The “First Amendment and Original Intent” course could not be used as a senior seminar for criminology graduates because it simply was not sufficiently crime-related. So I created a course called “The First Amendment and Crime” and did so in just a couple of months. That meant spending hours every day reading and re-reading a new set of Supreme Court cases and developing special oral and written requirements for graduating seniors.
The result has been highly satisfactory. It is not difficult to fill an entire semester calendar with courses relating the First Amendment to the issue of crime. Consider the following:
*Our first important free speech cases – Abrams, Whitney, and Gitlow (just to name a few) – began a long struggle to determine the appropriate limitations on the right to advocate illegal conduct, including violent revolution. This struggle would last for fifty years before the Court finally settled on the Brandenberg test.
*Defining obscenity has proved to be a difficult task for the Court. Between the Roth and Miller cases, the Court would battle for 16 years before deciding on one test for defining obscenity. During this struggle, Potter Stewart would famously quip that he could not define hard-core pornography but that he knows it when he sees it! The court has also dealt with zoning issues relating to adult theaters. This is all tied in with the secondary effects (crime) that often flow from the presence of adult books stores and topless bars.
*In recent years, cases like Mitchell v. Wisconsin have tested state penalty enhancement statutes that consider race bias at sentencing hearings following criminal trials. The implication of these laws for hate speech legislation cannot be lost upon even the most casual observer of Supreme jurisprudence.
In addition to teaching those crime-related First Amendment cases, I have also taken the time to teach students about Rosenberger v. Rector, Wisconsin v. Southworth, and NAACP v. Alabama – and other cases dealing directly or indirectly with student rights. Against this backdrop, I also assign the students to a semester-end project dealing with the erosion of free speech rights in America. This is where things have become very interesting.
On the first day of class, students were asked to respond to the same question, which is “Who is responsible for censorship in America and who is being censored?” This question is asked in order for them to contemplate a hypothesis for their semester project. It has produced varied hypotheses, such as the following:
*The religious right is responsible for a disproportionate amount of censorship in America. That censorship is primarily directed towards atheists.
*Atheists are the most censorious people in America. Their censorship is generally directed towards Christians.
*Public universities restrict expression to a greater degree than private universities. First Amendment violations at public universities are usually directed towards religious rather than secular speech and organizations.
*Conservative Catholics are less tolerant of free speech than politically liberal Catholics.
After students form a hypothesis in Part I of their paper, they must get down to business. In Part II, they must turn to scholarly sources in order to explain (theoretically) their proposed hypothesis. In Part III, they must examine empirical evidence in support of (or opposition to) their hypothesis.
Since many of my students have decided to study campus free speech issues, they will soon have to evaluate and critique academic studies of campus censorship. When they do, they will find that the topic has been ignored by scholars at our institutions of higher learning. Imagine that: universities rarely speak about the issue of free speech at universities. (However, they do talk about free speech problems occurring elsewhere).
I’ve gotten the ball rolling by teaching specifically about First Amendment issues. But what we need now is an entire course explaining why censorship is so much worse among academic elites than among normal Americans. We could call it “The Sociology of Censorship.” But that will never happen. The censors of sociology would never allow it.