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So to Speak podcast transcript: ‘The Fight for Free Speech’ with Ian Rosenberg
Nico Perrino: Hello, and welcome back to So to Speak, the free speech podcast, where every other week, we take an uncensored look at the world of free expression through personal stories and candid conversations. I’m, as always, your host, Nico Perrino. Today, I am joined by Ian Rosenberg. Ian is a media lawyer with over 20 years of experience. He’s an Emmy nominated documentary filmmaker. Since 2003, he’s worked as legal council for ABC News. He has a new book that came out just this week called The Fight for Free Speech: Ten Cases That Define Our First Amendment Freedoms. Ian, welcome on to the show.
Ian Rosenberg: Thanks for having me, Nico.
Nico: So, what does a media lawyer do?
Ian: Well, so my job is a pretty great one for a law gig. I get to work with producers and reporters and anchors to make sure that everything that goes on air for the shows that I work with them on at ABC News is legally sound. So that involves newsgathering, questions about privacy or hidden camera. It does involve review of much of the material to make sure that what we’re saying is as accurate. Basically, I’m sometimes an extra editor for accuracy and to sometimes push, you know, what’s the basis for this allegation here.
Do we have documentation to support that? And then, I also engage in fair use conversations and FCC regulatory work. So, it’s very varied, and it’s fast paced.
Nico: So, are you working like around the clock? Or do you have specific shows that you work on? A 24 hour news cycle shows late at night. Shows early in the morning. And obviously, some of these are breaking news, so they need you like right then and there, I’m assuming.
Ian: That’s right. So, I do have shows that I work with. Particularly, I’ve worked with Nightline since the post Ted Koppel days when it was relaunched by James Goldstone. I’ve been they’re lawyer. So, I’m on email every night working the show before it airs.
Nico: What got you into this? Was this something you went to law school knowing you wanted to do?
Ian: Sort of, yeah. You know, I was a theater major in college and took a first amendment class from Professor Donald Downs who I know is a friend of Fire.
Nico: Yes. Very good friend.
Ian: And a noted first amendment expert. I just took it because I was interested. I had no thought that was going to become my passion. After taking a couple of classes with Downs, I applied to law school and theater school at the same time. Got into both, but I ended up going to law school. It was with the idea of my drama advisor at the time said I think it’s a wonderful path for you as long as you promise me you won’t be a lawyer. So, I didn’t know exactly what I was going to do, but I thought that I wanted to do something in connection with working with the media, the arts, and protecting free speech.
I was lucky enough to – after graduating from Cornell, I clerked. But in the summer before and after clerking, I worked with Floyd Abrams at Cahill Gordon. That set me on the path to be a first amendment lawyer.
Nico: You know, my interest in the first amendment – well, I shouldn’t say first amendment because first amendment didn’t exist at the time. But my interest in free speech came in fifth grade through theater when I was in a play on The Trial of John Peter Zenger. That was really cool and really taught me a lot about the history of free speech in, well then, the colonies but what was soon to become America. I want to talk about your book, of course, which again came out this week, The Fight for Free Speech. You focus on 10 different cases that speak to 10 different types of issues related to our first amendment freedoms.
They are disparate chapters obviously. I think for some of our listeners, many of whom teach free speech and first amendment courses in college or in high school, this book would be particularly useful for them as kind of case studies into some of these issues. But I want to start by talking about some of the issues that you discuss in your book that might also have a connection with some of the work that you do as a media lawyer. I want to start with your discussion of defamation law and New York Times v’s Sullivan. I once interviewed, way back when maybe three or four years ago on this podcast, Martin Garbus.
He’s kind of a controversial figure in the media law landscape because he takes plaintiffs and defamation cases. And there are, you know, there’s a network of lawyers who refuse to take plaintiffs in defamation cases because defamation claims can be media lawyers’ greatest frustration. So, can you talk a little bit about the controversy surrounding defamation law. In particular, in recent years and then President Donald Trump was talking about opening up libel laws. What was the danger that you saw in that?
Ian: Well, first of all, thanks for saying that you think the book would be good for media law classes. I agree. I teach media law at Brooklyn College to mass communications graduate students. One of the things I’ve found was that there really was no book that discussed free speech and free press issues that is written for non-lawyers. There are textbooks, and there are very wise books from esteemed people in the field if you’re heavily immersed in the topic. But this is trying to be a user’s guide to understanding these issues for smart, non-lawyers.
It’s the kind of people I talk to every day at work. The spectrum of 10 cases that I raise are supposed to give you a thorough understanding of first amendment in one single book.
Nico: And the stories behind the cases. I mean –
Ian: Thank you.
Nico: You really go into detail about the individual figures who are involved in these cases. I mean when you’re talking about the Schenck and Abrams case is early on in America’s first amendment jurists’ prudence, you really go into kind of the anarchists who were at the heart of those cases. The animating factors lead to them writing the leaflets that then ultimately resulted in them going to prison for their protests of WWI and America’s involvement in trying to thwart the Bolshevik Revolution.
Ian: Yes. And that’s really fight part of the fight for free speech. You know, what you don’t learn in law school you learn the rules of law, and you learn the cases in law school. But you don’t really talk about the real people behind the stories that led up to their challenging their free speech rights all the way to the Supreme Court. As you say, in Abrams, I did not know much at all about Molly Steimer, who was a young immigrant anarchist teenager when she threw out leaflets in Yiddish from the lower east side to protest WW1 and America’s involvement against Russia in WWI.
I think one of the goals I had besides thinking these stories are particularly interesting and compelling one of the goals I had for this book is for people to see themselves in these fights. Not all of these people are heroes. I think they’re pioneers is the term because some of them are not great people. But I think everyone can start to identify with the people behind these stories. I think that really illuminates the rights that we’re talking about.
Nico: Yeah. I like the story that you talk about Larry Flint and Jerry Falwell, of course, that famous case, Hustler v. Falwell. You know, the noted pornographer Larry Flint parody Jerry Falwell and his mother. But they became friends at the end. I didn’t know that. That’s actually a quirk historical fact that I wasn’t aware of.
Ian: Yeah. It’s – it’s fascinating. They’re really two apocalyptic figures in this battel over the right to parody. I talk about what that means for Trump’s attacks on Saturday Night Live. But those two figures, you know, I’d say when they were sitting at the Supreme Court Larry Flint and Jerry Falwell were both smiling. Falwell because he knew in his heart that everything he was doing was good, and Flint because he knew in his heart that he was sort of up to no good and loved it. But those two crazy kids became friends in the end. There are a lot of surprising sort of story twists I think in this book that people will hopefully find entertaining as well. To go back to your libel question, which of course I –
Nico: Yeah, I was going to try and get back to that. We were going on tangents.
Ian: So to go back to your libel question. The concept of the book is that each chapter begins with a contemporary question, a burning first amendment controversy of today, then discuss the historical case that answers that question. So the question with libel is what Trump had said in a different way just as Thomas has said that, you know, Trump saying we need to take a strong look at libel. This misconception that’s out there that the media can just lie and get away with it. It’s something about libel law makes it impossible for plaintiffs to win a case against the media. That is just, you know, absolutely not true.
If that were true, I wouldn’t have a job because I am part of the protection against libel working with our excellent journalists. And so, the story that I talk about that is the New York Times v’s Sullivan case which involves a Civil Rights heroes of the past, Dr. King, Rev. Ralph Abernathy, Fred Shuttlesworth, Rev. See, and Lowery. They’re ultimate victory at the Supreme Court which led to the press winning the right to criticize public officials and make mistakes. So one of the things I hope this story will do is to encourage people to defend rather than disdain the press.
But it also actually explains what the actual malice standard really means. It’s this ability to make mistakes but not to lie or turn a blind eye to the truth.
Nico: Prior restraints are also something that I imagine you deal with a lot in practicing media law. The current event that you use here is the hook to get into the Pentagon Papers case is the 60 Minutes interview that Stormy McDaniel had with Anderson Cooper. Donald Trump’s then subsequent efforts to prevent that story from getting aired. Can you talk a little bit about how as a media lawyer you all think about prior restraints? We, you know, amateur first amendment experts often think of prior restraints as the one thing that going back to the founding of America the founders were worried about.
But what can someone or what can the government prevent from being published prior to it being published?
Ian: Right. So as you know but maybe not all of your listeners, the Pentagon Papers case which really pitted Nixon against Daniel Ellsberg who had leaked to the Pentagon Papers and to the New York Times and ultimate to the Post and other papers. Now, we think, of course, the founders up to today meant that there could be no efforts to stop the presses. That the media would always be allowed to publish and then suffer any consequences, but that they shouldn’t be stopped for publication. But at the time of Pentagon Papers, really that question was in doubt. This was during the war.
The papers were about although a historical document did contain arguably references to elements of the current conflict and the current battles. And so, it really was a question of whether – and the papers did stop. The New York Times and the Washington Post were prevented from publishing. The question I talk about at oral argument really turned that oral argument on one question of whether or not they could cobble together a majority to protect the press. So, the rule is that except under the most extreme circumstances when there would really be a direct imminent threat to specific harm.
The example given, you know, the loss of lives on the battlefield. But concrete and immediate direct harm is the only excuse for stopping the presses – for preventing a publication. On the one hand, we have this very bedrock principle that if you can’t get a prior restraint about war documents in the middle of a conflict. One would think that you could never get a prior restraint. However, the way our courts work is that just because the Supreme Court has a rule doesn’t mean that the lower courts follow that rule. So while you win these cases on appeal, you don’t necessarily win them initially at the lower level.
Although, I haven’t had any experience with prior restraints in my 17+ years at ABC News, when I worked at the law firm, as I mentioned before, legendary attorney Floyd Abrams, one of the things we put together was a prior restraint compendium every year of prior restraints that were from all over the country that were improperly granted and eventually overturned. But to keep people’s awareness of this continuing threat. So in the book, I do talk about Trump’s initial efforts and potential rumors of potential efforts for him to try and stop Stormy Daniel from speaking on 60 Minutes to Anderson Cooper.
But since the book came out, we had actual examples of Trump trying to stop the book from Mary Trump, through his family, and trying to stop the Bolton book. One of the things –
Nico: And the Cohen book, right, his former lawyer. What’s his first name? Cohen. He’s been out of office for a month now, and I’m starting to forget the people that he surrounded himself.
Ian: Some of those things I’m happy to forget. But yeah. The Trump administration and surrogates have certainly tried to bring back a more – disturbing view of prior restraint. And so, I think it’s something that we need to really know about and not think this is a concern of the past. When I listened to the hearing in the Bolton book, I was very disturbed that the judge in the case, although, he ultimately ruled that there could be no prior restraint against the Bolton book. He did basically on the non-legal basis that the horse has left he barn.
That too many copies had already been sort of internationally sent out and to critics. HE did not mention the Pentagon Papers case in the entire oral argument. That although it was a victory in some sense for free press, it was a disturbing victory. I think we need to be sort of internally vigilant to understanding the importance of that right.
Nico: I wonder how much it cost to insure those books before they go to press just because you know something like the Bolton book is going to get challenged either with an attempted prior restraint or defamation or something else. You know when you buy the insurance you’re going to pay for that defense. But when you were doing the Floyd Abrams compendium on prior restraints and you were looking at the national landscape for them, how many cases were you seeing? I mean, when I think of prior restraints, I almost think of them as being sort of archaic in the free speech world.
Like we used to ban books all the time. Now, they’re more often challenged rather than banned. I sort of think of prior restraints that way in that the law was settled. But it sounds like it’s not. Are we talking, you know, a handful of cases? Dozens of cases? Hundreds of cases?
Ian: We’re talking hundreds. This was now 20 years ago, but I believe Cahill still puts this guide. We’re talking about hundreds of cases that the issue gets raised. Then, we’re talking about more than a handful in which some level of prior restraint is granted. For example, there was an initial New York trial court that granted prior restraint of the Mary Trump book, which was then overturned. So most of the general public just hears like, oh, there’s some threat to the book. Oh, no, it’s going to be published. But actually underneath there, there are cases in which the wrong decision is being made.
And so, one of the other things I want people to take out of this book is that I’m focusing on 10 Supreme Court cases because that is the clearest way of distilling what first amendment law is. I particularly chose cases where we can say this case really defines the area and this right. But actually, free speech is grass roots activity that happens every day. It happens in our schools and our churches and our synagogues and our mosques and at our community boards. We need to know what our rights are to take action on the ground level before the years it would take to get something changed on appeal.
Nico: I do want to turn to the schools in a moment. But before we do that – before we leave media law, I want to ask you about Saturday Night Live, the networks, and the so called dirty words. In your book, you talk about the George Carlin case. It’s been many decades since that Carlin case. It seems as though the words that were used there – the profanities that were used there are, you know, they’re still considered profanities in many cases, but they don’t have the same sort of bite that they did back in the ‘70s. How in media law or when you’re taking a look at segments do you think about what is profane? What is not? What could get you in trouble with the FCC these days?
Ian: Well, yeah. So the issue that I focus on as the contemporary question in the book is when Samantha Bee used the ‘c-word’ to describe Ivanka Trump in connection with the Trump administration’s child – I was going to say child immigration policy – but taking children away from their parents who were trying to seek asylum in the United States. So, she used the ‘c-word’, and people freaked out. The question is what can you say on television and radio? There’s a couple of surprising things about that as you were alluding to.
First, it’s that, yes, George Carlin’s Seven Dirty Word monologue from the ‘70s still defines today largely what cannot be said on broadcast television and radio. It’s very fun to go back and talk about the subversive fun that Carlin had with his monologues. He talks about who Lenny Bruce was crucified for playing with language, and I became a success because of it. So, we have this case which leads to the Pacifica case which really defines what can and cannot be said on broadcast television and radio. For most of the day, there is this window of time.
There’s a safe harbor period at the end of the day and morning where you can have more adult content. But we also have this – but that doesn’t answer then like so if you can’t say words like that, how does Samantha Bee get away with it? The unsatisfying answer is because cable is different.
Nico: I was going to ask you about that. Yeah.
Ian: Yeah. And so, because of sort of historical anomalies that frankly don’t make a lot of sense we have this bifurcation of what can be said on cable and what can be said on the rest of broadcast television and broadcast radio.
Nico: You might need to describe the difference between cable and broadcast for our younger listeners who probably don’t get the dichotomy just because they’ve always operated in a system where they kind of function the same way where they don’t even have cable packages.
Ian: Exactly. We’re on the same wavelength. I was just going to say that even though I’m a broadcast lawyer and I work for a broadcast network, when I was trying to explain to my kids, at one point, the difference between broadcast ABC television and something else, they were like, oh, is that Netflix? No, it’s not Netflix. Oh, is it streaming? No, it’s not streaming. Oh, is that on demand? In a world in which we – and they were all the right questions. It’s just that people are not only their feelings about language have changed, but they’re platform agnostic now.
People just watch whatever they want whenever they want on their phones wherever they’re going. That’s great in most ways. But it certainly, I think, makes the distinction between broadcast and other media a historical anomaly that should be changed. Unfortunately, when this case – when the Fox case came up to Supreme Court, the various fleeting expletive cases that came up with Bono and Nicole Ritchie and Cher cursing and in conjunction at the same time with the Janet Jackson nipple gate scandal. It really was Ginsberg at the time who said let’s reevaluate this.
They overturned or they stopped the FCC’s fines at the time saying there hadn’t been enough notice. But then, Justice Roberts sort of wags a finger like a scolding parent and says but now you’re on notice that even fleeting expletives and fleeting nudity can be fined under any circumstances. So, we have a –
Nico: Are those enforced? I think about the FCC now and especially under Chief Pai who, it’s my understanding, is fairly good on these first amendment issues, free speech issues. I mean, enforcement is discretionary, of course.
Ian: Enforcement is discretionary. One of the great ironies is that today how many people complained about an incident, you know, certainly in the Janet Jackson case that was many, many complaints. Although, a large portion of them were from foreign letters from advocacy groups, but a vast number of complaints. In the Carlin case that led to this regime, we had one man. The FCC received one complaint by this guy who was not just some random father, but it was part of an advocacy group called Morality and Media claiming his young son was offended by Carlin. In fact, his son was going off to check out Yale with him on that day.
So really not some innocent babe. So, yes, you are absolutely right that enforcement is discretionary. There has been very little enforcement. There was one incident with a local tv station had been profiling a former adult film actress who I think now was an EMT and talking about the good work she did. They mentioned some past pornography she had been involved in. In showing the cover, which was tame or tamer enough, there was some errant ad for different pornography in the corner that showed men genitalia. It was on screen for some very brief seconds of time. That local station was fined.
I think that’s the only significant fine in that regard. However, that doesn’t mean that – you know, part of the reason there’s not fines is because there is a real concern about receiving these enormous fines.
Nico: Yeah, it’s a chilling effect.
Ian: Absolutely. I talk about the rights you have in the book. The only right that I focus on that we don’t have is that there is no right to curse on broadcast television or radio.
Nico: I want to turn now to kind of how you begin the book, at least in the first paragraph which is talking about student speech rights you have to children as you revealed in the book. In 2018, there was, of course, the school shooting in Parkland at Marjorie Stoneman Douglas High School. In the wake of that, there was a lot of student activism around gun control, including a nationwide student walkout from their classes to protest.
There were a lot of questions at the time regarding the rights of students to leave their classes in protest. And you address this a little bit in the book. I’ll ask the question to your squarely. Did they have the right to walk out?
Ian: The answer is no. Walkouts. Let’s start with the happier news which is that thanks to middle school students named Marybeth Tinker and her brother who wore a black armband during the Vietnam war to protest the war in Iowa in her middle school. That led to a transformative victory for student speech. The first recognition by the court that students don’t lose their right to freedom of speech as they pass through the schoolhouse gates.
I talk about that extensively and her fascinating involvement both as a student activist and then supporting the students at Marjorie Stoneman Douglas High School many years later in another sort of intriguing twist. But the right has been narrowed. But what it means really is that you have a right to non-disruptive protests. It can’t just be a fear of disruption. That is not enough; there has to be some reasonable belief of concrete disruption. I think all courts would find that if you’re actually walking out of school that you would be disrupting your education but also potentially the education of others. However –
Nico: So active civil disobedience in short.
Ian: Even – I’m sorry, yes. It would be an act of civil disobedience. That’s right. You would be – sort of breaking the rules to make an important point. However, what is very important to note and this came up with national school walkout controversies. Schools can’t punish you more because you’re walking out for protesting something than if you were walking out because you want to go to the mall. There definitely did seem to be a lot of examples of threats of viewpoint discrimination, particularly in more conservative towns where gun control laws are looked on with disfavor or gun control advocacies is not popular.
It seemed like there was going to be a lot of punishment of students to a greater degree than they would have if they had just been an unexcused absence.
Nico: Yeah. You saw that too in more – in more liberal jurisdictions where there seemed to be tacit support for the walkouts. Then, you had minority students in minority here numerically not demographically who were opposed to gun control measures who seem to balk at what they seem to think was tacit support for them and not for their individual protest. So, yeah. You need to avoid the viewpoint discrimination in any disciplinary measures that you hand down.
Ian: That’s right. But I think that sometimes we’re talking about what is the answer to this question. I try very hard in the book to actually answer people’s questions. My father was an economist. He talked about how people always say I think Truman wanted a one handed economist because somebody always says on the one hand this. On the other hand that. I do try and give actual clear cut answers. But I think that the bigger and the answer to can you walk out and be punished. You know, will you be punished? Is that constitutionally permissible? Yes, it is constitutionally permissible to punish people for walkouts.
But I think the bigger question is particularly today with so many movements against gun violence, for climate action like Greta Thunberg’s Fridays for the Future, Black Lives Matter. We are seeing an unprecedented resurgence of student activism. Unprecedented since the ‘60s and Civil Rights Movement. That students do need to know that they absolutely do have rights in school. That you do not lose your free speech rights because I do believe that student led free speech movements are not only the future literally but are the real hope of a continuing robust free speech framework as we go ahead.
Nico: We actually have a student free speech case that just got accepted by the Supreme Court and will hopefully hear oral arguments later this year. It’s the Mahanoy case involving a cheerleader or a cheerleader who was upset with decisions made in the cheerleading program protested in a some might call it a vulgar way outside of school. The question before the court, as I understand it, is whether that protest outside of school reached a substantial disruption that Tinker kind of carved out.
I should say, you probably know more about this than I do, but since the Tinker case unfortunately the court has narrowed what it had said in the Tinker case and allowed for more things to be considered substantial disruption. We think here about Bethel v. Frasier, Hazelwood, and that line of cases.
Ian: Yes. Well, in those line of cases, basically the court said student newspapers could be censored because it was actually the administrator’s speech rather than the student’s speech since they were in effect the publishers. They said vulgar language could be censored or could be stopped. But the school when some kid gave a nomination speech for student government and kept using some very weak double entrendre. Then, the bong hits 4 Jesus case, the guy just put up a nonsensical sign –
Nico: Morse v. Frederick, yeah.
Ian: Yeah. Where he wanted to cause a stir at an Olympic parade. The court said that, you know, advocacy of illegal action essentially could be – or illegal activity could be stopped by the court. But I’m actually more – up until the Snapchat case, I was still believing very strongly that the court had still enabled there to be a robust free expression framework for students. What’s so disturbing about the case you bring up is that it sort of is the parallel of Tinker. In Tinker, we have the court saying that students don’t lose their rights when they’re inside the schoolhouse gate.
Here, this young woman was outside school, not during class time, on Snapchat. Her speech is trying to be curtailed by the administrators of the school. It’s not that she’s losing her free speech rights when she goes through the schoolhouse gates; it’s that she is losing her free speech rights because of her identity as a student, because of her enrollment and participation in school activities. That seems very disturbing. I’m nervous about where the court is going to go with that. The only way we can understand whatever the court’s decision is a closer look back at Tinker.
Nico: Yeah. The case involved, as I mentioned earlier, a cheerleader. But she was protesting on Snapchat the fact that she failed to make the varsity cheerleading squad and would remain on the junior varsity squad. She posted a picture of her giving the middle finger on Snapchat. Snapchat, of course, is ephemeral by design meaning that you can only see the snap for a certain period of time. But another student had taken a screenshot of it, shared it with some others.
The school got ahold of it and suspended the student from cheerleading for a year saying that the punishment was needed to “avoid chaos” and maintain a “team like environment”. The student won in the appeals court.
Ian: And it’s a strong decision. I think absolutely the appeals court has rightly decided. One of the things that is ironic about that is I also talk about flipping off the President.
Nico: Yeah, you do.
Ian: So, the idea that you can’t flip off your school administrators when you’re angry about not getting on a team – I talk about in the book Juli Briskman who is the woman who, you know, the bird that was heard around the world. She flipped off Trump’s motorcade. Then, a photo of that went viral. She was fired from her job. I talk about how there is a right to offend. The original Supreme Court case about that is Cohen v’s California where the protestor went through –
Nico: You can swear on this podcast.
Ian: It’s not regulated by the FCC because we’re not on broadcast radio. Yes, he wore a jacket that said Fuck the draft. The court has now led to the wonderful language that one man’s vulgarity is another man’s lyric. You have this right to offend. There is a right to flip off the President; there’s a right to curse in a courtroom. There absolutely should be a right for a student to curse in a non-violent non-disruptive way outside of class. It seems like it should be a slam dunk victory, but we’ll see.
Nico: I want to turn now to the Colin Kaepernick’s protest on the field during the national anthem. Now, this was 2016/2017. He was taking a knee during the national anthem and was essentially blacklisted from the NFL and remains blacklisted from the NFL. It seems strange now to think that happened given that you turn on an NFL game now and they have Black Lives Matter in the end zones. Each of the players a helmet that often is emblazoned with some social justice message behind it. But at the time, this was a huge controversy. The President weighed into it.
As I said, Colin Kaepernick was kind of black balled from the league. There was a discussion as to whether Colin Kaepernick had a free speech right to do this. So, I’ll put the question to you. Did he?
Ian: Well, this is one of those areas where it’s complicated. So the short answer is no. Because employers – because first amendment rights essentially always involved the government or state actors. Private employers are allowed to discipline or fire employees for their expression that they don’t like. But I don’t think the story ends there. You bring up that – I think the take a knee protest is one of the most important protests of our time in terms of free speech and what they mean both in terms of controversy and in terms of our actual rights. I think that Kaepernick’s story is in destructive in two ways.
One sort of free speech values oriented and one very practical. The free speech values is we are talking about the right not to speak. The right to not have a message compelled to us. That comes from a case called Barnett in which Jehovah Witness school children refused to pledge allegiance to the flag during WW11 because they believed it was a form of pledging to idols essentially and felt it violated their religion.
Nico: I should note here you have a very interesting historical note that I wasn’t aware of. That it wasn’t up until WW11 that we started putting our hands over our hearts when we do the pledge of allegiance. Prior to that we used to hold our hands up almost like a Nazi salute except our palm was up instead of our palm being down. It was during WW11, of course, because of the specter of Naziism that the gesture was changed to the hand over the heart. I didn’t know that. I found that fascinating.
Ian: Yeah. There are photos that are amazing of rooms full of school children. They clearly look like American school children. You think, oh, my God. Are they swearing Heil Hitler because their hands are up, as you say, straight forward but with their palm – if you look closely the palm is up. Yeah, that changed during WW11 out of sort of embarrassment of how similar the gesture was to the Fascists we were fighting. But I think it’s also another not only a fascinating historical anecdote, but it shows how much patriotism, and the perceptions of patriotism can turn on a dime. You know, this is the only gesture we can do; it’s the absolute right thing.
If you don’t do it, you’re unpatriotic. But we’re actually going to change right now because now we’ve changed our perception of that. The Barnett case was another example of changing perception. The court found that just as there was a right to speak, that there was a right not to speak. That the government couldn’t force you to adhere to a message that you don’t agree with. Very memorably Justice Jackson said if there is any fixed star in our constitutional constellation, it’s that no official, high, or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
It’s just beautiful language that this is the fixed star in our constitutional constellation of ideas. That we cannot force people to agree with a message that they don’t have in their hearts. Absolutely a parallel to what Kaepernick was saying in framework as well as his important message about violence against black communities from the police and others. That’s the emotional and theoretical free speech issue. But the very practice of free speech issue is that while Kaepernick was not protected by the mistreatment by the NFL, student athletes – any student athletes at public universities or public high schools do have the right to take a knee.
If the administrators of those institutions seek to stop them for doing that, Barnett squarely protects them. And so, it is not just a case of, well, athletes, in theory, have this right. Student athletes absolutely have that protection thanks to these school children from WW11.
Nico: I found it interesting that you note in your book that it was really only in 2009 that NFL teams started joining the crowd on the sidelines for the nation anthem. Prior to that it wasn’t always the case that the NFL teams would even be out there during the national anthem.
Ian: Yeah. Which is another weakness of their argument in disciplining them. While they do have a free speech right or are allowed to stop their employees from doing speech that they don’t like, I am not taking an opinion on whether there was collusion as Kaepernick’s lawsuit which settled everyone thinks in his favor, although, it’s confidential. That’s a non-first amendment issue. I was able to – the book was going to press as Black Lives Matter resurgence was happening. Some of the NFLs quasi apologies after the fact were coming out.
But I do point out that these apologies, to me and other commentators like Howard Bryant who speaks very eloquently on ESPN.com and other places in his books. But until there is recompense for Kaepernick, until Goodell mentions Kaepernick by name in apology, I feel like he has violated the spirit of the first amendment in an egregious way. The NFL has violated that spirit in an egregious way.
So, do you have any concerns surrounding how these companies are approaching so called hate speech, fake news, or even in the case of Twitter or Facebook the refusal to host or ban government officials or former government officials like President Donald Trump?
Ian: Right. Well, in talking with people about my book, this is definitely the number one issue that people keep bringing up.
Nico: Ian, I get it all the time. All the time. From family. From friends.
Ian: It’s something that I made a point of addressing in the last chapter of my book. The first time the court ever addressed the issue of social media speech does not come until 2017 in a case called Packingham which finds that individuals, even a sex offender, have a right to access social media. To deny people access to any kind of series of social media platforms is essentially taking away two vital components of speech in the modern era. So that’s’ on –
Nico: But that’s the government taking it away.
Ian: That’s the government. Exactly. So, that’s on the one hand. But then back to your earlier point, I think you know this. But I think it’s important for listeners to understand that as you were referencing all social media platforms are private entities. And so, they do not have to abide by the first amendment at all. First amendment text says Congress shall make no law abridging the freedom of speech. So, that applies to the federal government and the states but not private companies. So Facebook, Twitter, YouTube, they’re not government actors. They can restrict people’s speech all they want.
They can kick people off their platforms; they can restrict speech based on its message. They can refuse to accept ads from whomever they choose. That these are editorial decisions that reflect the free speech rights of the social media companies themselves. So this raises a host of political and social issues. But they are not going to be found by courts to be unconstitutional violations of the first amendment. Twitter and all the other platforms are 100 percent within their constitutional right or 100 percent able to without fear of any constitutional limits to de-platform Trump.
Government actors have to follow the first amendment, but private companies and private individuals don’t. So that is, I think, a core set of first amendment law and first amendment issues that people need to understand as a starting point. But then, to the hard part of your question, I am – I don’t think that means that we need to throw up our hands and go, okay. Well, social media companies can do whatever they want. I guess the first amendment doesn’t save us here because I think we should advocate.
Depending on your belief system but advocate for change in the way social media companies manage their content, certainly the lack of transparency is a glaringly obvious flaw in their current systems. But the first amendment isn’t the tool to fix those problems, in my opinion.
Nico: I want to close here by asking you about shouting fire in a crowded theater. You addressed this in your book as one of the kind of cop outs for first amendment protection and often a misunderstood one. Can you give us the history around it, and why it is usually wrong when people shout fire in a crowded theater as a way to kind of justify censorship?
Ian: Yes. So this is a personal bugaboo of mine. I’m glad to be able to shout it to the rooftops. As you say, whenever anyone wants to bring about speech restrictions or restrictions on the press, they always say, well, you can’t shout fire in a crowded theater, which is an egregious sometimes intentional, sometimes just an unknowing mistake. The actual language from Justice Holmes is that you can’t falsely shout fire in a crowded theater and cause a panic. So the two elements that are crucial to when we should think about the possibility of restricting speech are falsity and harm.
Of course you can shout fire in a crowded theater if there’s a fire. You should get a medal for shouting fire in a crowded theater. And you should also shout fire in a crowded theater if you smell smoke, and it turns out it’s not smoke. It’s just an effect of what’s on the stage. If you just yell fire and the usher comes out and goes, no, everything is okay, you shouldn’t be penalized for that. We don’t want to have a deterrent for people to call out when they should say something when they see something. So this is, I think, if there is one thing you learn from my book, if there’s one thing you learn from our podcast discussion today, it’s that that phrase is misused all the time.
I think it’s often intentionally misused to say, well, since there are limits on speech, we can limit this speech. Yes, of course, I am not a free speech absolutist. The Supreme Court has over the years and even as constituted today are not free speech absolutists. Absolutely, there are many different types of restrictions that we have on speech, and those are constitutionally permissible. I would say most of them are socially acceptable as well. But we should not begin the idea that, oh, well, since some limits on speech are allowed, every limit is okay. I think the false fire analogy is a real tool for misrepresenting what our real rights are.
Nico: Well, we started this podcast talking about your theater background. We ended with your theater bugaboo. Ian, it’s been a great pleasure. The book is The Fight for Free Speech: Ten Cases That Define Our First Amendment Freedoms. It’s out this week. Ian, thanks for coming on the show.
Ian: Thanks for having me on it. It’s one of my favorite programs.
Nico: Thank you. This podcast is hosted, produced, and recorded by me, Nico Perrino and edited by Aaron Reese. To learn more about So to Speak, you can follow us on Twitter at twitter.com/freespeechtalk or like us on Facebook at facebook.com/sotospeakpodcast. We also take email feedback at firstname.lastname@example.org. If you enjoyed this episode, please consider leaving us a review on Apple Podcasts, Google Play or wherever else you get your podcast. They do help us attract new listeners to the show. And until next time, I thank you all again for listening.
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