Unprecedented Matthew S. Schwartz

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.


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

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?


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

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?


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