front cover of Academic Freedom
Academic Freedom
From Professional Norm to First Amendment Right
David M. Rabban
Harvard University Press, 2024

A definitive interpretation of academic freedom as a First Amendment right, drawing on a comprehensive survey of legal cases.

Is academic freedom a First Amendment right? Many think so, yet its relationship to free speech as guaranteed by the Constitution is anything but straightforward. David Rabban examines the extensive case law addressing academic freedom and free speech at American universities, developing a robust theory of academic freedom as a distinctive subset of First Amendment law.

In subsuming academic freedom under the First Amendment, Rabban emphasizes the societal value of the contribution to knowledge made by the expert speech of professors, the classic justification for academic freedom in the influential 1915 Declaration of the American Association of University Professors (AAUP). Any indication that professors might be disciplined because people without academic training disagree with their scholarly views would undermine confidence in the integrity of their work and therefore their ability to perform this vital function on behalf of the public. Rabban argues that academic freedom fosters two central First Amendment values recognized by courts in a wide range of contexts: the production and dissemination of knowledge and the contribution of free expression to democratic citizenship.

The First Amendment right of academic freedom applies most directly to professors, but it also plausibly extends to the educational decisions of universities and to students’ learning interests. More broadly, this vision of academic freedom can guide in developing additional distinctive First Amendment rights to protect the expert expression of journalists, librarians, museum curators, and other professionals. At a time when academic freedom is under attack from many directions, Academic Freedom proposes a theoretically satisfying and practically useful guide to its meaning as a First Amendment right.

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Armed with the Constitution
Jehovah's Witnesses in Alabama and the U.S Supreme Court, 1939-1946
Merlin Owen Newton
University of Alabama Press, 1995
Underscores the importance of “little people” in affecting the US government
 
Armed with the Constitution stresses the courage of a black man, Rosco Jones, and a white woman, Grace Marsh, who dared to challenge the status quo in Alabama in the early 1940s. These two Jehovah’s Witnesses helped to lay a foundation for testing the constitutionality of state and local laws, establishing precedents that the Civil Rights movement, the feminist movement, and similar forces could follow. Newton has prepared a finely woven tale of oral, legal, and social history that opens a window on the world of the Jehovah’s Witnesses in Alabama.
 
More than a legal study, this book is also a dramatic history of two powerful personalities whose total commitment to their faith enabled them to carry the Jehovah’s Witnesses’ battle from rural Alabama to the halls of the U.S. Supreme Court.
 
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Fear and the First Amendment
Controversial Cases of the Roberts Court
Kevin A. Johnson and Craig R. Smith
University of Alabama Press, 2024
A highly original account of the role that fear plays in key First Amendment cases ruled on by the Roberts Supreme Court

In Fear and the First Amendment, Kevin A. Johnson and Craig R. Smith offer a deeply considered examination of the ways fear figures in First Amendment questions ruled on by the contemporary Supreme Court. Bringing together literature on theories of fear in rhetorical and philosophical traditions, Johnson and Smith focus on the rulings from the Roberts Court, which form a pivotal era of dramatic precedents. Each chapter in this book analyzes one or more First Amendment cases and a variety of related fears—whether evidentiary or not—that pertain to a given case.

These cases include Morse v. Frederick, which takes up the competing fears of school administrators’ loss of authority and students’ loss of free speech rights. The authors touch on corporate funding of elections in Citizens United v. Federal Elections Commission, from the fear of corporate influence on electoral politics to corporate fears of alienating their consumers by backing political candidates. They explore religious freedom and fears of homosexuality in Christian Legal Society v. Martinez. Similarly, in Snyder v. Phelps, the authors delve further into fears of God, death, emotional distress, failing as a parent, and losing one’s reputation. Next, they investigate parents’ anxieties about violence in video games in Brown v. Entertainment Merchants Association. Finally, Johnson and Smith examine the role of fear in indecent, obscene, and graphic communication in three cases: FCC v. Fox Television Stations, Ashcroft v. American Civil Liberties Union, and United States v. Stevens.

Together these cases reveal fear to be an endemic factor in the rhetoric of First Amendment cases. This fascinating and original work will appeal to current legal practitioners and students of law, rhetoric, philosophy, and the First Amendment.
 
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The First Amendment and LGBT Equality
A Contentious History
Carlos A. Ball
Harvard University Press, 2017

Conservative opponents of LGBT equality in the United States often couch their opposition in claims of free speech, free association, and religious liberty. It is no surprise, then, that many LGBT supporters equate First Amendment arguments with resistance to their cause. The First Amendment and LGBT Equality tells another story, about the First Amendment’s crucial yet largely forgotten role in the first few decades of the gay rights movement.

Between the 1950s and 1980s, when many courts were still openly hostile to sexual minorities, they nonetheless recognized the freedom of gay and lesbian people to express themselves and associate with one another. Successful First Amendment cases protected LGBT publications and organizations, protests and parades, and individuals’ right to come out. The amendment was wielded by the other side only after it had laid the groundwork for major LGBT equality victories.

Carlos A. Ball illuminates the full trajectory of this legal and cultural history. He argues that, in accommodating those who dissent from LGBT equality on grounds of conscience, it is neither necessary nor appropriate to depart from the established ways in which American antidiscrimination law has, for decades, accommodated equality dissenters. But he also argues that as progressives fight the First Amendment claims of religious conservatives and other LGBT opponents today, they should take care not to erode the very safeguards of liberty that allowed LGBT rights to exist in the first place.

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The First Amendment Bubble
How Privacy and Paparazzi Threaten a Free Press
Amy Gajda
Harvard University Press, 2015

In determining the news that’s fit to print, U.S. courts have traditionally declined to second-guess professional journalists. But in an age when news, entertainment, and new media outlets are constantly pushing the envelope of acceptable content, the consensus over press freedoms is eroding. The First Amendment Bubble examines how unbridled media are endangering the constitutional privileges journalists gained in the past century.

For decades, judges have generally affirmed that individual privacy takes a back seat to the public’s right to know. But the growth of the Internet and the resulting market pressures on traditional journalism have made it ever harder to distinguish public from private, news from titillation, journalists from provocateurs. Is a television program that outs criminals or a website that posts salacious videos entitled to First Amendment protections based on newsworthiness? U.S. courts are increasingly inclined to answer no, demonstrating new resolve in protecting individuals from invasive media scrutiny and enforcing their own sense of the proper boundaries of news.

This judicial backlash now extends beyond ethically dubious purveyors of infotainment, to mainstream journalists, who are seeing their ability to investigate crime and corruption curtailed. Yet many—heedless of judicial demands for accountability—continue to push for ever broader constitutional privileges. In so doing, Amy Gajda warns, they may be creating a First Amendment bubble that will rupture in the courts, with disastrous consequences for conventional news.

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First Amendment Institutions
Paul Horwitz
Harvard University Press, 2012

Addressing a host of hot-button issues, from the barring of Christian student groups and military recruiters from law schools and universities to churches’ immunity from civil rights legislation in hiring and firing ministers, Paul Horwitz proposes a radical reformation of First Amendment law. Arguing that rigidly doctrinal approaches can’t account for messy, real-world situations, he suggests that the courts loosen their reins and let those institutions with a stake in First Amendment freedoms do more of the work of enforcing them.

Universities, the press, libraries, churches, and various other institutions and associations are a fundamental part of the infrastructure of public discourse. Rather than subject them to ill-fitting, top-down rules and legal categories, courts should make them partners in shaping public discourse and First Amendment law, giving these institutions substantial autonomy to regulate their own affairs. Self-regulation and public criticism should be the key restraints on these institutions, not judicial fiat. Horwitz suggests that this approach would help the law enhance the contribution of our “First Amendment institutions” to social and political life. It would also move us toward a conception of the state as a participating member of our social framework, rather than a reigning and often overbearing sovereign.

First Amendment Institutions offers a new vantage point from which to evaluate ongoing debates over topics ranging from campaign finance reform to campus hate speech and affirmative action in higher education. This book promises to promote—and provoke—important new discussions about the shape and future of the First Amendment.

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First Amendment Studies in Arkansas
The Richard S. Arnold Prize Essays
Stephen Smith
University of Arkansas Press, 2016

This collection of fourteen essays written by young communication scholars at the University of Arkansas presents unique insights into how First Amendment issues have played out in the state. Rather than exploring the particular legal issues and the constitutional principles enunciated by the courts, First Amendment Studies tells the stories of actual people expressing challenged or unpopular points of view and reveals the ways that constitutional controversies arise from the actions of local officials and individual citizens.

Drawing on public documents as well as extensive interviews with participants, these essays demonstrate the dynamics of democratic dissent—on college campuses, in public schools, in churches, on the streets, in the forests and on the farms, and in legislative chambers and courtrooms.

Each essay was selected for the Richard S. Arnold Prize in First Amendment Studies, an endowed fund established in 1999 to encourage University of Arkansas graduate students in communication and the liberal arts to explore and examine questions about freedom of speech and freedom of religion.
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Liberal Suppression
Section 501(c)(3) and the Taxation of Speech
Philip Hamburger
University of Chicago Press, 2018
In the course of exempting religious, educational, and charitable organizations from federal income tax, section 501(c)(3) of the Internal Revenue Code requires them to refrain from campaign speech and much speech to influence legislation. These speech restrictions have seemed merely technical adjustments, which prevent the political use of a tax subsidy. But the cultural and legal realities are more disturbing.

Tracing the history of American liberalism, including theological liberalism and its expression in nativism, Hamburger shows the centrality of turbulent popular anxieties about the Catholic Church and other potentially orthodox institutions. He argues persuasively that such theopolitical fears about the political speech of churches and related organizations underlay the adoption, in 1934 and 1954, of section 501(c)(3)’s speech limits. He thereby shows that the speech restrictions have been part of a broad majority assault on minority rights and that they are grossly unconstitutional.

Along the way, Hamburger explores the role of the Ku Klux Klan and other nativist organizations, the development of American theology, and the cultural foundations of liberal “democratic” political theory. He also traces important legal developments such as the specialization of speech rights and the use of law to homogenize beliefs. Ultimately, he examines a wide range of contemporary speech restrictions and the growing shallowness of public life in America.
His account is an unflinching look at the complex history of American liberalism and at the implications for speech, the diversity of belief, and the nation’s future.
 
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Religious Liberty and the American Founding
Natural Rights and the Original Meanings of the First Amendment Religion Clauses
Vincent Phillip Muñoz
University of Chicago Press, 2022
An insightful rethinking of the meaning of the First Amendment’s protection of religious freedom.
 
The Founders understood religious liberty to be an inalienable natural right. Vincent Phillip Muñoz explains what this means for church-state constitutional law, uncovering what we can and cannot determine about the original meanings of the First Amendment’s Religion Clauses and constructing a natural rights jurisprudence of religious liberty.  

Drawing on early state constitutions, declarations of religious freedom, Founding-era debates, and the First Amendment’s drafting record, Muñoz demonstrates that adherence to the Founders’ political philosophy would lead neither to consistently conservative nor consistently liberal results. Rather, adopting the Founders’ understanding would lead to a minimalist church-state jurisprudence that, in most cases, would return authority from the judiciary to the American people. Thorough and convincing, Religious Liberty and the American Founding is key reading for those seeking to understand the Founders’ political philosophy of religious freedom and the First Amendment Religion Clauses.
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The Rhetoric of Church and State
A Critical Analysis of Religion Clause Jurisprudence
Frederick Mark Gedicks
Duke University Press, 1995
During the middle of the twentieth century, the religiously informed communitarianism that had guided the Supreme Court’s decisions regarding the relationship between church and state was partially displaced by a new secular individualist discourse. In The Rhetoric of Church and State, Frederick Mark Gedicks argues that this partial and incomplete shift is the key to understanding why the Court has failed—and continues today to fail—to provide a coherent doctrine on church/state separation.
Gedicks suggests that the Supreme Court’s inconsistent decisions mirror a divergence in American society between an increasingly secular public culture and the primarily devout private lives of the majority of Americans. He notes that while the Court is committed to principles of secular individualism, it has repeatedly endorsed government actions that violate those principles—actions that would be far more justifiable under the discourse of religious communitarianism. The impossibility of reconciling the two discourses leaves the Court no choice but to efface—often implausibly—the religious nature of practices it deems permissible. Gedicks concludes that the road to a coherent religion clause doctrine lies neither in a return to religious communitarianism nor in its complete displacement by secular individualism, but in a yet-to-be-identified discourse that would attract popular support while protecting a meaningful measure of religious freedom.
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front cover of Versions of Academic Freedom
Versions of Academic Freedom
From Professionalism to Revolution
Stanley Fish
University of Chicago Press, 2014
Through his columns in the New York Times and his numerous best-selling books, Stanley Fish has established himself as our foremost public analyst of the fraught intersection of academia and politics. Here Fish for the first time turns his full attention to one of the core concepts of the contemporary academy: academic freedom.
 
Depending on who’s talking, academic freedom is an essential bulwark of democracy, an absurd fig leaf disguising liberal agendas, or, most often, some in-between muddle that both exaggerates its own importance and misunderstands its actual value to scholarship. Fish enters the fray with his typical clear-eyed, no-nonsense analysis. The crucial question, he says, is located in the phrase “academic freedom” itself: Do you emphasize “academic” or “freedom”? The former, he shows, suggests a limited, professional freedom, while the conception of freedom implied by the latter could expand almost infinitely. Guided by that distinction, Fish analyzes various arguments for the value of academic freedom: Is academic freedom a contribution to society's common good? Does it authorize professors to critique the status quo, both inside and outside the university? Does it license and even require the overturning of all received ideas and policies? Is it an engine of revolution? Are academics inherently different from other professionals? Or is academia just a job, and academic freedom merely a tool for doing that job?
 
No reader of Fish will be surprised by the deftness with which he dismantles weak arguments, corrects misconceptions, and clarifies muddy arguments. And while his conclusion—that academic freedom is simply a tool, an essential one, for doing a job—may surprise, it is unquestionably bracing. Stripping away the mystifications that obscure academic freedom allows its beneficiaries to concentrate on what they should be doing: following their intellectual interests and furthering scholarship.
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When Freedom Speaks
The Boundaries and the Boundlessness of Our First Amendment Right
Lynn Greenky
Brandeis University Press, 2022
This book makes first amendment issues immediate and contemporary.
 

When Freedom Speaks chronicles the stories behind our First Amendment right to speak our minds. Lynn Levine Greenky’s background as a lawyer, rhetorician, and teacher gives her a unique perspective on the protection we have from laws that abridge our right to the freedom of speech. Rhetoricians focus on language and how it influences perception and moves people to action. Powerfully employing that rhetorical approach, this book explores concepts related to free speech as moral narratives that proscribe the boundaries of our constitutionally protected right. Using the characters and drama embedded in legal cases that elucidate First Amendment principles, When Freedom Speaks makes the concepts easier to understand and clearly applicable to our lives. With a wide range of examples and accessible language, this book is the perfect overview of the First Amendment.


 
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