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

309 Pages
Publisher: NYU Press
Release Date: February 9, 2021

Nonfiction (Adult), Politics, Political, Government, Freedom

The book is divided into the following chapters.

Chapter 1: The Women’s March and the marketplace of Ideas
Chapter 2: Take a Knee and the Pledge of Allegiance
Chapter 3: Libel, Actual Malice, and the Civil Rights Movement
Chapter 4: Student Speech from the Vietnam War to the National School Walkout
Chapter 5: Stormy Daniels, Prior Restraints, and the Pentagon Papers
Chapter 6: Flipping Off the President and Fuck the Draft
Chapter 7: Samantha Bee, Seven Dirty Words, and Indecency
Chapter 8: Saturday Night Live, Hustler, and the Power of Parody
Chapter 9: Nazis in Charlottesville, Funeral Protests, and Speakers We Hate
Chapter 10: Social Media and the “Vast Democratic Forums of the Internet”

The author goes into detail explaining the history behind the first amendment. He also discusses the many decisions by the Supreme Court and how those decisions affected people. Some of the information was new to me, for example the salute that was originally used with the pledge of allegiance was like the German salute. It is important to realize freedom of speech includes the right to protest but does not include censorship.

This book is a must read. The author has an easy-to-read writing style. I would recommend this book to anyone that is interested in American politics or people’s rights.

So I feel guilty that I haven't rated and reviewed this yet because I've really enjoyed what I've read so far. Please be aware that I'm only around 50%-60% of the way through this, so I'm preemptively giving it five stars without having finished it yet. I plan to come back when I'm done and leave a full review and adjust my star rating if I need to, but it's five stars for me so far.

My main feedback so far is that I feel like I'm learning a lot from this book but I don't need a law degree to understand it. I wrote in my notes that it's "accessible, without being overly simplistic" which is what I look for in a book like this. It's not hard for me to grasp the ideas and concepts being presented because it's not being delivered with a bunch of jargon I don't understand, but it's not so dumbed down that I'm bored. I think Ian Rosenberg is a good teacher and I absolutely plan to finish it and come back to do a complete review as soon as I can.

An excellent resource for anyone interested in America's unique approach to free speech and how our Supreme Court has shaped it.

An excellent summary of ten of the most important legal cases that bear on First Amendment issues and free speech, updated by a tie-in with recent events. And fascinating to see how society's perceptions of free speech have changed over the years.

Rosenberg's style is clear, with illuminating remarks from the Supreme Court justices made during these trials. The original cases, their history and their legal machinations are compelling all by themselves. But when you relate them to current social upheavals it becomes even more interesting. Discussed: Colin Kaepernick, political parody on Saturday Night Live, social media, the rights of protesters, and Stormy Daniels among others.

This book was immensely readable, especially considering how critical its content is. Thanks to the publisher and to Net Galley for providing me with an ARC in exchange for my honest review. Highly recommended.

I have taught First Amendment courses as related to public libraries, and I would certaiinly include this book in the syllabus.. It would replace some of Anthony Lewis' great but dated books on the topic.

The Fight for Free Speech is special. First, the background of the landmark First Amendment cases is given. For example, the Gobitas case over the Pledge of Allegiance, is tied to how the children in a small town are affected by the decision. And then Rosenburg ties the Gobitas case to Colin Kaepernick's taking the knee at football games. That is the strength of this book==that contemporary college students (and even AP high school students) can read this book and generate discussions. He also presents an important chapter on the Charlottesville case and puts it into context. The same with the Westboro Baptist Church case, which was so misunderstood by the general public.

Rosenburg clarifies that the First Amendment does not usually apply to private companies like Facebook (for example). He does so with a remarkable absence of legal jargon and complex arguments. It is interesting to find how current Supreme Court justices ruled on particular cases. Highly recommended! A great read!

First and foremost, a large thank you to NetGalley, Ian Rosenberg, and NYU Press for providing me with a copy of this publication, which allows me to provide you with an unbiased review.

When it comes to discussions surrounding free speech, Americans look to the First Amendment to their constitution to protect themselves. Ian Rosenberg explores the nuances and elasticity of this part of the US Constitution to show just how versatile it can be, as well as how it has been used and adjudicated over the last number of years. Free speech and expression is surely a hot button issue today, not only in America, and Rosenberg does a masterful job of presenting key legal arguments in lay terms, such that anyone can easily understand and process the topic, should they choose.

Ian Rosenberg has a legal background and has used some of the more recent goings-on in America to explore they hot button issue of free speech and how it came to be defined. He chose ten recent situations, from Madonna’s outburst that she would like to blow up the White House to Colin Kaepernick’s ‘taking a knee’ during the American anthem, as well as a woman offering President Trump a ‘friendly finger’ while jogging to the Complainer-in-Chief vowing to sue for libel when the late-night shows speak poorly about him. These are all highly intriguing issues and worth a deeper look.

Rosenberg does not only dissect the current issues and put them into context, but looks back in time to see what major legal battles occurred to permit (or limit) the various forms of free speech in America. Rosenberg effectively presents the full story of each case before delving into the legal battles that led to historic decisions that shape First Amendment use in America today. Some issues turned out I would have expected, while others were surely cloaked in historical context, such as US patriotism during the Second World War or Vietnam. In all ten instances, a thorough exploration of the legal and societal matters provides a wonderful narrative for those who may not be professionally or scholastically well-versed in all the minutiae.

Using twenty legal vignettes over ten chapters, Rosenberg tells of the various uses of the First Amendment, from its wide interpretation in some regards to strict interpretation in the highest American court. There were some highly humorous aspects, particularly when the ‘stuffy shirt’ Justices heard the case of a man protesting the Vietnam War with ‘Fuck the Draft’ on his jacket. What some would call the most basic right of a free and democratic country is not as black and white as it might seen. That being said, Rosenberg makes it easy to comprehend and keeps the reader engaged throughout. His extensive use of endnotes, while sometimes appearing overbearing, shows that he is determined to provide the most detailed information possible, relying on many outside sources. Yet, the writing is clear and easy to digest, making the book much more relatable for the lay person. There are countless revelations throughout and a handful of ‘aha’ moments that showed me that I am not as knowledgeable as I might have thought. This pleases me to no end, as I love to learn new things about topics that appeal to me.

Kudos, Mr. Rosenberg, for a well-paced book that stirs up the political, legal, and societal arguments around expression in all its forms. I will keep an eye out for more of your writing in the coming months.

This book discusses the concept of free speech and its application/approach from current situations and Supreme court cases. I actually found learning about past cases and their rulings more interesting than current issues. I am fairly familiar with free speech and the first Ammendment and how it applies versus when it does not. I did find I learned a lot about free speech and the Vietnam war, since that was before my time. Thanks to the publisher and Netgalley for an ARC in exchange for an unbiased review.

I have used parts of this book in my AP Government class that I teach. It is important to give students things to read other than the textbook. Well done.

A great book which, like justice and science, has a liberal bias.

I want to remember a lot of things in this book. Below is a list of them, in lieu of a review, along where they occur in the book. There are some important points in this book that I will not write about because they are not things which I specifically wish to remember with greater clarity.

The chapters follow a similar pattern: A Trump-era free-speech related controversy frames the narrative, and one or more Supreme Court decision of older vintage is invoked to explain the rights that citizens now protected by – or in some cases not protected by.

Introduction: “Contrary to the prevailing opinion in law schools, everyone can have a practical working knowledge of free speech law” (Kindle location 32).

1/ The Women's March and the Marketplace of Ideas: In a March 2017 interview, pop singer Madonna said: “I have thought an awful lot about blowing up the White House.” Former House speaker Newt Gingrich said on TV said Madonna “ought to be arrested” (l. 75), wrongly, because Madonna's speech was protected by the First Amendment. It is protected, according to the author (paraphrasing a quotation from the US Supreme Court decision in case called Brandenburg v. Ohio), “… only speech advocating illegal conduct that is directed and likely to trigger imminent illegal action is not protected by the First Amendment” (l. 300).

During the vigorous and entertaining description of the long judicial road to Madonna enjoying this high level of Constitutional protection, author Ian Rosenberg goes off on an entertaining tangent about the rampant misuse of the figure of speech employed by Supreme Court justice Oliver Wendell Holmes, Jr., in a 1919 judicial dissent: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Rosenberg writes, “Like a zombie, Holmes's metaphor continues to lumber on to our present day, stalking free speech wherever it goes, in the guise of university accepted wisdom” (l. 202). Rosenberg then notes that most of those who invoke this quotation leave out the word “falsely” and the phrase “and causing a panic”, which are vital to the determination that a particular speech act is not protected by the First Amendment. Rosenberg concludes: “(If you, dear reader, take away nothing else from this book, please go forth and flaunt your knowledge of how to use this adage properly from now on.)” (l. 207).

Tangent on a tangent: Read another convincing call to retire “fire in a crowded theater” from public discourse here.

2/ Take a Knee and the Pledge of Allegiance: “On May 23, 2018, [the Commissioner of the National Football League] announced a new policy that explicitly required players to 'stand and show respect for the flag and the [National] Anthem,' but stated that those who 'choose not to stand… may stay in the locker room or in a similar location off the field until after the Anthem has been performed” (l. 410).

“… But was that policy actually a violation of the NFL players' First Amendment rights? A short, but incomplete, answer is no, because the First Amendment only applies to efforts by the government to restrict speech.” (l. 421). Quoting a law school dean: “Private employers can fire employees for their speech without having to worry about the First Amendment.”

The chapter turns to compelling school children to stand for the Pledge of Allegiance. “… [T]he issue is not about seeking a religious excuse to skip the Pledge, but rather recognizing that the government has no right to force students to say the Pledge in the first place … [S]ince the First Amendment protects the right to speak, it must also protect the right not to speak” (l. 606).

Quoting the Supreme Court decision which allowed student not to participate in the Pledge: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy” (l. 611).

3/ Libel, Actual Malice, and the Civil Rights Movement: President Trump has repeatedly declared that he wished to change libel law so it was easier to sue and win damages. It looks at this writing that he will exit the White House without having done so. But can politicians change libel law? Richard Nixon tasked the Justice Department to do exactly that, but he resigned before any serious headway was made on the project. Trump, as far as we know now, didn't even get that far. So, I guess, the answer is yes, they can change libel law. I'm sure that writing a law that would pass judicial challenge would be very difficult.

4/ Student Speech from the Vietnam War to the National School Walkout: Another chapter about the extent to which children in school have first amendment rights. Chapter two about established the right NOT to participate in certain activities, this chapter talks about the “affirmative right to advance their own opinions” (l. 1089).

A Supreme Court decision from the Vietnam War era said: “In the absence of a specific showing of constitutionally valid reasons to regulate speech, students are entitled to freedom of expression of their views” (l. 1166).

Author Rosenberg later says, “In three subsequent cases from the 1980s to 2007, the Supreme Court granted school officials greater authority to restrict student expression in specific contexts” (l. 1195). However, according to a professor of law, students “continue to possess the right to express themselves in schools, even if educators do not support their messages” (l. 1200).

So today, Rosenberg says, “...students can wear armbands, or buttons, to protest gun violence, draw attention to gun safety law and mourn the dead, as long as it would not reasonably lead to a substantial disruption in school… “ but “… walking out of class during the school day, for any reason … is a different story” (l. 1205). Schools can discipline students for walking out of class …. “[b]ut what the school can't do is discipline students more harshly because they are walking out to express a political view…” (l. 1210).

5/ Stormy Daniels, Prior Restraints, and the Pentagon Papers: From a pre-Supreme Court judicial decision about the Pentagon Papers: “If there be some embarrassment to the Government … that glows from any security breach we must learn to live with it. The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions” (l. 1332).

''… [P]rior restraints are 'just not a weapon in the arsenal' of presidents, thanks to the Pentagon Papers” (l. 1430).

Daniels signed a non-disclosure agreement (NDA), which Team Trump tried to enforce. Daniels went public anyway, breaking her agreement and rendering the court case moot. So far Daniels has not suffered any loss of liberty or property as a result, and seems unlikely to do so in the future.

6/ Flipping Off the President and Fuck the Draft: The bicyclist who was photographed flipping off President Trump's motorcade is today (December 2020) a member of the Board of Supervisors of Loudoun County, Virginia. She defeated a Trump supporter with 52 percent of the vote.

After the photograph was republished widely on the internet, Briskman informed her employer, a US government contractor, that she was the woman in the photo. The next day, she was fired. Her dismissal was legal because, as noted in Chapter 2 above, the First Amendment doesn't protect people against the acts of private employers.

7/ Samantha Bee, Seven Dirty Words, and Indecency: Bee, the host of a cable TV program called “Full Frontal”, called Ivanka Trump a rude name during a May 2018 program. Bee escaped censure and punishment because she is on cable television, and therefore not subject to US government indecency standards. Given the changes that technology has caused, this seems a little ridiculous. “Does anyone today really distinguish between “cable” and “broadcast” television when thinking about the content of what they are watching? (When I first tried to explain to my young children that I worked for a broadcast television network, their response was 'Is that like Netflix or on-demand?') ” (l. 1820).

8/ Saturday Night Live, Hustler, and the Power of Parody: Saturday Night Live (SNL) parodies Trump ceaselessly. Trump suggested on Twitter that the US government could be used to punished SNL. Can a public figure sue for damages because of hurt feelings? Of course not. Evangelical preacher Jerry Falwell tried to sue the publisher of a pornographic magazine for this reason, and failed. Strangely, Falwell and the pornographer later became friends.

9/ Nazis in Charlottesville, Funeral Protests, and Speakers We Hate: As I was preparing to write this, a news article came to my attention which continues the story (told in this chapter) of the conflict between Jason Kessler, a self-described “white advocate” and organizer of a “Unite the Right!” rally that degenerated into violence, and the city of Charlottesville, Virginia, where the rally took place. Read the article here.

Q. Is “hate speech” constitutionally protected?
A. Yes, “… the [Supreme] Court is committed to a First Amendment theory of government neutrality in order to protect all speech at the time it is threatened” (l. 2383).

10/ Social Media and the “Vast Democratic Forums of the Internet”: “To comprehend how we can begin to approach free speech questions involving social media, we need first to ask how the First Amendment applies to restrictions on internet speech. For the Supreme Court, the answer would turn on how much cyberspace is like a public park” (l. 2460).

One more time: “… since Facebook, Twitter, and YouTube are not government actors, they can abridge the freedom of speech all they want” (l. 2575).

“… [S]ocial media platforms (along with other internet providers) are immune by federal statue from liability for anything their users post. This blanket protection from liability comes from Section 230 of the Communications Decency Act…” (l. 2581).

Less than a week ago, President Trump threatened to veto a defense spending bill if it did not include a repeal of Section 230.

“...[I]s social media somehow so different that it should be treated as exceptional, a type of speech that can be more directly regulated in ways that the press is not?” (l. 2595).

“...[T]his debate demonstrates that how we frame future social media free speech controversies can determine how such questions are decided” (l. 2596).

Afterword: “… [H]ere is a list of the ten cases presented in this book distilled to their essence …

• Right to Advocate for Illegal Action (Unless It Likely Causes Imminent Harm)
• Right Not to Speakers
• Right to Criticize Public Figures and Make Mistakes
• Right to Non-disruptive Protest in School
• Right to Offend
• Right to Publish without Being Stopped
• No Right to Curse on Broadcast Television and Radio
• Right to Parody
• Right to Espouse Thought We Hate
• Right to Use Social Media as a Public Forum...

… here are my recommended maxims, drawing the principles behind these rights we have come to know well:

Protect Dissent
Defend the Press
Resist Government Speech Restrictions
Expand the Marketplace of Ideas
Allow Speakers to Express Messages How They Choose" (l. 2618-22)

I received a free advanced review copy of this book from New York University Press via Netgalley. Thanks to both parties for their generosity.

Ian Roseberg’s new book, “The Fight for Free Speech: Ten Cases That Define Our First Amendment Freedoms”, which is due out in February is a wonderful guide to help the average citizen understand their First Amendment freedoms that the US Constitution affords them. Rosenberg focuses on brevity and clarity in explaining and retelling ten important Supreme Court decisions dealing with First Amendment issues. Him providing recent examples helps to show why and how these rights are important. The book is more descriptive and less analysis and does not go into some of the important discussions we will need to have with regards to social media. Especially around the argument that Brandeis made in Whitney v. California that the remedy of bad speech was more speech because the good speech would win out. However, we are seeing the exact opposite in today’s world with how fast ideas, especially false ideas spread.

I highly recommend this book for anyone who wants a quick course on the First Amendment or to learn what rights you have under the Constitution.

As someone who occasionally teaches classes in Media Law at the college level, I cannot recommend this book highly enough. It covers ten issues in First Amendment law, ranging from libel to student protests, linking the existing law to current controversies. I would love to use this in the classroom as a way to get students interested in these issues and to help them see how a case such as Times v. Sullivan still has meaning.

Mostly Solid Explanation of What 'Free Speech' Means As Decreed By SCOTUS... And What It Does Not. This is a legal treatise that never once explicitly states the very thing it seeks to define - the particular text of the First Amendment to the US Constitution that reads "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.". It also refers to a famous yet apocryphal "Ben Franklin" quote in its introduction. And yet despite these two flaws, it is still a mostly solid look at what the Supreme Court of the United States of America has decreed "the right to free speech" means over the last nearly 250 years, mostly within the last century or so. The book does a solid job of using an example usually from this Millenium (or even decade) as its starting point for each chapter's discussion, then going into the history and actual SCOTUS decisions, what they said, and what they mean. Including showing the *rest* of the famous ruling that "you can't yell fire in a crowded theater". Well, you can. If there is a fire. ;) And if you're interested in the concept of Free Speech in the US for any reason at all, this is a book you'll want to read. Very much recommended.

The one thing that makes me sad is the publication date: This should be out now!

Ever since moving to the Untied States, I noticed that the 'freedom of speech' is heralded as uniquely American just like the 'right to bear arms'. There is not a dinner conversation, without an American explaining me this, usually wrong. Not only are they wrong in the absolute way they perceive it. They are wrong in which areas of life it applies and where it does not, They are wrong when they believe that you can literally say anything without repercussions - spoiler alert - you can't.

This book is telling 10 different stories ripped from current headlines, and puts them into the context of Supreme Court precedent cases, explaining the law of the land AND the reasoning and thought process behind them. The first amendment becomes alive in your head as something very reasonable, regulated and nothing like these people of Facebook think what it is. And not THAT unique either.

I wish it would come to stores near you before the election, but it may be a conscious choice by author and publisher to wait until the middle of winter.