweber

Overview

Speech, Conduct, and the First Amendment offers a concise yet thorough review of all areas of First Amendment jurisprudence, including historical background and the most recent developments. Points of difference – as well as agreement – among justices of the Supreme Court are connected to broader theories of First Amendment and constitutional interpretation and politics. The presentation of substantial case excerpts and selected secondary materials provide opportunities for critical analysis, and readers are encouraged to reach their own conclusions about the relative merits of different interpretative approaches, while becoming familiar with the full range of past and present theories about the meaning of the First Amendment.

Product Details

ISBN-13:	9780820452951
Publisher:	Peter Lang Inc., International Academic Publishers
Publication date:	02/21/2003
Series:	Teaching Texts in Law and Politics , #14
Edition description:	New Edition
Pages:	424
Product dimensions:	6.30(w) x 9.06(h) x 0.04(d)

About the Author

The Author: Howard Schweber teaches courses on constitutional law, the First Amendment, and related subjects in the Political Science Department at the University of Wisconsin-Madison. He received a J.D. from the University of Washington, an M.A. in history from the University of Chicago, and a Ph.D. in government from Cornell University, in New York. He has previously published numerous articles on topics in American law and legal history, and is the author of a forthcoming book about the development of American common law in the nineteenth century.

Table of Contents

	Acknowledgments	xi
	Introduction	3
I.	"Congress Shall Make No Law..."	5
A.	Preferred Liberties	5
B.	Historical Background to the First Amendment	7
C.	The Search for a Unified Reading	15
D.	Some Useful Terms	25
II.	"...Abridging the Freedom of Speech": From Clear and Present Danger to the Categorical Approach	31
A.	Libel and the Meaning of Sedition	31
B.	The Focus on Circumstances: The "Clear and Present Danger" Test, 1919-1969	38
C.	The Categorical Approach: Fighting Words, Obscenity, and Libel	46
D.	General Principles	57
1.	Regulation of Speech in a Public Forum	58
2.	Limited Forums	66
III.	The Categorical Approach Revisited: Libel, Obscenity and Indecency, Sexual Harassment, and Hate Speech	72
A.	Libel	74
B.	Obscenity and Privacy	74
1.	Defining Obscenity	74
2.	Protecting Privacy	80
3.	Special Protections for Children	85
C.	Indecency and Public Spaces	89
D.	Sexual Harassment	106
E.	Hate Speech: Reconsidering the Categorical Approach	109
F.	Commercial Speech	118
G.	Campaign Contributions and Expenditures	123
IV.	Speech-Plus and Expressive Conduct; Compelled Speech and the Right of Association	127
A.	Speech-Plus and Expressive Conduct	127
B.	Compelled Speech and the Right of Association	145
1.	Compelled Speech	145
2.	Association and Compelled Association	150
V.	"Congress Shall Make No Law Respecting an Establishment of Religion..."	164
A.	Subsidies for Religious Activities	168
B.	Endorsement	189
1.	Public Prayers	190
2.	Public Displays	203
3.	Revisiting the Question of Legislative Intent: Endorsement and School Curricula	210
C.	The Establishment Clause and the Problem of Accommodation	216
VI.	"...Or Prohibiting the Free Exercise Thereof"	218
A.	What is a "Religion"?	225
B.	What is a "Law Prohibiting the Free Exercise" of Religion?	230
VII.	Government as Speaker; Access Cases	258
A.	Government as Speaker	259
B.	Access to Public Facilities	272
C.	Access to Public Support	278
VIII.	Freedom of the Press	292
A.	Prior Restraints	292
B.	Libel and Invasion of Privacy	301
C.	Limits on Newsgathering	321
D.	Reporter's Privilege	328
E.	The Special Case of Broadcast Media: The Rise and Fall of the Equal Time Doctrine	333
IX.	Rights of Assembly and Petition	340
A.	Assembly	340
B.	Petition	344
X.	Three Views of the First Amendment; the First Amendment and the Problem of Equality; the Future of the First Amendment	362
A.	Approaches to Understanding the First Amendment	362
1.	The Affirmative Approach	363
2.	The Negative Approach	366
3.	Test Cases: Access and Association	368
4.	Another View: The Activist Approach	371
B.	The First Amendment and the Problem of Equality	373
C.	The Future of the First Amendment	394
	Table of Cases	401
	Sources	415
	Index	419