Agenda for 23rd Class

1. Agenda for 23rd Class • Handouts • Slides • David Strauss, The Living Constitution • Finders (continued) • Freedom of Speech

2. Assignment for Next Class • Review any questions from today’s assignment that we don’t discuss in class • Read “Strauss, Living Constitution” packet • Questions to think about / Short papers • Everyone should be prepared to discuss all the questions on the last pages of the “Strauss, Living Constitution” handout • Mandatory writing • Group 1. Qs 1 & 5 • Group 2. Qs 2 & 6 • Group 3. Qs 3 & 7 • Group 4. Qs 4 & 8 • Optional writing -- All questions that are not mandatory • 3rd Longer Writing Assignment • Due Thursday 4/11

3. Armory v Delamirie • Armory, chimney sweep, found ring with jewel. • Amory brought ring to Delamirie’s goldsmith shop. • Apprentice returned ring w/o jewel. • Armory sued Delamirie. • Why not sue apprentice? • Court • For Armory. • Delamirie must pay amount equal to most valuable stone that would fit in jewel. • Holding • The finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner.

4. Questions on Armory • 4) Same facts as in Armory v. Delamirie, except Delamirie recognized the ring and stone as belonging to Lord Rasmussen. • Consider outcome if apply holding announced in Amory, most just outcome, holding, policy. • 5. Armory was Delamirie’s gardener. While digging a hole for a rose bush that Delamirie wanted to plant, Armory found a ring with a large diamond. Delamirie happened to be strolling nearby at the time, saw the ring in Armory’s hand, and asked Armory to give him the ring. Is Amory legally obligated to give the ring to Delamirie? • 6. Armory was a guest in Delamirie’s house. One day, Armory saw the ring on Delamirie’s dresser, put it in his pocket, took it home, and put it on his dresser. Heller was a guest in Armory’s house, saw the ring on Amory’s dresser and put it in his pocket. Armory was nearby and saw Heller take the ring. Armory demanded his ring back, but Heller refused, saying “that couldn’t possibly be your ring.” Is Heller legally obligated to give back the ring?

5. Questions on Armory • 7. As in the original case, Armory was a chimney sweep who found the ring. After finding the ring, he put it in his pocket and started walking to Delamirie’s goldsmith shop to have the ring appraised. Unfortunately, Armory’s pocket had a hole in it, and the ring fell out. When Armory got to the goldsmith’s shop, he was dismayed that he was unable to find the ring. Meanwhile, J. Amour Esq. was walking nearby, saw the ring on sidewalk, and picked it up. Immediately ascertaining its great value, Armour went to the goldsmith shop owned by his good friend, Delamirie. Armour gave the ring to Delamirie for appraisal. Armory, who was still in the goldsmith’s shop looking through his pockets for the ring, recognized the ring and told Delamirie that the ring Amour had just given him (Delamirie) was the ring that Armory had found earlier. To whom is Delamirie legally obligated to give the ring?

6. First Amendment • The First Amendment of the U.S. Constitution (ratified 1791)  • Congress shall make no law … abridging the freedom of speech, or of the press… • Blackstone (1769) • Freedom of Press means no prior restraints • People can be punished for what they say or write • e.g. libel • New York Times v Sullivan (1964) • Persons can be punished for criticizing government officials only if their statements are false and uttered with “actual malice” • “Actual malice” = knowledge of falsity or reckless disregard for truth • Miller v California (1973) • Government can regulate sexually explicit work if • (a) average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest • (b) the work portrays sexual conduct in a patently offensive way, and • (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

7. Questions • 1. Ignoring for the moment history (such as Blackstone’s Commentaries) and precedents (such as New York Times v Sullivan and Miller v California), would the text of the First Amendment (see p. 1) forbid the judgment against the New York Times for libel as described on the first two pages of the New York Times v Sullivan decision and/or the conviction Miller as described in the first paragraph of Miller v California? • 2. Assuming that the excerpt from Blackstone’s Commentaries on page 1 accurately describes the original understanding of the freedom of speech and liberty of the press, would that original understanding forbid the judgment against the New York Times for libel as described on the first two pages of the New York Times v Sullivan decision and/or the conviction Miller as described in the first paragraph of Miller v California? • 3. To what extent do the decisions in New York Times v Sullivan and Miller v New York rely on the wording of the First Amendment? To what extent do they rely on the history of freedom of the press and freedom of speech and the way those concepts were understood by those who wrote and ratified the First Amendment? To what extent do they rely on other kinds of arguments? How would you describe those other arguments?

8. Questions • 4. In what ways is Blackstone’s conception of the liberty of the press similar to ours? In what way is it different? Which do you think is more persuasive? If you think our conception is more persuasive, what reasons do you think Blackstone would offer in defense of his conception? • 5. Do you agree with the Supreme Court in New York Times v Sullivan that the First Amendment requires protection of false statements? Why isn’t it sufficient that the defendants could have avoided liability by proving that their statements were true? Would the Alabama law have been constitutional if the plaintiffs had to prove that the advertisement was false? • 6. Do you think the Supreme Court enunciated a sensible definition of obscenity in Miller v US? Do you think it is too restrictive? Too permissive? Just right? Do you agree with the majority that the First Amendment permits states to ban obscenity, or do you agree with Justice Douglas that the First Amendment protects obscenity?

9. Questions • 7. In the United States, racist speech is generally held to be protected by the First Amendment, unless it is communicated in a way that threatens or endangers specific individuals. So, for example, people are free to write articles arguing that one race is superior or inferior to others or even to insult members of particular races by asserting their inferiority in public and/or to their faces. Based on the materials in this packet, can you formulate arguments supporting the First Amendment protection of racist speech? Based on the materials in this packet, can you formulate arguments that racist speech is not protected by the First Amendment? • 8. Suppose a manufacturer or retailer falsely advertises a product as safe. If it turns out that the product is unsafe, is a suit against the manufacturer or retailer based on the false advertisement barred by the First Amendment? Based on the materials in this packet, can you formulate arguments for and against First Amendment protection for false advertising?