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Forthcoming book: Finan on 'How Free Speech Saved Democracy'

• Christopher M. Finan, "," foreword by Randall Kennedy (Truth to Power, June 14, 2022)

Free speech is not an obstacle to change: it is the way change happens.

Uncovering vivid and engaging stories about First Amendment pioneers, How Free Speech Saved Democracy shows how their struggle made possible the surging protests that aim to expand democracy today

How Free Speech Saved Democracy is a revealing reminder that First Amendment rights have often been curtailed in efforts to block progress and that current measures to reduce hurtful language and to end hate speech could backfire on those who promote them.

To those who see free speech as a threat to democracy, Finan offers engaging evidence from a long and sometimes challenging history of free speech in America to show how free speech has been essential to expanding democracy.

From the beginning of American history, free speech has been used to advocate for change. In the 19th century, abolitionists, advocates for women’s rights, and leaders of the labor movement had to fight for free speech. In the 20th century, the civil rights and anti-war movements expanded free speech, creating a shield for every protest movement we see today.

Written by , a historian who became a full-time defender of civil liberties who spent four decades advocating for the rights of victims of censorship, this book grew out of his desire to address the declining support for free speech that is occurring as our country becomes increasingly polarized.

Through his evocative storytelling, Finan demonstrates how the most effective antidote for the growth of hate speech and violence is support for and cultivation of the robust alternative of free speech.

Forthcoming book on language and how it moves people to action

• Lynn Levine Greenky, "" (Brandeis University Press, March 29, 2022)

This book makes first amendment issues immediate and contemporary.

When Freedom Speaks chronicles the stories behind our First Amendment right to speak our minds. Lynn Levine Greenky’s background as a lawyer, rhetorician, and teacher gives her a unique perspective on the protection we have from laws that abridge our right to the freedom of speech.

Rhetoricians focus on language and how it influences perception and moves people to action. Powerfully employing that rhetorical approach, this book explores concepts related to free speech as moral narratives that proscribe the boundaries of our constitutionally protected right.

Using the characters and drama embedded in legal cases that elucidate First Amendment principles, When Freedom Speaks makes the concepts easier to understand and clearly applicable to our lives. With a wide range of examples and accessible language, this book is the perfect overview of the First Amendment.

Just-released: Redish on commercial speech

• Martin H. Redish, "" (Cambridge University Press, Oct. 2021)

For many years, commercial speech was summarily excluded from First Amendment protection, without reason or logic. Starting in the mid-1970s, the Supreme Court began to extend protection but it remained strictly limited. In recent years, that protection has expanded, but both Court and scholars have refused to consider treating commercial speech as the First Amendment equivalent of traditionally protected expressive categories such as political speech or literature.

Commercial Speech as Free Expression stands as the boldest statement yet for extending full First Amendment protection to commercial speech by proposing a new, four-part synthesis of different perspectives on the manner in which free expression fosters and protects expressive values.

This book explains the complexities and subtleties of how the equivalency principle would function in real-life situations. The key is to recognize that as a matter of First Amendment value, commercial speech deserves treatment equivalent to that received by traditionally protected speech.

New scholarly article: Magarian on betraying the First Amendment’s democratic promise

• Gregory P. Magarian, "," Washington University Journal of Law and Policy (2021)

Since the U.S. Supreme Court decided its first free speech case 100 years ago, two very different eras have defined First Amendment law. For a half-century, before 1970, the Supreme Court focused on protecting the expressive freedom of political dissidents and social reformers. In 1970, amid protests against the Vietnam War, the Ohio National Guard senselessly gunned down four students at Kent State University. The Kent State massacre exposed the fragility in our country of political protest, free speech, and democracy itself. That atrocity should have inspired First Amendment law to affirm and enhance its protection of dissenters and vulnerable speakers. Instead, in a tragic irony, 1970 marks the moment when the Supreme Court began to unmoor First Amendment law from its formative principles and to prioritize protection of wealthy, powerful speakers.

Professor Magarian contends that the Court’s shift since 1970 has betrayed the First Amendment’s democratic promise and transformative power. He calls for the next century to restore and advance First Amendment law’s foundational ideals.

New scholarly article: Wright on fighting words 

• R. George Wright, "," SSRN (Oct. 13)

For some time, the familiar free speech exception known as the ‘fighting words’ doctrine has been subject to severe judicial and scholarly critique. It turns out, though, that the fighting words doctrine, in general, is neither obsolete nor in need of radical limitation. The traditionally neglected 'inflict injury' prong of the fighting words doctrine can and should be vitalized, with only a minimal loss, if not an actual net gain, in promoting the basic purposes of freedom of speech in the first place. And the 'reactive violence' prong can and should be relieved of its historic biases and dubious assumptions. On that basis, 'reactive violence' prong cases can be more thoughtfully and realistically adjudicated.

In all fighting words cases, judicial attention should be paid to the distinction between the abusive or provocative words actually used by the defendant speaker, and any underlying message, including the underlying message's naturally associated emotional fervency. Protecting the latter, in undistorted fashion, need not mean protecting the former. In most fighting words cases, any tradeoff between the value of minimal discursive civility and the values underlying freedom of undistorted speech need not be substantial.

More in the news

• Keith E. Whittington, "," The Volokh Conspiracy (Oct. 19)
• Michael Kunzelman, "," Associated Press (Oct. 13)
• "," CNN (Oct. 2021) (video clip)

2021-2022 SCOTUS term: Free expression & related cases

Review granted

Pending petitions

• (petition for rehearing)
• (First Amendment and qualified immunity)

Review denied

Last FAN

• FAN 315: "Do religious speech and association cert. petitions filed by Clement, Waggoner, and others portend a new trend in First Amendment law?”