Podcasts by Category
- 14 - Imminent Lawless ActionWed, 28 Oct 2020 - 33min
- 13 - I Know It When I See ItWed, 03 Jun 2020 - 26min
- 12 - Deplatformed: Social Media Censorship and the First AmendmentWed, 28 Aug 2019 - 26min
- 11 - GagThu, 18 Apr 2019 - 31min
- 10 - The F-Bomb
On April 26, 1968, Paul Robert Cohen walked down the corridor of the Los Angeles County Courthouse at the corner of Grand and 1st. He didn’t start a fight, he didn’t make any threats, he didn’t even hold up a sign, but he did wear a jacket. This jacket featured “STOP THE WAR,” two peace signs, and the phrase “FUDGE THE DRAFT” (only it didn’t say “fudge”). The result was a court battle over whether the government has the power to punish the use of the word fuck because many find it offensThu, 29 Nov 2018 - 26min
- 9 - Bonus: The Mailbag Episode
Host Ken White answers common questions his listeners have about freedom of speech and the First Amendment. He addresses the misleading claim that “hate speech is not free speech,”, explains the case that challenged President Trump’s ability to block people on Twitter, and talks about how anti-SLAPP statutes work. Ken also takes advantage of the opportunity to discuss yelling on the internet and the constitutional right to petition the government.Wed, 12 Sep 2018 - 33min
- 8 - Fighting Faiths
Everyone loves a good redemption story. Maybe that's because it helps us believe it's never too late to change. But how does the same Justice who decided Schenck v. United States, a low point for First Amendment jurisprudence, become the ultimate source of famous First Amendment concepts and rhetoric?
In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White explores Justice Oliver Wendell Holmes’s transformation into the First Amendment hero we know him as today. To do this, Ken discusses the Sedition Act of 1918, Holmes’s dissension in United States v. Abrams, and the discourse with his friends and colleagues that ultimately swayed his opinion on free speech. He also talks to Professor Thomas Healy, First Amendment and constitutional law professor at Seton Hall and author of “The Great Dissent: How Oliver Wendell Holmes Changed His Mind And Changed The History Of Free Speech In America.”Fri, 27 Jul 2018 - 27min
- 7 - Fire in a Crowded Theater
“You can’t yell ‘fire’ in a crowded theater” is one of the most commonly used First Amendment catchphrases -- but does it really support exceptions to free speech? The answer to this question can be found in the writings of Supreme Court Justice Oliver Wendell Holmes. He penned the phrase in 1919, not to justify moderate limits on speech, but to justify government prosecution of those speaking out against the draft.
In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White explores the origins of the phrase “You can’t yell ‘fire’ in a crowded theater” and whether or not it actually calls for exceptions to the First Amendment. Featured guests include history professor Michael Kazin, who shares his knowledge of the WWI effort and the resulting tension, and author Nat Brandt, who expands on what made fire in a theater such a powerful analogy. Ken also discusses the Espionage Act of 1917 and the role of Oliver Wendell Holmes in the history of free speech.Thu, 28 Jun 2018 - 28min
- 6 - Street
What pushes a 51 year-old decorated World War II veteran to burn the American flag? In June of 1966, Sidney Street heard the news that James Meredith, an icon of the Civil Rights Movement, had been shot on the second day of his March Against Fear. Street, an African American himself, burned the flag and was arrested. Street declared, “If they let that happen to Meredith, we don’t need an American flag.” So sparked the question of whether the government can punish someone for using words to defile or disrespect an American flag.
In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White examines Street v. New York, the Supreme Court case which concluded that the First Amendment allows freedom of expression towards the American flag -- if not yet the right to burn it. The episode features the input of Professor Aram Goudsouzian, the chair of the History Department at the University of Memphis, and the author of the book “Down to the Crossroads: Civil Rights, Black Power, and the Meredith March Against Fear.”
The episode also features a listener question from Ben Olson about the inclusion of the word “Congress” in the First Amendment -- if the First Amendment says it only applies to Congress, why is it applied to protect us from action by state and local government? This question leads Ken to discuss the Fourteenth Amendment and the Incorporation Doctrine. If there’s a case you want to hear about, or a First Amendment question you’d like answered on the podcast, email Ken at email@example.com.Wed, 16 May 2018 - 32min
- 5 - Crush
The Animal Crush Video Prohibition Act of 2010 was an animal cruelty prevention law aimed at videos showing women in high heels crushing small animals. While the law took aim at these videos, it ended up being used to target Robert Stevens instead. United States v. Stevens is a landmark case that may be the most important First Amendment decision of the 21st Century so far, but not many people have heard of it. It centers around Robert Stevens, a pit bull enthusiast who was charged with violating the crush video law in March 2004. The case eventually led the Supreme Court to make an important clarification about how we decide what speech is protected under the First Amendment.
In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White examines United States v. Stevens and the question of whether the government can continually come to the Supreme Court with potential exceptions to the First Amendment. The episode features input from Marc Randazza, a nationally-known First Amendment and intellectual property attorney. It also examines other relevant cases including New York v. Ferber, a 1982 case in which the Supreme Court decided that the government could punish distribution of child pornography even if it didn’t meet the Miller test for obscenity.Thu, 12 Apr 2018 - 36min
- 4 - Disparagement, Contempt, and Disrepute
Simon Tam named his band “The Slants” as a way to fight back against racism and take back the word as a form of self-empowerment. But when he tried to register the name as a trademark, the United States Patent and Trademark Office (PTO) denied the application and refused to register the trademark under Section 2(a) of the Lanham Act. This law allowed the PTO to refuse a trademark if it could be considered disparaging. No one outside of the PTO actually found the band name disparaging.
In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White examines the Matal v. Tam case in which the Supreme Court vindicated Simon Tam and The Slants, finding that Section 2(a) of the Lanham Act -- which allows the PTO to deny trademarks it finds offense -- violates the First Amendment.
In the episode, Simon Tam himself explains how the PTO substituted its own judgment for the advocacy of Asian-Americans trying to highlight and fight back against racism. This episode also features quotes from the justices involved and music from The Slants.Thu, 15 Mar 2018 - 26min
- 3 - On The Job
When Richard Ceballos, a deputy district attorney in Los Angeles County, expressed concern about the validity of a search warrant in 2000, he discovered the fuzzy line between free speech rights and the need for government entities to maintain workplace discipline. His case brought to light the question of whether the government can terminate its employees based on their words as well as why acting as a citizen versus an employee is an important distinction.
In this episode, host Ken White explores the Garcetti v. Ceballos case, the results of which saddle government employees with a tough decision. Either they can report misconduct to their superiors and potentially face discipline, or report to media or other sources on the outside and face different discipline.
The episode features recordings and documents from the Ceballos’ case as well as an interview with Richard Ceballos himself. It also includes details from other relevant cases, including the 1968 Supreme Court case Pickering v. Board of Education and the 1983 case Connick v. Myers which resulted in the Pickering-Myers test used in Ceballos’ case.Wed, 14 Feb 2018 - 23min
- 2 - The Schoolhouse Gates
In late 1965, a 13-year-old student named Mary Beth Tinker wore a black armband to Warren Harding Junior High School in Des Moines, Iowa, to support a truce in the Vietnam war. The school suspended Mary Beth Tinker for violating a a policy the district had enacted to forbid just such protests. Through her parents, Mary sued the school. Tinker v. Des Moines made its way to the Supreme Court. The Court held that the school violated the students’ First Amendment rights by prohibiting armbands without sufficient evidence that they substantially disrupted the regular operation of the school. But in the years since this landmark case, the Supreme Court has sided more and more with a school’s right to restrict or punish speech.
In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White dives into the Tinker v. Des Moines case and how it has impacted freedom of speech for students on campuses today. While Mary Beth Tinker’s rights were upheld, many plaintiffs in First Amendment cases today have faced less sympathetic courts. Ken and his guests discuss the cultural and historic factors that have led to that retreat.
The episode features the thoughts and perspective of Mary Beth Tinker herself, who remains an activist for student free speech. Ken also interviews Frank LoMonte, a professor of journalism and the recent head of the Student Press Law Center, an advocacy group that helps protect the rights of high school and college journalists.Wed, 31 Jan 2018 - 32min
- 1 - Fighting Words
On April 6, 1940, a Jehovah's Witness named Walter Chaplinsky was arrested for yelling, “You are a God damned racketeer and a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists” at a Rochester, New York police officer. The confrontation launched the case Chaplinsky v. New Hampshire, which made it all the way to the Supreme Court. The Court ruled against Chaplinsky, articulating an exception to the First Amendment for so-called “fighting words.” But the ruling didn’t come in a vacuum -- it followed a wave of oppression of Jehovah’s Witnesses, some of it encouraged by the Supreme Court itself.
In this inaugural episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White explores the Chaplinsky v. New Hampshire case and the ensuing “fighting words” doctrine, which is often cited in disputes over free speech in the United States. As he will throughout this series, he dives into the context and background of the case and some of the most important cases later explaining it.
The episode includes Chaplinsky’s story about what really happened on that day in 1940, as well as stories from other Jehovah’s witnesses in the 1930s and 1940s, including a ten-year-old boy expelled for refusing to salute the American flag. It features an interview with Shawn Peters, a professor at the University of Wisconsin-Madison and author of “Judging Jehovah's Witnesses: Religious Persecution and the Dawn of the Rights Revolution.”Wed, 31 Jan 2018 - 29min
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