POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/24, we first finished our discussion of Hubbard v. Greeson. We saw how the Indiana court changed its choice of law rules, and how that impacted Greeson's case. We then turned to how this issue is dealt with in federal courts, in Land v. Yamaha. We first talked about which cases can go into the federal trial courts (federal question jurisdiction and diversity jurisdiction). We talked about the Erie doctrine, and what law (including conflict of law rules) federal courts use in diversity cases. We went over Indiana's Statute of Repose, and contrasted it to a Statute of Limitations. We saw how allowing Indiana conflict of law rules to apply was a bad idea for Land, and how it was even worse to be in federal court than it would have been to be in the Indiana Supreme Court. Then I talked about a Maine case, Collins v. Trius, and how the Maine Supreme Court dealt with a choice of law question involving Canadian law. Finally. I gave an introduction to the concept of Full Faith and Credit. The assignment for Tuesday 12/1 is to finish Chapter 3 of the text (Finstuen v. Crutcher (through p. 122). Also on Tuesday 12/1, I plan to distribute the assignment for our second case brief, which will be due the last day of class (12/10). I hope that you have a happy Thanksgiving.
POS 384 CIVIL LIBERTIES
In class today, Tuesday 11/24, I distributed one handout, an edited version of the cert petition (since granted) in the current Supreme Court Texas abortion case (Whole Women's Health v. Cole). If you weren't in class and want the petition, please email me. I went over the basics of the Texas law that's challenged in the case. We then finished our discussion of Roe v. Wade. We looked at the points of disagreement between Blackmun and Rehnquist. We examined the trimester scheme, and the point at which the state was found to have a compelling interest in both maternal health and the potential life of the fetus. We began our discussion of Casey, looking at how the 3 person joint opinion could become the law of the land. We will continue next Tuesday with the four opinions in the case, starting with the most pro-choice (Blackmun) and working our way to the most anti-choice (Scalia). The assignment for Tuesday 12/1 is to review Casey, and then read and prepare to discuss the cert petition distributed today. I hope that you have a happy Thanksgiving.
Tuesday, November 24, 2015
Thursday, November 19, 2015
November 19, 2015
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/19, I started by backtracking a bit. We had previously discussed dictum and the Butler case, and I pointed out that we've seen three different variations in dictum: Butler, Mobbley, and NFIB. We then finished up our discussion of retroactivity and the Dempsey case. We saw how the Montana Court looked at the old and the new federal models for retroactivity, and basically rejected them both, and came up with a rule all their own. I also discussed the Maine Supreme Court's view on retroactivity in Androkites v. White. We looked at the lack of precedent in the Strunk case, and how the best interests of the donor son were dealt with by both the majority and the dissent. We then began our discussion of Greeson. We looked at how Greeson's lawyer (possibly) saw this as a case in which there were choices about whether to sue in Indiana or Illinois (personal jurisdiction), a clear difference in tort law between Indiana and Illinois, and a well-established precedent in Indiana Choice of Laws rules that would result in the application of the favorable Illinois tort law. We got up to the point at which this all went terribly wrong, which is where we'll pick up on Tuesday. The assignment for Tuesday 11/24 is to review Greeson, and, in addition, read in the text pp. 144-146 (Land v. Yamaha).
POS 384 CIVIL LIBERTIES
In class today, Thursday 11/19, we first finished up our discussion of Snyder v. Phelps. We looked at the extension of First Amendment protection for speaker/defendants from plaintiffs who were public officials, to public figures, to limited purpose public figures, and finally to all matters of public concern. We also looked at the location of the protest, and how the evaluation of the tort as being viewpoint-based was made. We examined Alito's dissent, especially the question of public concern. We then moved to Roe v. Wade and abortion rights. We looked at the maps of abortion laws prior to Roe. We talked about litmus tests for Supreme Court nominations, and how the politics have changed since 1973. We examined Burger's maneuvers in assigning and scheduling the case. We looked at the right of privacy, and where its origin could be located in the text of the constitution. We talked about fundamental rights, strict scrutiny, and trimesters. On Tuesday we'll finish up our discussion of Roe. The additional assignment for Tuesday 11/24 is to read in the text through p. 433.
In class today, Thursday 11/19, I started by backtracking a bit. We had previously discussed dictum and the Butler case, and I pointed out that we've seen three different variations in dictum: Butler, Mobbley, and NFIB. We then finished up our discussion of retroactivity and the Dempsey case. We saw how the Montana Court looked at the old and the new federal models for retroactivity, and basically rejected them both, and came up with a rule all their own. I also discussed the Maine Supreme Court's view on retroactivity in Androkites v. White. We looked at the lack of precedent in the Strunk case, and how the best interests of the donor son were dealt with by both the majority and the dissent. We then began our discussion of Greeson. We looked at how Greeson's lawyer (possibly) saw this as a case in which there were choices about whether to sue in Indiana or Illinois (personal jurisdiction), a clear difference in tort law between Indiana and Illinois, and a well-established precedent in Indiana Choice of Laws rules that would result in the application of the favorable Illinois tort law. We got up to the point at which this all went terribly wrong, which is where we'll pick up on Tuesday. The assignment for Tuesday 11/24 is to review Greeson, and, in addition, read in the text pp. 144-146 (Land v. Yamaha).
POS 384 CIVIL LIBERTIES
In class today, Thursday 11/19, we first finished up our discussion of Snyder v. Phelps. We looked at the extension of First Amendment protection for speaker/defendants from plaintiffs who were public officials, to public figures, to limited purpose public figures, and finally to all matters of public concern. We also looked at the location of the protest, and how the evaluation of the tort as being viewpoint-based was made. We examined Alito's dissent, especially the question of public concern. We then moved to Roe v. Wade and abortion rights. We looked at the maps of abortion laws prior to Roe. We talked about litmus tests for Supreme Court nominations, and how the politics have changed since 1973. We examined Burger's maneuvers in assigning and scheduling the case. We looked at the right of privacy, and where its origin could be located in the text of the constitution. We talked about fundamental rights, strict scrutiny, and trimesters. On Tuesday we'll finish up our discussion of Roe. The additional assignment for Tuesday 11/24 is to read in the text through p. 433.
Tuesday, November 17, 2015
November 17, 2015
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/17, we first finished up our discussion of NFIB by looking at Ginsburg's dissenting opinion. I talked about and cited examples of the police power, supremacy, ex post facto laws, and statutory construction. We discussed State v. Butler, and then looked at how the U.S. Supreme Court dealt with that impeachment issue in Harris v. N.Y. We began our discussion of retroactive v. prospective application of court decisions by looking at the four U.S. Supreme Court cases about those rules, Linkletter and Griffith (on the criminal side) and Chevron and Harper (on the civil side). We will continue with the Montana Dempsey case on Thursday. The additional reading for Thursday 11/19 is to read in the text through p. 115 (Strunk and Greeson).
POS 384 CIVIL LIBERTIES
In class today, Tuesday 11/17, I first passed back the Bible Believers papers, and made some comments. We then went to White's concurrence in R.A.V., in which he found the ordinance overbroad (and therefore unconstitutional) because it removed from Free Speech protection more than just fighting words. We puzzled out Scalia's R.A.V. handout, under which some content-based subsets are allowable (even though the one on R.A.V. itself was not allowable). I discussed the 2003 case of Virginia v. Black, in which the Supreme Court dealt with a state law that outlawed cross-burning with the intent to intimidate. We looked at the the majority and dissenting views within the Virginia Supreme Court, and then looked at the O'Connor and the Souter opinions in the case, and how they treated that Scalia handout. We then turned our attention to Snyder v. Phelps. We started by looking at the Maine statute that outlawed fighting words at funeral services. We talked about the idea of state action in suits of one individual versus another. We also went over the protection from suit by plaintiffs who were public officials and public figures. We will pick up on Thursday with the concept of limited purpose public figures, and the case of one University of Maine professor suing the Bangor Daily News for a letter written by another University of Maine professor. We will go over Snyder v. Phelps (previously assigned) next class. The additional assignment for Thursday 11/19 is to read in the text pp. 409-420.
In class today, Tuesday 11/17, we first finished up our discussion of NFIB by looking at Ginsburg's dissenting opinion. I talked about and cited examples of the police power, supremacy, ex post facto laws, and statutory construction. We discussed State v. Butler, and then looked at how the U.S. Supreme Court dealt with that impeachment issue in Harris v. N.Y. We began our discussion of retroactive v. prospective application of court decisions by looking at the four U.S. Supreme Court cases about those rules, Linkletter and Griffith (on the criminal side) and Chevron and Harper (on the civil side). We will continue with the Montana Dempsey case on Thursday. The additional reading for Thursday 11/19 is to read in the text through p. 115 (Strunk and Greeson).
POS 384 CIVIL LIBERTIES
In class today, Tuesday 11/17, I first passed back the Bible Believers papers, and made some comments. We then went to White's concurrence in R.A.V., in which he found the ordinance overbroad (and therefore unconstitutional) because it removed from Free Speech protection more than just fighting words. We puzzled out Scalia's R.A.V. handout, under which some content-based subsets are allowable (even though the one on R.A.V. itself was not allowable). I discussed the 2003 case of Virginia v. Black, in which the Supreme Court dealt with a state law that outlawed cross-burning with the intent to intimidate. We looked at the the majority and dissenting views within the Virginia Supreme Court, and then looked at the O'Connor and the Souter opinions in the case, and how they treated that Scalia handout. We then turned our attention to Snyder v. Phelps. We started by looking at the Maine statute that outlawed fighting words at funeral services. We talked about the idea of state action in suits of one individual versus another. We also went over the protection from suit by plaintiffs who were public officials and public figures. We will pick up on Thursday with the concept of limited purpose public figures, and the case of one University of Maine professor suing the Bangor Daily News for a letter written by another University of Maine professor. We will go over Snyder v. Phelps (previously assigned) next class. The additional assignment for Thursday 11/19 is to read in the text pp. 409-420.
Thursday, November 12, 2015
November 12, 2015
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/12, I distributed one handout, the Maine constitutional provision having to do with the veto of bills by the Governor. I discussed a recent Maine Supreme Court Case, Opinion of the Justices of 8/6/2015, 2015 ME 107, that dealt with the adjournment of the Legislature and the "prevention" of the Governor's ability to veto a bill. We then went over the idea of a federal government of enumerated power, as opposed to state governments which possess the police power. We talked about the Supreme Court's interpretation of the Congressional power to regulate interstate commerce, and how that interpretation has changed over time. We went over the complicated mechanism of Obamacare, and the assertion of power by Congress from different constitutional provisions in order to impose the individual mandate. We then got to Roberts' opinion in NFIB, in which Roberts went over the assertion of power under the interstate commerce clause. We will pick up next Tuesday with Ginsburg's opinion in NFIB. The assignment for Tuesday 11/17 is to review the remainder of NFIB and State v. Butler (previously assigned) and to read in addition Dempsey v. Allstate (through p. 110 of the text).
POS 384 CIVIL LIBERTIES
In class today, Thursday 11/12, I collected the Bible Believers papers. I plan to grade them this weekend and return them next Tuesday. I distributed one handout, an excerpt from Scalia's R.A.V. opinion that the textbook did not give us, which was key to understanding the Court's 2003 opinions in Virginia v. Black. We discussed Bible Believers, including a discussion of whether the majority or the dissent had the better of the argument. The assignment for Tuesday 11/17 is to read in the text through p. 263 (Snyder v. Phelps), as well as to read (and try to understand) the Scalia R.A.V. handout.
In class today, Thursday 11/12, I distributed one handout, the Maine constitutional provision having to do with the veto of bills by the Governor. I discussed a recent Maine Supreme Court Case, Opinion of the Justices of 8/6/2015, 2015 ME 107, that dealt with the adjournment of the Legislature and the "prevention" of the Governor's ability to veto a bill. We then went over the idea of a federal government of enumerated power, as opposed to state governments which possess the police power. We talked about the Supreme Court's interpretation of the Congressional power to regulate interstate commerce, and how that interpretation has changed over time. We went over the complicated mechanism of Obamacare, and the assertion of power by Congress from different constitutional provisions in order to impose the individual mandate. We then got to Roberts' opinion in NFIB, in which Roberts went over the assertion of power under the interstate commerce clause. We will pick up next Tuesday with Ginsburg's opinion in NFIB. The assignment for Tuesday 11/17 is to review the remainder of NFIB and State v. Butler (previously assigned) and to read in addition Dempsey v. Allstate (through p. 110 of the text).
POS 384 CIVIL LIBERTIES
In class today, Thursday 11/12, I collected the Bible Believers papers. I plan to grade them this weekend and return them next Tuesday. I distributed one handout, an excerpt from Scalia's R.A.V. opinion that the textbook did not give us, which was key to understanding the Court's 2003 opinions in Virginia v. Black. We discussed Bible Believers, including a discussion of whether the majority or the dissent had the better of the argument. The assignment for Tuesday 11/17 is to read in the text through p. 263 (Snyder v. Phelps), as well as to read (and try to understand) the Scalia R.A.V. handout.
Tuesday, November 10, 2015
November 10, 2015
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/10, I distributed one handout, an article from the Brennan Center about the role of money in state judicial elections. We went through the Caperton case. looking at the lineup of the Justices, the formulation of the proper constitutional test, and the application of that new test to the facts of the case. We also talked about Maine judicial elections, the perception of bias versus the probability of bias, and judicial versus legislative elections and roles. I then discussed this year's Supreme Court case of Williams-Yulee v. Florida Bar, which dealt with the First Amendment implications of forbidding judicial candidates from directly soliciting funds for their elections. We compared the line-up of the Justices, the role of perception of bias, and the role of the judicial versus legislative candidates. The assignment for Thursday 11/12 is to review NFIB v. Sebelius (previously assigned) and to read in addition through p. 106 of the text (Butler).
POS 384 CIVIL LIBERTIES
In class today, Tuesday 11/10, I distributed one handout, an article by Linda Greenhouse about the RFRA cases in which the Supreme Court just granted cert. We went over a few questions about the Bible Believers assignment (no repeat of questions needed; no explanation of the definition of strict scrutiny needed; short paragraph for each of the textbook cases in part three). We then went over both the Scalia and White opinions in R.A.V. As time permits on Thursday, I plan to clarify White's concurrence in R.A.V., and to also talk about the later case of Virginia v. Black. The assignment for Thursday 11/12 is to finish work on the Bible Believers assignment, due at the beginning of Thursday's class.
In class today, Tuesday 11/10, I distributed one handout, an article from the Brennan Center about the role of money in state judicial elections. We went through the Caperton case. looking at the lineup of the Justices, the formulation of the proper constitutional test, and the application of that new test to the facts of the case. We also talked about Maine judicial elections, the perception of bias versus the probability of bias, and judicial versus legislative elections and roles. I then discussed this year's Supreme Court case of Williams-Yulee v. Florida Bar, which dealt with the First Amendment implications of forbidding judicial candidates from directly soliciting funds for their elections. We compared the line-up of the Justices, the role of perception of bias, and the role of the judicial versus legislative candidates. The assignment for Thursday 11/12 is to review NFIB v. Sebelius (previously assigned) and to read in addition through p. 106 of the text (Butler).
POS 384 CIVIL LIBERTIES
In class today, Tuesday 11/10, I distributed one handout, an article by Linda Greenhouse about the RFRA cases in which the Supreme Court just granted cert. We went over a few questions about the Bible Believers assignment (no repeat of questions needed; no explanation of the definition of strict scrutiny needed; short paragraph for each of the textbook cases in part three). We then went over both the Scalia and White opinions in R.A.V. As time permits on Thursday, I plan to clarify White's concurrence in R.A.V., and to also talk about the later case of Virginia v. Black. The assignment for Thursday 11/12 is to finish work on the Bible Believers assignment, due at the beginning of Thursday's class.
Thursday, November 5, 2015
November 5, 2015
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/5, we began by putting the issue in Lawrence v. Texas into the format of our case brief. We then worked through the three issues dealt with in the Glassford home inspection case, also using the case brief format. I discussed two recent U.S. Supreme Court cases regarding class actions and arbitration, AT&T Mobility v. Concepcion and American Express v. Italian Colors Restaurant. We also looked at the arbitration clause just presented to me by my credit card company. The assignment for Tuesday 11/10 is to review Caperton (previously assigned) and to read in the text through p. 96 (NFIB v. Sebelius).
POS 384 CIVIL LIBERTIES
In class today, Thursday 11/5, we began by reviewing Stevens' opinion in Hill. We looked specifically at his argument that there exists a right to be let alone, and discussed how that might play out in the context of the Bible Believers. We went through Scalia's dissent in Hill, and his third category of content-based restrictions (in addition to viewpoint-based and subject-matter based, type-of-speech based). We also looked at his analysis of narrow-tailoring. We also looked at how Kennedy's dissent differed from Scalia's. I then talked to the class about the 2014 Supreme Court case of McCullen v. Coakley. This fractured but unanimous decision overturned the Massachusetts abortion clinic buffer zone. We looked at the majority opinion by Roberts in terms of both content-neutrality and narrow tailoring. We looked at Scalia's concurrence, which refused to join Roberts in the narrow tailoring part, but criticized Roberts both for the fact of doing a content-neutrality analysis, and the substance of that analysis. I will finish McCullen next week with Alito's separate concurrence. The assignment for Tuesday 11/10 is to review R.A.V. (previously assigned) and to continue work on your Bible Believers paper, due Thursday 11/12.
In class today, Thursday 11/5, we began by putting the issue in Lawrence v. Texas into the format of our case brief. We then worked through the three issues dealt with in the Glassford home inspection case, also using the case brief format. I discussed two recent U.S. Supreme Court cases regarding class actions and arbitration, AT&T Mobility v. Concepcion and American Express v. Italian Colors Restaurant. We also looked at the arbitration clause just presented to me by my credit card company. The assignment for Tuesday 11/10 is to review Caperton (previously assigned) and to read in the text through p. 96 (NFIB v. Sebelius).
POS 384 CIVIL LIBERTIES
In class today, Thursday 11/5, we began by reviewing Stevens' opinion in Hill. We looked specifically at his argument that there exists a right to be let alone, and discussed how that might play out in the context of the Bible Believers. We went through Scalia's dissent in Hill, and his third category of content-based restrictions (in addition to viewpoint-based and subject-matter based, type-of-speech based). We also looked at his analysis of narrow-tailoring. We also looked at how Kennedy's dissent differed from Scalia's. I then talked to the class about the 2014 Supreme Court case of McCullen v. Coakley. This fractured but unanimous decision overturned the Massachusetts abortion clinic buffer zone. We looked at the majority opinion by Roberts in terms of both content-neutrality and narrow tailoring. We looked at Scalia's concurrence, which refused to join Roberts in the narrow tailoring part, but criticized Roberts both for the fact of doing a content-neutrality analysis, and the substance of that analysis. I will finish McCullen next week with Alito's separate concurrence. The assignment for Tuesday 11/10 is to review R.A.V. (previously assigned) and to continue work on your Bible Believers paper, due Thursday 11/12.
Tuesday, November 3, 2015
November 3, 2015
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/3, we first went over the Maine statute regarding Hindering Apprehension, and looked at what part of our law might cover Ms. Mobbley's behavior if she were charged in Maine. We then discussed Holland in terms of the existence of common law crimes, the idea of mandatory reporting of crimes, and Maine law regarding both. We then went over Lawrence v. Texas. We talked about the case of Bowers v. Hardwick, the two constitutional attacks on the Texas law (and why Kennedy chose the attack that he did), the classification of the right involved, and the level of Supreme Court scrutiny. We looked at the range of laws reflecting societal views of same sex relationships, from criminalizing the relationship, to criminalizing the act, to outlawing discrimination, to marriage equality. We will finish Lawrence on Thursday by completing a case brief issue for the case, and going over what Kennedy said in that case about marriage equality. The assignment for Thursday 11/5 is to read in the text through p. 82 (Glassford and Caperton).
POS 384 CIVIL LIBERTIES
In class today, Tuesday 11/3, I distributed two handouts: Assignment #2 (reproduced below) due 11/12, and the case involved in the assignment, Bible Believers v. Wayne County. We went over the requirements of the assignment. I also talked about two of the cases that constitute precedent for the 6th Circuit, Terminiello and Feiner. We then went through Stevens' opinion in Hill. We discussed the content-neutrality flow chart. We discussed some aspects of Scalia's dissent, but will start with his view of content-neutrality. The assignment for Thursday 11/5 is to begin work on the assignment, and also to read through p. 258 of the text (R.A.V.).
Assignment due Thursday, November 12, 2015
One recurring question that we’ve looked at is how much leeway the government is allowed when it decides to restrict speech because of the possibility that the speaker is or might be threatened with a hostile reception from onlookers or listeners. This assignment asks you to look at how the 6th Circuit looked at this issue in the recent case of Bible Believers v. Wayne County (also distributed today).
The assignment has three parts:
1) Summarize the constitutional position of the 6th Circuit majority (Clay’s opinion) regarding these four questions:
a) the correct interpretation of Supreme Court precedent (Feiner v. New York; Terminiello v. Chicago; the Civil-rights era cases – Edwards, Cox, Gregory) in the case;
b) the correct level of scrutiny (strict scrutiny or not) and why;
c) the proper role of the police, both under constitutional theory and under the facts of this case; and
d) what’s wrong with the other opinion (Rogers) and the position of that side.
2) Summarize the constitutional position of the 6th Circuit dissent (Rogers’ opinion) regarding these four questions:
a) the correct interpretation of Supreme Court precedent precedent (Feiner v. New York; Terminiello v. Chicago; the Civil-rights era cases – Edwards, Cox, Gregory) in the case;
b) the correct level of scrutiny (strict scrutiny or not) and why;
c) the proper role of the police, both under constitutional theory and under the facts of this case; and
d) what’s wrong with the other opinion (Clay) and the position of that side.
3) Discuss what rules are mentioned in three textbook cases, Texas v. Johnson, Cohen v. California, and Hill v. Colorado regarding how much leeway the government is allowed when it decides to restrict speech because of the possibility that the speaker is or might be threatened with a hostile reception from onlookers or listeners. How might those rules apply to the situation in Bible Believers?
Label each part of the paper (e.g. (1)(a)). The paper should be about 3 pages long. No outside research is required. Just rely on what the two 6th Circuit judges
tell you about precedent.
Do not give an introduction to the case. Do not recite the facts. Go right to summarizing and discussing. Quote only in snippets (if at all).
Here’s an (inaccurate) sample of what I’m anticipating for a section:
(1)(a): Clay believes that previous Supreme Court cases establish that deliberately provocative speech to a hostile crowd is subject to reasonable restriction by the government. Feiner is on point and should be followed. In both Feiner and the present case, the speaker was deliberately provoking hostility (baiting the crowd), and was therefore creating a clear and present danger that violence would break out. Terminiello is distinguishable because that case involved thrown pickaxes, and this case involves plastic water bottles. The civil rights era cases are distinguishable because, in those cases, the speaker was not addressing his remarks to the hostile members of the crowd. In short, there is no Supreme Court precedent that concludes that a speaker has a right to bait the audience and receive constitutional protection.
If you want to read the entire 6th Circuit opinion, it is available at
http://www.ca6.uscourts.gov/opinions.pdf/15a0258p-06.pdf
If you want to see video of the event, you can go to
https://www.youtube.com/watch?v=m_8MO7IIlCw
Your papers will be graded on how well you complete the assignment and support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I like short clear sentences better than long complicated ones. I like correct grammar.
You may e-mail me if you have specific questions about the assignment. The more time that I have to answer your questions, the more likely it is that I can be helpful.
If you cannot be in class on Thursday 11/12, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the outline. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
The work should be entirely your own, with no collaboration or plagiarism. Don’t look at other student’s papers, and don’t show your paper to other students. See the syllabus regarding plagiarism and collaboration.
IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
In class today, Tuesday 11/3, we first went over the Maine statute regarding Hindering Apprehension, and looked at what part of our law might cover Ms. Mobbley's behavior if she were charged in Maine. We then discussed Holland in terms of the existence of common law crimes, the idea of mandatory reporting of crimes, and Maine law regarding both. We then went over Lawrence v. Texas. We talked about the case of Bowers v. Hardwick, the two constitutional attacks on the Texas law (and why Kennedy chose the attack that he did), the classification of the right involved, and the level of Supreme Court scrutiny. We looked at the range of laws reflecting societal views of same sex relationships, from criminalizing the relationship, to criminalizing the act, to outlawing discrimination, to marriage equality. We will finish Lawrence on Thursday by completing a case brief issue for the case, and going over what Kennedy said in that case about marriage equality. The assignment for Thursday 11/5 is to read in the text through p. 82 (Glassford and Caperton).
POS 384 CIVIL LIBERTIES
In class today, Tuesday 11/3, I distributed two handouts: Assignment #2 (reproduced below) due 11/12, and the case involved in the assignment, Bible Believers v. Wayne County. We went over the requirements of the assignment. I also talked about two of the cases that constitute precedent for the 6th Circuit, Terminiello and Feiner. We then went through Stevens' opinion in Hill. We discussed the content-neutrality flow chart. We discussed some aspects of Scalia's dissent, but will start with his view of content-neutrality. The assignment for Thursday 11/5 is to begin work on the assignment, and also to read through p. 258 of the text (R.A.V.).
Assignment due Thursday, November 12, 2015
One recurring question that we’ve looked at is how much leeway the government is allowed when it decides to restrict speech because of the possibility that the speaker is or might be threatened with a hostile reception from onlookers or listeners. This assignment asks you to look at how the 6th Circuit looked at this issue in the recent case of Bible Believers v. Wayne County (also distributed today).
The assignment has three parts:
1) Summarize the constitutional position of the 6th Circuit majority (Clay’s opinion) regarding these four questions:
a) the correct interpretation of Supreme Court precedent (Feiner v. New York; Terminiello v. Chicago; the Civil-rights era cases – Edwards, Cox, Gregory) in the case;
b) the correct level of scrutiny (strict scrutiny or not) and why;
c) the proper role of the police, both under constitutional theory and under the facts of this case; and
d) what’s wrong with the other opinion (Rogers) and the position of that side.
2) Summarize the constitutional position of the 6th Circuit dissent (Rogers’ opinion) regarding these four questions:
a) the correct interpretation of Supreme Court precedent precedent (Feiner v. New York; Terminiello v. Chicago; the Civil-rights era cases – Edwards, Cox, Gregory) in the case;
b) the correct level of scrutiny (strict scrutiny or not) and why;
c) the proper role of the police, both under constitutional theory and under the facts of this case; and
d) what’s wrong with the other opinion (Clay) and the position of that side.
3) Discuss what rules are mentioned in three textbook cases, Texas v. Johnson, Cohen v. California, and Hill v. Colorado regarding how much leeway the government is allowed when it decides to restrict speech because of the possibility that the speaker is or might be threatened with a hostile reception from onlookers or listeners. How might those rules apply to the situation in Bible Believers?
Label each part of the paper (e.g. (1)(a)). The paper should be about 3 pages long. No outside research is required. Just rely on what the two 6th Circuit judges
tell you about precedent.
Do not give an introduction to the case. Do not recite the facts. Go right to summarizing and discussing. Quote only in snippets (if at all).
Here’s an (inaccurate) sample of what I’m anticipating for a section:
(1)(a): Clay believes that previous Supreme Court cases establish that deliberately provocative speech to a hostile crowd is subject to reasonable restriction by the government. Feiner is on point and should be followed. In both Feiner and the present case, the speaker was deliberately provoking hostility (baiting the crowd), and was therefore creating a clear and present danger that violence would break out. Terminiello is distinguishable because that case involved thrown pickaxes, and this case involves plastic water bottles. The civil rights era cases are distinguishable because, in those cases, the speaker was not addressing his remarks to the hostile members of the crowd. In short, there is no Supreme Court precedent that concludes that a speaker has a right to bait the audience and receive constitutional protection.
If you want to read the entire 6th Circuit opinion, it is available at
http://www.ca6.uscourts.gov/opinions.pdf/15a0258p-06.pdf
If you want to see video of the event, you can go to
https://www.youtube.com/watch?v=m_8MO7IIlCw
Your papers will be graded on how well you complete the assignment and support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I like short clear sentences better than long complicated ones. I like correct grammar.
You may e-mail me if you have specific questions about the assignment. The more time that I have to answer your questions, the more likely it is that I can be helpful.
If you cannot be in class on Thursday 11/12, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the outline. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
The work should be entirely your own, with no collaboration or plagiarism. Don’t look at other student’s papers, and don’t show your paper to other students. See the syllabus regarding plagiarism and collaboration.
IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
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