teaching porn, was downloading porn

Tue Apr 7 19:32:56 PDT 2009

Sandy is exactly right. The concept of obscenity is vague--to get a
concrete idea of what is at stake in a case you would need to look at
exhibits or read the book, etc.  And he is right about the material
being attributed to the teacher.  There is an exception to his point
about the material being attributed to the teacher--that is when the
teacher is explicitly anti-porn and uses the porn to support the
critique.

Michael Curtis

-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at law.utexas.edu] 
Sent: Tuesday, April 07, 2009 7:45 PM
To: Curtis, Michael K.; Ira (Chip) Lupu; Mark Graber;
conlawprof at lists.ucla.edu
Subject: RE: teaching porn, was downloading porn

Michael is right that I don't see any need to bring in a gun to teach
the 2nd amendment, nor to show pictures of fetuses to teach abortion.
Or, put it this way, I think that only someone who is anti-abortion
would show the pictures, whereas many people who are pro-choice would
still feel an obligation to assign some eloquent anti-choice, "pro-life"
writing by.  What I think makes offensive speech and pornography
different is that one can't really talk about them abstractly, since a
student can always ask, "well, is this set of words offensive or not,"
or "why is this picture considered pornographic while that picture is
protected?'  Subversive speech also needs to be articulated, but, for a
variety of reasons, one is allowed to speak "indirectly" with regard,
say, to advocating violent revolution-students will accept the
proposition that you're simply "quoting" someone else, whereas
"offensive speech" or the assignment of a sexually-explicit/pornographic
book is attributed to the teacher himself (especially if it's "him").  I
suspect that Mark has no hesitation in quoting seditious speech (and
that it would be absurd to allow a student to miss the class on
seditious speech because of sensitivity about hearing words that, for
example, call for the violent overthrow of the state or the
assassination of a purported tyrant), whereas he, like many fine people,
feels that the situation is completely different with regard to
"quoting" offensive speech or presenting what has, after all, been
published by someone else.

sandy

-----Original Message-----
From: Curtis, Michael K. [mailto:curtismk at wfu.edu] 
Sent: Tuesday, April 07, 2009 5:24 PM
To: Sanford Levinson; Ira (Chip) Lupu; Mark Graber;
conlawprof at lists.ucla.edu
Subject: RE: teaching porn, was downloading porn

So Sandy, it was either bring in the sex books or movies or quit
teaching the course?  

I had a friend who taught grad students in journalism and he had his own
very fine first amendment text, with lots of pictures.  

As part of the class, he had mock obscenity trials. He bought magazines
with explicit sex pictures at the local adult book store--to be the
state's exhibits.  The student jury always acquitted.  He did this for
years with no repercussions.  I think if he were prosecuted the jury
should have gotten the whole class, not just the books and should have
decided if the class had serious value--or earlier if it was utterly
without redeeming social vale. I kept imagining some legislator or
prosecutor....

I could not do it, but still teach free speech.  If I recall correctly,
my friend always offered to excuse from that class any student who
wanted to avoid the magazines, but never had an takers.  I think when
the misdemeanor became a felony he suffered from the chilling effect.

So someone who lived up the Sandy's precept, which Sandy never did
apparently.  But then I guess Sandy also does not have his own tank,
assault rifle, machine gun or tactical nuclear weapon either.

P.S. My friend did not include any pictures from the magazines in his
text. 

Michael Curtis    

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Tuesday, April 07, 2009 3:35 PM
To: Ira (Chip) Lupu; Mark Graber; conlawprof at lists.ucla.edu
Subject: RE: Downloading Porn

I am truly shocked and offended--though I wouldn't drum Mark out of the
academy--for writing "between Sandy and I" :)  

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
Sent: Tuesday, April 07, 2009 2:22 PM
To: Mark Graber; conlawprof at lists.ucla.edu
Subject: RE: Downloading Porn

I am professionally quite proper in my teaching style -- ordinarily, a
vulgar word would never cross my lips in class.  But when I get to
Cohen, I make it a point to repeat with great gusto the words on Cohen's
jacket -- it has shock value coming from me, and the students always
laugh.  Then I go through some hypothetical jacket slogans -- Fuck the
Judge (jacket worn in the courtroom), Fuck your Mother, etc.  The shock
value soon wears off, and some of the issues about word choice and
culture get sharpened considerably.  I must admit it's one of my
favorite cases to teach. 

Chip

---- Original message ----
>Date: Tue, 07 Apr 2009 15:04:03 -0400
>From: "Mark Graber" <MGRABER at gvpt.umd.edu>  
>Subject: RE: Downloading Porn  
>To: <conlawprof at lists.ucla.edu>
>
>This is a longstanding debate between Sandy and I. When I teach Cohen,
I do not (or very rarely) state the words on the jacket.  I follow the
same practice in Pacfica.  Sandy is correct to note that his approach
highlights how the world does not fall apart when the words are uttered.
I confess to thinking that. much as I agree with the result in COHENS,
students in 2009 need no persuasion on that point.  Rather, they may
find a greater learning experience my sense that the constitutionally
permitted words are nevertheless offensive and should not be uttered
unless absolutely vital to the lecture.
>
>MAG
>
>>>> "Sanford Levinson" <SLevinson at law.utexas.edu> 4/7/2009 2:56 PM >>>
>I once gave the Nimmer Lecture at UCLA, published as "The Pedagogy of
>the First Amendment:  Why Teaching About Freedom of Speech Raises
Unique
>(and Perhaps Insurmountable) Problems for Conscientious Teachers and
>their Students," 52 U.C.L.A. LAW REVIEW 1359-1392 (2005) explicating my
>belief that anyone who teaches the First Amendment has a duty to bring
>(alleged) pornography and offensive speech into the classroom in order
>to discuss it seriously.  It began by praising Mel Nimmer for violating
>Chief Justice Burger's entreaty not to describe the facts of the case
>when he was arguing in behalf of Paul Cohen in Cohen v. California.
>Instead, he forthrightly stated that it concerned a jacket that
included
>the words "Fuck the Draft."  Had he "obeyed" Burger, he would have
>conceded California's case that the world would collapse if it was
>uttered in public space.  It didn't.  
>
>As it happens, I've long stopped teaching a course on the First
>Amendment, partly because my interests shifted elsewhere, but also, I
>sadly confess, because I didn't want to face the hassle of living up to
>my convictions as to what "the pedagogy of the First Amendment"
>involves.  Of course, if one adopts Justice Black's view that
everything
>is protected, one presumably doesn't have to confront any instances of
>actual speech and just tell students that "if it's speech, it's
>protected, period."  But no analyst in fact accepts that view, not to
>mention that Justice Black himself thought it was so outrageous that
his
>beloved wife Elizabeth might actually read or hear "fuck" that he
>therefore voted with the dissenters against Cohen.  (Justice Harlan
>apparently thought his wife could withstand the assault.)  .
>
>sandy
>
>
>
>
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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053
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