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- Oct 28, 202033 min
Imminent Lawless Action
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.
- Jun 3, 202026 min
I Know It When I See It
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.
- Aug 28, 201926 min
Deplatformed: Social Media Censorship and the First Amendment
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
- Apr 18, 201931 min
Gag
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.
- Nov 29, 201826 min
The F-Bomb
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.
- Sep 12, 201833 min
Bonus: The Mailbag Episode
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.
- Jul 27, 201827 min
Fighting Faiths
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."
- Jun 28, 201828 min
Fire in a Crowded Theater
"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.
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About Make No Law: The First Amendment Podcast
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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