Interim Director Jeff Trexler recently sat down for an interview with Ian Rosenberg, author of the book The Fight for Free Speech, and recently with co-creator Mike Cavallaro the graphic novel Free Speech Handbook.
Below you’ll find the video interview plus a transcript from the conversation delving into our First Amendment rights. Rosenberg is a marvel at distilling what could potentially be jargon-filled topics into easy-to-understand concepts, illuminating the law with cases from the past and the present. We’re pleased to share this discussion where Rosenberg talks about collaborating with an artist, the benefits of telling the case studies and history of law visually, and the future of our First Amendment rights!
Interview conducted December 2021 by Jeff Trexler.
Jeff Trexler: I had a chance to read your book, which is excellent. There’s an incredible amount of information in there. I mean, you could teach a course based on this book.
Ian Rosenberg: I recommend people do so and use the book as the course text.
IR: I haven’t taught from the graphic novel version, but I have taught from my earlier book, which is similar, and it does work well for media law, of course.
JT: Wonderful. I wonder if you could share a little bit more about your background and what brought you to the topic of free speech because it’s an incredibly important topic, and for people in comics, it’s something that’s been at the center of the work of the CBLDF for years. It’s the reason why we were formed, challenges to comics. I’d love to hear more about your work and what brought you to free speech.
IR: Well, not to go back too far, I’ve been a media lawyer for over twenty years, and I started out as a theater person actually, in college.
IR: I was directing and acting and had a theater company at the University of Wisconsin, and I happened to take a constitutional law class by Professor Donald Downs, who’s a leading free speech advocate and theorist, and political scientist. I just took it on a lark, as something I was always interested in, and it really spoke to me. And to sort of short circuit the process, I ended up going to law school with the desire to do free speech and media work. I wasn’t exactly sure what that meant going in, but I then went to work at Cahill Gordon & Reindel. Well, I clerked in the Eastern District of New York for a federal judge after law school and then at Cornell, and then worked at Cahill Gordon & Reindel. Very lucky to work with Floyd Abrams who’s . . .
JT: A legend.
IR: Yes, a legend indeed. And really one of the country’s foremost first amendment experts and litigators. One of Floyd’s many great gifts is his ability to communicate. It’s often complicated, First Amendment doctrine, in a way that’s clear and understandable since most judges aren’t experts on the First Amendment, which might surprise people, but many judges don’t really know a lot about the first amendment. It’s helpful as a litigator to make things as clear as possible as it is in the job I’m eventually in which is legal counsel, assistant chief counsel at ABC News, where I advise news clients like Nightline and other shows on their legal rights before air, and I also teach a media law class at Brooklyn College. So all of this has really led me to be someone who likes to explain free speech concepts to really smart people who are not lawyers, my students, and the journalists and producers at ABC News. So, I’ve always been thinking about how we can talk about these concepts in a way that people who haven’t been to law school can understand. And then it was conversations I started to have with my kids about National School Walkout Day around 2008 when I was vetting a report on the March For Our Live students. My kids, who were then ten and twelve, were really interested in what were their free speech rights? And could they engage in a protest? And what would be the repercussions? In talking with them, I started to realize that what I’ve been talking about for twenty years could be condensed without dumbing it down. That was really the genesis for wanting to write a book about free speech, and that led to this great graphic novel collaboration with Mike Cavallaro, my partner, the artist for this project.
JT: I thought that was fascinating because I was familiar with your ten cases book [The Fight for Free Speech], which is the earlier book, which is excellent. For lawyers, case law is at the heart of so much, it’s at the heart of legal education, and so you can go through the history of it in a way that’s very engaging and illuminative in terms of how free speech law has developed and then the graphic novel is fascinating. Did you have any challenges making the transition from text to the integration of words and text? In turns of image I mean?
IR: Thankfully, those challenges were mostly tackled brilliantly by Mike Cavallaro. I was partnered with him by Mark Siegel at First Second, the editorial leader at First Second put us together, and it was a fantastic partnership. Mike talks about how he saw himself as the first reader for the book. Again, a smart guy who is not a lawyer or has any legal background as a graphic novelist and animator, so he really made the first pass at working with me by saying, “Let’s take this book that I already thought was fairly condensed and sort of condense it even further.” The reason that was possible, I think, is because Mike’s images are so evocative and so often express what I wanted to express in words more effectively in images. You can talk for a couple of paragraphs about Mary Beth Tinker, the young middle school student wearing a black armband to protest the war in Vietnam in the 60s in her Iowa middle school, or you can show her doing that. It saves a lot of space, and it’s I think, much more powerful in many ways.
JT: It really was. I even appreciated the way you had the superhero image as a motif, you know the superhero concept, and then one of the things I found fascinating was how that same image would then recur when you’re talking about other cases, and it was a way to use images to tie together things, to tie together cases which I thought was really brilliant. It’s the sort of thing that’s much harder to do in text and yet it drove these concepts home.
IR: Thank you! (Holding open a page to the graphic novel.) So here’s me with the superhero guy that you referred to, and then an amazing illustration of the marketplace of ideas which is literally selling ideas. But yeah, Mike talks about how he was very influenced by the creator of Schoolhouse Rock! and was trying to have a speed and a velocity to the images he was creating, and we definitely are trying to weave themes throughout the book. Each chapter in Free Speech Handbook can be read on its own because each chapter begins with a contemporary question like National School Walkout Day, or Can Colin Kaepernick take the knee? or you know, Could Trump stop Stormy Daniels from talking on 60 Minutes? And then answers that question with the story of the key case of the people who fought for their rights all the way up to the supreme court. So you can pick and choose, but I hope it plays like a record album. It gets more powerful with each passing case.
JT: Like the Sgt. Pepper’s of free speech law, it’s great. (laughing) You were saying just a couple of seconds ago about misconceptions and how one deals with those. I was fascinated by the way you opened the book with the discussion of fire in a crowded theater, and I wonder if you could explain that a little bit? Because that’s something I’ve heard a lot, I see people referring to it constantly on the internet when they’re talking about free speech and how we can regulate free speech.
IR: Yeah, I think it’s one of the most dangerous misconceptions out there. Whenever somebody wants to restrict speech, they almost invariably begin by saying, “Well, I’m all for free speech but you can’t cry fire in a crowded theater so now let me censor X.” Really when people are saying that they are misquoting Justice Holmes. What Justice Holmes said actually was you can’t cry fire falsely in a crowded theater and cause a panic. And those two elements, falsity and harm, are really not necessarily sufficient to censor speech because sometimes false speech is allowed, and sometimes even harmful speech is allowed. But they certainly should be a starting point for whether we think about restricting speech in any kind of context of where the government is involved. I tell readers if they learn nothing else, I hope they will flaunt their knowledge of how to use that expression correctly because you can’t cry fire falsely in a crowded theater and cause a panic, because of course, if it’s true, and you’re shouting out fire then you’re a hero, you’re going to save people’s lives. If you say, “Oh my gosh, fire!” and an usher comes up to you and says, “No, that’s a smoke effect. Don’t worry about it” and nobody runs or anything, then there’s no harm, no foul. It doesn’t make sense practically, but people think it’s some type of legal truth, but it’s only legally relevant to use correctly.
JT: You got me thinking about a complaint that I read about graphic novels being used in education recently. I don’t know if have you been following this?
IR: I have.
JT: It’s been a big issue in recent months. We’re seeing a number of challenges around the country, and one of the complaints that I read was that the graphic novels were portrayed as false, and they were saying that it’s wrong to be teaching this in school because the books aren’t true. So even if it claims to be a historical narrative, they claimed there was something
about it oversimplifying the historical narrative and not presenting fully correct information in the way that they believed a text could and they thought that it was having a damaging impact on kids. So, to take that fire in a crowded theater thing, you’re saying that that sort of argument should or should not win if you’re challenging a book?
IR: In general, it shouldn’t win. I don’t want to overstate the power of saying that just because something is false or just because something, in theory, can cause harm, that means we can censor it. That’s just a starting point for the types of concerns that we have. As you know, except in the sort of commercial context of selling products, false speech is often protected, and it’s almost always protected. In fact, a very interesting case that I thought about including, which is called the Stolen Valor Act, attempted to make illegal people lying about military records or military honors that they don’t have. Which sounds like a good thing in theory. Nobody deserves to lie about a false honor. However, the supreme court ultimately held that such laws violated the First Amendment even if well-intentioned because we don’t want the government being the arbiter of what is true. I think many people in this country certainly wouldn’t have wanted the Trump administration to decide what is truth for the rest of this country, and perhaps some conservatives even feel that about the Biden-Harris administration. But the point is, false speech is protected by the First Amendment, that isn’t some type of category that’s automatically taken out of First Amendment protection. Justice Holmes, joined by his friend Justice Brandeis, create this idea of the marketplace of ideas and say that paraphrasing, the best test of truth is the power for its idea to get itself accepted in the marketplace. Then he goes on to say, that lesser-known but I think equally important phrase, that after all is an experiment, our constitution is an experiment as is all life an experiment, and experiments always or inevitably involve false data. You can’t necessarily get to the truth without getting some wrong answers or incorporating some erroneous content. So even if somebody is claiming that some element of some history is inaccurate or misinterpreted, that’s how we get at the truth. So then the solution to that is talking about your critique of that book, not eliminating that book from a school’s ability to access it. This also would, I believe, violate the Pico case the Supreme Court held that even though school boards have some and school administrators have editorial discretion in the classroom, they are not able to restrict content from libraries just because they disagree with its message.
JT: Right, right. You brought up the marketplace. I would love to hear more of your thoughts on Pico and the strengths and limits that’re being applied right now in schools. One of the things that I loved about the book was the way you address some of the complexities in free speech law. You raise the marketplace of ideas, but then you also noted that there are a number of people who are questioning the marketplace of ideas. I was wondering what you thought about people who think that maybe there’re some books that shouldn’t be in schools?
IR: Well, I have thoughts on both of those areas, that’s a very interesting question. Let me see if I can connect them. But first, I do want to talk about how in chapter one of Free Speech Handbook I lay out the marketplace of ideas metaphor in the course of telling the amazing story of Mollie Steimer who was an anarchist during World War I. Right now, I’m speaking to you from the Lower East Side, blocks away from where she threw out anti-war, anti–World War I leaflets.
JT: I know. I gotta say, before going to the CBLDF, I worked a lot in fashion law and referencing their background in the garment industry, I appreciate it, and the representation, that was fantastic.
IR: Yes! So, Molly Steimer was an immigrant, a young woman fleeing anti-Semitism and pogroms in Russia. She works in the garment industry, her life was very difficult, and she became really radicalized by that life, supporting her family, and herself became an anarchist, which at the time was perceived to be a very radical movement. She throws out these anti-war leaflets. She’s put in jail with her compatriots. Fifteen years in jail for essentially just criticizing the government and her conviction is upheld by the Supreme Court. But in the course of that, Holmes and Brandeis, in dissent, create this idea of the “marketplace of ideas” which becomes the touchstone for really all of First Amendment law in this country. You can’t understand free speech alone in this country, even if you want to change it or disagree with it without beginning with the marketplace of ideas. Now I think in the past too many free speech advocates such as myself have accepted the marketplace of ideas rather too blindly and there’s a lot of important academic critiques from equity theorists like Catharine MacKinnon or critical race theorists like Mari Matsuda who say, “Wait a second, who is allowed in this marketplace?” Initially, it was only white male property owners, and afterward, we still were excluding Black people from much of this country. Or what about poor people? They don’t have the same access to a megaphone in the marketplaces as wealthier individuals or corporations, and I think we need to both hear those critiques which are accurate and important, and in general, try to expand the marketplace of ideas. The problem isn’t a flaw with the metaphor, in my opinion, but the limits of the metaphor. We want to make sure that everyone is in that marketplace because then we can have greater access to discussion, and I think the way that links to efforts for school districts, people throw the term critical race theory around when it’s misapplied. I’m talking about it in the legal context, and that is the way it was conceived. But if people think a book is dealing with race in a way that they worry, overly in their mind, critiques white power or white privilege for gender identity . . . There’s a lot of great graphic novels out right now that are telling people’s stories who are non-binary. I think that the solution is to expand the marketplace, particularly when that marketplace is a school or a public school. Which the court has, repeatedly, in the case I mentioned before Pico and just this past June in the Mahanoy v. Brandy Levy, sometimes people know it as the cursing cheerleader on Snapchat. The court again emphasized drawing on the market of a place of ideas that schools have a particular interest in expanding the marketplace and being a laboratory for democracy. So, there’s no way we can have an effective laboratory for democracy if we are excluding ideas that people don’t like or in effect punishing people for the content they disagree with and protecting dissent and views that people don’t agree with is a running theme in Free Speech Handbook.
JT: Well, another thing that I see in Free Speech Handbook, going from the rather colorful hats that are worn at the women’s march in the beginning to Larry Flynt, who is a historical figure in free speech that, I think there was even a movie made about his free speech activity. There are a number of people that we’re encountering in schools who are saying, “Well, we shouldn’t have the gender identity stuff out for kids because there’s some stuff that may be great for adults, but it’s pornographic for kids. It’s obscene for kids.” We’re even seeing people saying that librarians should be arrested for making certain books available. What does the constitution say about that? Is that kind of material protected? What is obscene? What isn’t obscene? I think that’s a growing interest in the graphic novel space.
IR: I talk about obscenity and indecency in one of the chapters of the book, and I begin it by focusing on broadcast issues. How did Samantha Bee get away with calling Ivanka Trump the C-word?
JT: I have to say, your chapters are always fun. I love it, you know, comics with splash pages, and I feel like every one of these chapters had a fun splash page of an interesting incident that made me want to keep reading, so that was a delightful thing.
IR: Well, so much of that is Mike Cavallaro, who is an amazing artist and also fascinatingly has a different style really for every book. For his own work and when he collaborates with other authors, he draws to the content, which I think is unbelievable. In terms of what’s indecent, I think the way we learn about what the FCC, the Federal Communications Commission, has determined to be indecent is because of George Carlin’s “Filthy Words” and “Seven Words [You Can Never Say on Television]” monologues. My book is mostly about what rights we do have. There is a right to curse in public, that’s the Cohen v. California case, but there’s no right to curse on broadcast radio or television for most of the viewing day, so that’s what we talked about in the book. But in terms of saying that the material that involves gender identity or gender exploration or sexuality is obscene, it’s just patently inaccurate, you know, there’s a requirement. I don’t spend too much time in the book talking about obscenity, but there’s a requirement that the material appealed to the prurient interest, which means the dirty or of an exploitive interest. For obscenity, you need actually graphic content not just descriptions of graphic content. Broadcast television, which is the only medium in which such content can be regulated, I think inconsistently so, but regardless of your opinion, that is the law. There is no way that any of this material is legally obscene. There is no way that any of these types of graphic novels from Main Street publishers, some of which I’ve read and others I haven’t, but there’s no way that it is indecent. I mean we’ve come past the days when people question whether Ulysses and having James Joyce describe, have a character describe an orgasm in sort of naturalistic prose is obscene it hasn’t been since that time period, and it certainly isn’t today. so you know whether an individual parent wants to make an individual choice for their child, of course, they have that right, but to deny people the opportunity, to deny students, to deny the educational community the right to hear something or read something just because it involves a discussion of sexuality or gender identity there is certainly no legal basis for censorship based on that type of viewpoint. And I just want to say, one more point completely more overarching, I think one of the themes that I’ve hinted at in Free Speech Handbook is that if there’s any principle we should hold dear to it is the idea of protecting dissent and the ideas that we don’t necessarily agree with that is fundamental. Now, sometimes those are abhorrent ideas, Nazis marching in Charlottesville how despicable and vile, and as a Jewish person offend me deeply, but they have a right to speak. We also have a continuing theme of how political dissenters like Mollie Steimer, civil rights dissenters like Dr. King and other leaders of the civil rights movement whose civil rights actions gave us our current libel standard today, to students protesting the war. Too often now, we look back on those dissents, the ones we now sort of view as positive, and it takes on sort of a rosy aura of inevitability. But those people were attacked and even though their rights were vindicated, suffered enormous consequences, death threats, physical and economic harms, and so freedom of speech doesn’t mean freedom of consequences. We need to remember that protecting dissent is not only constitutionally protected, but more importantly, part of the fabric and identity of America. And I believe, ultimately, leads not only in greater truth but more importantly to a more just and freer society.
JT: Oh, that’s brilliant, and I think I have to say that that theme shines through the work.
IR: Thank you.
JT: You get a sense that you’re doing a lot of legal explanation, but it’s not dry, there’s something very compelling about it. This is law that matters; this is law that is meaningful to everybody. And the way you build through the book, even when you think about it for kids, you talked about the parents’ rights with respect to their children, but you also get into Tinker and that examination of what rights they have to express themselves. It’s something we think about here at CBLDF because one thing kids love about graphic novels or comics is that it’s a participatory medium. They like to create as well as read. I was wondering, you know we come across kids who get punished for doing something that seems to be violent or punished for something that seems to be too critical of their principals or administrators or something like that whether they’re on campus or off and their little comics that they create are webcomics. I’m wondering what your thoughts are about that? And maybe talk a little bit about what you cover in the book with respect to kids’ speech as well as adult speech.
IR: Right, well, as I said when we started off, that was sort of what led me down this path. The Tinker case begins with the March For Our Lives students and the National School Walkout where students wanted to leave and did leave classes in large numbers to protest inaction on common-sense gun safety and the rights of students go back to this young woman Mary Beth Tinker a middle school student in Iowa who decided on her own, and with her brother and a few friends, that they were going to protest the Vietnam War and more specifically wear black armbands to honor the dead on both sides of the war, which was a very radical notion at the time that the Vietnamese deaths were something worth recognizing and respecting and this is the relative beginning of America’s involvement in the conflict so the vast majority of Americans at the time in public opinion polls still actively supported the war. She wears this armband to school, she’s sent home, and she didn’t get into any fights or anything but her favorite math teacher Mr. Moberly sends her to the principal, and she and then her brother and another high school student all get threatened with suspension if they continue their protest and it goes up to the Supreme Court. In a beautiful discussion by Justice Fortas, he says that students and teachers don’t give up their rights to free speech as they pass through the schoolhouse gates. Today that might seem a little bit obvious, that students of course have free speech rights, but it had never been explicitly said by the court until that moment. Then, unfortunately, the court had this sort of ringing defense of student speech rights that basically said there has to be a reasonable threat of disruption or a significant disruption in order to restrict it. It can’t just be an undifferentiated fear and then the court keeps backtracking. The court kept backtracking basically for the next fifty years so unfortunately there’s a case that says that student publications are really the publications of the school and so therefore they can be restricted. They say that sexual language at a school assembly could be restricted, they said that saying “bong hits for Jesus” a sort of nonsense phrase at a parade that students were allowed to attend is restricted, but just now, just this June the court for the first time sides again with students in reaffirming their speech rights to say that this cheerleader who said, “F cheer F school F everything,” on Snapchat on the weekend outside of school, not at a school event, couldn’t be punished for expressing that dissent. So while I’m absolutely in favor of saying that a student should have all the right, multiple rights, and support of criticizing school and criticizing administrators in a critical, as long as, non-violent, non-threatening way. It’s tough. They don’t necessarily always have that right. It would depend on where their comic was, how it was used. Was it distributed in the class? Was it not? When? But that’s maybe sort of case law overreaching in terms of the spirit of the First Amendment, the spirit of our free speech protections, the ability to criticize the government that’s what Mollie Steimer fought for in the 1920s, and it has been since very established. I believe this Brandy Levy case is going to end up helping students in some of those situations. If they’re publishing this criticism for example on their private social media feeds, the Mahonoy Brandy Levy case is going to give them strong support for the Supreme Court. Administrators have to back off of expressions, even cursing expressions, of dissent in connection with school authorities as long as they’re non-violent as long as they’re not part of a school-sponsored activity. I think this court has now given them a lot of new support.
JT: That’s excellent. I think everybody should read your graphic novel. I think everybody should read your book, it’s an amazing work, particularly now. I want to close with a bit about the timing of it because for those of us in the free speech space, I think one of the more disheartening things in the past year or two have been so many people writing about how free speech is passe, it doesn’t have as much of a future and you know you put your book in a rocket ship and send it to us to help save the day. I’m wondering what you think about the future of free speech? Do you think it’s as down as some people say? Do you think that there is hope? If so, what do you think will save it?
IR: I think there’s both danger and hope. I think people, certainly before the last administration, who were saying, “We’re beyond free speech issues,” that the idea that an authoritarian government would come in and tell us what’s true or false or try and restrict the press is never going to happen in this country. We’ve seen over the last administration that that is absolutely not true; there couldn’t be a more explicit and real threat. Not only to the notions of truth but also very importantly to attacks on the press and really all sorts of institutions that are mainstream institutions that contribute to our country like the press, like scientists, and expression, and protesters an expression of dissent, so I think there are real threats, and this is a very important time for free speech. The law itself is very strong, and America has stronger free speech protection than any other country in the world. We can quibble around the margins, but that is just absolutely true. However, I end the book in the afterword by talking about George Orwell. After World War II, he wrote an important essay where he said, talking about his times but I think they apply to ours, that the law doesn’t matter if the people, meaning our society, don’t support free speech the laws will be ignored, and if the people support free speech then the rights of minorities and dissenters will be protected. So I believe that we are at a moment when people are clamoring for understanding about their First Amendment rights and really on all parts of the political spectrum. I hope that a book like Free Speech Handbook will help people understand their rights and see how perilous our rights are. If we don’t know what our rights are, there’s no way to exercise them, and there’s certainly no way to defend them when they’re being encroached so I think we’re at a dangerous, if hopeful time, in the free speech world and I hope Free Speech Handbook is part of the solution in getting people to advocate for free speech like the CBLDF does, as a grassroots activity because we can’t just rely on the Supreme Court to save us, we need to take the lessons they’ve given us and advocate all the time to protect our free speech rights.
JT: Wonderful. Thank you so much, Ian. The book is fantastic, and I do encourage people to seek out Free Speech Handbook.
JT: Wonderful! Thank you again, Ian. Marvelous work: thank you for doing everything that you do.
IR: Thank you for all your work, Jeff, at your organization. I appreciate this time to talk.
JT: Thanks. Have a good one, thank you, again.
(This interview has been edited for length and clarity.)
Ian Rosenberg has over twenty years of experience as a media lawyer, and has worked as legal counsel for ABC News since 2003. A graduate of Cornell Law School, he is an Emmy-nominated documentary filmmaker, and teaches media law at Brooklyn College. He is the author of The Fight for Free Speech: Ten Cases That Define Our First Amendment Freedoms (NYU Press 2021).