In 1919, The US Supreme Court in Schenck v. United States established the rule that if words create a "clear and present danger" to incite criminal activity or violence, the government has the right to prevent and punish that speech. For nearly fifty years, through wars and the Red Scare, that rule was applied largely without question. Then, in the 1969 case of Brandenburg v. Ohio, a white supremacist in Ohio, convicted for an inflammatory speech at a Klan rally, challenged his conviction saying it violated his First Amendment rights...and the Court agreed. A new test was born which has lasted for now more than 50 years. But, having been formulated in an era of much more limited media, does it still hold up today? In this episode of Make No Law: The First Amendment Podcast from Popehat.com, host Ken White explores how the First Amendment has handled inflammatory speech, from Schenck to the current Brandenburg standard and all the way up to today. With the help of Professors David Cunningham and Richard Wilson, Ken digs into what makes the “imminent lawless action” test of Brandenburg such an important turning point in First Amendment law but also investigates whether the proliferation of online communication necessitates a renewed look at the standards set out in a “simpler” time. Professor David Cunningham is professor and Chair of Sociology at Washington University in St. Louis. Professor Richard Wilson is the Gladstein Distinguished Chair of Human Rights and Professor of Law and Anthropology at UConn School of Law.

Make No Law: The First Amendment Podcast

Imminent Lawless Action

How do you know when something’s obscene? It’s not exactly an easy question. Plenty of now respected works were, at one point, declared obscene and subject to judicial scrutiny - James Joyce’s Ulysses, Allen Ginsberg’s Howl, and George Carlin “7 Words You Can’t Say on TV” to name just a few. But how exactly does a court answer the question? And how can the layperson know, with any degree of certainty, whether something is obscene or not? In this episode of Make No Law: The First Amendment Podcast from Popehat.com, host Ken White explores the United States Supreme Court’s approach to obscenity law through the lens of the landmark case of Jacobellis v. Ohio, in which we find one of the most well known lines in Supreme Court jurisprudence - “I know it when I see it.” With the help of guests Professors Philippe C. Met and Geoffrey R. Stone, Ken explores the rules set forth by the Supreme Court, their notorious ambiguity, and how they apply in the modern day. Professor Philippe C. Met is a professor of French and Francophone Studies at the University of Pennsylvania. He also serves as Editor-in-Chief of French Forum. Professor Geoffrey R. Stone is a noted First Amendment scholar, the Edward H. Levi Distinguished Service Professor at the University of Chicago, and formerly served as law clerk to Supreme Court Justice William J. Brennan, Jr.

I Know It When I See It

Politically conservative voices have been arguing recently that social media outlets such as Twitter, Facebook, and Youtube have been illegally censoring their views. They claim, as a result of their political leanings, that they are being “deplatformed”, or having their accounts suspended or removed. These allegations have led to congressional hearings, complaints from the President, and claims that these platforms are a serious threat to Americans’ freedom of speech. Critics and pundits argue that Twitter bans and videos pulled from Youtube amount to censorship and nothing less than an unconstitutional abridgement of their First Amendment rights. Are they right? Is there something to the argument that these services serve as the modern day “public forum” and are therefore required to be neutral? In this episode of Make No Law: The First Amendment Podcast from Popehat.com, host Ken White reviews the common arguments made by critics of these moderation policies by highlighting the legal foundations on which they’re made: the First Amendment right to free speech; Section 230 of the Communications Decency Act; and anti-discrimation law. With the help of professor Eric Goldman, Ken pulls these arguments apart, demonstrating that these companies are not breaking the law when they ban, block, or demonetize an individual due to their political beliefs. Eric Goldman is a professor at Santa Clarita University School of Law where he teaches, amongst other subjects, Internet Law. He is also the author of the Technology and Marketing Law blog

Deplatformed: Social Media Censorship and the First Amendment

Criminal or civil, plaintiff or defendant — what’s the one piece of legal advice all should follow? Shut up! That being said, should a judge be able to make you do this? In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White talks to Steven Zansberg about gag orders and how far judges can go to restrict the dissemination of case information. They outline the practices of issuing prior restraints and gag orders on case participants and the media, and discuss whether these orders are constitutional. Steve talks about his litigation efforts to keep courtrooms and court records open and they highlight the fact that the legal profession’s rules of professional conduct contain restrictions that negate the need for additional orders issued by judges. For more than two decades, Steven D. Zansberg has represented media companies, online publishers, and individuals in defending claims based on content, fighting subpoenas, and seeking access to government information and proceedings.

On April 26, 1968, Paul Robert Cohen walked down the corridor of the Los Angeles County Courthouse at the corner of Grand and 1st. He didn’t start a fight, he didn’t make any threats, he didn’t even hold up a sign, but he did wear a jacket. This jacket featured “STOP THE WAR,” two peace signs, and the phrase “FUDGE THE DRAFT” (only it didn’t say “fudge”). The result was a court battle over whether the government has the power to punish the use of the word fuck because many find it offensive. In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White takes a look at the case Cohen v. California and whether or not the F word is protected by the First Amendment. He addresses the claims that foul language qualifies as fighting words and/or disturbs the peace while also discussing how defending the right to use the word often involves using the word. This episode features guests Melissa Mohr, author of a book called “Holy Shit: A Brief History of Swearing,” and Alan Garfield, a professor at Delaware Law School. It also includes snippets from the case itself and a brief soundbite of your mom.

The F-Bomb

While the idea of free speech seems straightforward enough, its execution can be a little messy. Current events especially have underscored the complexity of what is protected by law and what is a punishable offense. Luckily, there are First Amendment lawyers that can answer our questions. In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White answers common questions his listeners have about freedom of speech and the First Amendment. He addresses the misleading claim that “hate speech is not free speech,”, explains the case that challenged President Trump’s ability to block people on Twitter, and talks about how anti-SLAPP statutes work. Ken also takes advantage of the opportunity to discuss yelling on the internet and the constitutional right to petition the government.

Bonus: The Mailbag Episode

Everyone loves a good redemption story. Maybe that's because it helps us believe it's never too late to change. But how does the same Justice who decided Schenck v. United States, a low point for First Amendment jurisprudence, become the ultimate source of famous First Amendment concepts and rhetoric? In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White explores Justice Oliver Wendell Holmes’s transformation into the First Amendment hero we know him as today. To do this, Ken discusses the Sedition Act of 1918, Holmes’s dissension in United States v. Abrams, and the discourse with his friends and colleagues that ultimately swayed his opinion on free speech. He also talks to Professor Thomas Healy, First Amendment and constitutional law professor at Seton Hall and author of “The Great Dissent: How Oliver Wendell Holmes Changed His Mind And Changed The History Of Free Speech In America.”

Fighting Faiths

“You can’t yell ‘fire’ in a crowded theater” is one of the most commonly used First Amendment catchphrases -- but does it really support exceptions to free speech? The answer to this question can be found in the writings of Supreme Court Justice Oliver Wendell Holmes. He penned the phrase in 1919, not to justify moderate limits on speech, but to justify government prosecution of those speaking out against the draft. In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White explores the origins of the phrase “You can’t yell ‘fire’ in a crowded theater” and whether or not it actually calls for exceptions to the First Amendment. Featured guests include history professor Michael Kazin, who shares his knowledge of the WWI effort and the resulting tension, and author Nat Brandt, who expands on what made fire in a theater such a powerful analogy. Ken also discusses the Espionage Act of 1917 and the role of Oliver Wendell Holmes in the history of free speech.

Fire in a Crowded Theater

What pushes a 51 year-old decorated World War II veteran to burn the American flag? In June of 1966, Sidney Street heard the news that James Meredith, an icon of the Civil Rights Movement, had been shot on the second day of his March Against Fear. Street, an African American himself, burned the flag and was arrested. Street declared, “If they let that happen to Meredith, we don’t need an American flag.” So sparked the question of whether the government can punish someone for using words to defile or disrespect an American flag. In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White examines Street v. New York, the Supreme Court case which concluded that the First Amendment allows freedom of expression towards the American flag -- if not yet the right to burn it. The episode features the input of Professor Aram Goudsouzian, the chair of the History Department at the University of Memphis, and the author of the book “Down to the Crossroads: Civil Rights, Black Power, and the Meredith March Against Fear.” The episode also features a listener question from Ben Olson about the inclusion of the word “Congress” in the First Amendment -- if the First Amendment says it only applies to Congress, why is it applied to protect us from action by state and local government? This question leads Ken to discuss the Fourteenth Amendment and the Incorporation Doctrine. If there’s a case you want to hear about, or a First Amendment question you’d like answered on the podcast, email Ken at ken@popehat.com.

Street

The Animal Crush Video Prohibition Act of 2010 was an animal cruelty prevention law aimed at videos showing women in high heels crushing small animals. While the law took aim at these videos, it ended up being used to target Robert Stevens instead. United States v. Stevens is a landmark case that may be the most important First Amendment decision of the 21st Century so far, but not many people have heard of it. It centers around Robert Stevens, a pit bull enthusiast who was charged with violating the crush video law in March 2004. The case eventually led the Supreme Court to make an important clarification about how we decide what speech is protected under the First Amendment. In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White examines United States v. Stevens and the question of whether the government can continually come to the Supreme Court with potential exceptions to the First Amendment. The episode features input from Marc Randazza, a nationally-known First Amendment and intellectual property attorney. It also examines other relevant cases including New York v. Ferber, a 1982 case in which the Supreme Court decided that the government could punish distribution of child pornography even if it didn’t meet the Miller test for obscenity.

Crush

Simon Tam named his band “The Slants” as a way to fight back against racism and take back the word as a form of self-empowerment. But when he tried to register the name as a trademark, the United States Patent and Trademark Office (PTO) denied the application and refused to register the trademark under Section 2(a) of the Lanham Act. This law allowed the PTO to refuse a trademark if it could be considered disparaging. No one outside of the PTO actually found the band name disparaging. In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White examines the Matal v. Tam case in which the Supreme Court vindicated Simon Tam and The Slants, finding that Section 2(a) of the Lanham Act -- which allows the PTO to deny trademarks it finds offense -- violates the First Amendment. In the episode, Simon Tam himself explains how the PTO substituted its own judgment for the advocacy of Asian-Americans trying to highlight and fight back against racism. This episode also features quotes from the justices involved and music from The Slants.

Disparagement, Contempt, and Disrepute

When Richard Ceballos, a deputy district attorney in Los Angeles County, expressed concern about the validity of a search warrant in 2000, he discovered the fuzzy line between free speech rights and the need for government entities to maintain workplace discipline. His case brought to light the question of whether the government can terminate its employees based on their words as well as why acting as a citizen versus an employee is an important distinction. In this episode, host Ken White explores the Garcetti v. Ceballos case, the results of which saddle government employees with a tough decision. Either they can report misconduct to their superiors and potentially face discipline, or report to media or other sources on the outside and face different discipline. The episode features recordings and documents from the Ceballos’ case as well as an interview with Richard Ceballos himself. It also includes details from other relevant cases, including the  1968 Supreme Court case Pickering v. Board of Education and the 1983 case Connick v. Myers which resulted in the Pickering-Myers test used in Ceballos’ case.

On The Job

In late 1965, a 13-year-old student named Mary Beth Tinker wore a black armband to Warren Harding Junior High School in Des Moines, Iowa, to support a truce in the Vietnam war. The school suspended Mary Beth Tinker for violating a a policy the district had enacted to forbid just such protests. Through her parents, Mary sued the school. Tinker v. Des Moines made its way to the Supreme Court. The Court held that the school violated the students’ First Amendment rights by prohibiting armbands without sufficient evidence that they substantially disrupted the regular operation of the school. But in the years since this landmark case, the Supreme Court has sided more and more with a school’s right to restrict or punish speech. Host Ken White dives into the Tinker v. Des Moines case and how it has impacted freedom of speech for students on campuses today. While Mary Beth Tinker’s rights were upheld, many plaintiffs in First Amendment cases today have faced less sympathetic courts. Ken and his guests discuss the cultural and historic factors that have led to that retreat. The episode features the thoughts and perspective of Mary Beth Tinker herself, who remains an activist for student free speech. Ken also interviews Frank LoMonte, a professor of journalism and the recent head of the Student Press Law Center, an advocacy group that helps protect the rights of high school and college journalists.

The Schoolhouse Gates

On April 6, 1940, a Jehovah's Witness named Walter Chaplinsky was arrested for yelling, “You are a God damned racketeer and a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists” at a Rochester, New Hampshire police officer.  The confrontation launched the case Chaplinsky v. New Hampshire, which made it all the way to the Supreme Court.  The Court ruled against Chaplinsky, articulating an exception to the First Amendment for so-called “fighting words.”  But the ruling didn’t come in a vacuum -- it followed a wave of oppression of Jehovah’s Witnesses, some of it encouraged by the Supreme Court itself. In this inaugural episode host Ken White explores the Chaplinsky v. New Hampshire case and the ensuing “fighting words” doctrine, which is often cited in disputes over free speech in the United States.  As he will throughout this series, he dives into the context and background of the case and some of the most important cases later explaining it. The episode includes Chaplinsky’s story about what really happened on that day in 1940, as well as stories from other Jehovah’s witnesses in the 1930s and 1940s, including a ten-year-old boy  expelled for refusing to salute the American flag.  It features an interview with Shawn Peters, a professor at the University of Wisconsin-Madison and author of “Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution.”

Fighting Words

Ken White explores the background of important First Amendment cases and the personalities and history that led to them. Join Ken, First Amendment litigator and law blogger at Popehat.com, as he interviews some of the people behind America’s most important free speech cases.

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Make No Law: The First Amendment Podcast

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