Teaching the First Amendment this semester?

Here’s my first day, if I get to teach it on Jan. 20.

by Tori Smith Ekstrand, UNC-Chapel Hill

I’ve been teaching Introduction to Media Law for more than 20 years, and as my colleagues know, we’ve had to rip up large portions of the syllabus in recent months to address all that’s been happening.

My syllabus is obviously not the most challenging problem out there right now, but it’s clear that our students and the public have many questions about how social media are regulated and how police make decisions about what is a protected “protest” vs. what is an unprotected riot.

My first day is Jan. 20, Inauguration Day. We’ll see how that goes. If it stays peaceful enough, I’ll be able teach. If it doesn’t — I’m not sure what I’m doing.

Provided the Republic is still standing, here are five talking points for my first day. I obviously can’t go into huge depth on all of this the first day, but I will draw one of my famous “bubble clouds” to illustrate the landscape of the 1A at the moment. This is mostly for my media law colleagues who know more of the details here.

1. Protected Protest v. Unprotected Riot. The plan is to broadly discuss Brandenburg v. Ohio and compare that to a recent case decision in Graham, NC, where BLM protestors were arrested. I’ll have students read these excerpts for the next class in addition to reading the first chapter of the textbook. Both cases will help to tease out the differences between a protected 1A activity and an unprotected riot. And the cases will offer the legal definitions for unprotected “incitement” and protected “abstract advocacy.”
2. Social Media and State Action. SO SO SO many tweets this week moralizing on state action. Yes, state action. Yes, yes. The state must be trying to limit your 1A rights for you to claim them. We must teach this. But it’s also true that there are reasons our students (and the public) still have questions about this. After all, democracy is under attack and social media contribute to the problem of mis- and disinformation. (Yes, I’ll discuss that social media alone are not the only factor.) I’ll address how Trump has been barred from social media (not a 1A issue, though all the criticism on content moderation practices remain); how Parler is getting dumped from hosts (still not a 1A issue, but there are interesting questions here); host responsibility (foreshadowing Sec. 230 to come later in the course) and the Knight case (2nd Cir. case on appeal).
3. The Press and the 1A. The whole semester will deal with this, but on the first day I’m interested in the larger questions about threats against the traditional press and increased police action against the press. Students over the summer asked me a lot about how it was that Minneapolis police were arresting and beating journalists covering the protests there. So we need to situate 1A law against this changing reality. We can teach NYT v. Sullivan until the cows come home, but the reality on the ground right now tells a very different story.
4. Race and the 1A. Similarly, we cannot just plow into the usual “hate speech is protected by the 1A” discourse. Yes, it is. But we must acknowledge and deal with how police handled rioters at the Capitol this week and how they have treated BLM protestors in places like Graham, N.C., and elsewhere. I’ll preview the unit on hate speech, incitement, true threats, harassment and fighting words. We’ll talk about how other western democracies deal with hate speech.
5. Law v. Norms. All of this illustrates what happens when we are struggling with our norms (cue the literature on polarization) or when our norms are being routinely flouted. We’ll discuss the relationship between the two early in the course, and I’ll get students primed to label both as they arise and discuss what we think we want/need as 2021 unfolds. Here, the cheerleader case may be helpful. I have found discussions about campus expression and the Goldwater statutes can help students think about the role of law versus the role of community norms.

I’m happy to entertain other ideas and suggestions. I think the main point is that the class cannot be business as usual. The First Amendment is likely to see more pressures in the months ahead. Our students need to understand both the law and its on-the-ground application. The future of the First Amendment depends on it.