FAN 103 (First Amendment News) Coming Soon: New Book by Stephen Solomon on Dissent in the Founding Era

 The book is Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press, 368 pp.)

The author is Stephen Solomon (NYU School of Journalism)

The pub date is April 26, 2016 (Aside: It was on that same date in 1968 that Robert Cohen was arrested for wearing his infamous jacket as he walked through the Los Angeles County Courthouse.)

 His last book was Ellery’s Protest: How One Young Man Defied Tradition and Sparked the Battle over School Prayer (2009)


51ev+5SIRsL._SX327_BO1,204,203,200_When members of the founding generation protested against British authority, debated separation, and then ratified the Constitution, they formed the American political character we know today-raucous, intemperate, and often mean-spirited. Revolutionary Dissent brings alive a world of colorful and stormy protests that included effigies, pamphlets, songs, sermons, cartoons, letters and liberty trees. Solomon explores through a series of chronological narratives how Americans of the Revolutionary period employed robust speech against the British and against each other. Uninhibited dissent provided a distinctly American meaning to the First Amendment’s guarantees of freedom of speech and press at a time when the legal doctrine inherited from England allowed prosecutions of those who criticized government.


Solomon discovers the wellspring in our revolutionary past for today’s satirists like Jon Stewart and Stephen Colbert, pundits like Rush Limbaugh and Keith Olbermann, and protests like flag burning and street demonstrations. From the inflammatory engravings of Paul Revere, the political theater of Alexander McDougall, the liberty tree protests of Ebenezer McIntosh and the oratory of Patrick Henry, Solomon shares the stories of the dissenters who created the American idea of the liberty of thought. This is truly a revelatory work on the history of free expression in America.

“Solomon’s compelling stories of the raucous political speech of the founding generation give us a ringside seat to the protest rallies, provocative cartoons and clever rhetoric that forever embedded freedom of expression in our national character. Revolutionary Dissent is a must-read for all who want to understand the birth of free speech and press in America and how essential it is to continue protecting these freedoms in our democracy.” ―Nadine Strossen

“Stephen Solomon has with singular creativity and command of an elusive subject crafted in Revolutionary Dissent a masterful account of how the nation’s founding generation secured constitutional protection for free speech and press. What emerges in this seminal work is a four-century account of a uniquely American doctrine of free expression, at a time when no other nation – even those as close as Canada and Australia and all other Western democracies – remotely matched the U.S. example in this regard. Solomon has distilled the remarkably varied commitment to enduring core values of free expression by those patriots who comprised the “founding generation.” A masterful “Afterword” reminds us that, despite its sharp divisions, even an otherwise contentious high Court retains such a consensus.” ―Robert O’Neil

Excerpts from the book

Note: I plan to post more about this book in a future issue of FAN.  

The Coming of the Ginsburg Court (?) & the Future of the First Amendment

Prior to Justice Antonin Scalia’s death, Justice Ruth Bader Ginsburg was not really key player when it came to the First Amendment jurisprudence of the Roberts Court. But that might change now as RBG would be the senior Justice in the majority should there be a five-Justice liberal majority (assuming Chief Judge Merrick Garland is confirmed).

Justice Ginsburg has authored only three majority free expression opinions out of the 42 handed down by the Roberts Court. By stark contrast, the Chief Justice has authored 13 majority/plurality opinions. Justice Ginsburg’s three majority opinions came in:

  1. Christian Legal Society v. Martinez (5-4 )  (2010) (denying 1-A claim)
  2. Golan v. Holder (2012) (vote: 6-2) (denying 1-A claim), and
  3. Wood v. Moss (2014) (vote: 9-0) (denying 1-A claim)

And she has authored five separate First Amendment opinions in free expression cases:

  1. Beard v. Banks (2006) (dissenting) (6-2)
  2. Davis v. Federal Election Commission (2008) (concurring & dissenting in part) (5-4)
  3. Ysursa v. Pocatello Educational Association (2009) (concurring in part & concurring in judgment) (6-3)
  4. Reichle v. Howards (2012) (concurring in judgment) (8-0)
  5. Williams-Yulee v. The Florida Bar (2015) (concurring in judgment) (5-4)

But RBG’s role in First Amendment law might become significant were she (as the senior Justice) to assign the majority opinion in controversial 5-4 cases in which Chief Justice Roberts and Justice Kennedy were on the other side — e.g. campaign finance, public union fee cases, government employee speech rights, and student speech cases, among others. If so, look to Justice Stephen Breyer to get assigned more opinions and perhaps Justice Elena Kagan, who has yet to author a majority opinion in a First Amendment free expression case.

Knight Foundation & Newseum Institute Survey re Free Speech on Campuses

Recently, the Knight Foundation and the Newseum Institute in partnership with Gallup released the results of a telephone survey of 3,072 students (18 to 24 years old), at four-year colleges. The survey was conducted from February 29 through March 15, 2016.

As reported by Nick Anderson writing in the Washington Post: “Most college students embrace the ideal of an open learning environment on campus that exposes them to all types of speech and viewpoints, but a large majority also believes that schools should be allowed to restrict slurs and other intentionally offensive language.”

  • “Asked whether colleges should be allowed to restrict political views that are offensive or upsetting to certain groups, 72 percent said no. Seventy-six percent of white students and 59 percent of black students held this view.”
  • “Overall, 69 percent said colleges should be able to limit the use of slurs and other language that is intentionally offensive to certain groups. Seventy-nine percent of black students and 67 percent of white students endorsed this view.”
  • “Overall, 63 percent said colleges should be able to restrict wearing of costumes that stereotype certain racial or ethnic groups. A larger share of black students — 77 percent — agreed with this statement, compared to 62 percent of white students.”

New & Forthcoming Scholarly Articles

  1. Jullen Malland, “Lessons of the Forgotten 1981 Network Neutrality Debate,” SSRN (March 31, 2016)
  2. Ned Snow, “Content-Based Copyright Denial,” Indiana Law Journal (2015)

New & Notable Blog Posts 

  1. Eugene Volokh, “West Hollywood mayor says city wouldn’t grant special event permits to Trump rally,” The Volokh Conspiracy, April 5, 2016
  2. Erica Goldberg, “American Free Speech Exceptionalism: Why Hulk Hogan’s Verdict Against Gawker Should Be Reversed on Appeal (Second in a series on Bollea v. Gawker),” In a Crowded Theater, March 29, 2016
  3. Erica Goldberg, “The Emory Chalking Incident, and When Speech Becomes Intimidation,” In a Crowded Theater, March 25, 2016

Free Expression Awards

 “Celebrating the World’s Champions for Free Expression” (Newseum & Newseum Institute)

 Date: April 19, 2016: 6:30 pm reception & 7:30 pm dinner & awards

The 2016 awards recognize those who exhibit passion for and dedication to free expression, including those who have taken personal or professional risks in sharing information with the public, are censored or punished by authorities or groups for their work, or show courage by pushing boundaries in artistic and media expression. The award categories are free speech, free press, religious freedom, and arts and entertainment.

Host: Scott Pelley


  • James Risen (Free Press Award)
  • Boniface Mwangi (Free Speech Award)
  • Abdallah Bin Bayyah (Religious Freedom Award)
  • Pussy Riot (Arts & Entertainment Award Honoree)

→ Ticket Information (here)

Recent Event

News, Op-eds & Blog Posts

  1. Robert Levine, “What Hulk Hogan’s Gawker Lawsuit Means for Our Privacy,” New York Times, April 4, 2016
  2. Marina Fang, “Most College Students Want Free Speech On Campuses — But Not When It’s Hate Speech,” Huffington Post, April 4, 2016
  3. Florida Man Arrested Peacefully Exercising First Amendment Near Public School,” PINAC, March 17, 2016

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Justice v. Hosemann 
  2. Electronic Arts, Inc. v. Davis
  3. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  4. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  5. Town of Mocksville v. Hunter
  6. Miller v. Federal Election Commission
  7. Sun-Times Media, LLC v. Dahlstrom
  8. Rubin v. Padilla
  9. Hines v. Alldredge
  10. Yamada v. Snipes
  11. Center for Competitive Politics v. Harris
  12. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Scholz v. Delp
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims):  Cert. denied

Freedom of Information Case

→ The Court’s next Conference is on April 15, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

LAST SCHEDULED FAN, #102:”Len Niehoff on Hulk Hogan’s $140.1M Award Against Gawker”

NEW SCHEDULED FAN, #104, Wednesday, April 13, 2016

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2 Responses

  1. Seems very interesting! I will definitely check it out. Thanks for sharing.

  2. Joe says:

    Will check it out.

    “Dirty Words and Filthy Pictures: Film and the First Amendment” is good too. Judge Kozinski provides a forward.