on law, life, and 'The Kid'
on Freedom of Expression"
Associate Professor and Communication Department Chairman Dale A.
Beyond the Burning Cross: A Landmark Case of Race, Censorship,
and the First Amendment; The Struggle for Student Rights: Tinker
v. Des Moines and the 1960s; Make No Law: The Sullivan Case and
the First Amendment; Deliberate Intent: A Lawyer Tells the True
Story of Murder by the Book; Jerry Falwell v. Larry Flint:
The First Amendment on Trial.
Associate Professor Dale Herbeck wheels around to face the 11 upperclassmen
in his First Amendment honors seminar--and gives them the finger.
"Was that speech or conduct?" he asks of the crude gesture.
He's in the middle of a lecture on the rhetorical and legal hairs
split by jurists over the years as they've attempted to interpret
a singular phrase in the U.S. Constitution: "Congress shall make
no law . . . abridging the freedom of speech."
"I've spent my entire adult life studying those 10 words," Herbeck
told his students the first day of class. The phrase is "simple,
it's elegant. The problem is, when you look at it, it can't really
mean what it says it means."
Now he's three lessons deep into the semester. He's discussing legal
theorists, from Justice Hugo Black to the Yale University scholar
Thomas Emerson, who have tried to make a distinction between conduct--burning
the U.S. flag or one's draft card, for instance--and speech. "It's
like trying to nail a jellyfish to a wall," he says. Herbeck gamely
joins the quest, revealing the free-speech clause's complexity as
he clarifies its various meanings. He does so in a pedagogical manner
that is itself simple, elegant--and funny.
"This guy is a cartoon character," writes a former student in a
professor evaluation (a PEP in BC parlance). "His physical stature
and use of hand gestures to assist in the relation of topics makes
the class EXTREMELY entertaining." Last year, Herbeck received the
Phi Beta Kappa Teaching Award, a prestigious prize for excellence
in teaching and advising bestowed by the honors society's BC chapter.
Herbeck's avuncular good nature plays well with the students--many
of them aspiring journalists and lawyers--who sign up to take his
courses in cyber and communications law and his seminars on free
speech and political debate. When explaining legal theory, he often
makes the subtleties resonate by telling real stories from his domestic
life, about "The House," "The Wife," and, as
he calls his teenage son, "The Kid." Herbeck whips out
this last protagonist during his introduction to the freedom of
expression seminar. "Does 'no law' really mean 'no law'?"
he asks. He proceeds with a tale (full of asides) of how he disciplines
The Kid when the boy doesn't do his homework. "I don't hit
my kid. Money doesn't work. The big penalty for no homework is no
computer. Now, when I say 'no computer,' I mean 'no fun computer,
no Napster.' "
He pauses, then utters a pet phrase. "Do you kinda follow where
I'm going with this?" All eyes are on him.
He continues. In the First Amendment "does 'no law' mean that
you can't stop hate speech or that you can reveal national security
codes?" What about inciting people to commit a crime, he asks,
or, giving Justice Oliver Wendell Holmes's famous example, falsely
shouting "fire" in a crowded theater?
"Let's go back to The Kid. Did I literally mean 'no computer?'
No. What I meant was, he could use it to type his homework."
What Herbeck has been leading up to is this: Just as his son need
not adhere to a strict translation of his father's command, so the
government need not adhere to a literal reading of the Founding
Fathers' wording, and in fact it does not when, for instance, laws
against the most incendiary forms of hate speech are considered.
Junior Timothy O'Donnell appreciates Herbeck's use of the personal
in class. Herbeck "doesn't confine himself," O'Donnell says. "He'll
bring in his own opinions on current events. Like the other day,
when he said something about [U.S. Supreme Court Justice] Clarence
Thomas being in [Justice Antonin] Scalia's pocket. I may disagree,
but I think it's really cool that he comes out and says it." O'Donnell
adds, "When you feel you know a teacher, you feel more comfortable
speaking and participating and therefore you learn more."
One of Herbeck's more notable characteristics is the way he parses
sentences, as though each were an oral fill-in-the-blank question.
His style was evident during a fall-semester cyber law class exploring
whether computer code qualifies for First Amendment protection.
A court debate centered on whether code was "functional" speech
or "expressive" speech, and what impact functionality or expressivity
had on its protected status. Herbeck explained the distinction like
"I live in suburbia, and there's a lot of huffing and puffing
over who's going to paint The House and what color it's going to
be. To me, paint serves a function; it provides weatherproofing,
keeps the bugs out. It doesn't matter what the color is. The Wife
believes the color of the house ("This is twisted," he
says in mock horror) communicates something about us, that the color
of the house is expressive. If you painted it black it would be_____?
Herbeck offers another example.
"Father Leahy, the president of our college, always wears a _____what?
Yeah, a clerical collar. It symbolizes he is a ______? Religious
professional. The collar is_____? Expressive. How so? If you look
at it, it says priest. The collar telegraphs information about him.
Another way to look at it would be as ______? Purely functional.
He gets up every day, puts it on. It's easy."
Herbeck has a habit of circling back on material, stitching old
points together with new ones, reviewing, reviewing, reviewing even
as he moves onward. In the end, it's almost impossible not to remember
the thought pattern he creates. His engaging, comic manner and patient
delivery are a counterpoint to his rigorous assignments and to the
dense legalese that generally envelops his subjects--as are the lecture
summaries, press clippings, and detailed multipage outlines that
he provides to his students with each lesson. For his free-speech
seminar, Herbeck's students are accountable for five books on First
Amendment cases plus further readings for each class session. In
addition to taking midterm and final exams, students are required
to write a 25-page paper on a contemporary problem involving freedom
of expression, preceded by an annotated bibliography and an outline.
To qualify for the course, they must have achieved honors status
in the department and a grade point average of 3.6.
Herbeck is a native Midwesterner who followed his high school passion
for debating into college and graduate school. He earned his Ph.D.
in communications studies at the University of Iowa while coaching
debate teams there. In 1985, he joined BC's Communication Department,
and for the next nine years was also director of the University's
award-winning Fulton Debating Society. His debater's flair for the
dramatic incorporates a fondness for suspense. One Tuesday morning
in Gasson Hall he delivers an animated 90-minute lecture on the
landmark 1964 New York Times v. Sullivan case, recounting
how the paper was sued for defamation by a Montgomery, Alabama,
police commissioner for publishing an advertisement containing factual
errors. Though Commissioner L. B. Sullivan had not been named in
the ad, he claimed to have been tarred by its false characterization
of Montgomery's law enforcement officials. Herbeck carries the class
to the brink of the newspaper's appeal to the U.S. Supreme Court--and
"Don't you just love these cliff-hanger endings?" he asks as the
students pack up their notes. "What's going to happen next?"
Vicki Sanders is the editor of Boston
College Law Magazine.
She last wrote for BCM
on the "Principles of Modern Chemistry" class in Fall
Associate Professor Dale Herbeck expresses himself. Gary Wayne Gilbert