Ian Rosenberg is an NYC lawyer for ABC and the author of The Fight for Free Speech: Ten Cases That Define Our First Amendment Freedoms. Ian dives into contemporary free speech questions and then explains the key Supreme Court case that provides answers. Coming out of an era where free speech and the media were actively being attacked in America, his book shows why the First Amendment is a privilege and a right.
WITH recently chatted with Ian to get the scoop on what’s at stake for all of us when our press is attacked and derided. If that sounds too serious or depressing, we also talk about Lady Gaga, movie theaters, and Hustler Magazine.
We hope you found our chat with Ian to be as interesting and thought-provoking as we did. And if not, it’s your right to let us know.
WITH: Tell me about the mainstream media and their role in opinion vs. fact-based reporting. It seems like trust in the media is at an all-time low. What legal protections should the average citizen know about it when it comes to vetting what they read or hear in the news?
Ian Rosenberg : I work with the mainstream media. I’m a lawyer for ABC News. So, I’m not objective, but I do see firsthand how hard most of the mainstream media works every day to get things correct and get things accurate.
It really starts with conversations around libel laws. The story of how we got our current libel standard involves the Civil Rights Movement. The New York Times was famously sued by this group of Southern government officials who claimed the Times was printing libelous things about them in regards to the paper’s coverage of Dr. Martin Luther King Jr.
It goes to the Supreme Court, and Justice Brennan creates a unanimous decision for a new test, which is the actual malice test, which in short says that the media cannot engage in knowing falsehoods or reckless disregard for the truth.
You can’t lie and be protected, and you can’t turn a blind eye to the truth, otherwise you will be sued. The media will be found guilty or found responsible for libel.
W: This basically created the precedent that no media company can be given a blank check to say whatever they want as part of “freedom of the press.”
I: Correct. The reason I think it’s so important to understand this standard is because so much of the last four years, we’ve been told over and over again that the media is the enemy of the people, and “fake news,” as a mantra.
This is very problematic because not only is it false, it also creates a dynamic where a small group of people are defining what is and isn’t real, rather than encouraging open discussions. Having a robust criticism of public officials, no matter what party they’re from, is vital to continuing our democracy.
W: What about hyperpartisan news media? How do they fit into all this?
I: One thing I would encourage people to do is to make distinctions between opinion news, which is Fox News on the right and MSNBC to a lesser extent on the left, and mainstream publications like ABC News and NPR. It doesn’t mean that the people working at these institutions have no political viewpoints, it just means that they’re trying to present the facts rather than opinions on the facts.
To take an easy example, “I think Lady Gaga is a bad singer.” That’s a statement of opinion. “Lady Gaga never won a Grammy,” that’s a false statement of fact. She’s won many.
I hope that this book gives them a way of sort of distinguishing between different types of media, and distinguishing legally as well as politically about the importance between opinion journalism and fact-based journalism.
W: One of the biggest themes in the book is that dissent should not only be tolerated, it should be nurtured. Why do you believe dissent is so important?
I: I think people don’t want to hear opinions they disagree with, and I think it’s a very good free speech value to try and encourage us to break out of our shells of the people we agree with, and to hear from other viewpoints.
It’s very hard to grow as a society when we are only being fed information from a few select sources. It hurts the entire ecosystem. Dissenting views help to add richness to our world by presenting new information that we would not otherwise have been exposed to.
W: What about parody? Things are more advanced than the days of Mad Magazine, but I was always amazed at how much they were able to get away with under the umbrella of saying something was a parody.
I: The incredible power of parody, and how much it is protected by the Supreme Court, relates to the battle between the televangelist and conservative leader Jerry Falwell and the recently deceased Larry Flynt of Hustler. Flynt created a parody ad in the style of, at the time, what were popular Campari ads that say, “Celebrities remember their first time.” The ads are made to sound like the first time a celebrity had sex, but they are actually about the first time they drank Campari.
So, Flynt creates a fake ad in this style with a real picture of Jerry Falwell and says that Jerry Falwell’s first time was with his mother, in an outhouse. The ad is actually even more shocking than that in its language. And Falwell, the religious figure and the head of the Moral Majority political organization at the time, sues Flynt for reckless infliction of emotional distress, which is basically emotional damages.
W: Someone’s feelings were hurt by a joke. That’s a pretty classic scenario.
I: There’s an interesting jury verdict where the jury says that they don’t believe that there’s any statements of fact being expressed. They realized that this was a joke. But at the same time, they award Falwell damages. And it goes to the Supreme Court. And Chief Justice Rehnquist, sort of holding his nose, says that we have to protect parody, that the standard can’t be whether you intended to harm because parody will always have the appearance of an intention to harm, and that we need to protect even people as abhorrent as Larry Flynt and their sort of distasteful jokes, because otherwise we would have no protections for political cartoons and other satire, which would certainly include Saturday Night Live.
So that’s a long way of saying that parody is entirely protected. And the sort of back-and-forth between Falwell and Flynt is not only sort of surprising at every turn, but it really shows how these two foes, in the end, very shockingly became friends.
Mark Twain says that explaining humor is like dissecting a frog. You can do it, but in the end, you kill it. But I think that actually, Larry Flynt does a very good job of explaining why the ad, the fake ad, was intended to be funny, and why that humor actually has a real political purpose.
W: When Falwell died in 2007, Flynt wrote in the Los Angeles Times that “after spending so much time together, the ultimate result was one that I never expected, and was just as shocking a turn to me as winning the famous Supreme Court case. We became friends.”
I: It’s a remarkable real-life example of the power of listening to other viewpoints. I don’t think either of them were convinced by the other person’s viewpoint, but they did reach a level of comfort with each other that’s rather remarkable.
W: That’s one of the real key takeaways from your book, is the necessity for listening to opposing viewpoints. Just to listen to them. To consider them, discuss them, try to be civil about them. That’s where healing can occur.
I: Absolutely. That’s a very nice way of summarizing what is indeed a theme of the book. And I hope that people will get out of the book also, by hearing the stories of these real people, sometimes it involves the president of the United States and big institutions like the Times, but most often it’s schoolchildren, or a woman biking on her way to work, or a political comedian, relatively regular people who experienced free speech in extraordinary ways.