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Figure of Speech
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Lectures on law, life, and 'The Kid'

4 Photographs of Dale A Herbeck CLASS #CO445:
"Seminar on Freedom of Expression"

INSTRUCTOR:
Associate Professor and Communication Department Chairman Dale A. Herbeck

READINGS:
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 this:

"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_____? Unfriendly."

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 stops.

"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

Vicki Sanders is the editor of Boston College Law Magazine. She last wrote for BCM on the "Principles of Modern Chemistry" class in Fall 2000.

Photo: Associate Professor Dale Herbeck expresses himself. Gary Wayne Gilbert

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