New book spotlights freedom of press in film

My friend and colleague Helen J. Knowles-Gardner, formerly a political science professor and now research director at the Institute for Free Speech, along with co-author Professor Emeritus Bruce E. Altschuler and Professor Brandon T. Metroka, has published a gratifyingly compelling new book, Filming the First: Cinematic Portrayals of Freedom of the Press (Lexington Books 2025).

The engaging cover art was created by illustrator Doug Does Drawings (X, Etsy, Instagram, YouTube).

Here is the publisher's description of the book:

The First Amendment to the U.S. Constitution prohibits Congress from abridging freedom of the press. But, as the printed press has been transformed into mass media with Americans now more likely to get their political information from television or social media than from print, confidence in this important, mediating institution has fallen dramatically. Movies, in their role as cultural artifacts, have long reflected and influenced those public attitudes, inventing such iconic phrases as “follow the money” from All the President’s Men and “I’m mad as hell and I’m not going to take this anymore” from Network. Filming the First: Cinematic Portrayals of Freedom of the Press analyzes eighteen films that span from Citizen Kane to Spotlight showing changes in how the press have been portrayed over time, which voices receive the most attention and why, the relationship between the press’s “Fourth Estate” role and the imperatives of capitalism, and how, despite the First Amendment’s seemingly absolute language, the government has sometimes been able to limit what the public can read or view.

I was privileged to review an advance copy of the book and am quoted aptly on the back cover: 

Filming the First is a deeply thought-provoking exploration of America's cinematic engagement with "the press." Through the revealing social implications of the big screen, Filming the First interrogates press freedom from yellow-journalism sensationalism to Watergate and Vietnam heroics, to the existential threat of misinformation. Organizing eighteen films into ten thematic chapters, Filming the First embraces both classics and the avant-garde and treats readers to perspectives on mass media from the reverent paean to the ruthless critique. Knowles-Gardner, Altschuler, and Metroka locate their diverse film selections each in its social, cultural, and legal context. Upon each exposition, the writers relate key takeaways to the perils and uncertainties that surround the business of media in our polarized present day. Filming the First is a thrill ride for film buffs, free speech aficionados, and anyone willing to engage with the struggle to define media's place in modern democracy.

If I ever again have the freedom to teach an indulgent topical seminar, this book is at the top of my list.

Here is the table of contents.

Chapter 1. Censorship in a Time of War: Good Morning, Vietnam
Helen J. Knowles-Gardner

Chapter 2. A Media Mogul Battles Against His Fictional Doppelganger: Citizen Kane and RKO 281
Bruce E. Altschuler

Chapter 3. Heroic Newspaper Reporters, Editors, and Publishers Battle the President – All the President’s Men and The Post
Bruce E. Altschuler

Chapter 4. Technology Transforms the Press into the Media: Network and The Social Network
Bruce E. Altschuler

Chapter 5. “How Can We Possibly Approve and Check the Story…?”: Good Night, and Good Luck and The China Syndrome
Helen J. Knowles-Gardner

Chapter 6. Testing the Limits of Freedom: Denial and Deliberate Intent
Helen J. Knowles-Gardner

Chapter 7. Responsibility Matters: Shattered Glass
Helen J. Knowles-Gardner

Chapter 8. Creating Protagonists, Competing Interests, and Uncertain Legal Standards: The People vs. Larry Flynt and Citizenfour
Brandon T. Metroka

Chapter 9. A Tale of One Press Clause and Two Journalisms: Spotlight and Out in the Night
Brandon T. Metroka

Chapter 10. Mainstream Press Negligence and its Effects: The Normal Heart and Tongues Untied
Brandon T. Metroka

 

Book supports legal privilege for undercover reporting

Truth and Transparency, a recent book by Professors Alan K. Chen and Justin Marceau, is a comprehensive and gratifying tour of the history and law of undercover reporting.

Chen and Marceau teach at the Sturm College of Law at Denver University and have especial expertise in constitutional law, and respectively in public interest law and animal law. In their co-authorship, they examine the social phenomenon of undercover reporting that lies at the intersection of journalism, tort law, and the First Amendment—and often animal law, too.

I know Chen best for his work in opposing ag gag laws: statutes designed to stop and punish journalists, activists, and whistleblowers from investigating and revealing wrongful conduct and animal cruelty in the agricultural industry, especially by way of undercover video recording. Chen has worked against ag gag in Idaho, Iowa, Kansas, and Utah. I've been privileged to sign on to some of the amicus briefs he has coordinated.

Chen and Marceau leave no stone unturned. I was intrigued especially to read about the history of undercover reporting in the United States, the evolution of undercover reporting in its treatment in journalism ethics, and the thorough explication of undercover reporting in tort and First Amendment law.

Upton Sinclair's 1905 The Jungle, a novel based on real-life undercover reporting in the meatpacking industry, was my mind's go-to on the early history of the practice. Apropos of the present Women's History Month, however, it was female reporters such as Nellie Bly who carved out a niche for undercover reporting in the popular imagination in the late 19th century and deserve the most credit for pioneering the genre.

Bly, born Elizabeth Jane Cochran, famously had herself committed to a deplorable New York mental institution in 1887 for 10 days before a New York World lawyer secured her release, per prearrangement. Chen and Marceau recount the stories of Bly and other so-called "girl stunt reporters." They trace the history even further, as well, to antebellum abolitionists determined to expose the horrors of slavery.

Chen and Marceau explore a range of treatments of undercover reporting in journalism ethics, including the qualified permissiveness of the 1996 Code of Ethics of the Society of Professional Journalists, preserved in the more recent 2014 iteration. They observe as well the almost complete prohibition on the practice at National Public Radio, where journalists may engage in deception only when necessary to protect themselves in a conflict zone, and secret recordings may be used in only extraordinary circumstances.

A case that naturally arises throughout the book is the ABC News investigation of hygienic practices at Food Lion in the 1990s (at Reporters Committee). This case was contemporary with my university study of journalism, so was front and center in my class on journalism ethics. Whether or when journalists might engage in deception to get the story is a favorite point of discussion in journalism ethics class. The problem stratifies the need for public trust in journalism across the micro layers of people who are the subjects of stories and the macro layers of readers and the public interest. 

A court in Food Lion ultimately held that ABC journalists could be sued for trespass or breach of loyalty, but awarded only nominal damages. The factual problem for the plaintiffs that precluded a more substantial damages award was that notwithstanding the concealment of their motives, the journalists had been given jobs at Food Lion, and they did their jobs. So from a damages perspective, Food Lion got what it paid for. The appellate court, unlike the trial jury, was unwilling to consider the reputational harm flowing from truthful disclosures, if deceptively obtained, as any kind of compensable loss.

The outcome in Food Lion was consistent with the broad propositions of First Amendment law that there is no right to gather the news, which is why the Freedom of Information Act is a statutory rule, not a constitutional one; and that journalists are not exempt from generally applicable expectations of law, such as honoring contracts, obeying police orders—and not trespassing. As Chen and Marceau observe, the outcome exerted a chill in investigative reporting.

However, the Food Lion rule is hardly absolute, Chen and Marceau also aptly observe. The rule of no-right-to-gather-news has never been wholly true. The courts have given media latitude to test the limits, for example disallowing wiretap liability for receiving probably illegally intercepted communications. And technological advances have complicated the picture. A majority of U.S. circuit courts now, in a post-George Floyd world, have held that the First Amendment protects video-recording police in public places. The proposition seems right, but it doesn't square with the news-gathering rule.

The outcome in Food Lion further hints at a deeper problem in tort law that Chen and Marceau explore: the problem of damages in cases of only notional harm. In contemporary doctrine, a trespass with no infliction of physical harm or loss might entitle a plaintiff to an equitable remedy of injunction, but no more than nominal damages in tort law, thus Food Lion. Though with no damages in the offing, there is no deterrence to deceptive trespass, a logic that likely explains the eventual waning of Food Lion's chilling effect. The problem bleeds into the contemporary debate over the nature of damages in personal privacy violations. 

Journalism exceptionalism resonates as well in the problem of trespass and consent. Food Lion suggests that consent to enter property is vitiated by deception as to one's motive. Chen and Marceau explore opposing academic and judicial views on the question.

In a remarkable work of empirical research unto itself, Chen and Marceau's chapter 6 presents compelling data to show overwhelming public support for undercover reporting to expose wrongdoing. Public support seems to transcend political ideology and even whether the perpetrator of deception is a journalist or activist.

Chen and Marceau argue summatively and persuasively for a qualified legal privilege to protect journalistic deception in undercover reporting. Historical, ethical, and legal authorities all point in the same direction. Even the Fourth Circuit in Food Lion hedged its bets, observing that generally applicable employment law as applied in the case had only an "incidental effect" on news-gathering; in other words, news-gathering was outweighed as a consideration, not shut out.

Technological advances and citizen journalism will continue to generate conflict among conventional norms of property and fair dealing, evolving norms of privacy, and public interest in accountability in private and public sectors. Truth and Transparency is an essential manual to navigate in this brave new world.

Scholars examine efficacy of apology in book born of truth and reconciliation in South Africa

Colleagues of mine in African studies, Professors Melanie Judge and Dee Smythe published Unsettling Apologies: Critical Writings on Apology from South Africa.

Known for the truth and reconciliation processes that followed Apartheid, South Africa has been a font of experience and acquired wisdom about the role of transparency and truth in redressing mass atrocity. In this book, released in the fall from Bristol University Press, the South African editors compiled and co-authored some of the best and latest thinking and reflection on the function and debated efficacy of apology.

This is the précis.

There has recently been a global resurgence of demands for the acknowledgement of historical and contemporary wrongs, as well as for apologies and reparation for harms suffered. Drawing on the histories of injustice, dispossession and violence in South Africa, this book examines the cultural, political and legal role, and value of, an apology. It explores the multiple ways in which "sorry" is instituted, articulated and performed, and critically analyses its various forms and functions in both historical and contemporary moments. Bringing together an interdisciplinary team of contributors, the book's analysis offers insights that will be invaluable to global debates on the struggle for justice.

Even setting aside mass atrocities such as Apartheid, the theory of apology has resonance in tort law. "Apology laws" in the states seek to render apologies inadmissible as evidence in later litigation, especially in medical malpractice. Proponents posit that apology aids in healing and even averts litigation. That premise, and the efficacy of apology laws, is much studied and debated.

A masked Prof. Smythe previews the book at the annual meeting
of Law and Society in Lisbon, Portugal, in July 2022.
RJ Peltz-Steele CC BY-NC-SA 4.0

Judge and Smythe wrote the book's opening chapter, "The Power of Apology." The chapters thereafter offer a range of compelling titles. Smythe also co-authored, with educator Leila Khan, "Beyond Words: Apologies and Compensation in Sexual Offences." Smythe, a professor of public law on the faculty of law at the University of Cape Town, is a dear colleague who has been ceaselessly supportive of my research and teaching on African law and public policy.

Professor Sindiso Mnisi Weeks, a valued colleague at UMass Boston who generously has participated in my comparative law class in the past, contributed the chapter, "In Pursuit of Harmony: What is the Value of a Court-Ordered Apology?" University of Wisconsin constitutional comparatist Professor Heinz Klug authored, "Amnesty, Amnesia, and Remembrance: Self-Reflections on a 23-Year-Old Justification." Among all of the chapters, I especially appreciated the heart-rending history "On Not Apologising: Winnie Madikizela-Mandela and the TRC Hearing into the Mandela United Football Club" by Canadian Professor Shireen Hassim.

Abstracts of all chapters and the book's front matter are available at Bristol University Press Digital.

Genetic manipulation will transform humankind; Enríquez book aims to keep law, science in pace

Paul Enríquez, J.D., LL.M., Ph.D. (LinkedIn, SSRN) has published a must-have book for readers interested in the cutting-edge juncture of law and science.  A superb writer, Dr. Enríquez has geared the book for general audiences, while also offering plenty of thought-provoking flesh for lawyers and scientists alike to sink their teeth into.  And that's before science accidentally turns us into zombies.

Here is the précis of Rewriting Nature: The Future of Genome Editing and How to Bridge the Gap Between Law and Science from Cambridge University Press (2021).

History will mark the twenty-first century as the dawn of the age of precise genetic manipulation. Breakthroughs in genome editing are poised to enable humankind to fundamentally transform life on Earth. Those familiar with genome editing understand its potential to revolutionize civilization in ways that surpass the impact of the discovery of electricity and the development of gunpowder, the atomic bomb, or the Internet. Significant questions regarding how society should promote or hinder genome editing loom large in the horizon. And it is up to humans to decide the fate of this powerful technology. Rewriting Nature is a compelling, thought-provoking interdisciplinary exploration of the law, science, and policy of genome editing. The book guides readers through complex legal, scientific, ethical, political, economic, and social issues concerning this emerging technology, and challenges the conventional false dichotomy often associated with science and law, which contributes to a growing divide between both fields.

Besides being a family friend, Dr. Enríquez was, many moons ago, a student in one of my law classes: a rather impertinent fact I mention only to boast.  In truth, the student already had surpassed the mentor.  Nevertheless, he generously asked my feedback on some points of constitutional law for this book.  So I weaseled my way into the acknowledgments, and you can blame me if anything is wrong in the relevant chapter.

Here is the impressive About the Author:

Paul Enríquez, J.D., LL.M., Ph.D., is an intellectual property attorney and scientist who researches and writes at the intersection of law, science, and policy. He holds doctoral degrees in law and structural and molecular biochemistry. His research on law, science, and technology, genome editing, biochemistry, and the regulation of biotechnology, has been published in numerous scientific, legal, and popular-media publications, and has been presented at national and international conferences. He currently serves as a judicial clerk at the U.S. Court of Appeals for the Federal Circuit.

Buy yours now in hardback, paperback, or Kindle from Amazon.

First Amendment jedi 'Luke Skyywalker' turns 60, recounts storied battles for equality, liberty

My daughter co-directed this promotional video, published yesterday, for the multi-talented Jerrika Karlae.

I like hip-hop and rap, but not as much as I used to.  My taste in music, I admit, has been softened in middle age by nostalgia and an inexplicable draw to indie pop, AJR being my current fave (see "Bang!" on Today in August, on Ellen in October, and at the Macy's Thanksgiving Day Parade in November).  But I like to think that I still can appreciate a broad range of music, and for various reasons.  I like Karlae because she's a woman innovating in a genre that has been dominated by male artists (she's not just Young Thug's fiancée), and she represents the multiracial Atlanta arts scene on the contemporary cutting edge. (HT@themorgansteele, without whose aid I would not know Karlae.)

I was a 2 Live Crew fan in secondary school and university, and it wasn't all about the music then, either.  The group's breakthrough album As Nasty as They Wanna Be and its curious companion album, As Clean As They Wanna Be, both came out in 1989, in my last semester of high school.  There was a lot to like about 2 Live Crew.  I liked the music, which had the imprimatur of my best friend, a musician with discernment decidedly superior to mine.  But 2 Live Crew's dispositive selling point for me was a tendency to precipitate First Amendment litigation.

A student journalist in the wake of Hazelwood v. Kuhlmeier (U.S. 1988), I was learning a lot about the First Amendment, sometimes in the classroom and sometimes in the vice principal's office.  Meanwhile, in 1989, 2 Live Crew, through its Skyywalker Records, sued the sheriff of Broward County, Florida, for declaratory relief from obscenity prosecutions over As Nasty As They Wanna Be.  And in 1990, Roy Orbison's record company sued 2 Live Crew's Luther Campbell, a.k.a. "Luke Skyywalker," for copyright infringement in As Clean As They Wanna Be's "Pretty Woman," a parody of Orbison's 1964 classic.  2 Live Crew prevailed on appeal in both cases, the former in the Eleventh Circuit and the latter in the U.S. Supreme Court. Reluctantly, Campbell did back down on the use of "Skyywalker" when the DJ stage name ruffled Lucasfilm feathers in trademark.

Lately, I've eagerly read more about 2 Live Crew and Luther Campbell in the latter's 2015 memoir, The Book of Luke.  The book is full of intriguing revelations from behind the scenes about the band and the author.

Campbell's recounting of his Miami youth is thought provoking on the subjects of desegregation and diversity.  Characterizing busing's mixed legacy, Campbell describes a black neighborhood, Liberty City, devastated by the dispersal of its youth, and, at the same time, a broadened cultural competence derived from school and sports with some of the first non-black people Campbell knew.  He writes:

Being on Miami Beach, even though the school was using us and just passing us along, I still got an education in how the world works outside the ghetto.  Most of the guys from my experience, the guys who never left Liberty City, they didn't learn the same things I did. ... They didn't see how to transform themselves into something more than that. ... 

Going to Beach High also made me realize that all white people aren't bad.  The system is bad, the game is rigged, but not all people are bad.  By going there and playing with white friends, Jewish friends, Cuban friends, it just broadened my horizons.  There are good people and bad people in every walk of life.  There are racist white people and prejudiced black people, and every individual is his own person.

He drills down further into the rigged game to describe the socioeconomic conditions that undermined the civil rights movement in the long term.  In plain language, Campbell explains:

Malcolm X and Stokely Carmichael and the Black Panthers, their whole message was about economic self-sufficiency, about how blacks needed to own and patronize our own businesses, to lift up and take care of ourselves.  And I believe that.  The problem was that the government had denied us our property rights for so long that we didn't have much to work with.  The small value of what we did own, our business district, they destroyed when they put that expressway through.  Most blacks didn't own any assets or property to borrow against.  Banks discriminated, so we didn't have access to business loans or financial capital that you need to run a business.

Campbell capably carries through with this theme of systemic racism to illustrate its impact on the music industry.  Nicknamed "Luke Skyywalker" for his Jedi-like mastery of the DJ table, Campbell and 2 Live Crew, each, were already successful acts when Campbell joined the band and brought it within the sphere of Miami's unique cultural mélange.  Rather than navigating the infamously insular and monopolistic world of white-owned record labels, Campbell created Skyywalker Records to be the band's own publisher.  He recounts a climate in the media business even more hostile than one might expect to the evolution of music by black artists:

The white executives didn't get us, or just didn't want us. But it was really the black executives, the ones who'd been brought up to run the R&B imprints, who tried to kill hip-hop at the start.  To them, rap was too black, too ghetto.  It reminded them of life in the streets, the world they'd spent their whole lives running away from.  They were caught up playing that respectability politics game for those white-owned companies.  They wanted to make R&B into upscale, sophisticated music, show how far blacks had come, show how we were becoming high class.  It was the same in the black media.  Black radio stations didn't call themselves black anymore.  They were "Urban Contemporary."  They barely gave rap any airplay at all, or if they did it was only in special shows on the weekends.  Ebony didn't put a hip-hop artist on its cover until 1991, twelve years after "Rapper's Delight" sold eight million copies.  The white folks over at Rolling Stone had Run-D.M.C. on their cover in 1986, five years ahead of Ebony.

Luther Campbell, 2017
(photo by David Cabrera CC BY-SA 4.0)

Contrary to rap's stereotype, new music was not about new lows in "nasty" for Campbell.  The dichotomous debut of As Nasty and As Clean in 1989 was in fact a label equivalent of how Campbell always had run his DJ business.  At least according to his own retelling in the book, Campbell worked hard to put on all-ages shows with security employed to keep out alcohol, drugs, and violence, and then to put on adult-restricted shows later at night.  The band proactively labeled its music for indecent lyrics, and Campbell personally communicated to distributors and retailers the admonition that under-age consumers should be permitted to buy only clean content.

Predictably, the dirty content received more media attention and generated more commercial success than the clean; certainly eighteen-year-old me was more interested in the former.  Yet in the harsh reaction of public officials to indecency, and in media ignorance of the band's efforts at social responsibility, Campbell saw more than mere market forces at work.  In 1988, Alabama record store owner Tommy Hammond was arrested on obscenity charges for selling the 2 Live Crew album Move Somethin' from behind the counter to an undercover police officer.  Campbell dates "[t]he legal war against hip-hop" to that arrest and explains further:

The cops, apparently, had been getting complaints from Christian fundamentalist groups about the sale of offensive and vulgar material, and the Alexander City sheriff Ben Royal was, I suppose, a real God-fearing, Bible-thumping, easily offended type of guy.

At first I wasn't even mad.  I was genuinely confused.  Dolemite and Skillet & Leroy and all these comedy records we were sampling, those had been around for years.  They were filthy as hell, real nasty, and nobody had ever tried to censor them.  Andrew Dice Clay was doing his stand-up act and putting out his albums at the same time we were, and his routines were just as raunchy as what we were doing.  Nobody was getting arrested for selling his albums.  What was going on?  My father and my uncle Ricky taught me a lot about racism and how it works, but I was about to learn a lot more. ...

Dice is white, you see, so he could say whatever he wanted.  Parents might protest him, and they did, but he was a white man making a lot of money for a white-owned corporation; nobody was going to take away his right to free speech.  All those old chitlin circuit albums we sampled, they were dirty, but white people never listened to them.  They didn't cross the color line, so nobody really cared. ... Nobody cared if we were corrupting young black minds with our evil jungle music. ... But Tommy Hammond's record store was the record store serving the white side of town.  2 Live Crew had done the one thing you're never supposed to do.  We were black men coming across the color line talking about sex.  We were black men in the company of whites, and we'd forgotten to lower our heads and shuffle away.

Campbell in the book goes on to trace his 2 Live Crew and Luke Records career through gang violence bleeding into the concert arena, stand-offs with law enforcement and protestors, and famous and less famous lawsuits.  He reflects ultimately on contented family life and the privilege of giving back to Liberty City.  I won't spoil all the fun; the ride is worth the cover price.

For my part, it's gratifying to better know the real Luke Skyywalker, both the Jedi knight who inspired me when I was a kid, and the Luther Campbell he became.  His tastes have changed, too: as he puts it in the book, a little less groupies and Hennessy, a little more football practice, fretting over SATs, and "raising hell about housing and education."  Every individual might be his own person, but there sure seem to be some universal truths to getting older.

Luther Campbell turns 60 today, December 22, 2020.  The book is Luther Campbell, The Book of Luke: My Fight for Truth, Justice, and Liberty City (Amistad 2015).

My Summer Book Report (2020)

Coronavirus propelled UMass into financial crisis in the spring, and, as a result, law faculty summer research stipends evaporated.  With that change in incentives to compound coronavirus travel restrictions, I found myself with more than the usual time to catch up on reading this summer.  I'm going to try to keep my observations here brief; drop me a line if you want to talk more detail.  (All links are to Amazon.)

Books About Soccer

When I signed off from the blog in May, I wrote about starting two books from Australia, Whatever It Takes: The Inside Story of the FIFA Way and The Aboriginal Soccer Tribe.  The former remains for me the definitive story of the fall of FIFA and corruption of global soccer.  Whatever It Takes was written by whistleblower Bonita Mersiades, once an Australian football executive.  I met her at Play the Game and immediately became a big fan.  I filled out the FIFA story with David Conn's Fall of the House of FIFA: The Multi-Million Dollar Corruption at the Heart of Global Soccer and Ken Besinger's Red Card: How the U.S. Blew the Whistle on the World's Biggest Sports Scandal.  Conn's book gave a thorough global picture, but I didn't enjoy its journalistic perspective as much as Mersiades's animated firsthand account.  Red Card was a compelling take on the story from the U.S. law enforcement perspective; it's a good read for students of U.S. criminal justice.  I especially appreciated it in coincidental tandem with the thoroughly enjoyable TV series El Presidente on Amazon.

By John Maynard, The Aboriginal Soccer Tribe is a tribute to the best players of Indigenous Australian ancestry and their experiences and undersung impact on soccer in Australia.  Joshua Nadel's Fútbol: Why Soccer Matters in Latin America does similar work for that continent, colored with somewhat more attention paid to the interaction of soccer and Latin America's tumultuous independence movements and subsequent political upheavals in the twentieth century.  In African Soccerscapes: How a Continent Changed the World Game, Peter Alegi also takes a continental approach, but thoughtfully traces players through the post-colonial interdependencies of African socioeconomic development and big-business European sport.

Simon Critchley in What We Think About When We Think About Soccer and Tamir Bar-On in The World Through Soccer: The Cultural Impact of a Global Sport both endeavor to make the social sciences of sport palatable for average people such as me.  Perhaps neither rises to the gold standard of David Goldblatt or Franklin Foer, but both books are rewarding, congenial reads and make worthy contributions to the literature.  Bar-On's is the more academically rigorous, but Critchley made philosophy fun for my freshman fluency.

My unexpected favorite of these books in the cultural studies vein was The Away Game: The Epic Search for Soccer's Next Superstars.  Sebastian Abbot takes the reader inside the world of the football talent scout and training camps, especially the lives of young African players thrust against the high stakes of the sport business in Europe and the Middle East.  I didn't know how much I didn't know, and the reality of this under-acknowledged netherworld is unsettling.  The painful truth is that the contemporary colonialist harvest of African talent is hideous, and, yet, it can't so wholly and easily be written off as exploitation.  It's complicated.

Books About Free Speech

I read many books about free speech, and I've loosely divided them into three categories here.  The broadest ranging works in this "general" set are Timothy Garton Ash's Free Speech: Ten Principles for a Connected World, Lee Bollinger and Geoffrey Stone's The Free Speech Century, and Floyd Abrams's The Soul of the First Amendment.  Ash's book is described by a reviewer as "encyclopedic."  It is; it's otherwise difficult to categorize and difficult for me to grasp the scope of his knowledge and insight.  With a trans-Atlantic perspective, he grapples with the adaptation of free speech norms to our globalized world.  The Bollinger-Stone collection is at times interesting.  One might ought pick and choose from the contents; it would serve best as a course-supplement reader.  The Abrams book is a paean to free speech, not terribly original but eminently quotable.

Samantha Barbas's Newsworthy, Eric Robinson's Reckless Disregard, and Jeff Kosseff's Twenty-Six Words are legal biographies, respectively of Time, Inc. v. Hill (U.S. 1967) (false light privacy tort), St. Amant v. Thompson (U.S. 1968) ("actual malice" as recklessness "plus"), and Communications Decency Act section 230 (1996) (ISP immunity).  Each is a solid legal history with important contemporary implications.  Robert McWhirter offers a well organized and beautifully illustrated history of the First Amendment, appropriate to scholars of all ages, in The First Amendment: An Illustrated History.

The unexpected best of this set was Mark Tushnet, Alan Chen, and Joseph Blocher's Free Speech Beyond Words: The Surprising Reach of the First Amendment.  I had not expected to be so captivated by this work that dares to investigate a question typically glossed over: why, and to what extent, should non-speech, such as art and conduct, be protected by the legal freedom of speech.  This interdisciplinary analysis unpacks a problem that runs as deep as the very nature of the human being as a social animal.

Books About Hate Speech and Free Speech on Campus

This second set of free speech books I classify as about campus speech, though the books about hate speech plainly have broader application.  A range of perspectives is to be found here.  I am persuaded to the more absolutist view of Nadine Strossen, who has capably maintained and defended a consistent position over decades, even as academia and neo-liberal thought have left her increasingly out in the cold.  She sticks to her guns in Hate: Why We Should Resist It with Free Speech, Not Censorship.  Anthony Lewis's book in the same vein is disappointing.  I'm a big fan of Lewis's insightful Make No Law (1991), the seminal biography of New York Times v. Sullivan (U.S. 1964).  Unlike that book, this rather facile treatment, Freedom from the Thought That We Hate: A Biography of the First Amendment, could have been written by a research assistant.  

In Speak Freely: Why Universities Must Defend Free Speech, Keith Whittington builds the best possible case for universities to care about free speech.  I fear, however, that he gives today's university too much credit for not already being overrun and ruled by bean counters.  Sigal Ben-Porath has the most academic offering of these with her Free Speech on Campus.  But I was frustrated by her refusal to take a firm position consistent with the title of the book, free speech, as if she were afraid of tarnishing left-wing bona fides for failure of sufficient sensitivity.  Finally, the entertaining Mick Hume, a hardened alum of the U.K. newsroom, thinks about trigger warnings what Lou Grant would have thought about them, and he isn't afraid to tell you about it in Trigger Warning: Is the Fear of Being Offensive Killing Free Speech?  Spoiler alert: yes.

Other Speech Reads

This last set of free speech books I'm calling "free speech-related."  David Rieff's In Praise of Forgetting: Historical Memories and Its Ironies is one of the most memorable books of my summer.  I read it because I am endlessly intrigued by the right-to-be-forgotten issue and the problem of cultural memory emphasized by institutions such as the stunning Museum of Memory and Human Rights in Santiago, Chile.  Rieff turned upside down and shook an interrogation out of everything I thought I knew about the subject, leaving me with a highly uncomfortable uncertainty about what we should remember as a global human society, and whether we're anyway invariably doomed to forget all the right stuff.  I also picked up (used) Carol Fichtelman's Right to be Forgotten: Legal Research Guide.  It's essentially a bibliography and good for its 2018 publication date, but already in 2020, at about $15, I overpaid.  I'm not sure why WS Hein decided to bind and sell what should be a free online resource.

Adcreep: The Case Against Modern Marketing is a book I picked up at a Law and Society conference a couple of years back.  I'm interested in the implications for commercial speech, and Mark Bartholomew amply demonstrates the how and why of something we're all instinctively aware of: that we as individual consumers are hopelessly outmatched in today's sophisticated commercial marketplace of ideas.  Finally, I read through an unusual item that's been on my to-do list for a while: John Greenewald Jr.'s Beyond UFO Secrecy.  Wait wait, before you come to confiscate my tin foil hat: I read this book because of its acclaim in the Freedom of Information Act (FOIA) community.  Much of the book's leaves are dedicated to the reproduction of produced government documents blackened with redactions, which is fun and interesting for the FOIA enthusiast.  You will get your ink's worth and your conspiracy suspicions stoked.

Other Reads

Tom Wolfe achieves his usual excellence in The Kingdom of Speech, which compelled me to break my blog hiatus in late summer.  The Curve: A Novel, about life at the "Manhattan Law School," by Jeremy Blackman and Cameron Stracher, was a delightful self-indulgence in fiction, though if you've ever worked in academics, it'll have you recollecting the truths that are stranger than....  In contrast, Kent Newmyer, The Treason Trial of Aaron Burr is hardcore nonfiction, if excellent supplemental reading for the Hamilton devotee: a biography of one of the most important legal cases in U.S. history that somehow usually manages only the scarcest mention in constitutional legal studies.  Equally serious about its social science, Dancing Bears: True Stories of People Nostalgic for Life Under Tyranny tells both the nonfiction history of said bears and the story of their masters, the latter amid a psychoanalysis of dark reaches in the collective human mental condition.  More than once a Polish friend has recommended Witold Szabłowski's book when I struggled to understand something about eastern European thinking.  And ... yeah, I see it now.  Con Job: How Democrats Gave Us Crime ... I know will seem an odd pick for those who know me; I don't usually take my partisanship without at least a teaspoon of Splenda.  I admit to interest in how Crystal Wright, self-described "Conservative Black Chick" came to be who she is.  As I suspected, disillusionment is not a partisan affliction in America, and we ignore it at our peril.

Most memorable of this set was Mikey Walsh's haunting Gypsy Boy: My Secret Life in the World of the Romany Gypsies.  It had been on my to-do list for years, and I never quite felt up to the heartrending drama.  It's not unlike Hillbilly Elegy.  Walsh evinces a grudging appreciation of his Romany heritage and teaches the reader a great deal about its proud traditions, alongside its shames.  The journey was at times painful, but overall enriching.

I only got about halfway through my summer reading to-do list, so more books await.  For now, though, I need to get back to figuring out how to teach 1L Torts online.  Happy reading.

Knowles, Metroka enter the fray on free speech today

My friend and colleague Dr. Helen J. Knowles, SUNY Oswego Political Science, has just published, as co-editor with Dr. Brandon T. Metroka, the compelling and timely collection, Free Speech Theory: Understanding the Controversies (Peter Lang 2020) (Amazon).  The editor-authors gave me an advance look at this one, and my well earned endorsement humbly graces the back cover.  Here is the précis:

The rallying cry of "Free speech!" has long served as a touchstone for liberals and conservatives, alike, engaged in political polarization conflict and discourse. The democratization of media and the feverish pitch of political polarization, however, have contributed to the weaponization of free expression. From Colin Kaepernick to "fake news," boycotts of partisan television programming to removals of Confederate monuments, internet neutrality to the silencing of college professors and all points between, citizens and pundits all too frequently wield the slogan of "Free speech!" as the sword and shield of political discourse. Oftentimes, ironically they do so with little regard for the views of their opponents. As a result, society risks trading a substantive value for an empty slogan or, far worse, blind authority.To rediscover the underlying assumptions and social values served by free expression, and to move current controversies beyond rhetorical flourishes, Helen J. Knowles and Brandon T. Metroka assemble an impressive group of legal and political scholars to address one overarching question: "Why should we value free speech?" Through analyses of several recent controversies invoking concerns for free expression, the contributors to this volume make complex political theory accessible, informative, and entertaining. Beginning with internet neutrality and ending with an overview of developing free expression controversies in comparable western democracies, experts reestablish the link between free expression and the underlying values it may serve. In doing so, this volume unearths values previously unexamined in our modern—but increasingly impoverished and bitter—political discourse.

I can't heap enough praise on Dr. Knowles, whose work in law, history, and political science is uniformly superb.  I featured another book of hers just one year ago.  And in the spring of 2019 (back when I was allowed to be around other people), I had the privilege of seeing firsthand how she inspires passion in her students in the classroom and on campus.  It is evidence of her talents as a teacher that I have in the last year counseled several of her students in their desire to pursue graduate studies. 

Coincidentally!, I was wearing my SUNY Oswego shirt just last week, when I learned about this book's appearance.  Below is me with Park Ranger Jordyn Steele (no relation) in Glacier National Park.  Woe to the persons who asked me, "Where is that?," and then got an unsolicited nonfiction book recommendation.

Report from Quarantine Week 2: Me and the Violet Fog

Another week in quarantine.  Technically, my latter and last.  But until there's an antibody test, who can go anywhere?  Here's my self-serving report from week 2.


What I'm Reading
(besides Dr. Grillo's blog)

John O'Donohue, To Bless the Space Between Us (2008) (Amazon).  This beautiful little book with blessings for all occasions was a gift of our dear friend Sister Catherine, who missions to children on the Navajo and Zuni Reservations in New Mexico. I perused it when she gave it to us. But picking it up again now amid the present crisis, its texts (and no less its title) have a new layer of meaning. Consider these verses from the poem, "For the Interim Time":

You are in the time of the interim
Where everything seems withheld.

. . .

What is being transfigured here is your mind,
And it is difficult and slow to become new.
The more faithfully you can endure here,
The more refined your heart will become
For your arrival in the new dawn.

There are poems about travel that are especially poignant to me in present circumstances.

First Book of Samuel (BibleGateway).  My church's yearlong Bible-reading study continues telling the ancient story of Israel.  This book, which chronicles King Saul's fall and David's rise, includes David and Goliath (ch. 17) (and Samuel on the whole reminds me of the Kings TV show, not so scriptural, but a beautifully portrayed drama, with Ian McShane as the Saul character).  I should have mentioned last week that we're accompanying the reading with videos from the nonprofit animation studio, BibleProject (1 Samuel). The studio's outstanding quick-draws are a joy to watch and learn from (también disponible en español y otros idiomas).

What I'm Watching

Doctor Who s12 (2020) (season 38 overall) (BBC trailer).  Whenever there's a new doctor, you're not sure whether it's you or the actor who isn't hitting stride.  Excited as we were about the debut of Jodie Whittaker as the first female Doctor, in 2018 (eat dust, James Bond), series 11 was further complicated by the departure of storyline mastermind Stephen Moffat (still waiting on Sherlock s5, Stephen!). Whatever the reason, series 11 felt like a string of unconnected afterthoughts, despite heroic efforts by the cast to make us care.  Finally series 12 reintroduces the concept of arc, and I feel like we're back on track, story-wise.  The scripts still need work, as they condescendingly tell us rather than show us the writers' social agenda.  But looking past that, we quite enjoyed e7's devilish villains, and we're looking forward to the concluding Cyberman saga.

Chilling Adventures of Sabrina s3 (2020) (Netflix trailer).  Guilty pleasure, I admit, but this Archie Comics reimagining is too clever to resist.  Where Doctor Who lately clubs you over the head with social allegory, Sabrina catches you unawares like a Maine lobster.  If Riverdale is an artificially flavored orange pop for the brain, Sabrina is a delicate hazelnut gelato.  Amid exquisite sets, the narratives are intricate, the characters are surprisingly multilayered for a live-action comic book, and the actors perform whimsically.  Lucy Davis as Aunt Hilda Spellman walks away with best supporting actress.  We're only getting started in s3, but we're already absorbed and delighted.

Young Sheldon s3 (2019-20) (CBS promo).  Comedy break.  This show remains as strong as it premiered.  I am one of that odd contingent that doesn't like Big Bang Theory but adores Iain Armitage's young Sheldon.  That said, even I was moved by the closing scene of e16 in the Caltech cafeteria—after my wife explained it.

Late night.  All our favorites are back, reinventing themselves in this time of crisis, and, as John Oliver put it to Stephen Colbert, "committing union infractions out the wazoo" to keep us laughing.  For HBO's Last Week Tonight, Oliver just posted his third viral installment.  Production of the CBS Late Show has been a family affair in Colbert's Connecticut home; when did his kids all grow up?  His tech snafu with Daniel Radcliffe was an instant classic, and I enjoyed his gin-infused dialog with Ryan Reynolds.  We're looking forward to Tooning Out the News, premiering officially on CBS All Access on April 7.  Producing Comedy Central's "Daily Social Distancing Show" from his New York City sofa, Trevor Noah has been killing it.  His correspondents haven't missed a beat—see "What Day Is It?," Video Chat with Roy Wood Jr. and Jaboukie Young-White, and Ronnie Chieng with Andrew Yang on universal-basic-income-come-lately—and the Daily Show graphics team rallied in force this week.  Finally, a mellow highlight of the week was Monday night's musical "Homefest" on James Corden's Late Late Show (CBS).  Who needs a studio?


What I'm Eating

Garlic.  A lot of garlic.  Now's the time.  In quarantine, you don't have to worry about any close-talking strangers.  Vampires beware.  Thanks, by the way, to whoever gave us this great gift pack of Terra Delyssa organic infused olive oils, which we rediscovered in the cupboard when we feared our olive oil stock had run dry.

King cake.  And everything else in the freezer.  My culinarily gifted Louisianan wife made this for Mardi Gras, when I was in Bissau, and froze some for me.  I've been told that if we're ever allowed to return to the grocery store, I might get gumbo.  Damn you, quarantine!

Billy’s Bistro.  We’re ordering for curbside pickup this weekend.  Remember, if you can, support your local businesses!

What I'm Drinking

Peet's Major Dickason's Blend.  Peet's bestseller.  We're grinding the beans.  It gets the job done.  It's dark, which I like; my wife likes that less.  We also tried this week Community's Private Reserve Holiday Jazz, which I gave to my wife for Christmas as part of a haul of Community coffees to tide her over while I was (or would be, but am not now) in Africa.  We both love Community coffees.  But there was something off about this one's florals that I couldn't get over.  I'd give you the rest of it, but I breathed all over it, so now it's a biohazard.

McQueen and the Violet Fog (Vimeo).  This is a truly special gin, bearing the unique flavor of a 100% neutral cane spirit from Jundiaí, Brazil, which is just north and inland from São Paulo.  Among 21 botanicals, its six "signature" ingredients are basil, rosemary, fennel seed, calamansi, star anise and açai.  It's small-batch distilled from maceration and vapor infusion in a single copper pot still.  Wine Enthusiast's Kara Newman gave it a 93: "This gin is clear, with a distinctly sweet candied lemon peel fragrance. The soft palate finishes with mild violet jazzed up by white pepper and a hint of coriander. Tailor-made for an Aviation."  The name of the gin comes from a darkly quirky poem by Atticus; the last two stanzas are printed on the back of the bottle.

What I'm Wearing

This was a gift from my mom-in-law.  She gets me.

What I'm Doing to Stay Sane

That's my weight bench from high school in the 1980s, today in my garage.  It's lived with me in five states.  "Do we really need to move that?," my wife asked in Arkansas in 2011. "They have gyms in Rhode Island."  "Why, yes," I said presciently, "in case the gym closes because of a pandemic."

Happy weekend!  

Yeah, it's actually the weekend.  Like I can tell the difference....

Report from Quarantine: Week 1

Since (and because) I returned from Africa via Jo'burg and Heathrow, my wife and I have been in self-quarantine.  Here is my self-absorbed, self-quarantine report, week 1.

What I'm Reading

Moshin Hamid, Exit West (2017) (Amazon).  Hamid is best known for his 2007 novel, The Reluctant Fundamentalist (Amazon), basis of the 2012 film.  This book offers an intimate character study of a couple who flees civil war in an anonymous homeland, as they experience displacement amid western cultures. I care for neither romances nor narrative demagoguery, but this book, colored with a shade of magic realism, is more complex than the former and more crafty than the latter. Thoroughly compelling recommendation from Dean Peltz-Steele.

Charles Serio, The Legend of the Blue Cloud (2019) (Amazon).  Shout out to my uncle, who authored this book.  London based, Charles Serio is an accomplished playwright and communication consultant.  His debut novel was the quasi-autobiographical The Lies I've Told (Amazon).  In this book, he fully embraces fiction, spinning the yarn of young adults in the American West who must combat an evil force that seeks to unleash itself on our earthly realm. The book might best be billed as a YA thriller, though its portrayal of the antagonist has a mature edge. Better than I could write, it's sometimes rough around the edges, but I was engaged to the end to find out what would happen to my heroes.

James D. Zirin, Plaintiff in Chief: A Portrait of Donald Trump in 3,500 Lawsuits (2019) (Amazon).  I started planning my Trump Litigation Seminar for fall 2020 before I knew this book was coming out.  My goal was to use Trump case stories as a vehicle to teach tort law and litigation skills.  Now I plan to assign this book, too, which adds a rich policy dimension to the subject.  What Zirin illustrates is frightening:  You be the judge of the President; what I find frightening is the sorry state of our justice system, for its vulnerability to exploitation by the ruthless.

Book of Judges (Bible Study Tools).  In my on-again-off-again flight from Africa, I admit, I lost the thread of my church's yearlong Bible-reading study.  But let's be honest, who hasn't lost the thread in Numbers?  I was back in the saddle for Joshua, and now, in Judges, Deborah has summoned Barak to the Palm.  No spoilers!

What I'm Watching

Toy Story 4 (2019) (IMDb).  It would have been hard to top Toy Story 3, and 4 does not.  That said, 4 is a well worthwhile frolic and welcome opportunity to see what became of our beloved characters after Andy.  Key and Peele are delightful additions to the cast as Ducky and Bunny, and Keanu Reeves is downright brilliant as Duke Caboom.  Yes, we Can-ada!

Star Trek: Picard s1 (2020) (CBS trailer, IMDb).  This worthy new entry in the history of the franchise shows Star Trek to be in good hands at CBS.  Patrick Stewart said he would not appear again as Jean-Luc Picard after Nemesis.  But even he could not resist the siren call of the pen of Akiva Goldsman and Michael Chabon, whose writing is inspired.  Make it so.

Avenue 5 s1 (2020) (HBO trailer, IMDb).  Not every joke lands, but those that do more than make up the difference.  Hugh Laurie is characteristically fabulous.  And I adore Nikki Amuka-Bird, who, as Rav Mulcair, steals every short scene she's in.  Fly safe, fly true.

Letterkenny s6 (2018) (IMDb).  I had tickets to the live show in Portland, Maine, in March: postponed indefinitely for coronavirus.  So I slowed my viewing to savor seasons 6 and 7.  Pitter-patter.

What I'm Eating

Crepelicious, Barrington, RI, USA.  A scrumptious ham, egg, and cheese crepe like this one could be yours for curbside pickup from locally owned Crepelicious.  Please, if you are in a position to do so, support your local restaurants and retail!

Whole Foods Market.  Guilty as charged.  In my defense, we're not breaking quarantine to go to the grocery store, which seems to me the weak link in the whole flatten-the-curve effort.

What I'm Drinking

Jamestown Coffee (Facebook).  Made in Ghana, fruit of my recent travels.  Smooth and tasty.

Highclere Castle Gin.  You watched the TV show and the movie; now try the gin.  A smooth London dry with a hint of lavender, it's made with botanicals from Highclere Garden and the imprimatur of real-life Lord and Lady Carnarvon.

What I'm Hoarding

We just received an aid package from my sister- and brother-in-law in Atlanta, where, apparently, this stuff grows on trees.  Before you get any ideas: My house is protected by Smith & Wesson.