Foreword

During my first year at Harvard Law School, I noticed that all my course syllabi skipped around in the assigned casebooks. The syllabi were extremely detailed (“read 239 ¶ 2, then 241 (case) – 244 ¶ 4,” etc.), so they were not difficult to follow, just tedious. I asked one professor why professors didn’t follow the texts from start to finish. His answer: “No law professor ever thinks casebook writers know best how to organize a class. If you find a class that goes straight through the text all semester, then you know one thing for sure: your professor wrote it.” So after 15 years of teaching Civil Rights and Civil Liberties using one of the most popular undergraduate casebooks, and skipping back and forth each time I teach the course, I have finally written a text on this subject. At least it will be easier for the students who use it to follow–and since this is an online educational resource–also less expensive!

My motivation for writing my own text goes beyond saving my students money. The casebook I was using was updated every few years, and I found that fewer of the cases I wanted my students to read were included, while those that remained were often edited more extensively than I thought desirable. One of the problems with maximizing market share for a hard copy text is that keeping it up to date often means dropping important past cases in order to maintain the book’s arbitrary page limit. With an online text, I am not bound by space concerns, so I can include all the cases I want– and all the important parts of those cases. In the past, I have apologized every term when I distributed my own edited versions of some cases, explaining that the text editors and I disagreed on what students should read. Now, I need do this no more–and I take full responsibility if some students think my case excerpt is too long.

In every casebook I have examined, freedom of speech is always presented separately from freedom of press. While there is a difference between the two forms of communication, the Supreme Court’s seminal cases on freedom of speech actually involved publications, not speeches. When the Court decided that the Due Process Clause incorporated the First Amendment in 1925, it treated speech and press as equivalents. Only in the 1930s did it begin to distinguish how constitutional protection for publications differed from that for speech. Nevertheless, there are far more similarities than differences in the constitutional tests for restrictions on speech and press. This is why both freedoms are treated under the heading of “freedom of communication” rather than under the names that match the relevant constitutional provisions.

This book gives extensive consideration to the constitutional tests that the Court employs for fundamental freedoms, as well as well as to the incorporation of rights through the Fourteenth Amendment Due Process Clause. It covers First and Second Amendment rights as well as four freedoms that are not specifically mentioned in the Bill of Rights (privacy, interstate travel, association, and marriage). It does not cover constitutional freedoms involved in criminal investigations and trials, which are best studied in law school courses on criminal procedure. It does not cover eminent domain and the Takings Clause, subjects generally covered in law school courses on property. Finally, this book gives little treatment to the Equal Protection Clause, which I view as a subject more related to the structure and process of constitutional government than a course on constitutional freedoms. While some of the cases I included do mention equal protection considerations, in designing a one-semester course I have chosen not to address this topic rather than cover it superficially.

I have also included (in part two, chapter 3) information on the assignments that I regularly use with this course. I have written about these elsewhere, and a link to my law review article is included for further reference.

I was fortunate to have spent a decade studying at Yale and Harvard, and I benefitted greatly from many of my professors. They include: Robert Dahl, Stephen Holmes, Judith Shklar, James Fishkin, H. W. Perry, Richard Parker, Charles Fried, Charles Lindblom, Roberto Unger and Harvey Mansfield. This book is dedicated to all the professors I had at Yale and Harvard that challenged and inspired me.

Tom Rozinski

Brooklyn, NY, September 2024