First Amendment: Cases, Controversies, and Contexts
Ruthann Robson, City University of New York Law School
Pub Date: 2016
Publisher: CALI's eLangdell® Press
Conditions of Use
I reviewed this book in contemplation of whether it could supplement a law course I teach to both undergraduate and (non-law school) graduate read more
I reviewed this book in contemplation of whether it could supplement a law course I teach to both undergraduate and (non-law school) graduate students but a review based on that perspective would be unfair. As the author notes in the introduction, this book is designed for an upper level law class. For my purposes, its deficits (e.g., failing to provide a primer on how the legal system works) would not create a similar problem for an upper level law student as it would for my students. Yet, one major deficit may still apply to both audiences: the book contains Spartan analysis. The substantial majority of the book is reprints of excerpted cases. To give credit, the book hits all of the expected cases on the subject and organizes them in a way that allows the reader to ferret out an analysis that progresses on an issue. But the author relies on the reader to make that analysis. Most of the time, the author’s own contributions is limited to three or four questions asked after a series of lengthy case (excerpt) reprints. When the author does provide some analysis it is easy to see why she is a student favorite. Occasional nuggets like the author’s discussion of the case of a student who claims a religious exemption to her school’s dress code for her body piercing because she is a member of the Church of Body Modification or the influence the “Catholic vote” had on Justice Douglas’ when he was thinking of running for president, help to bring the law alive for students. A second comment is that this book is s limited in its focus on constitutional law, to just the issues of free speech and freedom of religion. As to the latter issue, however, I am especially grateful. I too find the issue of what is religion fascinating and worthy of much intellectual discussion. The book’s narrow focus allows this. Perhaps it is my own bias, but I think the author saved the best for last, and if teaching the course I would reverse the subjects to hook in my class early in the semester. When looking only at those two issues, the book ranks high, covering a large scope. Last, given the small amount of original contribution from the author, would the Open Textbook’s goal of making textbooks affordable be better fulfilled if the many cases were merely cited in lists and not reprinted? To her credit, the author calls this a casebook and that it is. The book is almost 1200 pages with the substantial majority of the text case reprints. But, the cases are the usual workhorses on the issue and, as such, are freely available on the internet. If the author would contribute more insight and the case reprints were removed (and just listed), this textbook might better satisfy the Open Textbook’s goals. In conclusion, if your course is for upper-level law students who have already taken a traditional Con law class and are looking to delve into the issues of speech and especially religion, this book fits that niche.
Disturbingly, the author misquotes the First Amendment. It is not a typo as it occurs at the beginning of the book and is later repeated. This makes the reader unfairly question the author’s competence in the materials. A full reading of the book and its clear presentation of the expected cases eliminates that.
The textbook contains the expected first amendment cases on speech and religion, including relatively recent ones that could impact prior precedent like the Hobby Lobby case or Citizen’s United . As the U.S. Supreme Court looks further at these issues this year, the book’s digital format should easily allow for future editions to include new cases illustrating the impacts of these decisions.
With the author’s original text often limited to three questions following several case excerpts, it is unclear how to rate the textbook for clarity. Focusing on the questions and the occasional more detailed analysis, the author has a nice writing style. Her questions got to the heart of the cases and help to build on the reader’s analysis. But without the author’s analysis, the reader must await classroom discussion.
The book is consistent and the cases that are covered are as expected for a class on the First Amendment.
With fourteen chapters, the book is designed to cover a topic per class (and for the most part the materials could be covered in a single day). In each of the two major sections, press and religion, the book covers topics in a logical progression that builds on the next with an eventual proficiency.
Overall, the book flowed well. The cases selected built nicely upon each other to encourage analysis of the issue selected. As discussed above, I would reverse the two major topics just because I think the religious cases allow for more intellectual exploration.
This book bridge nicely as a PDF.
With little original contribution, grammatical errors are not a problem. Typos, however, are and should be cleaned up for the next edition. These, plus the author’s misquoting of the First Amendment, discussed above, could easily be avoided by a more detailed edit.
Satisfying a culturally relevant pedagogy given the format of this book, with its extensive case reprints, is difficult. The book does include the expected cases on the topics, including those on the ability to limit the right to free speech in a school setting. Given the timely and culturally relevant issue of free speech in the university setting, a future edition would benefit by including a discussion on this lively topic and would empower students emotionally and intellectually.
I look forward to the author’s next edition and hope she includes more of her insights into these two intellectually interesting areas of our constitution and our country.
In regard strictly to the First Amendment, the book is a very thorough treatment of the First Amendment's five clauses -- freedom of speech, press, read more
In regard strictly to the First Amendment, the book is a very thorough treatment of the First Amendment's five clauses -- freedom of speech, press, religion, assembly and petition. The author simply could not have been more effective in covering the subject for a class limited to lessons directly related to the First Amendment, and the discussions of what the First Amendment prohibits (censorship, prior restraint, licensing, taxation and compelled speech) are strong as well. However, for a typical mass communication law class, the book treats areas that are indirectly affected by the First Amendment with much less depth, such as the student press, libel, privacy, copyright and access to information. It would be difficult to justify using this book as the primary textbook for a class covering these indirect areas, and it may be even more difficult to justify as a secondary material because of its length.
I did not dictate any factual errors in both the specific content areas and the background areas. For example, the discussion of how the First Amendment became the First Amendment instead of the Third Amendment is thorough and mindful of history. It should also be pointed out that no clear advocacy of a debatable position is emphasized in any part of the book.
If this book will continue to be updated every year, relevance/longevity will be one of its strongest aspects. The 2016 edition of this book featured treatment of First Amendment cases heard by the U.S.Supreme Court during the 2015-16 term, making it as up to date as possible. This aspect is especially important because it's possible that any one decision could radically change the direction of the law.
The length of the book is clearly a concern, but the author more than makes up for it with a writing style that is appropriate. Nearly all of the most important cases do not end with guilty/not guilty verdicts, so it's important that the style is kept simple.
Some familiarity with Black's Law Dictionary is needed, but upper-level college students who are not especially strong with legal terminology and courtroom procedure should be able to handle the discussion.
The same approach of introduction and breakdown with background is consistently followed throughout.
It's important that teachers have the ability to assign readings without having to stick with a strict chronological approach to the book. The chapters are ordered in such a way that any teacher who has designed a schedule of readings inconsisternt with the book will still be able to provide a coherent approach.
Other than headings and subheadings, the book does not contain display features. It is very gray throughout, which is what should be expected of a textbook so dependent on content.
No significant problems were seen in parts the author wrote. It is possible a person could take issue with the grammar of parts quoted from law books, but historical accuracy is a more important value.
I feel that the quantity of material devoted to freedom of religion appears to be much more than is necessary. It's not necessary for all of the five freedoms to be treated evenly, but it does appear that the author provides too much to religion. However, it should be pointed out that this is a minor flaw, and in some semesters when a case like Snyder v. Phelps occurs, this can actually be an advantage.
Overall, I feel I will have to decline to adopt this book as the required textbook for my class in media law. It is far too long and too limited to strict First Amendment issues to be appropriate for my course. However, it is still an excellent book on the topic.
In reviewing Robson's text, I am comparing primarily to the traditional media law text which I have used in recent semesters, Don R. Pember and Clay read more
In reviewing Robson's text, I am comparing primarily to the traditional media law text which I have used in recent semesters, Don R. Pember and Clay Calvert's Media Law. Now in its 19th or 20th edition, Media Law is the most widely used text for undergraduate media law courses and has been for a long time. The Robsonn text is very different from Media Law in two ways: first, Robsonn's text is broader in its scope than a media law textbook, as Robsonn is concerned with First Amendment law and media law falls within only two clauses of that Amendment: speech (or expression) and media. (The Robsonn text has additional sections concerning the religion clause, which obviously would not be included in a media law text.) A reasonable comparison, then, would seem to involve the typical issues covered in a media law course, as they are treated in both books: libel, prior restraint, hate speech, copyright, obscenity, the distinction in First Amendment rights at public and private institutions or employers, etc. There are a few important areas of media law which are NOT addressed in Robson's text: protection of news sources, controversies deriving from the Freedom of Information Act, and issues relating to the Free Press - Fair Trial dichotomy are the most obviousl A second distinction between Robsonn's book and a tradition media law text is in the manner of presentation to students. Robsonn organizes excerpts from court opinions into subject areas such as legal issues having to do with the "Government as Employer and Educator." Students are reading excerpts of actual case law, and there is very little writing by Robsonn by way of summary or synthesis (occasionally, there are a few sentences of preface). This approach has its advantages: it presents students with more examples of primary texts (the opinions) than they would normally encounter in a media law course, where they might read little actual law. It also allows them familiarity with these cases without the filter of a textbook author who would summarize and analyze these cases (as those such as Pember and Calvert do). But there is a significant disadvantage for undergraduate students, who may find reading original case law difficult and who may need the summarizing and synthesizing role of a more traditional textbook editor. For this reason, Robsonn's text may be more appropriate for first-semester or first-year law students than for undergraduates. The approach of a tradition textbook is to organize discussion around specific topics in media law. Libel, for example, gets three chapters in Pember and Calvert's text. In Robsonn's text, libel is the subject of cases listed in a section called "Freedom of the Press and Tort Actions." Thus, students who are new to the discussion of media law would probably appreciate the more streamlined table of contents of a text such as Pember and Calvert, wherein chapter headings comprise a handy list of media law issues. In other words, the focus of Robsonn's approach is different and perhaps less transparent to undergraduates. Traditional media law texts also include an introductory chapter or chapters on the American legal system, with which students often are not sufficiently familiar. With the Robsonn text, this background must be supplemented by the faculty member. ' Finally , the Robsonn text does not include an index, which undergraduates (and faculty) find very useful.
In general, I have not discovered errors in accuracy, with the exception of the phrasing of the First Amendment in chapter one, where the last clause of the amendment is written as "and to petition the government from redress of grievances." I remembered the wording of that clause differently, and in most versions of the amendment I consulted, the wording of that last phrase is "and to petition the government FOR A redress of grievances." While it seems a fairly egregious error to misquote the First Amendment, there may be some factor here with which I'm unfamiliar. Generally, accuracy is not a problem, as the text of the book is primarily comprised of excerpts from actual opinions.
Again, as the text is primarily comprised of actual case law (excerpts), these could be easily replaced or extended. Cases included are as recent as 2013, 2014.
The excerpts from court cases are surprisingly easy to read, for legalese, but it is difficult to comment on clarity as that terms generally applies, when it is mostly NOT the author's writing that would be the subject of this evaluation.
Because it follows the clauses in the First Amendment, this is strong.
The chapter divisions are sensible, although some chapters are too long for treatment in one class meeting. However, modules within chapters are also sensible.
In overall framework, the book follows the order of clauses in the First Amendment, focusing on speech, media, and religion. Cases concerning the assembly and petition clauses and the so-called "missing" clause, association, are interspersed in the sections on speech and media, as multiple clauses or doctrines often emerge in any individual case.
It is very easy to navigate this book, and I have tested that in iBooks, Kindle, and .pdf.
Any errors in a text such as Robsonn's would have to be typos, as her method is to excerpt relevant court opinions. In other words, very little of the text is her original writing: there is little place for error.
Again, there is little original writing from Robsonn, and her selections cover a wide range of ethnicities and issues, as she is attempting to reflect varying tests to the First Amendment clauses.
It is important to note that I am using Robsonn's text this semester for the first time, and the class has only studied four chapters to date. My assessment of the remainder and totality of the book is based largely on skimming and selective reading.
Table of Contents
- About the Author
- About CALI eLangdell Press
- Chapter One: INTRODUCTION TO THE FIRST AMENDMENT
- Part I: The Speech Clauses
- Chapter Two: PROTECTIONS FOR POLITICAL SPEECH
- Chapter Three: OF CONDUCT, CONTENT, AND CATEGORIES
- Chapter Four: THE SPECIAL (OR NOT) STATUS OF THE PRESS
- Chapter Five: GOVERNMENT AS EMPLOYER AND EDUCATOR
- Chapter Six: UNCONSTITUTIONAL CONDITIONS AND COMPELLED SPEECH
- Chapter Seven: FORUMS AND TIME, PLACE, MANNER RESTRICTIONS
- Chapter Eight: THE POLITICAL PROCESS
- Chapter Nine: COMMERCIAL SPEECH
- Chapter Ten: SEXUAL SPEECH
- Part II: The Religion Clauses
- Chapter Eleven: DEFINING RELIGION
- Chapter Twelve: THE ESTABLISHMENT CLAUSE AND EDUCATION
- Chapter Thirteen: THE ESTABLISHMENT CLAUSE IN THE PUBLIC SQUARE
- Chapter Fourteen: FREEDOM OF RELIGIOUS EXERCISE
About the Book
This Casebook (Revised First Edition, August 2016) is intended to be used in an upper-division course covering the First Amendment to the United States Constitution. Its 14 chapters are substantially the same length, with the exception of Chapter One, the introduction, and Chapters Eleven and Twelve which in combination are the usual length. It is intended for 13 or 14 week semester that meets once or twice per week. Each Chapter contains a “Chapter Outline” at the beginning for ease of reference.
The Casebook is organized with the Speech Clauses as Part One and the Religion Clauses as Part Two. Unlike many other courses, there is no accepted organizational scheme within these broad areas. As the Introduction notes, First Amendment doctrine, especially within freedom of speech, presents a varied and haphazard landscape.
The Casebook follows a scheme that has proven effective in Professor Robson’s years of teaching the course to hundreds of students. The selection of cases tends toward the most recent and these tend to be less heavily edited. These recent cases often contain extended discussions of earlier cases that are not included in the Casebook.
About the Contributors
Ruthann Robson, is Professor of Law & University Distinguished Professor. She is the author of Dressing Constitutionally: Hierarchy, Sexuality, and Democracy (2013), as well as the books Sappho Goes to Law School (1998); Gay Men, Lesbians, and the Law (1996); and Lesbian (Out)Law: Survival Under the Rule of Law (1992), and the editor of the three volume set, International Library of Essays in Sexuality & Law (2011). She is a frequent commentator on constitutional and sexuality issues and the co-editor of the Constitutional Law Professors Blog. She is one of the 26 professors selected for inclusion in What the Best Law Teachers Do (Harvard University Press, 2013).