Fostering Civic Knowledge in Introductory Business Law and Legal Environment Courses: A Closer Look at Freedom of Speech

• DOI: http://doi.org/10.1111/jlse.12075
• Date: 01 June 2018
• Author: Tonia Hap Murphy
• Published date: 01 June 2018

Journal of Legal Studies Education

Volume 35, Issue 2, 195–230, Summer 2018

Fostering Civic Knowledge

in Introductory Business Law

and Legal Environment Courses:

A Closer Look at Freedom of Speech

Tonia Hap Murphy∗

I. INTRODUCTION

In determining course content, legal studies professors are well advised to

take “a managerial approach that is realistic and practical for future busi-

ness practitioners,”1with a focus primarily on “manag[ing] their legal expo-

sures.”2Businesses commonly deal with issues of tort, contract, and employ-

ment law.3Bigger firms navigate antitrust,4corporate, and securities law.5

Manufacturers, agricultural businesses, and construction firms contend with

relevant environmental regulations.6Many businesses are concerned with

∗Teaching Professor, Mendoza College of Business, University of Notre Dame. I thank Patrick

D. Murphy, Thomas M. Messner, and Emily A. Murphy for their helpful comments on this

article.

1Marc Lampe, A New Paradigm for the Teaching of Business Law and Legal EnvironmentClasses,23J.

LEGAL STUD.EDUC. 1, 5 (2006).

2Id. at 7.

3See Marianne Bonner, Five Most Common Lawsuits,THE BALANCE (June 9, 2017),

https://www.thebalance.com/five-most-common-lawsuits-3886658.

4E.g., Heather Kelly, Uber’s Never Ending Stream of Lawsuits, CNN (Aug. 11, 2016, 10:30 AM),

http://money.cnn.com/2016/08/11/technology/uber-lawsuits/index.html.

5See, e.g., Jacob Gershman, Securities Lawsuits Are on the Rise,WALL ST.J.:LAW J. (Jan. 26, 2014,

7:10 PM), https://www.wsj.com/articles/securities-lawsuits-are-on-the-rise-1390781287.

6Laws and Regulations,ENVTL.PROT.AGENCY, https://www.epa.gov/laws-regulations (last visited

Jan. 2, 2018).

C2018 The Author

Journal of Legal Studies Education C2018 Academy of Legal Studies in Business

195

196 Vol. 35 / The Journal of Legal Studies Education

legal protections for their intellectual property.7Professors may thus develop

a long list of substantive topics to cover.

What level of attention should professors devote to constitutional law

topics in an introductory Business Law or Legal Environment course? Only

rarely are businesses actually party to a lawsuit with constitutional implica-

tions.8That fact may tempt professors to move quickly through coverage of

constitutional law to other, more “practical” topics.

This article seeks to persuade professors that constitutional law topics

are worthy of coverage, as our job is not just to prepare students for their

professional roles but also their roles as citizens. Several authors have taken

up constitutional law topics in these pages.9This article contributes to the

literature as it takes a broad look at free speech protections—a particularly

timely and engaging topic in light of landmark Supreme Court rulings in

7Gary G. Grinder, Aggressive IP Enforcement Is a Must,NAT’LL.J. (May 3, 2010), http://www.

nationallawjournal.com/id=1202453202819?id=1202453202819&hbxlogin=1&loginloop=o.

8To be sure, some businesses do become involved in constitutional claims. For example, a

business may benefit from or be the target of the government’s exercise of eminent domain

power. E.g., Beacon Res., Inc. v. W. Va. Dep’t Transp., 777 S.E.2d 619 (W. Va. 2015), cert denied,

136 S. Ct. 1453 (2016). A business may complain of due process violations. E.g., George F. Will,

Theft by the IRS,W

ASH.POST, May 1, 2014, at A17. A business may complain that a state law

violates the dormant commerce clause. E.g., Wal-Mart P.R., Inc. v. Zaragoza-Gomez, 834 F.3d

110 (1st Cir. 2016). A business may argue that its free speech rights have been violated. See,e.g.,

cases cited infra note 108. Due to the absence of state action, businesses generally cannot be

charged with constitutional violations. David Howard, Rethinking State Inaction: An In-Depth Look

at the State Action Doctrine in State and Lower Federal Courts,16C

ONN.PUB.INT. L.J. (forthcoming

2018).

9See,e.g., Rita Marie Cain, Embedded Advertising on Television: Classic Legal Environmentand Business

Law Content “Brought to You by ...,27J.L

EGAL STUD.EDUC. 209 (2010) (exploring levels of

protection for commercial speech); Jennifer L. Chapman, Case Study: Using the Supreme Court’s

Affordable Care Act Decision to Introduce Judicial Review Philosophies in a Legal Environment Course,

30 J. LEGAL STUD.EDUC. 321 (2013) (exploring judicial activism and judicial restraint); Corey

Ciocchetti, Teaching United States v. Windsor: The Defense of Marriage Act and Its Constitutional

Implications,31J.L

EGAL STUD.EDUC. 249 (2014) (discussing case as a complement to coverage

of Equal Protection and Full Faith and Credit clauses); Jeffrey A. Mello, Hate Speech, the First

Amendment and Professional Codes of Conduct: Where to Draw the Line?,25J.L

EGAL STUD.EDUC.1

(2008) (exploring the narrow issue of free speech rights of judges); Susanna Monseau & Nancy

Lasher, It Is Just a Game (of Jews vs. Nazi Beer Pong): A Case Study of Law, Ethics, and Social Media,34J.

LEGAL STUD.EDUC. 241, 251 (2017) (considering high school students’ free speech rights, which

“are more limited than those of the general public” because of schools’ interest in maintaining

discipline); W. Alfred Mukatis, Teaching Business Students Constitutional Law Principles: Simplifying

the Taskwith Diagrams and Flow Char ts,15J.L

EGAL STUD.EDUC. 67, 81–82 (1997) (providing flow

charts depicting levels of protection for political speech, commercial speech, and unprotected

speech).

2018 / A Closer Look at Freedom of Speech 197

June 201710 and much public debate about our civic culture and free speech

after violent protests in Charlottesville, Virginia, Middlebury College, and

elsewhere.11

Part II of this article documents recent widespread calls for universities

to do a better job of preparing students to be informed, active citizens.

Part III reviews best practices for that civic education. Part IV turns to the

role legal studies professors can play in furthering students’ civic knowledge.

Drawing on recent Supreme Court cases, that part describes a short exercise

aimed at helping students understand and reflect on the high level of legal

protection that speech enjoys.

II. CALLS FOR INCREASED ATTENTION TO CIVIC

LITERACY

There is broad consensus among scholars that civic literacy is important.12

Distinguished historian David McCullough stresses “the vital importance

[for young people] of knowing their country’s history.”13 The Carnegie

10See infra Part IV.

11See, e.g., Dana Goldstein, After Charlottesville Violence, Colleges Brace for More Clashes,N.Y.TIMES,

Aug. 16, 2017, at A11; William McGurn, Hurrah for the ACLU,W

ALL ST. J., Aug. 15, 2017, at A13

(noting the ACLU defended rights of extremists to speak, despite criticism, because “the First

Amendment precludes governments from blocking public protests based on their viewpoints,

however loathsome those views may be”); Laurie L. Patton, The Outspoken Campus,W

ALL ST.J.,

June 10, 2017, at C1 (Middlebury president’s account of and reflections on “student demonstra-

tors at Middlebury [who] shut down a speaking event featuring the political scientist Charles

Murray”).

12See, e.g., Wolfgang Althof & Martin W. Berkowitz, Moral Education and Character Education:

Their Relationship and Roles in Citizenship Education,35J.M

ORAL EDUC. 495, 502 (2006) (noting

scholarly consensus that citizens need “disciplinary knowledge” and “deliberative experience

and skills”); William A. Galston, Political Knowledge, Political Engagement, and Civic Education,4

ANN.REV.POL.SCI. 217, 217 (2001) (“Compared with previous generations, scholars today are

more likely to agree that well-designed institutions are not enough, that a well-ordered polity

requires citizens with the appropriate knowledge, skills, and traits of character.”); Walter C.

Parker, Educating Democratic Citizens: A Broad View,40T

HEORY INTO PRAC. 6, 12 (2001) (“Because

democracy is tenuous and unsure, because most democracies are short-lived, because tyrannies

and ethnic strife are not uncommon—for these reasons, the cultivation of democrats is not to

be wished away as a natural byproduct of attending to other things, such as raising scores in

reading and math. Real attention needs to be paid to this—cultivating democratic citizens—and

in several directions at once.”).

13DAVID MCCULLOUGH,THE AMERICAN SPIRIT:WHO WEARE AND WHAT WESTAND FOR xiv

(2017).