The Key to Democracy: A Century of Free Speech

By Paul FinkelmanJune 19, 2021

The Key to Democracy: A Century of Free Speech

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

EVERY SO OFTEN the stars align for an academic book. Ian Rosenberg’s The Fight for Free Speech is such a book. It came out in the wake of a presidency marked by persistent attacks on the very idea of freedom of expression.

Trump ended his presidency by inciting a murderous assault on Congress. His congressional and political allies misused free speech doctrine to defend him on the specious grounds that the First Amendment protects incitement to riot and advocacy of criminal behavior that leads immediately and directly to violence and murder.

But as Rosenberg teaches us, quoting Justice Oliver Wendell Holmes Jr., the government can punish or stop speech that “imminently threaten[s] immediate interference with the lawful and pressing purposes of the law.” This power must be used with care, and as the cases in The Fight for Free Speech show, the government often oversteps the line in suppressing “ideas” when it claims it is suppressing threats. What Holmes could not have predicted was that such speech would come from the government itself — or at least the lame-duck head of the government.

Carefully researched (with 81 pages of endnotes), [1] The Fight for Free Speech is a terrific introduction to the problem of freedom of speech in our society. Rosenberg has managed a true intellectual hat trick — scoring three goals in one book.

First, he identifies 10 major free speech cases, spanning a century, that are central to understanding the development of free speech law. We could quibble about whether he has “all” the right ones (as I note below, I wish he had added two more chapters, and given us a dozen important cases and problems). I also wish his subtitle — “Ten Cases That Define Our First Amendment Freedoms” — had been accurate. Rosenberg says nothing about freedom of religion or separation of church and state, which are also key components of “Our First Amendment.” But these quibbles aside, it is a great list of cases and topics.

Anyone who reads this book will come away with a solid understanding of the dilemmas of free speech law. Readers with no legal training will gain a huge and valuable insight into the complexities of free speech law. This book ought to be required reading for all political leaders, especially those who persist in pandering to their base by intentionally misrepresenting why free speech is so important, even when we hate what the speaker has to say. It should also be used to educate members of Congress that the free expression of ideas and debate over policy and programs is not the same as inciting violence, or urging state officials to steal votes, when you do not get what you want or when you lose an election.

Second, Rosenberg has humanized these major cases. He tells us about the people who are involved in them. Rosenberg successfully breaks away from legal jargon and Supreme Court doctrine to tell us the stories behind the cases. What we see is that most of these major decisions were not the result of people trying to make new law or overturn existing statutes. In that sense, these free speech cases differ from those of the Civil Rights movement — like Brown v. Board of Education (1954) — which were carefully orchestrated by the NAACP and other civil rights organizations to challenge the existing regime of segregation and racism. Most free speech cases are not “test cases” brought to challenge existing or new laws. Free speech cases are usually generated by government officials (or occasionally by prominent public figures and religious leaders), who want to suppress ideas they do not like or punish language or nonviolent behavior that offends their own values or bruises their fragile egos. In other words, one of the major lessons of this book is that free speech requires constant vigilance against thin-skinned and authoritarian political leaders, prosecutors, law enforcement personnel, and “entitled” public figures who have no tolerance for people, ideas, or behavior they do not like.

Rosenberg’s third “score” in this hat trick is his skillful analysis, connecting classic cases to recent events and showing how doctrine that predates our own times remains relevant. This, of course, is what makes the book so timely. Taking one example, Rosenberg provides a superb history of New York Times v. Sullivan (1964), the case that generally prevents politicians from suing the media for critical and even harsh reporting. This is a central case to freedom of the press. The great New York Times reporter Anthony Lewis began his Harvard Law School course on freedom of the press with this case and then backed up to earlier cases before going on to more recent ones. Modern free press law pivots on this case.

In New York Times v. Sullivan, the court overturned a massive libel verdict won by a minor Alabama politician who had sued the Times over an advertisement placed in the paper to raise money for Martin Luther King Jr.’s movement against segregation in that state and the South. Sullivan’s tactic (along with similar suits by other politicians) was to bankrupt the Times and intimidate the national media in order to stop reporting on segregation, police brutality, and the Civil Rights movement in the South. An Alabama jury awarded him $500,000 in damages, an enormous sum at the time. Had Sullivan won, he and the other plaintiffs would have put the Times out of business. A victory for Sullivan would also have undermined the ability of the national media, including television, to report on the police and vigilante violence directed as civil rights marchers and peaceful protestors.

Fortunately, the Court ruled that a civil suit by a political figure was the equivalent of a government prosecution, and that the First Amendment protected the press from both kinds of legal action, unless the newspaper published something that was knowingly false or with “reckless disregard” for the truth. This case has allowed the media to report on political leaders and public figures and to criticize them. Without New York Times v. Sullivan, politicians would be regularly going after the press over any critical reporting or editorials. We would be left with state news.

The line from New York Times to recent events is clear. When Donald Trump ran for president, he persistently attacked the case — not by name (it is not clear he knew it), but by its holding: that public figures (which he was as a self-proclaimed billionaire real estate mogul and reality TV star) and political leaders could be openly criticized without facing libel suits. Throughout his campaign and presidency, Trump constantly railed against the fact that he could be criticized. He persistently threatened to sue people and the media for libel. He demonized the press with his nonsensical claims of “fake news,” while at the same time demanding the right to sue reporters and publishers at will. Rosenberg deftly ties New York Times to our recent encounter with a president who opposed a free press.

In language that a non-lawyer can understand, and a legal scholar can appreciate, Rosenberg demolishes the clever, but in the end intellectually and constitutionally trite, statement by Justice Oliver Wendell Holmes Jr. in Schenck v. United States (1919) comparing radical political speech to “falsely shouting fire in a theatre and causing a panic.” This argument is commonly used, and just as commonly misquoted. “Like a zombie, Holmes’s metaphor continues lumbering on to our present day, stalking free speech wherever it goes, in the guise of universally accepted wisdom.” Rosenberg stresses that the limitation in Holmes’s opinion in Schenck on “shouting fire” requires falsity and an actual panic. He then encapsulates a central argument about free speech in an emphatic and charming statement:

Both of these often-forgotten components — falsity and harm — are crucial to comprehending the true limits of the First Amendment and should be prerequisites in any consideration of prohibiting speech. (If you, dear reader, take away nothing else from this book please go forth and flaunt your knowledges of how to use this adage properly from now on.)

Holmes set out his trite “fire in a theatre” argument in an opinion upholding Schenck’s 10-year sentence for sending letters opposing the draft. Rosenberg might have, but sadly did not, ask the question how a letter sent to an individual, sitting at home, is in any way equivalent to “shouting” “fire” in a “theatre.” Reading a letter all alone, or with family, at a kitchen table, does not replicate sitting in a darkened, crowded theater, and hearing someone yell there is a fire. Furthermore, there were no responses to Schenck’s letter. There is not a shred of evidence that anyone read the letter and refused to be drafted. Rosenberg ought to have pointed out that even by his own standard, Holmes was disingenuous if not dishonest when he included “causing a panic” as part of the offense, because there was no panic in this case. Nor is it clear that what Schenck said was “false” because much of what he wrote was pure “opinion,” which can neither be true nor false. Even the Court admitted some of the “strongest expressions” in opposition to the draft and World War I were “quoted respectively from well-known public men.” If these important public figures had not “falsely” attacked the draft, how could Schenck have done so by quoting them?

Holmes was roundly criticized by many people, including some of his closest friends, for his opinion in Schenck. He never retracted his view, and stubbornly argued it was the right decision. Within six months, however, he moved away from his repressive notions of speech. He signaled this change in Abrams v. United States (1919).

Rosenberg provides an extensive quotation from Justice Holmes’s classic defense of radical speech in Abrams, as he backed away from the clear and present danger standard. In his Abrams dissent, Holmes subtly mocked the majority opinion (upholding sending Abrams to jail for 20 years), asserting “[p]ersecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wished in law, and sweep away all opposition.” In effect, Holmes compared the majority on the Court, and administration of Woodrow Wilson, to the grand inquisitors of Medieval Spain or the emerging totalitarian regime in the new Soviet Union.

Holmes then argued that instead of persecuting those with whom you disagree, you should let all people peaceably speak in the public square because “the ultimate good” in society was “better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Holmes asserted that the government cannot suppress “opinions we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

All of this has great resonance in the wake of January 6, when a speaker rejected the notion of a free trade in ideas and a search for truth and used lies and blatant falsehoods to incite riot, mayhem, and death. What Holmes could not have predicted, of course, was that the incitement to a violence that would “imminently threaten immediate interference with the lawful and pressing purposes of the law” might come, not from an insignificant and unknown communist agitator, like Jacob Abrams, but from the president of the United States.

This discussion of Abrams, in the very beginning of the book, sets the stage for subsequent chapters on hate speech, speech mocking public figures and political leaders, and cultural radicals, like George Carlin and his famous seven words you can’t say on television and Samantha Bee’s nasty comments about Ivanka Trump.

He offers an incisive and humorous chapter on Reverend Jerry Falwell’s suit against Larry Flynt, the publisher of Hustler Magazine. It is hard to imagine a more unlikable pair of litigants. But, in this case the preacher argued for suppression and censorship, while the pornographer correctly stood for free speech and the right to criticize the powerful.

Flynt had published a satirical “advertisement” for a liquor brand, making fun of Falwell’s pomposity and religiosity and making truly outrageous and unbelievable comments about Falwell’s first encounter with sex. The page prominently said it was “parody.” No one could have taken it seriously. But Falwell sued, and an all-white, all-Protestant Virginia jury “from the Bible Belt” awarded Falwell $200,000 in damages. Rosenberg also shows that Falwell used the case to raise significant amounts of money for his own political/social agenda.

In one of his best opinions, Chief Justice William Rehnquist, speaking for a unanimous court, reversed in favor of Hustler Magazine. Rehnquist noted that parody and even crude humor had always been part of American political life, and while not an officeholder, Falwell’s role as the founder of the political organization known as the Moral Majority made him a fair target for criticism and parody. He noted that “from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate.” I read this chapter in the wake of the current sex and financial scandal involving Jerry Falwell Jr., who succeeded his father as the president of Liberty University. This scandal involves sexual escapades as “outrageous” (but in this case real) as those in the Hustler parody about Falwell Sr. As life imitates art, we can appreciate the Court’s decision in this case.

From the famous publisher Flynt, it is worth turning to a virtually unknown opponent of the Vietnam War, Paul Robert Cohen, who had the audacity to have the words “Fuck the Draft” emblazoned across the back of his jacket when he walked down a hall in a Los Angeles courthouse. A zealous policeman arrested him for disorderly conduct, although there is no evidence that the jacket led to any disorder or was even noticed by most people in the building. More likely, the policeman simply did not like Cohen’s antiwar politics. It is surely hard to imagine that the policeman was actually offended by the word “fuck.”

In Cohen v. California (1971), the Supreme Court by a vote of 5-4 reversed Cohen’s conviction for disorderly conduct. Rosenberg describes the prissiness of the Chief Justice Warren Earl Burger, whose face “turned bright crimson, almost matching the deep red curtains behind the bench” when Cohen’s attorney, UCLA professor Melville Nimmer, said “fuck” in his oral argument. It is hard to imagine that Burger had never heard the word before, or even used it himself.

Burger had been appointed to the Court by Richard M. Nixon, whose taped conversations reveal him as runner-up to Donald Trump for his obscenity-laden language. An equally priggish Justice Hugo Black, who normally supported free speech, and had consistently voted to overturn pornography convictions, also voted to uphold the conviction. He asked his clerks what if his wife “were in that corridor” and had seen the word. Justice John Marshall Harlan II, who was writing the majority opinion reversing Cohen’s conviction, heard about Black’s truly weird response to the case from his own clerks. Harlan told them: “I wouldn’t mind telling my wife, or your wife, or anyone’s wife, about the slogan.” This comment dovetails with his pithy statement in his majority opinion, that “one man’s vulgarity is another’s lyric.”

Chief Justice Burger all but begged Justice Harlan not to use “that word” when publicly reading his opinion because “it would be the end of the Court if you use it, John.” According to Rosenberg, Harlan “snickered” as the justices filed into the Court room. Harlan did not say fuck when he read the opinion from the bench, but it does appear in the printed opinion, and, to the best of my knowledge, the Court has not “ended.” Deftly humanizing this case, Rosenberg notes that when Cohen went back to the trial court to see his case formally dismissed, to the chagrin of the judge, Cohen demanded the return of his jacket. This book does not tell us where the jacket is today, but it ought to be in a museum!

One more chapter and a set of law stories illustrate the way Rosenberg ties individual stories to the legal issues in these cases, and connects old and classic cases to current events. His chapter on the famous cases involving Jehovah’s Witnesses children who refused to say the Pledge of Allegiance cleverly and correctly ties their actions to the decisions of athletes who take a knee, rather than stand, when the national anthem is played. Rosenberg skillfully explains why professional sports teams, as private businesses, do not have to respect the First Amendment, while government employees are required to do so. Thus, the NFL could constitutionally fire Colin Kaepernick (although the NFL was still subject to a civil lawsuit) but a state university or a public high school football could not retaliate against student athletes without violating the First Amendment. Once again, former President Trump plays a key role in understanding these issues, since he frequently denounced athletes protesting police violence against Blacks, just as he railed against newspapers critical of his administration.

The Flag Salute cases, while rooted in a religious belief, are about freedom of speech. In the late 1930s, Jehovah’s Witnesses concluded that saluting the flag was the equivalent of worshiping an idol. Their stand was in part an act of solidarity with their German co-religionists who were being persecuted by the Nazis, with thousands of them — with purple triangles sewn on their shirts — getting sent to jails, concentration camps, and extermination camps.  Unfortunately, Rosenberg does not discuss this issue.

Initially, in Minersville School District v. Gobitis (1940), in one of the most disgraceful decisions of the last hundred years, the Supreme Court held 8-1 that it was permissible to expel young children from the public schools if they would not salute the flag. With a tragic and misplaced sense of patriotism, Justice Felix Frankfurter concluded that forcing elementary school children to participate in patriotic gestures in violation of their faith was necessary to create “national unity,” at a time when American entrance into World War II seemed likely. Ironically, Rosenberg notes that at the time “the prescribed accompanying flag salute had a disturbing similarity to what would become the infamous Nazi ‘Heil Hitler’ salute” with “the arm stiffly extended and raised at about eye level.” In a disturbing moment of rhetorical overkill, Frankfurter compared the peaceful and quiet refusal of two elementary school children to salute the flag with the necessity of suspending habeas corpus in Maryland in 1861, to stop armed pro-Confederate terrorists from destroying railroads in and bridges that connected Washington, DC, to the North and simultaneously trying to overthrow the government of the United States. Lacking any sense of the incongruity of his opinion, Frankfurter wrote: “Situations like the present are phases of the profoundest problem confronting a democracy — the problem which Lincoln cast in memorable dilemma: ‘Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?’”

The Gobitis opinion led to a wave of vigilante persecution and new laws discriminating against Jehovah’s Witnesses. Mobs attacked members of the faith, beating, tarring, and feathering them, and in one case castrating a man. Local police arrested and sometimes tortured them — in one instance forcing them to drink large quantities of castor oil. All because they would not “worship” the flag.

After three years of this persecution, the Supreme Court reversed itself in West Virginia State Board of Education v. Barnette (1943). Justice Robert Jackson, who would later be the chief prosecutor at Nuremberg, wrote an extraordinarily eloquent opinion explaining that freedom of speech also includes the right to not speak, and to refuse to endorse any political viewpoint. Jackson demolished Frankfurter’s use of Lincoln in Gobitis to justify both religious persecution and compulsory speech:

It may be doubted whether Mr. Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the State to expel a handful of children from school. Such oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning.

Jackson argued that freedom means you cannot coerce others to believe what you want them to, and that “[t]hose who begin coercive elimination of dissent soon find themselves exterminating the dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.” This was of course exactly what was happening in Nazi Germany at the time and had been happening for much of the last two decades in the Soviet Union.

Jackson concluded with perhaps the single most eloquent statement in Supreme Court history on the meaning of free speech in America: “If there is any fixed star in our constitutional constellation, it is 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.”

In what Rosenberg properly calls a “furious dissent,” Frankfurter continued to insist that the states had a right to discriminate against people on the basis of religion, to coerce obedience by expelling school children, and to prosecute their parents for truancy when their children were forced to leave school for refusing to salute the flag. What Rosenberg does not do, but should have, is explore the very weird and ironic nature of Frankfurter’s opinion. A former Harvard Law School professor, Frankfurter was a Jewish immigrant from Austria who arrived when he was 12. Frankfurter began his dissent by asserting that “[o]ne who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution.” He then misused his own minority status to justify applying his considerable intellect to support oppression and bigotry against another vilified and persecuted minority. He wrote this while Jewish Austrians were being sent to concentration camps and death camps by the Nazis.

This is an important book, elegantly crafted and accessible to all. If I have any major complaint, it is that it should have been a little longer. Rosenberg should have addressed two other themes, giving us a dozen chapters. One would have been about expressive conduct that is not violent or threatening. This would have included cases involving the burning of the American flag. Such an act harms no one and threatens no one, but led Congress, in the 1990s, to attempt to amend the First Amendment. Tied to this are rights of peaceful speakers to protection, even when what they say is unpopular. In this area, the Court has supported the “heckler’s veto,” allowing the police to arrest a speaker because people simply do not like what he says. This ties to hate speech, which Rosenberg touches on, but never really gets at.

Finally, he ought to have made use of Justice Louis Brandeis’s eloquent opinion in Whitney v. California (1927). Here Brandeis explained that free speech was not just about politics, or what can “get itself accepted in the competition of the market,” as Justice Holmes put it. Meaningful speech can be personal, as well as political, and can be artistic. But speech, whether political, cultural, or artistic, is ultimately at the heart of the American project and the idea of a free society.

In his next book, I hope Rosenberg addresses these complicated issues. If he does, he should start with this passage from Brandeis:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

But, until that next book comes along, The Fight for Free Speech may very well be the best introduction to free speech and freedom of the press. If only we could get everyone in Congress to read it.


Paul Finkelman is a historian and legal scholar. He is the president of Gratz College in greater Philadelphia. His most recent book, Supreme Injustice: Slavery in the Nation’s Highest Court, was published by Harvard University Press in 2018.


[1] Unfortunately, New York University Press chose to bury Rosenberg’s very valuable notes at the back of the book and then failed to put running page heads at the top of the note pages so that a reader can easily check a footnote and learn from it. Thus, Rosenberg’s important and admirable scholarship is virtually inaccessible to readers. The publisher seems to have forgotten it is a “university press” that is dedicated to expanding knowledge. Indicative of this incompetent attention to detail, the running head on each of the index pages says “notes.”

LARB Contributor

Paul Finkelman is the Robert E. and Susan T. Rydell Visiting Professor at Gustavus Adolphus College in St. Peter, Minnesota, and a research affiliate at the Max and Tessie Zelikovitz Centre for Jewish Studies, Carleton University, Ottawa, Canada.  He is a historian and the author of more than 50 books, including Supreme Injustice: Slavery in the Nation’s Highest Court (Harvard University Press, 2018).


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