Constitution and Syllabus

The governing document for this course, in full — the Constitution for First Amendment Law, the Bill of Rights and Responsibilities, and the syllabus. This is not a democracy.

Constitution and Syllabus — First Amendment Law — Fall 2026 · v1_2 · Canvas syllabus

The text of the Constitution of the United States is on this site in full, with every clause separately linkable.

The Five Grading Criteria

Every assessment in this course rewards the same five things: Big Picture understanding, Raw Specific Knowledge, Practical Application, Critical Thinking, and Creative Thinking. The Notes & Questions after each case are keyed to them.

Schedule of Modules

On Canvas

Quizzes, discussion boards, recorded materials and additional handouts live in Canvas: Modules · Quizzes · Discussion boards · Files · Announcements.

TOURO UNIVERSITY

Jacob D. Fuchsberg Law Center

First Amendment Law

Fall 2026

FlexTime Section — Manhattan Campus

Professor Jorge R. Roig

jroig@touro.edu

CONSTITUTION

FOR FIRST AMENDMENT LAW

Preamble

I, the Professor of this course, in order to form a more coherent learning experience, establish the applicable norms, ensure classroom tranquility, provide for the common growth, promote Critical and Creative Thinking, and secure the blessings of an open mind to all Students and their posterity, do ordain and establish this Constitution for First Amendment Law.

This Constitution summarizes basic administrative details pertaining to First Amendment Law, and generally introduces you to the course. It also presents an overview of the material that will be covered in First Amendment Law, which generally addresses the scope and limits of the First Amendment protections on freedom of speech and free exercise of religion, and its prohibition on the establishment of a religion, as interpreted by the United States Supreme Court. This semester the course also carries the noneconomic substantive due process and fundamental rights material — family autonomy, reproductive autonomy, medical care decisions, sexual autonomy, arms, travel, voting and education — and the material on state sovereign immunity and congressional power under the Civil War Amendments, none of which we reached in Constitutional Law. The course title is accordingly a little narrower than the course. You will find here a general outline of the topics and readings we will be covering this semester. And you will find the ground rules that will be generally applicable to all Students taking the course. Please review the contents of this Constitution carefully and return to it for future reference throughout the semester.

I. The Legislative Power

1. The Professor

All legislative powers herein granted shall be vested in the Professor. This is not a democracy. The Professor reserves the right to, from time to time, learn something from the Students and put it to good use by applying the lessons learned to the betterment of the course.

2. Program Outcomes

• Outcome 1 (O1): Have a core understanding of the principles of fundamental areas of American substantive and procedural law, including civil procedure, torts, contracts, property, criminal law, constitutional law, evidence, business organizations and trusts and estates.

• Outcome 2 (O2): Comprehend, analyze and synthesize legal texts and apply the legal principles extracted from the texts to new factual circumstances.

• Outcome 3 (O3): Demonstrate an ability to use effective oral and written communication.

• Outcome 4 (O4): Demonstrate the ability to conduct essential practice skills including effective problem-solving, fact investigation, interviewing, negotiating, counseling, and legal research.

• Outcome 5 (O5): Exercise proper professional and ethical behavior toward their clients and the legal system and progress in the development of their professional identity.

• Outcome 6 (O6): Demonstrate a commitment to public and community service.

3. Course Learning Objectives

At the end of this course, students should be capable of:

• CLO1*. Understanding and analyzing the scope and limits of the First Amendment’s Free Speech Clause, as interpreted by the United States Supreme Court (O1, O2, O6)

• CLO2*. Understanding and analyzing the scope and limits of the First Amendment’s Free Exercise Clause, as interpreted by the United States Supreme Court (O1, O2, O6)

• CLO3*. Understanding and analyzing the scope and limits of the First Amendment’s Establishment Clause, as interpreted by the United States Supreme Court (O1, O2, O6)

• CLO4*. Becoming familiar with the key concepts, vocabularies, principles and tensions that constitute the field of First Amendment Law (O1, O2, O3)

• CLO5*. Acquiring the analytical skill set to apply First Amendment Law to varied factual settings (O1, O2, O3, O4)

• CLO6. Developing the ability to: evaluate substantively the validity, logical consistence, intellectual honesty, rigor, “correctness” or desirability of judicial opinions, arguments or approaches to First Amendment Law problems (Critical Thinking); and dream up new ways of tackling old problems in our social order (Creative Thinking) (O1, O2, O5, O6)

• CLO7. Understanding and analyzing the methodologies by which the Supreme Court identifies and protects fundamental rights that the constitutional text does not enumerate, and applying those methodologies to family autonomy, reproductive autonomy, medical care decisions, sexual autonomy, arms, travel, voting and education (O1, O2, O6)

• CLO8. Understanding and analyzing the immunity of the States from suit and the scope of congressional power to enforce the Civil War Amendments (O1, O2)

* Objectives marked with an asterisk are the minimum learning objectives delivered by every section of this course. Objectives not so marked are additional objectives of this section, over and above the shared minimum.

Program Outcomes, Course Learning Objectives, and Assessment Mapping

4. Required Texts

The required text is the casebook you already own.

• Erwin Chemerinsky, Constitutional Law (Aspen, 7th ed. 2023) — the casebook. Note that Professor Chemerinsky’s hornbook, Constitutional Law: Principles and Policies, is also in a 7th edition, also from 2023, and is a different book. The page assignments below are to the casebook.

Every one of you took Constitutional Law with me last semester and already has this book. You do not need to buy anything for this course. Page assignments are set out in the Syllabus below.

The course website is the map. The reading is in Chemerinsky. The architecture of this course — what each Module is doing, which pages it assigns, what it asks you to read and in what order, the current case that closes it, and the visual aids that go with it — lives on the course website, WikiFramers — First Amendment Law, at https://course.wikiframers.org/firstam.

Use it the way you would use a map: to see where you are, what is coming, and how the piece in front of you fits the whole. Each Module page carries that Module’s page assignment to the casebook, its Topics, its reading list in assigned order, and its visual aids. It is free, it needs no login, it works on a phone, and unlike a Canvas site it does not disappear at the end of the term.

What that does and does not mean. The casebook is the assigned text and it is what you are examined on. The website is not a second casebook and it does not replace your reading. But it is not optional either, in the one sense that matters: it is where the Syllabus lives from week to week. When a reading changes, the website is where the change is posted, and the announcement in Canvas will point you there. Treat it as you would treat this document.

The Professor may also choose to assign and use all kinds of other resources such as news clippings, articles, handouts, video resources, Internet tools, and the like, to supplement the required text, as he may deem necessary and convenient throughout the course. Those supplemental materials are posted on the Canvas course page.

5. Recommended Texts and Learning Aides

Different Students learn in different ways, and some of you may find more or less helpful other texts and learning aides that are out there at your disposal. The Professor has found the following resources particularly useful in the past, and therefore recommends them as possible learning aides and supplemental reading materials. However, you need not purchase any of these books; they are only recommended aides and should be easily available in the library.

• Erwin Chemerinsky, Constitutional Law: Principles and Policies (7th ed. 2023) (the hornbook, not the casebook)

• John E. Nowak and Ronald D. Rotunda, Constitutional Law (8th ed. 2010)

• Laurence H. Tribe, American Constitutional Law (3d ed. 1999) (Volume 1 only; Volume 2 was never published)

• The Concise Princeton Encyclopedia of American Political History (Michael Kazin, Rebecca Edwards & Adam Rothman eds., 2011)

• Foundation Press, First Amendment Stories (Richard W. Garnett & Andrew Koppelman eds., 2011)

• Steven L. Emanuel, Strategies & Tactics for the MBE

6. Canvas

All Students are required to sign up and participate in the Canvas course page for First Amendment Law. The Canvas Learning Management System is accessible via the Touro One website. A detailed Canvas Guide for Students is available here, https://touro.instructure.com/courses/996, or here, https://touro-iits-dept.s3.amazonaws.com/canvastraining/studentguide/index.html#/?_k=3dqb6j.

In the Canvas course page, you will find all kinds of goodies like, for example, this Constitution, all Course Materials and Additional Required Readings, Whiteboard Notes and Presentations, Quizzes, Practice Questions, interesting Web Links and Legal News, and anything else the Professor might deem cool and relevant as the semester progresses.

The Professor will post quizzes, assignments, and additional reading materials and handouts in Canvas. The Professor will make all types of announcements and assignments through both the Canvas page and the e-mail addresses associated with your Canvas accounts. Canvas and e-mail will be, apart from class meetings, our principal means of communication and notification. All Students will be expected to keep up to date on developments in the Canvas page and will be responsible for all assignments and quizzes posted on Canvas or notified via e-mail.

The Professor may also utilize other technological tools to stimulate the Students’ Critical and Creative Thinking.

7. Reading Assignments

The Syllabus identifies the subject areas that we will cover and the corresponding page numbers in your casebook, as well as any supplemental reading materials that I have identified and chosen to assign at this time (additional supplemental reading materials may be assigned as the semester progresses). Because we naturally will spend more time on some areas than others, the rate of our progress through the materials will vary depending, in part, on our class discussions. I will expect you to stay ahead of the class in your reading, which will follow the order set out in the Syllabus (I will notify you of any departures from the Syllabus). You should expect us to cover an average of 35-50 pages of reading per 50 minutes of class, and to cover about one Module each week. In addition, the Syllabus implies approximate class time devoted to each segment of the course. The pace will probably start out relatively slow and then pick up speed as we develop basic points of knowledge. I may also announce assignments from time to time in class, via e-mail and in Canvas.

Generally, this course’s pace is designed to emphasize quality over quantity. Some of the assigned readings in the required casebook will be covered in depth, and some not, depending on the complexity and importance of the material, and on the progression of the class as a whole. However, for exam purposes, all Students are responsible for reading and analyzing all of the assigned required materials, including the notes, questions, problems and commentaries that are presented between the cases.

In addition, we may use all kinds of other resources such as news clippings, articles, handouts, video resources, Internet tools, and the like, to supplement the required text.

Use the Syllabus to read ahead or to anticipate future readings. Furthermore, you must ascertain missed information for any days you are absent. You may also want to consider using the Syllabus as a general outline to help you structure your own study outline for the final examination.

8. In-Class Use of Electronic Devices and Netiquette

Laptop computers and other devices such as e-tablets, e-readers and smartphones may only be used during class for class purposes, such as to participate in the quizzes and polls taken during class (except in case of a real emergency). Students may not make their own recordings (audio, video or both) of class sessions, except with the express consent of the Professor or as an approved disability accommodation. Class sessions in Room 1160 at the Manhattan campus are recorded through YuJa as a matter of Law Center policy, and those recordings are ordinarily posted in the Canvas site for the course. The Professor reserves the discretion not to post a particular recording, and will in all events make recordings available to any Student whose approved accommodation requires access to them. Please bear in mind that the classroom microphones are sensitive and pick up conversation throughout the room: anything said in the classroom while a session is being recorded may end up in the recording.

Students should always respect the following Netiquette guidelines (© 2016 Online Education Blog of Touro College):

• Before posting your question to a discussion board, check if anyone has asked it already and received a reply. Just as you would not repeat a topic of discussion right after it happened in real life, do not do that in discussion boards either.

• Stay on topic — Do not post irrelevant links, comments, thoughts, or pictures.

• Do not type in ALL CAPS! If you do, it will look like you are screaming.

• Do not write anything that sounds angry or sarcastic, even as a joke, because without hearing your tone of voice, your peers might not realize you are joking.

• Always remember to say “Please” and “Thank you” when soliciting help from your classmates.

• Respect the opinions of your classmates. If you feel the need to disagree, do so respectfully and acknowledge the valid points in your classmate’s argument. Acknowledge that others are entitled to have their own perspective on the issue.

• If you ask a question and many people respond, summarize all answers and post that summary to benefit your whole class.

• Be brief. If you write a long dissertation in response to a simple question, it is unlikely that anyone will spend the time to read through it all.

• Run a spelling and grammar check before posting anything to the discussion board. It only takes a minute, and can make the difference between sounding like a fool and sounding knowledgeable

Failure to follow directions in this regard can subject Students to the same range of penalties to which they might be subject for failing to follow any other requirement on classroom attendance and participation.

Violations of this policy are, by definition, examples of extremely unprofessional behavior and therefore will adversely affect final grades. See Const. for First Amendment Law, art. III, § 6.

9. Attendance

Pursuant to the Touro Law Center Student Handbook, and consistent with American Bar Association Standard 308, which requires every law school to adopt, publish and adhere to sound academic standards “including those for regular class attendance,” the faculty requires that each Student attend classes regularly. Regular attendance is defined as attending at least 85% of scheduled class hours. Allowable absences are calculated at 15% of the number of class hours per course per semester. There are no excused absences, except as the Law Center’s policies or applicable law may otherwise require in a particular case. A roster will be circulated each class period; if you fail to sign it, you will be counted absent. The Professor will not be responsible for “seeing you were there” on any given day. Attendance will be recorded and counted based solely on whether a Student signs or does not sign the daily attendance roster.

What that means in this course, stated plainly, because the arithmetic is unforgiving and you should not have to work it out for yourself. Attendance in this course is measured on the twelve Sunday class sessions. Twelve sessions of eighty-five minutes is 1,020 minutes of scheduled class time; fifteen per cent of that is 153 minutes, which is less than two sessions. You may miss one Sunday. If you miss two, you have exceeded the attendance policy and you will not be permitted to sit the final examination.

Asynchronous Direct Instruction is not attendance. ADI is required instruction and is examinable on the same terms as everything else in this course, Const. for First Amendment Law, art. II, § 2 --- but there is no roster to sign for an asynchronous Module, ADI minutes do not enter the attendance calculation above, and failing to complete an ADI Module is not recorded as an absence. What it will affect is your preparation, your Class Participation grade, id. at art. III, §§ 5 and 6, and your performance on the examination. Do not read “not attendance” as “optional.”

Plan for this now. This is a FlexTime section and most of you are working. One Sunday will come up that you cannot make — a shift, a family obligation, an illness. Spend it deliberately, rather than discovering in November that you spent it in September.

Students must keep track of their absences. The Professor is under no obligation to notify Students when their absences exceed, or are about to exceed, the limits noted above.

Any Student who misses more classes than allowed by the attendance policy shall not be permitted to take the final examination or submit additional work, and a grade of “NC”, “W”, “WNA” or “WF” shall be given, as established by the applicable policies and guidelines.

Students are expected to be on time to class. However, it is better to come to class late than not at all. You may walk in late if you have a good reason, as long as you do not abuse this privilege, and you enter the classroom in a way that does not disrupt the class.

Independently of the attendance policy, your attendance to class will also be taken into account by the Professor when determining your class participation grade, and will affect final grades. See Const. for First Amendment Law, art. III, §§ 5 and 6.

10. Expectations

Of the Professor:

• If you get stuck or have a question, please contact me anytime. I do use the announcements feature if I need to make a change or get the class information fast. I try to respond to each student who reaches out for help or has a question within 24 hours.

• I monitor this course daily. I actively read, observe and participate with each of your submissions. I am constantly watching and doing.

• I try to turn around grades or assignments quickly and provide feedback either in writing, audio, or live.

• I use the course rubrics to assess your participation and learning.

• When grading assessments that are worth more than 25% of the final grade, I will use mechanisms provided by Touro Law Center to ensure anonymity, as required by the Student Handbook. That commitment attaches to each individual assessment and not to a category of assessments taken together. Class participation, Discussion Board activity, and any other component that by its nature depends on my knowing who you are, cannot be and is not graded anonymously; no such component is worth more than 25% of your final grade.

Of the Students:

• Budget a minimum of six to eight hours per week for this course, over and above the Sunday class session. American Bar Association Standard 310 defines a credit hour as not less than one hour of classroom or direct faculty instruction and two hours of out-of-class student work per week, which for a two-credit course is roughly six hours a week before anything else is counted. The Sunday session and the Asynchronous Direct Instruction described above, Const. for First Amendment Law, art. II, § 2, together supply the direct instruction, and the FlexTime Program chart for a two-credit course contemplates approximately 42 minutes of Asynchronous Direct Instruction and five hours of out-of-class work each week. The range above leaves headroom, and you should expect heavier weeks around the double Module and the Essay Assignment. This course will be as rigorous as the in-person version. Students will do extensive reading and writing of quality. This includes developing the habit of citing your sources using correct formatting in all your assignments.

• Although this course offers a great deal of flexibility in that students may log onto its Canvas site and participate at any time during the day or night, this course is not self-paced. Students are expected to participate regularly and continually throughout each module in the course. We have deadlines for discussion postings, quizzes, written assignment submissions and the completion of other learning activities. I recommend logging into the Canvas website for the course at least three to four times a week. This is the standard for full engagement in the readings, assignments and discussions.

• Take the time to read through the entire syllabus, as well as module instructions before contacting me. If you need immediate assistance, start with the “Ask Your Peer, Ask Your Professor” area set up for public questions.

• Try to work ahead: I strongly recommend that you try to get a running start on the course readings so that you can stay apace of the module and assignment readings. If you fall behind, you will have considerable difficulty catching up, because multiple assignments are due in each module.

• Edit your work before you submit a posting or assignment. It is expected that you will carefully read and edit your work prior to sending it. Every discussion posting should first be composed using a word processor to prevent grammar and spelling errors, and creating a compelling comment or response. Further, you should also retain a copy of your work if something goes wrong with the system.

• Use the conventions of academic writing. “Chat style” language is not acceptable.

• Be sure you are familiar with how to submit assignments through Canvas.

• Have a plan if your computer crashes, or if your Internet connection fails. These events do not excuse you from your course responsibilities. You can access this online course from any computer that has an Internet connection. I suggest that you develop a plan now for events such as these.

11. Academic Integrity

Students should always comply with Touro University’s Academic Integrity Policy, which can be found here: https://www.touro.edu/students/policies/academic-integrity/.

12. Accommodations for Students with Disabilities

Touro University complies with Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA) of 1990, which protect persons from discrimination on the basis of disability in all its programming. The University is committed to providing reasonable accommodations to students with disabilities who request them and supply appropriate documentation. Policies and procedures ensure that students with a disability will not, on the basis of that disability, be denied full and equal access to our programs or otherwise be subjected to discrimination. The University has a centralized Office of Student Disability Services. (“OSDS”). Touro Law Center students with disabilities seeking reasonable accommodations should do so through the OSDS Coordinator for Touro Law Center, Heather DePierro, Assistant Dean for Student Services at hdepierr@tourolaw.edu. For further details, see https://www.touro.edu/departments/student-disability-services/.

13. Prohibited Discrimination and Harassment Reporting

Touro Law Center is committed to providing a safe learning environment that is free of all forms of discrimination and harassment for all students. Discrimination and sex-based harassment of any kind, are antithetical to the law school’s mission and core values, violate law school policies, and may also violate federal and state law. Compliance with Touro’s policies and procedures is a necessary step in achieving a safe environment in our educational community. For further details, see the Title IX Grievance Policy: https://www.touro.edu/title-ix-policy/.

14. AI Policy

Generative AI is software (i.e. Copilot, Gemini, ChatGPT) that can perform advanced processing of text at skill levels that appear similar to a human’s. Generative AI software is quickly being adopted in legal practice, and many internet services and ordinary programs may or will soon include Generative AI software. At the same time, Generative AI presents risks to our shared pedagogical mission.

Touro University policies prohibit using material created using Generative AI and other emerging technologies without appropriate authorization and acknowledgment and the representation of that material as one’s own original work. See the full policy at:

https://www.touro.edu/students/policies/academic-integrity/artificial-intelligence-ai-addendum/

Law school instructors have discretion to authorize the use of Generative AI in their courses, provided that they include their AI policy in the syllabus and give students specific instructions related to AI, in writing, prior to the issuance of any assignment. Nevertheless, students shall not:

• Use Generative AI for any purpose on an in-class exam.

• Employ Generative AI for a use that would constitute plagiarism if the Generative AI source were a human or organizational author.

The use of Generative AI software may result in lower quality work product because of a limited amount of source material, an inability to determine what sources the material generated by the AI software is taken from, and the potential for the creation of material by the Generative AI from sources that do not exist.

AI Stoplight Designation for This Course. Touro Law Center uses a “stoplight” framework to tell Students when and how AI tools may be used. The designations for this course are the following, and they control over any general impression you may have formed about AI use in law school:

• Red Light — AI use is prohibited. The Final Examination, all Quizzes, and any other assessment identified as closed-book or timed. No Generative AI may be used for any purpose, at any stage, on this work.

• Yellow Light — AI use is permitted with disclosure. The Essay Assignment and the Discussion Boards. You may use Generative AI for brainstorming, outlining, and editing, but the analysis and the prose you submit must be your own, every authority you cite must be read and verified by you in the original, and you must append a short note stating what tools you used and how. Submitting AI-generated text as your own writing is plagiarism under the University’s Academic Integrity Policy.

• Green Light — AI use is permitted without disclosure. Your private study and preparation: generating practice questions, quizzing yourself, asking for explanations of material you have already read, and building your own outlines for your own use. Bear in mind that Generative AI is unreliable on citations and on the current state of constitutional doctrine, and that you, not the software, will be examined.

If you are unsure which color applies to a particular task, ask the Professor before you use the tool, not after.

Student Resources

II. The Executive Power

1. The Professor

The executive Power shall be vested in the Professor. The Professor shall be the Commander in Chief of First Amendment Law. This is not a democracy. Nor is it a Republican form of government, as you might have noticed. The Professor still reserves the right to, from time to time, learn something from the Students and put it to good use by applying the lessons learned to the betterment of the course.

2. Delivery Method and Class Sessions

This course is a two-credit course offered through the Touro Law Center FlexTime Program, and it is delivered in a hybrid format that combines in-person Sunday class sessions with Asynchronous Direct Instruction.

In-person sessions. Class sessions meet at the Manhattan campus, in Room 1160, on Sundays, from 12:30 pm to 1:55 pm. Consistent with the FlexTime Program chart for two-credit courses, there is no scheduled break during the Sunday session. The twelve Sunday sessions are scheduled for the following dates: 8/23, 8/30, 9/6, 10/11, 10/18, 10/25, 11/1, 11/8, 11/15, 11/22, 11/29 and 12/6. Class sessions will be recorded through YuJa and ordinarily posted in the Canvas site for the course.

Asynchronous Direct Instruction (ADI). In addition to the Sunday sessions, this course carries a required component of Asynchronous Direct Instruction. The FlexTime Program chart sets Asynchronous Direct Instruction for a two-credit course at 500 minutes for the semester, which the chart states as approximately 42 minutes a week. The Asynchronous Direct Instruction is concentrated in the Modules marked ADI below. ADI is instruction delivered by the Professor that you complete on your own schedule rather than live. It will be posted in the Canvas Modules for the course, organized by week, and it will take forms such as pre-recorded micro-lectures, whiteboard explainers, structured readings with the Professor’s commentary, annotated primary documents, interactive modules, quizzes with explanatory feedback, and Discussion Boards in which the Professor actively participates. ADI is required instruction and is part of the regular workload of this course, on the same footing as the Sunday class sessions. The Professor’s participation in the asynchronous components is regular and substantive: the Professor posts and responds in the Discussion Boards, supplies explanatory feedback on the ungraded quizzes described below, Const. for First Amendment Law, art. III, § 7, and is available for individual consultation as provided in id. at art. II, § 4. ADI will not be assigned on Sundays. Seven of the nineteen Modules set out in the Syllabus below --- Modules 5A, 6A, 8A, 9A, 10, 11A and 12A — are delivered as ADI rather than in a Sunday session, and are marked ADI there. Module 9A is a double unit and runs across two weeks. The remaining twelve Modules correspond to the twelve Sunday sessions. Note that there is a month between the third Sunday session and the fourth; that interval is carried by ADI.

As explained above, Const. for First Amendment Law, art. I, § 9, and below, id. at art. III, §§ 5 and 6, all Students are required to attend class meetings, be duly prepared, and actively and constructively participate in class discussions and activities.

3. Communicating with the Professor

The Professor’s office is located on the Fourth Floor of the Touro Law Center, Suite 411. The Professor’s phone number is 631-761-7119. However, the Professor is much more readily accessible via e-mail: jroig@touro.edu. The course’s Canvas page is also a preferred method of communication.

4. Office Hours

The Professor will make himself available for Office Hours on Sundays, before class, from 11:00 am to 12:15 pm, at the Manhattan campus and on Zoom, and on Tuesdays and Thursdays, on Zoom, from 12:45 pm to 2:00 pm. The Professor will also make himself available at other times and dates, as the Students’ schedules may require. You should contact the Professor beforehand to set up an appointment if you want to come to Office Hours so as to prevent conflicts with other meetings. Said Office Hours may be subject to change, as the need arises. The Professor will also be available at other times by appointment (more easily made by e-mail).

III. The Judicial Power

1. The Professor

The judicial Power shall be vested in one supreme Professor. This is not a democracy … well, at this point I think you catch the drift. The Professor is also Judge, Jury and Executioner.

2. Grading

And now, finally, what you have all been waiting for. Your performance in First Amendment Law shall be graded based on the following:

• Quizzes (30%)

• Class Participation and Assignments (30%)

• Final Examination (40%)

This course, then, “shall utilize both formative and summative assessment methods … to measure and improve student learning and provide meaningful feedback to students.” ABA Standard 314.¹

3. Quizzes and Essay Assignment

There will be multiple Quizzes during the course of the semester. These Quizzes will be short and timed, and will be comprised of several questions. They will be administered and graded in compliance with all applicable Touro Law Center policies. You will be tested on everything discussed in class, and on all assigned required readings, whether or not they were discussed in class. Your performance in the quizzes will account for 30% of your total grade.

There will also be one or more Assignments, including at least one Essay Assignment. Detailed instructions will be provided with each Assignment. Together with your Class Participation and Discussion Board activity, the Assignments will account for 30% of your total grade. Within that 30%, the Assignments and the Class Participation and Discussion Board component count in approximately equal parts, and no single component of that 30% is worth more than 25% of your final grade.

4. Final Examination

The final examination will be comprised of several multiple choice, essay and/or short answer questions. It will be administered in person and it will be a closed book exam. It will be proctored and administered through ExamSoft, as required by Touro Law Center for proctored final examinations. It will be conducted and graded in compliance with all applicable Touro Law Center policies. You will be tested on everything discussed in class, and on all assigned required readings, whether or not they were discussed in class. Your score on the final examination will account for 40% of your final grade. Your score on the final examination will be based on the Grading Criteria described below. Const. for First Amendment Law, art. III, § 6.

5. Class Participation and Discussion Boards

The Professor will monitor student participation and engage in written exchanges with the Students through Canvas Discussion Boards. Your participation in these Discussion Boards, along with your general participation both during class and outside of class, as well as on the Canvas website at large, are required and, together with the Assignments, will account for 30% of your final grade. This portion of your grade will be based on the degree of effort and thoughtfulness shown in your interactions, comments and posts (it is not simply about word count; a short but thought-out response is much better than a long-winded but superficial or repetitive post), instead of on the correctness of your comments or posts.

Additionally, pursuant to the Touro Law Center Student Handbook, the Professor may raise or lower a Student’s grade by 1/3 of a grade (bump) based on classroom attendance and/or participation. Your Class Participation bump will be based on the Grading Criteria described below, Const. for First Amendment Law, art. III, § 6, on your attendance to class, id. at art. I, § 9, and on your active and constructive participation in both class discussions and other activities inside or outside of class, such as Canvas activities, pursuant to the following rubric:

6. Grading Criteria

Some of the Grading Criteria that will be used when assessing your performance in this course closely follow the goals and expected learning outcomes of the course, and are the following:

• The Big Picture: Ability to understand and analyze the scope and limits of the First Amendment protections on freedom of speech and free exercise of religion, and its prohibition on the establishment of a religion, as interpreted by the United States Supreme Court

• The Big Picture, Continued: Ability to understand and analyze the scope and limits of the fundamental rights protected by the Due Process and Equal Protection Clauses that are not enumerated in the text of the Constitution, the methodology by which the Supreme Court identifies them, and the allocation of power between the federal government and the States that frames their enforcement

• Raw Specific Knowledge: Familiarity with the key concepts, vocabularies, principles and tensions that constitute the field of First Amendment Law

• Practical Application: Ability to apply First Amendment Law to varied factual settings

• Critical Thinking: Quality of substantive evaluation of the validity, logical consistence, intellectual honesty, rigor, “correctness” or desirability of judicial opinions, arguments or approaches to First Amendment Law problems

• Creative Thinking: Capacity to dream up new ways of tackling old problems in our social order

In addition, the Professor will also include in his Grading Criteria the following aspects that are essential to your development as a successful attorney:

• Preparedness: Being prepared is an absolute must for every Student every time the class meets, and for every attorney every time he faces a legal situation. Preparedness does not mean knowing the “right” answer to any particular question; rather, it means being able to display a thoughtful and reflective familiarity with all assigned materials. Accordingly, the emphasis in class discussion will be on Critical and Creative Thinking. Critical and Creative Thinking includes the ability to go beyond the face of the readings to analyze the relevant issues from an independent perspective. However, Students will find it remarkably difficult to display Critical and Creative Thinking if they are unprepared. Unpreparedness is, of course, seriously unprofessional behavior and therefore will adversely affect final grades. Students are encouraged to bear in mind, both in this course and throughout their lives, the words of Seneca: “Luck is what happens when preparation meets opportunity.”

• Professionalism: As you know, advance preparation for important meetings, consistent punctuality at all professional events, and attentive, informed participation in substantive discussions, are all key hallmarks of a successful professional in law practice. They are also important features of your legal education and your performance during law school. Therefore, please recognize from the outset that our time together in the classroom is especially important from this “professionalism” perspective. Professionalism includes attendance, punctuality, attentiveness, preparedness and participation. But professionalism also includes civility and courteousness, respecting others’ opinions and comments, treating the Professor, other Students and other Touro Law Center personnel with the respect their dignity deserves, and abiding to all policies concerning discrimination and harassment of all kinds. This evaluation structure is designed to provide a fair assessment method that considers each Student’s performance in each part of the course throughout the entire semester. This approach is designed to reward professional behavior during the entire semester and to discourage unprofessional behavior at all times.

When grading assessments that are worth more than 25% of the final grade, I will use mechanisms provided by Touro Law Center to ensure anonymity, as required by the Student Handbook. That commitment attaches to each individual assessment and not to a category of assessments taken together. Class participation, Discussion Board activity, and any other component that by its nature depends on the Professor knowing who you are, cannot be and is not graded anonymously; no such component is worth more than 25% of your final grade.

7. Ungraded Quizzes and Feedback Loops

The Professor reserves the right to give periodic unannounced and ungraded quizzes, or use other techniques, such as Polls and Forums, to establish feedback loops through which both the Professor and the Students may determine how they are all doing in the course.

IV. Amendments

The Professor, whenever he deems it necessary, shall approve Amendments to this Constitution and to the Syllabus, which shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Professor.

V. Supremacy

This Constitution, and the Laws of First Amendment Law which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the Professor, shall be the supreme Law of the Land; and the Students in every Section shall be bound thereby, any Thing in the Heads and Idiosyncrasies of any Students to the Contrary notwithstanding.

The Bill of Rights

Preamble

The Students shall have no rights, only responsibilities. The Bill of Rights of the United States Constitution is only applicable to State Action. There will be no State Action in this course, so the Bill of Rights of the United States Constitution has no applicability here. Sorry.

OK, fine, there shall be a Bill of Rights and Responsibilities.

The Bill of Rights and Responsibilities

Amendment I

The Professor shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of the Students to speak their minds in a civil and courteous manner; or the right of the Students peaceably to assemble, and to petition the Professor for a redress of grievances. The right of the Students, and of the Professor, to make all kinds of creative arguments, no matter how outrageous or unconventional, shall not be abridged, as long as such expression is based on sound logic, intellectual honesty and rigor, and is not an attempt to intimidate, violently attack, belittle, demean or humiliate others. Ad hominem attacks will not be tolerated. All logical fallacies will be pointed out. See Neal Ramee, Logic and Legal Reasoning: A Guide for Law Students (2002), https://caplaw.com/sites/rll3e/wp-content/uploads/sites/15/2022/12/Ramee-Logic-Guide-revdec22.pdf (linked from the course website); Jesse Richardson et al., Thou shalt not commit logical fallacies, https://yourlogicalfallacyis.com (last visited Aug. 20, 2026) (linked from the course website). All personal opinions expressed must be relevant to the pertinent legal analysis being discussed. All points of view shall be respected and considered, bearing in mind, however, that ignorance is not a point of view.

Amendment II

There will be no arms of any kind in class. In this course, the pen shall and must truly be mightier than the sword.

Amendment III

No Student shall in time of class be quartered in any place other than the classroom, nor in time of study be quartered anywhere except the Library.

Amendment IV

The right of the Students and the Professor to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, for the Professor to intrude into Students’ study habits. As a result, Students shall be solely responsible for being prepared for class, for their performance in this course, and for their choice to take advantage of the opportunities afforded to them by the Professor and the Touro Law Center.

Amendment V

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the Professor.

Amendment VI

The powers not specifically delegated to the Professor by the Constitution, nor specifically prohibited by it to the Professor, are reserved to the Professor.

Syllabus

(This Syllabus is subject to change. See Const. for First Amendment Law, art. IV. The required text is the Chemerinsky casebook you already own from Constitutional Law. The page assignments set out below are to that book. The course website, WikiFramers — First Amendment Law, at https://course.wikiframers.org/firstam, carries every Module set out below — its page assignment, its Topics, its reading list in assigned order, its current case where there is one, and its visual aids. The casebook is the assigned text; the website is the map. Any amendment to a reading list is posted there first and announced in Canvas.)

Every Module’s reading list is published in full below. Within a list, a case named without a marker is assigned as a principal case and is to be read as the casebook presents it. A case marked (note) is a note case: its holding, its facts to the extent they matter, and its place in the doctrinal line come to you through the casebook’s notes rather than through an edited opinion, and you are responsible for it exactly as you are responsible for a principal case. You are responsible for all assigned required materials, including the notes, questions, problems and commentary that accompany the cases, whether or not we discuss them in class. Const. for First Amendment Law, art. I, § 7. Reading lists remain subject to the amendment power, Const. for First Amendment Law, art. IV; any amendment will be posted on the course website and announced in Canvas well in advance of the affected class sessions.

A Module marked ADI is delivered as Asynchronous Direct Instruction rather than in a Sunday class session. See Const. for First Amendment Law, art. II, § 2. ADI Modules are required instruction, carry the same weight as the Sunday sessions, and are examinable on the same terms as everything else in this course. The twelve Modules that are not marked ADI correspond to the twelve Sunday class sessions.

A note on the scope of this course. This semester First Amendment Law carries, in addition to the speech and religion material, the noneconomic substantive due process and fundamental rights material and the federal-versus-state power material that in other years sit in Constitutional Law. Modules 10 through 13 cover that ground, and the right to vote is taken up in Module 6A alongside the campaign-finance material, because the two bodies of doctrine speak to each other. The Professor is aware that the course title is now doing less work than it used to, and expects to propose a more accurate one.

And a note on what this course does not cover, so that you know it is a choice and not an oversight. Two bodies of First Amendment doctrine are deliberately left out this semester. Freedom of association --- compelled association, disclosure of membership, and the application of antidiscrimination law to expressive organisations, from NAACP v. Alabama through Roberts v. United States Jaycees, Boy Scouts of America v. Dale and Janus. And freedom of the press — the reporter’s privilege and access to judicial proceedings, Branzburg v. Hayes and Richmond Newspapers. Chemerinsky covers both at pages 1426 to 1471. A two-credit course that also carries the fundamental-rights material cannot do everything, and these are what came out. You are not responsible for them and they will not be examined. If you expect to practise where either matters — labour, media, nonprofit governance --- come see me and I will tell you what to read.

Course-Long Materials (course website)

The Constitution of the United States of America; The Declaration of Independence (National Archives transcript, https://www.archives.gov/founding-docs/declaration-transcript); The Federalist Papers; User’s Mini-Guide Materials --- the Mini-Guide itself, Basic Learning Outcomes, Constitutional Law & Lawyering Skills, the Model Constitutional Law Case Brief and the Multiple Choice Question Worksheet; Biographical Notes on Selected U.S. Supreme Court Justices, together with a course-written supplement covering the four Justices appointed since that document was written. These carried over from Constitutional Law and are the same documents you used there; they are on the course website. The Declaration is linked at the National Archives. Neal Ramee, Logic and Legal Reasoning: A Guide for Law Students, and Jesse Richardson et al., Thou Shalt Not Commit Logical Fallacies, are the work of others; they are linked from the course website at their own homes rather than copied onto it.

Freedom of Speech

Module 1 — Free Speech Values; What Is Speech?

Assigned reading: Chemerinsky 1057—64, 1319—28.

Topics: Why we protect speech — truth, self-governance, autonomy, tolerance, checking. The free speech doctrines in outline. Speech versus conduct; symbolic and expressive conduct.

Principal readings: Why Protect Speech? (note); United States v. O’Brien; Spence v. Washington; Texas v. Johnson.

Module 2 — Free Speech Methodology

Assigned reading: Chemerinsky 1064—99.

Topics: The content-based / content-neutral distinction. Strict scrutiny for content-based regulation; viewpoint discrimination. Intermediate scrutiny and time, place and manner regulation; a comparison of the intermediate scrutinies in free speech. Vagueness and overbreadth.

Principal readings: Police Department of Chicago v. Mosley; Ward v. Rock Against Racism; Renton v. Playtime Theatres, Inc.; Reed v. Town of Gilbert; City of Austin v. Reagan National Advertising.

Module 3 — Infringement of Speech

Assigned reading: Chemerinsky 1099—1172.

Topics: What counts as an infringement. Prior restraints: licensing, injunctions, and the presumption against them. Unconstitutional conditions and government subsidies. Compelled speech. Government speech.

Principal readings: Near v. Minnesota; New York Times Co. v. United States (Pentagon Papers); Lovell v. City of Griffin; West Virginia State Board of Education v. Barnette; Rust v. Sullivan; Legal Services Corp. v. Velazquez; 303 Creative LLC v. Elenis.

Module 4 — Disfavored Categories of Speech, Part I: Incitement, Fighting Words and True Threats

Assigned reading: Chemerinsky 1173—1227.

Topics: Incitement, from Schenck to Brandenburg. Fighting words, group libel and hate speech. True threats and the mental state the First Amendment requires.

Principal readings: Schenck v. United States; Abrams v. United States; Whitney v. California; Dennis v. United States; Brandenburg v. Ohio; Chaplinsky v. New Hampshire; R.A.V. v. City of St. Paul; Virginia v. Black; Counterman v. Colorado.

Module 5 — Disfavored Categories of Speech, Part II: Defamation and Emotional Distress

Assigned reading: Chemerinsky 1297—1319.

Topics: Defamation and the constitutionalization of tort law. Public officials, public figures and matters of public concern. Intentional infliction of emotional distress.

Principal readings: New York Times Co. v. Sullivan; Gertz v. Robert Welch, Inc.; Hustler Magazine v. Falwell; Snyder v. Phelps.

Module 5A — Commercial Speech ADI

Assigned reading: Chemerinsky 1270—96.

Topics: Why commercial speech was once unprotected and why that changed. The Central Hudson framework. False and misleading commercial speech; regulation of lawful products and services; professional speech.

Principal readings: Central Hudson Gas & Electric Corp. v. Public Service Commission.

Module 6 — Disfavored Categories of Speech, Part III: Sexual Speech, and a Category the Court Refused to Create

Assigned reading: Chemerinsky 1227—69.

Topics: Obscenity and the Miller test. Child pornography and its rationale. Indecency, vulgarity and the medium-by-medium approach. Then the other half of the same question. Ferber shows the Court recognising a new unprotected category; Stevens and Brown show it being asked to do so again — for depictions of animal cruelty, and for violent video games sold to minors — and refusing. What the Court demanded in 2010 and 2011 that it did not demand in 1982, and what that tells you about how the categorical approach actually works.

Principal readings: Miller v. California; New York v. Ferber; Ashcroft v. Free Speech Coalition; FCC v. Pacifica Foundation; Cohen v. California; Reno v. ACLU; United States v. Stevens; Brown v. Entertainment Merchants Association.

Module 6A — Speech and Participation in Elections ADI

Assigned reading: Chemerinsky 1328—55, 952—75.

Topics: Campaign finance as speech. The contribution / expenditure distinction. Corporate and union political speech. Aggregate limits and the definition of corruption. The right to vote: restrictions on the franchise and dilution of the vote. Why the franchise is analyzed as a fundamental right rather than as speech, and what the two bodies of doctrine have to say to each other.

Principal readings: Buckley v. Valeo; Citizens United v. Federal Election Commission; McCutcheon v. Federal Election Commission; Harper v. Virginia State Board of Elections; Kramer v. Union Free School District; Crawford v. Marion County Election Board; Reynolds v. Sims.

Module 7 — Locations and Forums

Assigned reading: Chemerinsky 1362—1425.

Topics: Places available for speech. The public forum doctrine: traditional, designated, limited and nonpublic forums. Speech on private property. Speech in schools, prisons, the military and the public workplace. Speech on government-run and privately owned digital platforms.

Principal readings: Hague v. CIO; Perry Education Association v. Perry Local Educators’ Association; International Society for Krishna Consciousness v. Lee; Hudgens v. NLRB; Tinker v. Des Moines Independent Community School District; Hazelwood School District v. Kuhlmeier; Morse v. Frederick; Mahanoy Area School District v. B.L.; Pickering v. Board of Education; Garcetti v. Ceballos; Moody v. NetChoice, LLC.

Freedom of Religion

Module 8 — Free Exercise, Part I

Assigned reading: Chemerinsky 1477—97.

Topics: The religion clauses mapped. Belief versus conduct. The Sherbert compelled-exemption regime. Smith and the neutral-and-generally-applicable rule. The ministerial exception.

Principal readings: Reynolds v. United States (note); Sherbert v. Verner; Wisconsin v. Yoder; Employment Division v. Smith; Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC; Our Lady of Guadalupe School v. Morrissey-Berru (note).

Module 8A — Free Exercise, Part II ADI

Assigned reading: Chemerinsky 1497—1524.

Topics: Neutrality and general applicability after Smith; the secular-exception problem. Religious animus. Free exercise during emergencies. RFRA and RLUIPA as statutory overlays. Free exercise and antidiscrimination law.

Principal readings: Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah; City of Boerne v. Flores; Burwell v. Hobby Lobby Stores, Inc.; Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission; Tandon v. Newsom; Fulton v. City of Philadelphia; Groff v. DeJoy.

Module 9 — The Establishment Clause, Part I

Assigned reading: Chemerinsky 1524—48.

Topics: What the Establishment Clause forbids; competing theories — strict separation, neutrality, accommodation. The Lemon test and the endorsement test. The turn to history and tradition. Religious speech and symbols on government property.

Principal readings: Everson v. Board of Education; Lemon v. Kurtzman; Lynch v. Donnelly; County of Allegheny v. ACLU; Van Orden v. Perry; McCreary County v. ACLU; Town of Greece v. Galloway; American Legion v. American Humanist Association; Kennedy v. Bremerton School District.

Module 9A — The Establishment Clause, Part II ADI

Assigned reading: Chemerinsky 1548—1628.

Topics: Religion and the schools: prayer, curriculum and released time. Aid to religious institutions and school choice. The intersection of the two religion clauses; play in the joints and its narrowing. Religious exemptions from generally applicable law as an establishment problem.

Principal readings: Engel v. Vitale; Abington School District v. Schempp; Lee v. Weisman; Santa Fe Independent School District v. Doe; Edwards v. Aguillard; Zelman v. Simmons-Harris; Locke v. Davey; Trinity Lutheran Church v. Comer; Espinoza v. Montana Department of Revenue; Carson v. Makin.

Fundamental Rights and Substantive Due Process

Module 10 — Due Process and Unenumerated Fundamental Rights: The Framework ADI

Assigned reading: Chemerinsky 795—817.

Topics: The four-issue framework for analyzing fundamental rights: is there a fundamental right; is it infringed; is the infringement justified by a sufficient purpose; and are the means sufficiently related to that purpose. Where unenumerated rights are located in the constitutional text. Incorporation. Why the choice of method decides most of these cases before the merits are reached.

Principal readings: Loving v. Virginia; Obergefell v. Hodges.

Module 11 — Family Autonomy; Reproductive Autonomy

Assigned reading: Chemerinsky 827—87.

Topics: The right of parents to direct the upbringing of their children. The right to procreate; contraception; abortion before and after Dobbs. What Dobbs did and did not unsettle in the rest of this line.

Principal readings: Meyer v. Nebraska; Pierce v. Society of Sisters; Troxel v. Granville; Buck v. Bell; Skinner v. Oklahoma ex rel. Williamson; Griswold v. Connecticut; Eisenstadt v. Baird; Roe v. Wade; Planned Parenthood v. Casey; Dobbs v. Jackson Women’s Health Organization.

Module 11A — Medical Care Decisions; Sexual Orientation and Sexual Activity ADI

Assigned reading: Chemerinsky 888—99, 901—11.

Topics: The right to refuse treatment. Physician-assisted death and the Glucksberg method of defining a fundamental right. Sexual orientation and sexual activity; the relationship between Glucksberg and Lawrence.

Principal readings: Cruzan v. Director, Missouri Department of Health; Washington v. Glucksberg; Lawrence v. Texas.

Module 12 — Unenumerated and Quasi-Fundamental Rights: A Different Approach — Arms; Travel; Education

Assigned reading: Chemerinsky 914—52, 1010—16.

Topics: The Second Amendment and the text-history-and-tradition method as an alternative to the Glucksberg method. The right to travel. Education as a non-fundamental right, and what follows from that classification.

Principal readings: District of Columbia v. Heller; New York State Rifle and Pistol Association v. Bruen; Saenz v. Roe; San Antonio Independent School District v. Rodriguez.

Federal versus State Power — Redux

Module 12A — Sovereign and Eleventh Amendment Immunities ADI

Assigned reading: Chemerinsky 207—29.

Topics: How to sue a State. The Eleventh Amendment and the doctrine of state sovereign immunity. Suits against state officers. Abrogation and waiver. Suits against local governments and officials.

Principal readings: Hans v. Louisiana; Ex parte Young; Edelman v. Jordan; Seminole Tribe of Florida v. Florida; Alden v. Maine; Central Virginia Community College v. Katz.

Module 13 — Congressional Power Under the Civil War Amendments

Assigned reading: Chemerinsky 207—29 (continued from Module 12A). The balance of the assignment for this Module will be posted in Canvas no later than two weeks before the session.

Topics: Section 5 of the Fourteenth Amendment as a source of congressional power. Remedial versus substantive power; from Smith to Boerne. The congruence-and-proportionality test and its progeny. The Thirteenth and Fifteenth Amendments.

Principal readings: Katzenbach v. Morgan; City of Boerne v. Flores; Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank; Kimel v. Florida Board of Regents; Board of Trustees of the University of Alabama v. Garrett; Nevada Department of Human Resources v. Hibbs; Tennessee v. Lane; Shelby County v. Holder.