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A famous legal theorist some 80 years ago characterized law (be it common law–judge made, or statutes–made by legislatures, Congress, school boards, city councils, etc) as the “bramblebush.” In other words, a sticker bush, nettles, a hedgerow maze. Not very pleasant but true. As you read the Middleton & Lee text and Modules you are experiencing this as a student first hand. The key is you have GOT to get hip-deep into Chapters 2 and 3, reading the end of section summaries first, so you can get the big picture, see the forest from the trees. Then, please go back and read about the trees. That seems to be the best way to absorb and digest this stuff. Whether its how or when a college or high can censor or regulate a student site, or if the Ferguson cops can harass, even threaten journalists at gunpoint, the First Amendment is indeed a nest of thorns.
More bad news? It’s subject to the views or agenda of individual judges — and the politicians who appoint them. Or our own irrational passions and prejudices.
These might help you exercise your brain as you work through chaps 2 and 3:
SKILL-BUILDING EXERCISE #1
Required response.
Hypothetical: Jim Jinx is a washed-up rock and roller from the 70s; they sometimes let him come to the MTV VMA’s for free as grudging homage to his long past career. Truth be told he was a drunk and a druggie asshole back than; he’s clean and sober now and host of a syndicated (meaning someone else owns and produces the content, then by agreement its distributed to various media outlets) national radio show called “Freedom Rocks!” Jinx typically has on strippers, porn stars, friends who have gone in and out of rehab, assorted freaks and characters…who create and uneasy mix of guests with Second Amendment (gun) activists, anti-government (anti Obama) protesters and various others of that stripe. His primary demo is bifurcated: white males ages 18-24 (though anecdotally it seems he has many ages 13-18), and white married males ages 45-56. From the call-ins and comments on the show companion site and podcasts, its clear Jinx has a small but fanatical following.
One day he’s on the air talking about the coming “race war” due to events in Ferguson, Missouri and railing against Attorney General Eric Holder. Here’s a transcript of what he says:
J. JINX: Let’s send them a message. The first one of you listeners who sends me proof that you’ve banged the biggest loudmouth black power or white feminist chick, who is constantly calling you, a law abiding patriot, a scumbag for the rightful actions of our brave cops, you will win a date in Vegas with our frequent guest and my bestie from Vivacious Videos XXX, Slippery Susan. 3 days, 2 nights, airfare and meals—yum—included, at my year-round reserved suite at my bud ‘The Donald’s’ new Vesuvius Casino & Resort. Send a video, panties, whatever. Preferably against her will or if she’s knocked out…you get extra point for that . I don’t care whether she’s some bee-yotch in your homeroom or the school cafeteria, some affirmative action babe at your college college, some lazy home girl or pig at work, or somebody you stalk on the subway. Hahahahaha. Surprise me!”
Assuming there isn’t a prior restraint issue, what might be the interplay of these terms: incitement and clear and present danger? Discuss the terms and name the cases from which they sprang, what the basis of them are/ “elements” (ie, like the elements of murder are (1) a dead body—corpus delecti, (2) causation and (3) intent to kill) and do they basically “merge” today if we want to censor Jinx?
SKILL-BUILDING EXERCISE #2
Optional response.
Take a look at this graphic
What do you make of this? Any surprises–especially given that some of these SCOTUS justices claim that everything they do is to “strictly” follow the letter of the US Constitution?
Sample Solution
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