The Fight for Free Speech: Ten Cases That Define Our First Amendment Freedoms

by Ian Rosenberg

Overview

A user’s guide to understanding contemporary free speech issues in the United States

Americans today are confronted by a barrage of questions relating to their free speech freedoms. What are libel laws, and do they need to be changed to stop the press from lying? Does Colin Kaepernick have the right to take a knee? Can Saturday Night Live be punished for parody? While citizens are grappling with these questions, they generally have nowhere to turn to learn about the extent of their First Amendment rights.

The Fight for Free Speech answers this call with an accessible, engaging user’s guide to free speech. Media lawyer Ian Rosenberg distills the spectrum of free speech law down to ten critical issues. Each chapter in this book focuses on a contemporary free speech question—from student walkouts for gun safety to Samantha Bee’s expletives, from Nazis marching in Charlottesville to the muting of adult film star Stormy Daniels— and then identifies, unpacks, and explains the key Supreme Court case that provides the answers. Together these fascinating stories create a practical framework for understanding where our free speech protections originated and how they can develop in the future. As people on all sides of the political spectrum are demanding their right to speak and be heard, The Fight for Free Speech is a handbook for combating authoritarianism, protecting our democracy, and bringing an understanding of free speech law to all.

Product Details

ISBN-13:	9781479801565
Publisher:	New York University Press
Publication date:	02/09/2021
Pages:	312
Sales rank:	1,082,713
Product dimensions:	6.20(w) x 9.10(h) x 1.40(d)

About the Author

Ian Rosenberg is Assistant Chief Counsel at ABC, Inc., where he has provided pre-broadcast counsel for ABC News clients on libel, newsgathering, intellectual property, and FCC regulatory issues since 2003. He is also an Emmy-nominated documentary filmmaker and teaches media law at Brooklyn College.

Table of Contents

Introduction 1

1 The Women's March and the Marketplace of Ideas 5

2 Take a Knee and the Pledge of Allegiance 26

3 Libel, Actual Malice, and the Civil Rights Movement 55

4 Student Speech from the Vietnam War to the National School Walkout 74

5 Stormy Daniels, Prior Restraints, and the Pentagon Papers 93

6 Flipping Off the President and Fuck the Draft 111

7 Samantha Bee, Seven Dirty Words, and Indecency 124

8 Saturday Night Live, Hustler, and the Power of Parody 138

9 Nazis in Charlottesville, Funeral Protests, and Speakers We Hate 160

10 Social Media and the "Vast Democratic Forums of the Internet" 182

Afterword 197

Acknowledgments 201

Notes 203

Index 283

About the Author 299

Editorial Reviews

Ian Rosenberg’s riveting portrayal of ten of the Supreme Court’s leading free speech cases is a page-turner! The Fight for Free Speech tells the gripping, behind-the-scenes stories of those whose visions and passion paved the way for their causes to be heard before our country’s High Court.

Hon. Frederic Block

Using recent controversies about free expression as his starting point, Ian Rosenberg introduces general readers to classic problems that have defined the constitutional contours of freedom of expression. You don’t need a legal background to learn a great deal from The Fight for Free Speech.

Mark Tushnet

The Fight for Free Speech is an accessible but learned survey of the concepts upon which the Constitutional right to free speech rests. Its 10 chapters weave fascinating narratives about the people who stood up for free speech and the Supreme Court Justices who have struggled to understand how and where to delineate the lines that separate this precious freedom from behavior and language that can be prohibited. Rosenberg explores and contextualizes the signature tropes of free speech discourse including the market place of ideas, shouting fire in a crowded theater, rights that don’t stop at the schoolhouse door, prior restraint, the right to parody and hate speech in order to make our ongoing discourse more careful and accurate. The book is a perfect text for college courses in a variety of fields, including history, government, communication, and politics. It is also a challenging book for AP high school classes. Rosenberg beautifully combines the legal discussions with stories of contemporary examples, and leaves plenty of space to add new examples that will surely present themselves on a regular basis. It is guaranteed to start a discussion!

Randall Iden

This book should be required reading for all engaged citizens. My colleague Ian Rosenberg puts vital information about the law in crisp, comprehensible language. You get a tour through history and a primer on your rights in this eminently useful and readable book.

Dan Harris

The Fight for Free Speech is a wonderful guide to our free speech rights, serving as an engaging introduction for all readers, and as an illuminating source of insights even for those with expertise in First Amendment law.

Nadine Strossen

"The Fight for Free speech is a must read for anyone, of any age, to understand the stakes for the amendment America’s founders chose to put first, because without it representative democracy dies aborning. The magic of this book is that it is written with the clarity, concision and dynamism vital to make its lessons stick. It is simply a great read, and a powerful one."

Brooke Gladstone

"The Fight For Free Speech is as clear as its title. In choosing ten areas of enormous conflict with respect to the scope of free expression and describing cases as to each in a manner that the widest range of readers can both understand and enjoy, Ian Rosenberg has done us all a great service. That this book should be released at a time when the First Amendment is under sustained attack makes it all the more valuable."

Floyd Abrams

"Anyone who reads this book will come away with a solid understanding of the dilemmas of free speech law. Readers with no legal training will gain a huge and valuable insight into the complexities of free speech law. This book ought to be required reading for all political leaders..."

Los Angeles Review of Books

"The past greets the present in Ian Rosenberg’s captivating free speech stories. These true-to-life accounts invite readers to reflect on the value of liberty and the price of freedom. Rosenberg’s revealing narratives, based on ten seminal cases, are crafted with the finesse of a gifted writer combined with the acumen of a learned lawyer. Forceful yet thoughtful, credible yet concise, historical yet modern, engaging yet erudite — they all tumble together in The Fight for Free Speech, a mind-opening book aptly fit for our times."

Ronald K.L. Collins

"With verve and aplomb,The Fight for Free Speech reveals actual free speech conflicts on the ground along with the basic First Amendment law they engendered. It is a gift for citizenship."

Donald A. Downs

01/01/2021

Media attorney Rosenberg offers an accessible explanation of the right to free speech, chronicling recent news accounts that involve the First Amendment, then describing relevant Supreme Court cases. At the Women's March of 2017, Madonna stated that she had thought about blowing up the White House. Though she was legally entitled to say so, Rosenberg notes that a century ago, she would have been arrested; Abrams v. United States in 1919 upheld the conviction of Russian Jewish anarchists who had distributed anti-U.S. leaflets. Parkland students were able to organize a nationwide student walkout in part because of Tinker v. Des Moines, which in 1969 recognized high school students' rights to protest the Vietnam War by wearing black armbands. Tackling everything from former NFL player Colin Kaepernick's decision to kneel during the national anthem to the Westboro Baptist Church's picketing of funerals of gay people, the author provides ample historical context. VERDICT Rosenberg presents challenging, provocative material in an engaging manner that will have readers pondering these issues. Anyone interested in the history of free speech and the Supreme Court will enjoy this extensively researched book.—Karen Sandlin Silverman, Mt. Ararat Middle Sch., Topsham, ME

Library Journal

★ 2020-11-18
A deep dive into 10 precedent-setting legal actions that helped define the scope—and limits—of the First Amendment.

“Most of my career has focused on explaining complicated legal concepts to smart people who are not lawyers,” writes media lawyer Rosenberg. His approach is admirably free of legal locutions, though his discussions of some concepts are subtle. Consider two cases that formed the precedent for whether a government can compel expression regarding the Pledge of Allegiance—which, until 1942, was accompanied by a salute uncomfortably like that of the Nazis. Religious in origin, the objections to reciting the pledge came from Christians who believed that to do so would be to worship a graven image. The Supreme Court eventually agreed, though it has remained reticent on the question of whether municipalities and other governments can compel a person to sing the national anthem. Situated within the same general legal domain are such matters as former NFL quarterback Colin Kaepernick’s habit of taking a knee during the anthem to protest police brutality, which excited angry commentary from the Trump administration, some of whose principals have demanded overhauling libel laws to suppress criticism. That’s unlikely to happen given the court’s widespread acceptance of the argument, advanced by Oliver Wendell Holmes Jr., that “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” This broad interpretation allowed Madonna to muse about blowing up the White House when Trump took office, just as it protected students prosecuted in the 1960s for their slogan “Fuck the draft.” The toughest nut in the book is the dividing line between hate speech and free speech, a discussion that anyone in media and legal circles will want to study closely.

Essential reading for journalists, political activists, and ordinary citizens alike.

Kirkus Reviews