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

by Ian Rosenberg

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 10 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.

Genres: Nonfiction, Politics, Law, History, Audiobook, Legal

Audible Audio

Published June 29, 2021

Reviews

[Matt · Rating 5 out of 5]

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.

Love/hate the review? An ever-growing collection of others appears at:
http://pecheyponderings.wordpress.com/

A Book for All Seasons, a different sort of Book Challenge: https://www.goodreads.com/group/show/...

[David · Rating 5 out of 5]

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 universally 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.

[Barbara · Rating 5 out of 5]

I have taught courses on the First Amendment, and find this book a much-needed summary of key cases for a general audience as well as for undergraduate and graduate courses on free speech. Rosenberg has done a masterful job tying older cases (such as Times v. Sullivan) to the recent Westboro Baptist Church case. The last two chapters ask crucial questions about free speech on the Internet, and are useful to approach the issues of such private platforms as Facebook and Twitter.
HIGHLY recommended to replace some of Anthony Lewis' wonderful but dated books for a general audience. The brilliance of this book is the linking of old speech problems to new ones, so that the First Amendment thread links both.

[Micah · Rating 5 out of 5]

TOP 5 BOOKS IVE EVER READ this was written SO well it was easy to understand & my fav thing was that each chapter built on the one before it so I felt much more knowledgeable throughout the book. Cannot speak more highly. 100/10

[Heather K · Rating 5 out of 5]

It is invaluable to have a strong understanding of the First Amendment, especially as it has become common place for people with no understanding to make bold/sweeping claims. This is worth revisiting annually. My favorite takeaway was the background on the Pledge of Allegiance. My students from 7th-11th grade have consistently asked me about it, and I have struggled to put together a clear and comprehensive history quickly enough to have a meaningful conversation with them. The author puts together a perfect resource for this.

[gabby bellantoni · Rating 5 out of 5]

This book is so informative about the significance of the First Amendment! I love the First Amendment and this book made me even more grateful of it!!

[Jim Gise · Rating 4 out of 5]

Good stuff, clearly written, and helpful for ordinary citizens who care about free speech. Not a SCOTUS expert but surprised Skokie, flag burning and Citizens United didn’t make top ten?

[Patrick Kelly · Rating 5 out of 5]

The Fight for Free Speech
By Ian Rosenberg

- [ ] The outrage over the Chappell special is prompting me to read this
- [ ] This is not a deeply political science book this is intended to be an accessible book on free speech
- [ ] The Schenck case
- [ ] The most misquoted and misinterpreted and used phrases in SCOTUS history is ‘you can’t shout fire in a theater.’ This is used to support the idea that speech can be restricted
- [ ] ‘The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.’ It is the clear and present danger that is the problem and the falsely saying ‘fire’
- [ ] Holmes later changed his mind about writing this paragraph and wrote the dissent in Abram. Supporting that speech should not restricted
- [ ] Schenck ‘19 case was partly overturned by Brandenburg ‘69
- [ ] Bradenburg: The Court held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action’
- [ ] When can the right to free speech be restricted?
- [ ] Oliver Wendell Holmes
- [ ] The plus and minuses of the market place of ideas: the truth does not work like the free market. A lie can be more powerful and spread faster. Descent is a good thing and is central to free speech
- [ ] The opposition voice is central to free speech, it is protected. Holmes put it center. However the voice of Nazis and the KKK have not necessarily lifted up the suppressed voices of Jews and POC

2: take a knee and say the pledge of allegiance
- [ ] It did not start with Kapernick, it started in the late ‘38s with the Jehovah Witnesses that would not stand for the pledge of allegiance. Students were not standing, not out of protest of the flag but out of not worshiping idols. These students would be expelled. Lower courts ruled on the favor of the students but SCOTUS ruled against
- [ ] This ruling was overturned in ‘43 and established the protection of the right to not speak
- [ ] Fun note, lower courts misspelled the family name in both cases and the misspelling stuck through the following cases
- [ ] The two cases: Gobitis ‘40 and Barnette ‘43
- [ ] For historical context many protests are unpopular in the moment but incredibly important to history. The Kapernick protest was unpopular and so was the civil rights March on Washington. 63% of Americans disapproved of MLK and the March on Washington
- [ ] The first amendment protects the right of speech from the government, it does not protect it from business. The NFL could state that players had to stand, because the NFL was a private business
- [ ] This is an important chapter that I should have many notes on
- [ ] Barnett decision is a clear free speech principle: the government is restricted from compelling its citizens from expressing an opinion they don’t support. It protected the rights of citizens not to speak and protected the rights of students
- [ ] Stari decisis: at the heart of our legal system, promote stability, the judicial principal that courts typically follow previous rulings, making it difficult to overturn previous rulings
- [ ] The Jackson opinion: he examined the nature of the speech and the nature of not speaking.
- [ ] Freedom of speech is more important than national unity and transcends legislative laws. It is protected by judicial ruling. It can not be dictated by congressional ruling but rather courts must protect it

3: libel, actual malice, and the civil rights movement
- [ ] New York Times V Sullivan: it almost bankrupted the paper, but resulted in a decision that saved the paper and provided a pivotal victory in the civil rights movement
- [ ] Sullivan: ‘it held that if a plaintiff in a defamation lawsuit is a public official or person running for public office, not only must he or she prove the normal elements of defamation—publication of a false defamatory statement to a third party—he or she must also prove that the statement was made with "actual malice", meaning that the defendant either knew the statement was false or recklessly disregarded whether or not it was true.’ - Wikipedia
- [ ] What is actual malice
- [ ] Inaccuracies are not libel
- [ ] The case protected the paper
- [ ] Censorship through threat of libel had to stop
- [ ] Journalists need not be infallible but they can’t make things up and they can’t turn a blind eye to the truth
- [ ] Reckless disregard
- [ ] The decision needs to be reframed

4: student speech
- [ ] Wearing armbands in school during Vietnam
- [ ] Defended the students
- [ ] It can not single out one view point
- [ ] Students have the same rights as adults
- [ ] In three following cases the court granted schools more power to restrict student speech
- [ ] Disruptive speech
- [ ] Case Tinker

5: stormy Daniels and the pentagon papers
- [ ] Ellesberg worked for the DOD, served in a civilian role in Vietnam, and advised Nixon and Macnamara. He had access to one of the 15 copies of the paper, ‘American Involvement In Vietnam, 1945-1968’
- [ ] This is an important chapter to me
- [ ] The press was protected, Ellsberg was not. Ellsberg was convicted of violating the espionage act
- [ ] This set up what the press had to prove:
- [ ] The case:
- [ ] Originally given to and published by the NYT, then the Washington Post and 19 other newspapers. The Times ceased publishing the papers when requested by a district court but 15 days later SCOTUS ruled in the papers favor and they began publishing again. It was a 6-3 ruling but the majority was split on reason

- [ ] Prior restraint:
- [ ] This did not end the war but it did prompt Nixon to create the team that would break into Ellsberg’s psychologist office (getting Ellsberg off) and commit the Watergate burglary
- [ ] In order to not publish the press must meet the extremely heavy burden that broadcast or publication would surely result in direct and immediate irreparable damage to our nation or its people
- [ ] Presidents can’t stop the publication of information they don’t like, even if they think it will harm the country. Prior restraints are just not in the arsenal of presidents
- [ ] Presidents had a friendlier relationship with the press before the Pentagon Papers, it became decidedly adversarial after. It was a turning point in the relationship between the press and the White House
- [ ] The papers proved that at least four previous presidents lied about our involvement in and their knowledge of the situation in Vietnam
- [ ] This decision stands in the way of anyone preventing secrets from being published. It protects Americans and the freedom of the press. I love this case because it protects the fourth pillar of democracy, the press. A free and adversarial press is essential to a strong democracy, it is a check on power
- [ ] This case allowed Stormy Daniels the freedom to break her NDA? Wait I thought the New York Times rule protected publishers and journalists but not the leakers

6: flipping off the president and fuck the draft
- [ ] Saying fuck in the court, it was a jacket
- [ ] You can suppress an idea and words are how ideas are expressed, you can not suppress words
- [ ] One man’s vulgarity is another’s poetry
- [ ] The first amendment does not protect private employees, a company can terminate an employee based on they say



7: Samantha Bee, seven dirty words, and indecency
- [ ] Carlin and the 7 words you can’t say on TV, 1972
- [ ] This is a technical chapter and I have limited notes
- [ ] The FCC can have limited regulation of speech, based on the context of public broadcasts and the intention of the speech - it does not serve value
- [ ] It is not as simple as, if you don’t like it, just turn it off
- [ ] The FCC does not regulate cable
- [ ] Case: FCC V Pacifica
- [ ] Carlin is a footnote in SCOTUS



8: SNL, Hustler, and parody
- [ ] The first amendment protects SNL
- [ ] Can someone sue because their feelings were hurt?
- [ ] The legal battle of Larry Flint V Jerry Falwell. Hustler magazine V Falwell (’88)
- [ ] They stood on opposite sides of the free speech debate
- [ ] Larry Flint had some bad characteristics and so did Falwell
- [ ] The court ruled in favor of Flint, a public figure could not sue for emotional damage
- [ ] Technical language
- [ ] Emotional distress
- [ ] Outrageous conduct
- [ ] The question before the court: wether a public figure could recover damages for emotional harm caused by the publication of an ad parody offensive to him and that is intended to inflict emotional injury, even when that speech could be not reasonable interpreted as stating actual facts about the public figure involved
- [ ] No, unless a jury finds that the publication contains a false statement of fact with actual malice
- [ ] ‘At the heart of the first amendment is the free flow of ideas and opinions on the matters of public concern. The freedom to speak ones find is fundamental to finding truth and the vitality of society as a whole’

9: nazis, Charlottesville, funeral protests, and speakers we can’t stand
- [ ] Does the first amendment protect hate speech
- [ ] Westboro Baptist church
- [ ] Snyder V Phelps (’11)
- [ ] ‘speech related to a public issue was completely protected, and could not be prevented as it was on public property’
- [ ] The protesters were on public property, protesting a public issue (homosexuality, foreign policy)
- [ ] Ruled in favor of the church 8-1
- [ ] Robert’s opinion: ‘What Westboro said, in the whole context of how and where it chose to say it, is entitled to 'special protection' under the First Amendment and that protection cannot be overcome by a jury finding that the picketing was outrageous.’ ‘ speech on public issues occupies the highest rung of the hierarchy of first amendment values and is entitled to special protection’
- [ ] Public concern, difficult to prove
- [ ] Fairly considers as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest. Inappropriate or controversial character of a statement is irrelevant
- [ ] ‘Bedrock principle underlying the first amendment, is is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. The point of all speech’
- [ ] Content neutral: laws that apply to all expression without regard to the substance or message of the expression. The state can still impose resonable time, place, and manner restrictions on speech, so long as the laws are content neutral
- [ ] The daughter who represented the church in front of the court, has since left the church and family
- [ ] Just because you disagree with speech, does not mean that you can stop it

10: social media and online forums
- [ ] How much is the internet like a public park?
- [ ] Social media companies are companies and do not have to follow the first amendment
- [ ] The internet is a public square
- [ ] This is the only case on social media and internet free speech that the court has taken. Some guidelines and principles still need to be figure out, but a rough framework has been laid out
- [ ] The powerful FCC section 230: companies are immune from liability from anything that their users post
- [ ] There should be more notes from this section
- [ ] Packingham V NC
- [ ] Kennedy wrote the opinion: "It is well established that, as a general rule, the Government 'may not suppress lawful speech as the means to suppress unlawful speech.’ ‘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’
- [ ] All of the participating justices are unwilling to allow the government to place planet restrictions on social media. The majority views the internet as a vast public forum
- [ ] The court is likely to loo on the constitutionality of any government regulation of social media with extreme skepticism

Quick summaries of the cases:
- [ ] Right to advocate for illegal action (unless it likely causes imminent harm)
- [ ] Right not to speak
- [ ] 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 TV and radio
- [ ] Right to parody
- [ ] Right to espouse thought we hate
- [ ] Right to use social media as a public forum


Recommended maxims:
- [ ] Protect dissent
- [ ] Defend the press
- [ ] Resist government speech restrictions
- [ ] Expand the marketplace of ideas
- [ ] Allow speakers to express messages how they choose

- [ ] Ultimately the Supreme Court will be the final word on determining first amendment law. We can play a role in shaping free speech, get involved, take action, listen, and speak
- [ ] I want to reread this book or at least sections of it

[Homerun2 · Rating 4 out of 5]

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.

[Dawn Thomas · Rating 5 out of 5]

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.

[Karen · Rating 5 out of 5]

Media attorney Rosenberg’s mission in this book is to explain the right to free speech and First Amendment issues in language accessible to all. Framing each chapter with a modern-day case, he gives the historical context by describing the history of Supreme Court cases that led to these rights. Madonna being able to say she wanted to blow up the White House at the Women’s March started with the Abrams case concerning anti-US leaflet distribution by Russian Jewish anarchists. Parkland students were able to organize a nationwide student walkout in part because of the Tinker case which first recognized students’ rights to free speech. From Samantha Bee and “seven dirty words” to Colin Kapernick taking a knee (freedom from being compelled to speak) to the Westboro Baptist Church and their hate speech at funerals to the new public square, social media, Rosenberg provides much food for thought with a detailed historical context. Verdict: Although his writing style is engaging, this is still challenging material and will be thought-provoking for readers. Anyone interested in the history of free speech and the Supreme Court will enjoy this extensively-researched book. https://www.libraryjournal.com/?detai...

[Patrick Pilz · Rating 5 out of 5]

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

Ever since moving to the Untied States, I notices 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.

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.

[Scott Martin · Rating 5 out of 5]

(Audiobook) I have to confess, I was more impressed with this book than I thought I would be. Figured that I would learn something about free speech/first amendment actions, but this work looked at 10 cases, spanning the last 100 years that covered a lot of topics/subjects that still define the free speech battles to this day. It is also an engaging analysis of how the Supreme Court came to define and set the legal boundaries for free speech as it stand today. It is very readable, but offers detailed analysis that does not get bogged down in legal jargon/historical analysis. The author seems to trend center-left, but the analysis is very even-handed. The rating is the same for audiobook/hard copy/e-copy. Worth a read and might be worth the money to buy.

[Nathan · Rating 5 out of 5]

Everyone should read this book. It's conversational, well-organized, and the legal discussions are clearly connected to modern concerns. It's an excellent introduction to the broad contours of free speech law.

[Andrew Breza · Rating 5 out of 5]

An excellent overview of ten cases that shaped modern First Amendment jurisprudence.

[Richard Derus · Rating 5 out of 5]

Rating: 4.5* of five

The Publisher Says: 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.

I RECEIVED A DRC FROM THE PUBLISHER VIA EDELWEISS+. THANK YOU.

My Review: A book from 2021 that enumerates the right to free speech busily being attacked, restricted, breached, and ignored in 2025.

Never in my lifetime have I seen such a rapid destruction of a Constitutional right. Read this to understand, in meticulously stated detail, what it is that we are seeing ripped away from us. It should not feel, as it is meant to be a warning, as though it is discussing a Golden Age now dimmed by having cartloads of ordure heaped all over it.

The twenty examples of the defense and delineation chosen by Author Rosenberg demonstrate in accessible non-weapons-grade prose show the flexibility of and the necessity for its existence. We allow further erosions and floutings at our greatest, personal peril.

[Jeff · Rating 5 out of 5]

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.

[Greg · Rating 5 out of 5]

I finished reading "Actual Malice" which is a great book and well worth the read. But it left me hungry for more of the same subject matter. "The Fight for Free Speech" satiated my appetite. The author presents 10 supreme court cases that all address First Amendment fights, but each case comes from a different perspective on free speech. The author, Rosenberg, does a great job as a storyteller, so none of the 10 cases are boring or redundant. Quite the opposite--I found myself not wanting to put the book down. (Note: one of the 10 cases here is the same case, New York Times vs. Sullivan, that the entire book "Actual Malice" is about, but the story is condensed to just one chapter here.) And it's so instructive, I will read it again soon. Our First Amendment rights are in dispute every day in new ways as social media, extremist politicians, and those presenting "alternative facts" flood the airwaves daily. The lessons learned here are not just instructive about our past fights for free speech, they are instructive about how we might deal with current and future challenges to free speech.

[Sue · Rating 5 out of 5]

Read this book. There's a graphic novel version (Free Speech Handbook) too. Doesn't matter what version, just read it. The author breaks down historic cases in short-ish chapters with colorful details that put the reader right in the moment. His writing is great, and I loved how he described complex issues in a manner a non-lawyer like me could understand. Framing each chapter on very current cases (Stormy Daniels, etc.) with the historical path through the courts was such a smart way to present what could be otherwise thought of as dull or dense. I talked about what I learned about the Pentagon Papers case from the book with three teenage boys over pancakes this weekend, and it turned into a 45-minute discussion in which they were all actively engaged -- kind of incredible.
With book banning and other threats to the rights we have taken for granted looming large, understanding how we got here will help us keep them. Thanks to Ian Rosenberg for putting the spotlight on those who fought the good fight. I'm looking forward to reading whatever he writes next.

[Joel S. · Rating 4 out of 5]

I found the two comparisons between contemporary free speech issues involving private actors such as the NFL (not covered by the First Amendment which only applies to the government) to historical Supreme Court decisions involving the government (covered by the First Amendment) to be inapt, notwithstanding Rosenberg's explanation of the distinction, though I otherwise really enjoyed reading the book and thank Rosenberg for writing it.

(For example were Goodreads to adopt a policy prohibiting certain viewpoints from being expressed on the platform that would be completely permissible because as a private company Goodreads is not covered by the First Amendment. In contrast, if Goodreads were government-owned such restrictions would be presumptively impermissible because they would violate the First Amendment's free speech protections. I find comparing the latter to the former to be an inapt comparison.)

[John Biers · Rating 4 out of 5]

I picked this up because I felt squishy in my understanding of the 1st Amendment given how often it is invoked in debates, often wrongly. I found it readable and accessible and helpful in clarifying the US Constitution’s protections. That said, the book left me with many questions. Chiefly, the author seems pretty satisfied with the Supreme Court’s record on the First Amendment and the totality of the book suggests the Court has been broadly consistent and coherent in upholding the First Amendment for the most part. But that made me wonder why the Court has fallen short so often in so many other ways (eg voting rights). Is the Supreme Court *better* at upholding the First Amendment than other important parts of the Constitution? Why could that be and what does it mean?

[Chris Talbott · Rating 5 out of 5]

This is an excellent accessible deep dive into what our first amendment rights are - and as important, what they are not (there are a lot of misperceptions). The author uses 10 current events to anchor the discussion in very real situations. I thought I knew my rights, but this book showed me I was also filled with misinformation. I highly recommend this book for any citizen interested in what makes our democratic system tick. You will enjoy and come out feeling like you've taken a college level class with a professor who knows how to tell a story and hold your interest. Thank you Ian Rosenberg!

[Jennifer · Rating 4 out of 5]

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.

[Amelia · Rating 4 out of 5]

Really well done.
Democracy needs a free press to function & some illogical dangerous ideas of what’s what have been becoming more & more common. This book is much needed. It should be taught to all Americans along with basic media literacy.
Written in laymen’s terms, it is easy to comprehend. Pairing classic important cases with today’s issues makes it extremely relevant. Those who disagree with very middle of the road ideas will argue it is not bias, but it is.
Highly recommend to all who care about the US staying a democracy.

[Judith E · Rating 5 out of 5]

An excellent review of 10 First Amendment cases that came before the U S. Supreme Court. The author clearly writes about the social settings surrounding each case and quotes selective and pertinent portions of the Supreme Court Justice’s opinions. This was a good reminder about the necessity of free speech and “that open discourse and dialectic is the most effective enabler of the evolution of individuals and societies” no matter how much one might disagree with what is being said.

[Edward Sullivan · Rating 4 out of 5]

A concise, accessible summary of ten of the most important legal cases impacting First Amendment issues with discussions of recent events in context of those decision.

[Avery · Rating 3 out of 5]

cute & clever and i really liked the set up, but a bit basic/boring

[Izzy · Rating 3 out of 5]

yay! free! speech!

[Kayden Mulrooney · Rating 4 out of 5]

⭐️4

Shout out first amendment my goat