Summary to The Fight for Free Speech Ten Cases That Define Our First Amendment Freedoms by Ian Rosenberg

In today’s ever-evolving landscape, the fight for free speech has become more than just a battle of words. It’s a testament to the resilience of the human spirit, a beacon of hope in turbulent times. In Ian Rosenberg’s compelling narrative, [The Fight for Free Speech], readers are plunged into a world where ideas clash, and liberties hang in the balance. Prepare to be captivated by a story of courage, controversy, and the relentless pursuit of truth.

Embark on a journey that will challenge your beliefs, ignite your passions, and reaffirm the importance of defending our fundamental rights. Dive deeper into [The Fight for Free Speech] and join the conversation that shapes our future.

Genres

Non-fiction, Political, Legal, Civil Rights, History, Advocacy, Journalism, Social Commentary, Cultural Critique, Biography

Ian Rosenberg]’s The Fight for Free Speech is a meticulously researched exploration of the ongoing struggle to preserve one of the most fundamental rights in any democratic society: freedom of expression. Through a series of captivating anecdotes and insightful analysis, Rosenberg navigates through the complex web of legal battles, political controversies, and cultural shifts that have shaped the discourse surrounding free speech in the United States.

From landmark court cases to grassroots movements, this book offers a comprehensive overview of the various forces at play in the fight to protect and defend this essential liberty. Whether you’re a seasoned activist or simply curious about the state of free speech in the modern era, The Fight for Free Speech is an indispensable read that sheds light on the challenges and triumphs of safeguarding our constitutional rights.

Review

Ian Rosenberg delivers a thought-provoking and timely examination of the enduring struggle for free speech in The Fight for Free Speech. With a keen eye for detail and a deep understanding of the complexities involved, Rosenberg paints a vivid portrait of a society grappling with the tension between liberty and security, tradition and progress.

By weaving together legal analysis, historical context, and personal narratives, he offers readers a nuanced perspective on an issue that lies at the heart of democratic governance. Engaging, informative, and ultimately inspiring, The Fight for Free Speech is a must-read for anyone interested in the future of democracy and the preservation of our most cherished freedoms.

Recommendation

Media lawyer Ian Rosenberg offers a timely exploration of the legal history of free speech in the United States. Through the stories of 10 Supreme Court cases, Rosenberg illuminates the evolution of Americans’ First Amendment rights to speak, write, protest, criticize, satirize, offend and even remain silent. In engaging prose that is free of legal jargon, Rosenberg captures the drama of these cases and the intense emotions that often played out alongside the legal proceedings. Carefully researched, humane and relevant, Rosenberg’s account brings valuable clarity to a subject of vital importance.

Take-Aways

• US law protects speech that promotes illegal activities, unless imminent harm would result.
• An American citizen has the right to stay silent.
• Members of the media can criticize public figures as long as press reports don’t contain falsehoods, and demonstrate no reckless disregard for the truth.
• Students can protest at school in a nondisruptive manner.
• The media have broad protections to publish sensitive material.
• You have the right to offend in expressing your message.
• Broadcast networks are restricted in what they can say.
• The First Amendment protects parodies of public figures, even if these depictions cause emotional distress.
• Hateful speech about public issues in public places is protected.
• Social media is a public forum that citizens have the right to use.

Summary

US law protects speech that promotes illegal activities, unless imminent harm would result.

Speech that advocates illegal action but is unlikely to cause imminent harm is protected. The reason traces back to the 1919 Supreme Court case Abrams v. United States. In 1918, Jacob Abrams, Mollie Steimer and four fellow anarchists published leaflets calling for a general strike to protest the United States sending troops to Russia – an effort, the anarchists believed, to quash the Bolshevik revolution there. Although they issued the material anonymously, they were eventually caught, arrested and charged with publishing material critical of the US government and meant to cause resistance to the war.They lost the initial trial – Steimer was given 15 years in jail; Abrams and the other men, 20 years – but they took their case to the US Supreme Court.

“Grappling with the marketplace of ideas is vital for both those who seek to support our country’s current approach to free speech and for those who wish to change it.”

The Court still ruled in favor of the United States, upholding the convictions.However, Justice Oliver Wendell Holmes Jr. wrote a famous dissent that profoundly shaped free speech rights. Holmes argued that the government should only restrict the right to free speech when there’s a “present danger of immediate evil or an intent to bring it about.”This gave rise to the notion that the free exchange of ideas is the best way to arrive at the truth.This marketplace of ideas metaphor, though flawed, influenced subsequent Supreme Court cases that led to more robust protections for speech.

An American citizen has the right to stay silent.

The government can’t compel you to speak, thanks to the 1943 West Virginia State Board of Education v. Barnette case. In the early 1940s, two children, Marie and Gathie Barnett (whose surname was misspelled in the litigation), who were Jehovah’s Witnesses, refused to salute the American flag at school because, according to Marie, they didn’t believe in worshipping it. Shortly before that, West Virginia had passed a mandatory flag salute resolution, so Marie and Gathie were expelled. A lawyer brought the case to federal court and won. However, West Virginia appealed, and the matter reached the Supreme Court.

“If the United States Supreme Court could bring itself to support the free speech of flag dissenters during the dark days of World War II, we can still follow its lead in today’s unsettled times.”

The Supreme Court ruled in favor of the Barnetts. Justice Robert Jackson argued in his majority opinion that just as citizens have a right to speak, they also have a right not to speak. By forcing the Barnetts to say the pledge, West Virginia compelled them to express things not in their minds, and this infringed on their right to remain silent – a right inherent in free speech and recognized here for the first time.The ruling made West Virginia’s mandatory flag salutes unenforceable.

Members of the media can criticize public figures as long as press reports don’t contain falsehoods, and demonstrate no reckless disregard for the truth.

The law protects people who make an honest mistake when criticizing public figures, as a result of the 1964 case New York Times Company v. Sullivan. In 1960, The New York Times published a full-page ad written by civil rights activists highlighting their support for nonviolent protests, condemning government actions against those protests and seeking donations to aid the legal defense of Dr. Martin Luther King Jr.The ad didn’t name specific officials taking action against civil rights protestors, but the Montgomery, Alabama, city commissioner L.B. Sullivan brought a libel suit against the Times, arguing that the ad accused him of “grave misconduct” and “improper actions.” Sullivan and other public figures who filed similar cases against the newspaper won initial victories, but the Times appealed to the Supreme Court.

“What actual malice really means is that journalists need not be infallible, but they can’t make stuff up…and they also can’t ignore the truth or contradictory information.”

The Supreme Court unanimously ruled in favor of The New York Times.In his majority opinion, Justice William Brennan argued that free speech and press required “uninhibited, robust and wide-open” debate on public issues, which would inevitably sometimes lead to erroneous statements. Those statements should be protected, Brennan argued, to preserve citizens’ ability to criticize public officials.For libel suits to be justified, they need to meet an “actual malice” standard, showing that the erroneous statements were either knowingly false or exhibited reckless disregard for the truth.

Students can protest at school in a nondisruptive manner.

Students have the right to protest in a nondisruptive way due to the 1969 case Tinker v. Des Moines Independent Community School District. In 1965, 13-year-old Mary Beth Tinker wore a black armband to school to protest the Vietnam War. She was suspended for violating the school’s prohibition on armbands.Tinker’s case went to federal court, where she lost.Although wearing the armband was a symbolic act protected by the First Amendment, Chief Judge Stephenson of the District Court for the Southern District of Iowa held that the armband prohibition was reasonable to ensure classroom discipline. Tinker went to the Supreme Court.

“It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” (Justice Abraham Fortas)

The Supreme Court ruled in Tinker’s favor. Justice Abe Fortas, writing for the majority, argued that schools can’t infringe on students’ First Amendment rights to free speech and expression without proving a “reasonable forecast of substantial disruption.” School authorities must point to something beyond a simple fear of disturbance and show that the speech or expression is likely to cause substantial disruption. Minor disturbances are a risk that societies must face to remain open.

The media have broad protections to publish sensitive material.

Media companies may publish sensitive material without being stopped, thanks to the 1971 Supreme Court case New York Times Company v. United States. In 1971, The New York Times published several articles about the Pentagon Papers, a 7,000-page top-secret document detailing American involvement in Vietnam from the 1940s to the 1960s.Shortly after that, the US government filed a temporary restraining order to halt further publication, arguing that it posed irreparable harm to the nation’s security.The case went to the Supreme Court.

“In revealing the workings of government that led to the Vietnam War, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.” (Justice Hugo Black)

The Supreme Court sided with The New York Times in a 6-3 decision. Justice Potter Stewart argued that the government’s use of prior restraint – the prevention of speech before it occurs – was unjustified because it couldn’t prove that the publication of the material would “surely result in direct, immediate and irreparable damage to our Nation or its people.” This phrase came to serve as the legal test for cases in which the media publish sensitive material.

You have the right to offend in expressing your message.

Even if your language is considered offensive, you may use it to communicate your message, thanks to the 1971 Supreme Court ruling in Cohen v. California. In 1968, Paul Robert Cohen wore a jacket that bore the words “F*ck the Draft” as he entered a Los Angeles County courthouse to testify as a defense witness in a misdemeanor trial. He was arrested and sentenced to 30 days in jail for disturbing the peace. The California Court of Appeals upheld the conviction, and Cohen appealed to the Supreme Court.

“Offensive speech, including but not limited to curse words, is as fully entitled to First Amendment protection as any other speech.”

The Supreme Court ruled 5-4 in Cohen’s favor, reversing his conviction.In his majority opinion, Justice John Harlan argued that California had censored Cohen’s speech. Offensive words have a certain emotive power that shouldn’t be criminalized, Harlan wrote, and trying to ban words could all too easily lend itself to banning unpopular ideas by targeting those words.

Broadcast networks are restricted in what they can say.

Broadcast radio and television don’t have the right to use profanities, due to the 1978 FCC v. Pacifica Foundation ruling. In 1973, a Pacifica Network radio station played comedian George Carlin’s “Filthy Words” routine in the afternoon during a show about the power of language. Carlin’s routine was a variation of his infamous “Seven Words You Can Never Say on Television,” which questioned and satirized Americans’ attitudes toward certain taboo words. After the show, the Federal Communications Commission (FCC) received a complaint from one listener, leading the agency to declare Carlin’s language indecent when broadcast at a time when kids might hear it. The FCC has the power to restrict broadcasted material and to issue warnings, impose fines, and revoke a broadcaster’s license to operate.

“We can’t hope to keep our democracy alive if citizens remain uninformed of our First Amendment rights and history.”

Pacifica took the FCC to court and won. The FCC appealed to the Supreme Court, which found in favor of the FCC. Justice John Paul Stevens wrote the opinion, stating the FCC could restrict the broadcast of indecent speech for two reasons: First, the broadcast medium is unique. Its pervasive presence in both public and private places makes it hard to shield citizens from its impact, and broadcasters can’t escape responsibility by warning listeners of upcoming material that might offend. Second, protecting children can necessitate restrictions on what is broadcast.

The First Amendment protects parodies of public figures, even if these depictions cause emotional distress.

You have a right to parody public figures even if it causes them emotional distress, thanks to the 1988 case Hustler Magazine Inc. v. Falwell. In 1983, Hustler published a fake ad depicting Jerry Falwell, a televangelist, talking about committing incest with his mother while drinking liquor. In fine print under the fake ad, it read “Ad parody – not to be taken seriously.”Falwell sued Larry Flynt, the publisher of Hustler, for libel and emotional distress.The jury dismissed the libel claim but awarded Falwell $200,000 for emotional distress.Both appealed, and the Supreme Court heard the case.

“Mockery, caricature and ridicule are the price that all public figures pay to keep America’s most outlandish ideas freely flowing.”

The Supreme Court ruled unanimously in favor of Hustler. Chief Justice William Rehnquist’s opinion stated that public figures cannot recover damages for emotional harm caused by parody. He argued that criticism – including unpleasant and unrefined forms of parody – has played, and continues to play, a crucial role in social and political discourse, and that it merits protection.However, if a parody includes false statements of fact that meet the actual malice test, then public figures can sue for damages.

Hateful speech about public issues uttered in public places is protected.

The First Amendment fully protects hate speech when it occurs in public places about matters of public concern, as a result of the 2010 case Snyder v. Phelps. In 2006, the Westboro Baptist Church, founded and led by Fred Phelps, picketed outside the funeral of Matthew Snyder, a 20-year-old soldier who had died in Iraq. They stood about 1,000 feet away on public land while holding signs that read “Thank God for Dead Soldiers” alongside anti-homosexual and anti-Catholic signs.Albert Snyder, Matthew’s father, sued Phelps and the church for claims that included intentional infliction of emotional distress. Initially Snyder won, but Phelps appealed, and the case went to the Supreme Court.

“The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” (Justice John Roberts)

The Supreme Court decided for Phelps and the Westboro Baptist Church.In his opinion, Chief Justice John Roberts argued that the church’s signs, although offensive, expressed their position on issues of public concern such as moral standards, clergy scandals and homosexuality in the military. Furthermore, they expressed those views while on public land without physically interfering with Snyder’s private funeral. Even if some signs singled out Matthew Snyder and certainly caused Albert Snyder emotional distress, Roberts held that, on the whole, the church’s speech addressed broad public concerns and thus warranted protection.

Social media is a public forum that citizens have the right to use.

You have the right to engage with social media as a public forum due to the 2017 Packingham v. North Carolina ruling. In 2010, Lester Gerard Packingham, a registered sex offender, posted on Facebook that he was excited to have beaten a traffic ticket. That post revealed to local police that Packingham had been violating a North Carolina law prohibiting sex offenders from accessing social media sites that have members who are minors. Packingham was found guilty. He appealed, and the case reached the Supreme Court.

“A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” (Justice Anthony Kennedy)

The Supreme Court unanimously sided with Packingham.Justice Anthony Kennedy wrote the opinion, arguing that cyberspace in general and social media in particular are today’s primary public forums. Every US governor and senator uses social media, as does the president. The restriction of Packingham’s ability to express his views, receive information and engage in the marketplace of ideas taking place on social media violated his First Amendment rights.The Supreme Court recognized North Carolina’s right to safeguard children from abuse but held that the state law was too broad in its restriction of all access to social media. The Court suggested a more precise and targeted approach.

About the Author

Ian Rosenberg is a media lawyer and professor who provides ABC News clients with pre-broadcast counsel on issues such as libel, intellectual property rights, FCC regulations and more.