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Anthony Elonis wrote a series of Facebook posts describing gory fantasies of revenge, often in the form of rap lyrics, against his estranged wife and others. He was later convicted of violating a federal law that prohibits such threats and was sentenced to more than three years in prison. Elonis claimed he was merely venting and using an established art form — just like Eminem — and that the First Amendment protects violent speech. When does free speech go too far? Listen to the Season 1 finale of Unprecedented.
Prefer to read this episode? Click below for a transcript!
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To a Klu Klux Klan member, a flaming cross is a “beautiful” symbol of “racial purity.” To many Americans, it’s the image of racist intimidation. But what is it to the Supreme Court, and is it protected by the Constitution? In the emotionally-charged case, Virginia v. Black, the KKK learns the difference between intent and historical perception — with unexpected assistance from an African American ACLU lawyer. Plus: A Supreme Court Justice breaks his years-long silence.
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Joe Frederick knew that students have some free speech rights, but he wanted to find out just how far those rights go. So when his high school class headed outside to watch the Olympic torch pass through their Alaska neighborhood in January 2002, Joe unfurled a 14-foot-banner that would test the limits of the First Amendment in school. Except… no one really understood what the banner meant, including Joe Frederick!
Does the First Amendment protect bizarre drug speech in school? Click play to find out.
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John and Mary Beth Tinker — teenagers in Iowa during the mid-1960s — wore black armbands to school one day as a symbolic protest against the Vietnam War. They were both suspended, and later sued the Des Moines school district for violating their First Amendment rights.
The armbands may seem mild compared to the vocal walkouts we see today. But at the time, it was described as “a disturbing situation within the schools.” In this landmark case, the Supreme Court weighed whether freedom of speech extends to public school students.
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When Albert Snyder arrived for the funeral service of his son Matthew, a young Marine who died in the Iraq War, he was surprised by the noise and chaos that greeted him. Seven members of the Westboro Baptist Church — which believes that U.S. military casualties are a result of God’s anger at an America that embraces sin — were picketing the funeral, holding signs with messages like “Thank God for Dead Soldiers.” Snyder sued Westboro for intentional infliction of emotional distress, and the Supreme Court had to decide: Does the First Amendment protect hurtful speech directed at a private citizen?
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On today’s show, the dirty joke that made it to the Supreme Court.
When asked to pen some biting humor for the pages of Hustler back in 1983, writer Terry Abrahamson took aim at evangelical Christian preacher Jerry Falwell. The result was a vulgar parody of a real Campari ad — though instead of celebrities coyly talking about their “first time” tasting the Italian liqueur, Abrahamson wrote a fictional account of Falwell’s first time having sex (SPOILER: it was in an outhouse, with his own mother). Falwell sued Hustler for intentional infliction of emotional distress, and the Supreme Court had to decide: Does the First Amendment give us the right to parody a public figure?
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Emily Heiden was pregnant, in a panic, and looking for advice. An internet search yielded what she understood to be a secular clinic — one she assumed would discuss her options “without politics or hype,” as the website promised. But she soon discovered that the clinic wasn’t what she thought and felt deceived. And she wasn’t the only one.
California, concerned that too many religious pregnancy centers were misleading vulnerable women, passed a law requiring them to announce that low-cost prenatal care — including abortion — was available directly from the state. But the centers sued, arguing that First Amendment protections prevented them from having to advertise abortion services.
This week, we discuss whether a state can compel you to say something you disagree with on moral grounds — from the perspective of the 2018 case NIFLA v. Becerra.
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So much of what we do here at Booksmart Studios comes down to the power of speech. Lexicon Valley examines the words and phrases we use to convey ideas. Banished explores what happens when speech runs afoul of current orthodoxy. And on Bully Pulpit, Bob Garfield uses his megaphone to expose the hypocrisy and machinations of those who care more about insulating the entrenched power of the few than about safeguarding the fragile welfare of the many.
We’re proud to announce our newest offering, focusing on the very source of our freedom of speech. Unprecedented tells the raw and emotional stories of ordinary people who, as they pursued justice all the way to the Supreme Court, pushed the limits of our First Amendment rights.
In each episode, you’ll meet the accidental guardians of perhaps our most cherished liberty. They are war protesters and religious zealots, Ku Klux Klan members and internet trolls. They are Americans who, regardless of their social or political views — or even an awareness of the stakes — have helped us fill in the Constitutional gaps that our Founding Fathers left open to interpretation.
Through captivating interviews with the plaintiffs of precedent-setting cases — many of whom have never been interviewed before — you will learn about your right to be mean, to threaten others or to simply not say anything at all.
Hosted by Booksmart Studios executive producers Matthew Schwartz and Michael Vuolo, with special appearances by NPR’s Nina Totenberg, Unprecedented originally aired on Washington, DC’s NPR station in 2019.
Unprecedented begins with the story of a man who, nearly a half-century ago, committed a minor act of civil disobedience when he covered up the state motto on his license plate. George Maynard battled New Hampshire over the slogan Live Free or Die, which he found personally and religiously repugnant. His beliefs would land him in jail, cost him his job and carry him all the way to the Supreme Court.
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Unprecedented brings you the legal stories that shape our lives. We’ll bring you the latest judicial opinions from around the country. We’ll do it with style. We’ll make the law entertaining. Because this stuff matters, and if you want to be an informed citizen, it’s important to pay attention.
Every day, in courtrooms around the country, human drama plays out. Freedoms are granted, or taken away. And the collective decisions of the judges deciding the cases before them end up affecting us all. Unprecedented is here to help you make sense of it all. We’ll help you understand not just what the nation’s courts are deciding, but how and why they’re reaching those conclusions.
You can also expect regular deep dives on a topic getting a lot of attention — red flag laws, for instance. We’ll give you the context you need to understand the news, and we’ll explain the current state of the law. (Some Republicans say red flag laws violate due process and the 2nd Amendment, but what have the courts said?)
Unprecedented began its life as a podcast focusing on the accidental guardians of First Amendment. We celebrated the regular people who pushed the boundaries of free speech to secure more rights for all Americans.
The podcast tackles fascinating questions. For instance, do we have a constitutional right to be mean? How mean? Our latest pair of episodes delves into the juicy details of how the First Amendment tackles cruelty. The Dirty Joke that Made It to the Supreme Court examines whether Hustler Magazine had the right to parody the reverend Jerry Falwell; Middle Finger to God explores the Westboro Baptist Church and its penchant for picketing the funerals of fallen soldiers. Four episodes of Unprecedented are currently available for download, with four more to come.
If we do our job right, Unprecedented will give you the information you need to be a good citizen — an informed participant in the great experiment that is America.
And we’ll try to do it all with personality and, when appropriate, pizzazz.
Let’s get started.
Sincerely,
Matthew S. SchwartzEditor, Unprecedented
PS — If you find this newsletter informative, thought-provoking, entertaining, or any combination of the above, please forward it to a friend — and please consider supporting my work with a paying subscription. I really appreciate it.
Unprecedented is a reader-supported publication. To support my work and receive special subscriber-only posts, please consider becoming a paid subscriber. Thank you!
This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit unprecedented.substack.com
