ON DISSENT
PROFESSOR SKOVER

SPRING 2013

FOCUS OF STUDY

America values dissent. It tolerates, encourages, and protects it. But what is this thing we value? That is a question never asked.

Dissent is treated as a known fact. For all that has been said about dissent -- in books, articles, judicial opinions, and in the popular cutlure -- it is remarkable that no one has devoted much, if any, ink to explaining what dissent is. No one has attempted to sketch its philosophical, linguistic, legal, or cultural meanings and usages.

There is a need to develop some clarity about this phenomenon we call dissent. For not every difference of opinion, symbolic gesture, public activity in opposition to government policy, incitement to direct action, revolutionary effort, or political assassination need be tagged dissent. In essence, we have no conceptual yardstick. It is just that measure of meaning that this seminar explores.

The first half of the course examines several arenas in which First Amendment theories and doctrines historically developed to protect meaningful dissent -- everything from seditious and revolutionary advocacy, to defamation and hate speech, to flag desecration and student protest. The second half of the course focuses on the meaning of the concept of dissent -- what it is and what it is not, which are the key characteristics of dissent and which are not, whether or not dissent can be practiced meaningfully by for-profit corporations as well as non-profit corporations or in aesthetic expressive settings as well as political settings. Recognizing the difference between the concept of dissent and the forms of dissent that are constitutionally protected, the seminar will reveal why there is a functional relationship between dissent and the First Amendment and how forms of meaningful dissent have served in the past and can serve in the present and future as a catalyst to expand the realm of First Amendment speech protections.