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Freedom of Speech

By: History.com Editors

Updated: July 27, 2023 | Original: December 4, 2017

Freedom of speech—the right to express opinions without government restraint—is a democratic ideal that dates back to ancient Greece. In the United States, the First Amendment guarantees free speech, though the United States, like all modern democracies, places limits on this freedom. In a series of landmark cases, the U.S. Supreme Court over the years has helped to define what types of speech are—and aren’t—protected under U.S. law.

The ancient Greeks pioneered free speech as a democratic principle. The ancient Greek word “parrhesia” means “free speech,” or “to speak candidly.” The term first appeared in Greek literature around the end of the fifth century B.C.

During the classical period, parrhesia became a fundamental part of the democracy of Athens. Leaders, philosophers, playwrights and everyday Athenians were free to openly discuss politics and religion and to criticize the government in some settings.

First Amendment

In the United States, the First Amendment protects freedom of speech.

The First Amendment was adopted on December 15, 1791 as part of the Bill of Rights—the first ten amendments to the United States Constitution . The Bill of Rights provides constitutional protection for certain individual liberties, including freedoms of speech, assembly and worship.

The First Amendment doesn’t specify what exactly is meant by freedom of speech. Defining what types of speech should and shouldn’t be protected by law has fallen largely to the courts.

In general, the First Amendment guarantees the right to express ideas and information. On a basic level, it means that people can express an opinion (even an unpopular or unsavory one) without fear of government censorship.

It protects all forms of communication, from speeches to art and other media.

Flag Burning

While freedom of speech pertains mostly to the spoken or written word, it also protects some forms of symbolic speech. Symbolic speech is an action that expresses an idea.

Flag burning is an example of symbolic speech that is protected under the First Amendment. Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the Reagan administration.

The U.S. Supreme Court , in 1990, reversed a Texas court’s conviction that Johnson broke the law by desecrating the flag. Texas v. Johnson invalidated statutes in Texas and 47 other states prohibiting flag burning.

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

• Obscene material such as child pornography
• Plagiarism of copyrighted material
• Defamation (libel and slander)
• True threats

Speech inciting illegal actions or soliciting others to commit crimes aren’t protected under the First Amendment, either.

The Supreme Court decided a series of cases in 1919 that helped to define the limitations of free speech. Congress passed the Espionage Act of 1917, shortly after the United States entered into World War I . The law prohibited interference in military operations or recruitment.

Socialist Party activist Charles Schenck was arrested under the Espionage Act after he distributed fliers urging young men to dodge the draft. The Supreme Court upheld his conviction by creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, they viewed draft resistant as dangerous to national security.

American labor leader and Socialist Party activist Eugene Debs also was arrested under the Espionage Act after giving a speech in 1918 encouraging others not to join the military. Debs argued that he was exercising his right to free speech and that the Espionage Act of 1917 was unconstitutional. In Debs v. United States the U.S. Supreme Court upheld the constitutionality of the Espionage Act.

Freedom of Expression

The Supreme Court has interpreted artistic freedom broadly as a form of free speech.

In most cases, freedom of expression may be restricted only if it will cause direct and imminent harm. Shouting “fire!” in a crowded theater and causing a stampede would be an example of direct and imminent harm.

In deciding cases involving artistic freedom of expression the Supreme Court leans on a principle called “content neutrality.” Content neutrality means the government can’t censor or restrict expression just because some segment of the population finds the content offensive.

Free Speech in Schools

In 1965, students at a public high school in Des Moines, Iowa , organized a silent protest against the Vietnam War by wearing black armbands to protest the fighting. The students were suspended from school. The principal argued that the armbands were a distraction and could possibly lead to danger for the students.

The Supreme Court didn’t bite—they ruled in favor of the students’ right to wear the armbands as a form of free speech in Tinker v. Des Moines Independent School District . The case set the standard for free speech in schools. However, First Amendment rights typically don’t apply in private schools.

What does free speech mean?; United States Courts . Tinker v. Des Moines; United States Courts . Freedom of expression in the arts and entertainment; ACLU .

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First Amendment – Freedom of Speech

The First Amendment allows citizens to express and to be exposed to a wide range of opinions and views. It was intended to ensure a free exchange of ideas even if the ideas are unpopular. Freedom of speech encompasses not only the spoken and written word, but also all kinds of expression (including non-verbal communications, such as sit-ins, art, photographs, films and advertisements).

1735 Truth Is A Defense Against Libel Charge

New York printer John Peter Zenger is tried on charges of seditious libel for publishing criticism of the royal governor. English law – asserting that the greater the truth, the greater the libel – prohibits any published criticism of the government that would incite public dissatisfaction with it. Zenger’s lawyer, Andrew Hamilton, convinces the jury that Zenger should be acquitted because the articles were, in fact, true, and that New York libel law should not be the same as English law. The Zenger case is a landmark in the development of protection of freedom of speech and the press.

1787 Federalist Papers’ Publication Starts

The first of 85 essays written under the pen name Publius by Alexander Hamilton, James Madison and John Jay begin to appear in the New York Independent Journal. The essays, called the Federalist Papers, support ratification of the Constitution approved by the Constitutional Convention on Sept. 17, 1787. In Federalist Paper No. 84, Hamilton discusses “liberty of the press.”

1791 First Amendment Is Ratified

The First Amendment is ratified when Virginia becomes the 11th state to approve the first 10 amendments to the Constitution, known as the Bill of Rights. The amendment, drafted primarily by James Madison, guarantees basic freedoms for citizens: freedom of speech, press, religion, assembly and petition.

1798 Alien And Sedition Acts Signed Into Law

While the nation’s leaders believe an outspoken press was justified during the war for independence, they take a different view when they are in power. The Federalist-controlled Congress passes the Alien and Sedition Acts. Aimed at quashing criticism of Federalists, the Sedition Act makes it illegal for anyone to express “any false, scandalous and malicious writing” against Congress or the president.

The United States is in an undeclared war with France, and Federalists say the law is necessary to protect the nation from attacks and to protect the government from false and malicious words. Republicans argue for a free flow of information and the right to publicly examine officials’ conduct.

1836 Efforts To Stifle Debate About Slavery Unsuccessful

As abolitionists develop the tactic of submitting many antislavery petitions to Congress, proslavery members of the U.S. House of Representatives adopt “gag” rules that bar such petitions from being introduced and debated. In 1844, former President John Quincy Adams, then a representative from Massachusetts, leads the effort to repeal these rules.

1859 ‘On Liberty’ Is Published

British philosopher John Stuart Mill publishes the essay On Liberty , arguing that only through the free exchange of ideas, even offensive ones or ones held by a minority of individuals, can society find “truth.”

1864 Lincoln Orders Two Newspapers Shut

President Abraham Lincoln orders Union Gen. John Dix to stop publication of the New York Journal of Commerce and the New York World after they publish a forged presidential proclamation calling for another military draft. The editors also are arrested. After the authors of the forgery are arrested, the newspapers are allowed to resume publication.

1873 Circulation Of Birth Control Information Outlawed

An “Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use” is passed by Congress. The act, more commonly known as the Comstock Act – after anti-obscenity activist Anthony Comstock – makes it a crime to publish, distribute or possess information about contraception or abortion, or to distribute or possess devices or medications used for those purposes.

Lawmakers were responding to increasing concern about abortion, the institution of marriage, and the changing role of women in society.

1917 Congress Passes Espionage Act Of 1917

With World War I being fought, President Woodrow Wilson proposes the Espionage Act of 1917 to protect the country from internal warfare propaganda. Congress passes the act, which makes it a crime to intentionally interfere with military forces, recruiting or enlistment or “cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States.” Punishment is a maximum fine of $10,000, a maximum jail term of 20 years, or both. The act also bans any mailings urging treason.

1918 Sedition Act Of 1918 Punishes Critics Of WWI

An amendment to the Espionage Act of 1917, the Sedition Act is passed by Congress. It goes much further than its predecessor, imposing severe criminal penalties on all forms of expression that are critical of the government, its symbols, or its mobilization of resources for World War I. Ultimately, about 900 people will be convicted under the law. Hundreds of noncitizens will be deported without a trial; 249 of them, including anarchist Emma Goldman, will be sent to the Soviet Union.

1919 ‘Clear And Present Danger’ Exception Established

In Schenck v. United States , the U.S. Supreme Court, in an opinion by Justice Oliver Wendell Holmes, upholds the conviction of Socialist Charles Schenck for conspiracy to violate the Espionage Act by attempting to distribute thousands of antiwar leaflets to U.S. servicemen. While acknowledging that the First Amendment under normal circumstances might protect Schenck’s activities, the Court holds that in special circumstances, such as wartime, speech that poses a “clear and present danger” can be restricted. The Court likens the ideas expressed in Schenck’s leaflets to “falsely shouting fire in a theatre and causing a panic.”

A few days later, in another opinion by Holmes, the Court will uphold Socialist Eugene V. Debs’ conviction, finding that his speech also poses a “clear and present danger” of undermining war recruitment and is not protected by the First Amendment.

1919 ‘Marketplace Of Ideas’ Concept Defined

In his dissent from the majority opinion in Abrams v. United States (upholding the Espionage Act convictions of a group of antiwar activists), U.S. Supreme Court Justice Oliver Wendell Holmes coins his famous “marketplace of ideas” phrase to explain the value of freedom of speech. He said that “the ultimate good desired is better reached by free trade in ideas … the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Over the years, Holmes’ “marketplace” concept, and the idea that more is better when it comes to competing ideas, has been a consistent theme in First Amendment cases.

1925 Court: First Amendment Applies To States’ Laws

In Gitlow v. New York , the U.S. Supreme Court concludes that the free speech clause of the First Amendment applies not just to laws passed by Congress, but also to those passed by the states.

1926 Mencken Arrested For ‘Indecent Literature’

H.L. Mencken is arrested in Boston for distributing copies of his American Mercury magazine, which contains a story with a prostitute as a central character. Censorship groups in Boston say the magazine is obscene and order Mencken’s arrest for selling “indecent literature.”

1927 Criminal Syndicalism Law Constitutional

In Whitney v. California , the U.S. Supreme Court rules that California’s criminal syndicalism law is constitutional. A member of the state’s Communist Labor Party was prosecuted under the law, which barred advocating, teaching or aiding the commission of a crime, including “terrorism” as a way to achieve change in industrial ownership or political change. The Court says that freedom of speech is not an absolute right.

1931 Court: Symbolic Expression Of Ideas Also Protected

In Stromberg v. California , the U.S. Supreme Court invalidates the state court conviction of a 19-year-old member of the Young Communist League for displaying a red flag as “an emblem of opposition to the United States government.” The Court rules that the woman’s nonverbal, symbolic expression of her antigovernment opinions is protected just as are any words that she might write or speak to express those opinions.

1931 Prior Restraint Ruled Unconstitutional

Near v. Minnesota is the first U.S. Supreme Court decision to invoke the First Amendment’s press clause. A Minnesota law prohibited the publication of “malicious, scandalous, and defamatory” newspapers. It was aimed at the Saturday Press, which had run a series of articles about corrupt practices by local politicians and business leaders. The justices rule that prior restraints against publication violate the First Amendment, meaning that once the press possesses information that it deems newsworthy, the government can seldom prevent its publication. The Court also says the protection is not absolute, suggesting that information during wartime or obscenity or incitement to acts of violence may be restricted.

1937 Court: First Amendment Protects ‘Peaceable Assembly’

In De Jonge v. Oregon , the U.S. Supreme Court overturns the conviction of Dirk De Jonge for participating in a Communist Party political meeting, holding that “peaceable assembly for lawful discussion cannot be made a crime.” That right, the Court finds, is not dependent upon whether one agrees with the ideas being discussed by the people assembled.

1940 Ban On Religious Solicitation Struck Down

In Cantwell v. Connecticut , the U.S. Supreme Court holds that two Jehovah Witnesses’ rights of free speech and free exercise of religion were violated when they were arrested for proselytizing in a Catholic neighborhood. The Court says the solicitation law, which allows a state official to refuse a permit based on religious grounds, is unconstitutional. The Court also overturns a breach of peace conviction, saying the pair’s message was protected religious speech. The case is the first to extend the free exercise of religion clause to the states and to establish the ‘time, manner and place’ rule, which says the state can regulate the free exercise right to ensure it is practiced in a reasonable time, manner and place.

1940 Flag Salute Requirement Is Upheld

In Minersville School District v. Gobitis , the U.S. Supreme Court upholds a Pennsylvania flag-salute law after a challenge by a Jehovah’s Witness family whose two children were expelled for refusing to salute the flag. They believe the salute is forbidden by biblical commands. The Court says the flag is a symbol of national unity, which is the “basis of national security.”

1942 ‘Fighting Words’ Exception Established

In Chaplinsky v. New Hampshire , the U.S. Supreme Court upholds the conviction of a Jehovah’s Witness who had called a police officer a “damned fascist.” The Court rules that there are certain words that “by their very utterance inflict injury” and are of “such slight social value” that they are not welcome in the marketplace of ideas. This category of speech, named “fighting words” by the Court, is not protected by the First Amendment. Consequently, the speaker may be prosecuted.

1943 Court: Required Flag Salute Violates First Amendment

In West Virginia State Board of Education v. Barnette , the U.S. Supreme Court overrules its decision in Minersville School District v. Gobitis and decides that a West Virginia law requiring students to salute the American flag violates the free speech clause of the First Amendment. “Compulsory unification of opinion,” the Court says, is “antithetical to First Amendment values.”

1947 Hatch Act Upheld; Dissent Says It Violates 17th Amendment

In United Public Workers v. Mitchell , the U.S. Supreme Court finds that the Hatch Act, a federal law that prohibits federal employees from participating in many electoral activities does not violate the First Amendment. In a strong dissent, Justice Hugo Black argues that the law muzzles several million citizens and threatens popular government, because it deprives citizens of the right to participate in the political process.

Such limitations, he argues, would be inconsistent with the First Amendment’s guarantee of freedom of speech, press, assembly and petition. Moreover, Black finds that the Hatch Act would violate, or come dangerously close to violating, Article I and the 17th Amendment, which protect the right of the people to vote for their representatives in the House and Senate and to have their votes counted.

1949 Scope Of ‘Fighting Words’ Doctrine Limited

In Terminiello v. Chicago , the U.S. Supreme Court overturns the conviction of Father Arthur Terminiello for disturbing the peace. He was convicted after giving a controversial speech that criticized various racial and political groups. Several disturbances by protesters occurred after the speech. The Court says “fighting words” can be restricted only when they are “likely to produce a clear and present danger.” Justice William O. Douglas writes that free speech may “best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

1952 Justices Uphold Group Libel Law

In Beauharnais v. Illinois , the U.S. Supreme Court upholds the conviction of a white supremacist for passing out leaflets that characterized African Americans as dangerous criminals. The “group libel” law under which Joseph Beauharnais was prosecuted makes it a crime to make false statements about people of a particular “race, color, creed or religion” for no other reason than to harm that group. The Court rules that libel against groups, like libel against individuals, has no place in the marketplace of ideas.

1957 Obscenity Exception To First Amendment Established

In Roth v. United States , the U.S. Supreme Court decides that it is not a violation of the First Amendment for the government to regulate, or even criminalize, speech that is “obscene,” because, just like libel and “fighting words,” obscene speech is “utterly without redeeming social importance.” The Court says that in defining obscenity, the government must consider “contemporary community standards.” What was “obscene” 50 years ago may not be in today’s society.

1958 Court Protects ‘Free Association’ In NAACP Case

In NAACP v. Alabama , the U.S. Supreme Court holds that when Alabama state officials demanded that the NAACP hand over its membership list, the members’ right of “free association” was violated. Although no such right is specifically included in the First Amendment, the Court says it is a necessary extension of the rights to free speech and free assembly: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the due process clause of the 14th Amendment, which embraces freedom of speech.”

1959 No Protection From Congressional Inquiry

The U.S. Supreme Court finds professor Lloyd Barenblatt’s First Amendment rights were not violated when he was convicted of contempt of Congress for refusing to answer questions about his religious and political beliefs before the House Un-American Activities Committee. In Barenblatt v. United States , the Court says that such questions are legitimate when the investigation’s goal is to “aid the legislative process” and to protect important government interests.

1961 Symbolic Speech Of Civil Rights Protesters Protected

In Garner v. Louisiana , the U.S. Supreme Court overturns the convictions of 16 African American demonstrators for disturbing the peace in three lunch counter sit-ins at all-white restaurants in Baton Rouge, La., to protest segregation. The cases were consolidated under Garner v. Louisiana. Referring to earlier court opinions protecting symbolic speech, Justice John Harlan explains that a sit-in demonstration “is as much a part of the free trade of ideas as is verbal expression.”

1964 Court Establishes ‘Actual Malice’ Standard

In New York Times Co. v. Sullivan , the U.S. Supreme Court establishes the “actual malice” standard when it reverses a civil libel judgment against the New York Times. The newspaper was sued for libel by Montgomery, Ala.’s police commissioner after it published a full-page ad that criticized anti-civil rights activities in Montgomery. The court rules that debate about public issues and officials is central to the First Amendment. Consequently, public officials cannot sue for libel unless they prove that a statement was made with “actual malice,” meaning it was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

1966 Loyalty Oath Is Struck Down

In Elfbrandt v. Russell , the U.S. Supreme Court invalidates an Arizona law requiring state employees to take a loyalty oath. Anyone who took the oath and then became a member of the Communist Party or any other group that advocated the violent overthrow of the government could be prosecuted for perjury and fired. The Court says the law violates the due process clause by infringing on the right of free association. The Court holds that the law is too broad by punishing a person who joins a group that has both legal and illegal purposes but does not subscribe to the illegal purpose.

1966 Smith Act Is Found Constitutional

In Dennis v. United States , the U.S. Supreme Court upholds the convictions of 12 Communist Party leaders who were convicted under the Smith Act of 1940, formally known as the Alien Registration Act. The law makes it illegal to teach or advocate the overthrow or destruction of the U.S. government, or publish any materials or organize a group that endorses such action. The majority writes that the “existence of the conspiracy” creates “a clear and present danger.”

1968 Limits Placed On Symbolic Speech Right

In United States v. O’Brien , the U.S. Supreme Court lets stand the conviction of an activist who burned his draft card to protest the Vietnam War. Although the Court admits that the law against destroying a draft card does limit speech, it rules that the limit is acceptable because it serves an important government interest (i.e., the smooth operation of the draft during wartime) and is “content-neutral,” meaning that it is not meant to punish any particular point of view or opinion.

1968 Teacher’s Free Speech Right Upheld

The U.S. Supreme Court decides that a public school teacher’s free speech right was violated when he was fired for writing a letter to the newspaper criticizing how money was divided between athletics and academics. The justices say in Pickering v. Board of Education that public school teachers are entitled to some First Amendment protection and that the teacher was speaking out more as a citizen than as a public employee when he wrote the letter.

1969 Students’ Right To Symbolic Speech Upheld

In Tinker v. Des Moines Independent Community School District , the U.S. Supreme Court rules that the school board was wrong to suspend three students who wore black armbands to school to protest the Vietnam War. The Court finds that the students’ passive protest posed no risk of disrupting school activities. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the Court’s opinion says.

1969 Private Ownership Of Obscene Material Protected

In Stanley v. Georgia , the U.S. Supreme Court finds unconstitutional a Georgia obscenity law that prohibits the possession of such material. The Court rules that the Constitution “protects the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one’s privacy and control of one’s thoughts.”

1969 Advocacy Of Violence Is Protected Speech Except In Rare Circumstances

In Brandenburg v. Ohio , the U.S. Supreme Court reverses the conviction of a Ku Klux Klan leader under an Ohio law prohibiting speech that calls for crime or violence as a way of winning political change. The Court holds that unless the speaker incites his listeners to “imminent lawless action,” the speech is protected by the First Amendment.

1971 Antiwar Expression Is Ruled Protected Speech

In Cohen v. California , the U.S. Supreme Court overturns the conviction of a man convicted of disturbing the peace for wearing a jacket bearing a vulgarism about the draft. The Court concludes that the expression, however crude, did not pose enough of a risk of inciting disobedience to override his First Amendment right to express his opposition to the Vietnam War.

1971 Newspapers Win Pentagon Papers Case

The New York Times and the Washington Post obtain secret Defense Department documents that detail U.S. involvement in Vietnam in the years leading up to the Vietnam War. Citing national security, the U.S. government gets temporary restraining orders to halt publication of the documents, known as the Pentagon Papers. But, acting with unusual haste, the U.S. Supreme Court finds in New York Times v. United States that prior restraint on the documents’ publication violates the First Amendment. National security concerns are too speculative to overcome the “heavy presumption” in favor of the First Amendment’s guarantee of freedom of the press, the Court says.

1972 Court: No Reporter’s Privilege Before Grand Juries

Branzburg v. Hayes is a landmark decision in which the U.S. Supreme Court rejects First Amendment protection for reporters called before a grand jury to reveal confidential information or sources. Reporters argued that if they were forced to identify their sources, their informants would be reluctant to provide information in the future. The Court decides reporters are obliged to cooperate with grand juries just as average citizens are. The justices do allow a small exception for grand jury investigations that are not conducted or initiated in good faith.

1973 Court: States Can Regulate Obscene Exhibits

In Paris Adult Theatre I v. Slaton , the U.S. Supreme Court upholds a Georgia injunction against the showing of allegedly obscene films at an adult movie theater that allowed only patrons at least 21 years old. The Court finds that “legitimate state interests,” such as preserving quality of life and public safety, are at stake in regulating commercialized obscenity even if the exhibits are limited to consenting adults.

1973 Definition Of Obscenity Is Clarified

In Miller v. California , the U.S. Supreme Court establishes a new definition of obscenity, setting out a three-part test for judging whether material is obscene: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest (b) whether the work depicts or describes, in a patently offensive way, sexual conduct; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

1976 Money Spent In Political Campaigns Considered Speech

When Congress tries to limit expenditures in political campaigns, the U.S. Supreme Court, in Buckley v. Valeo , invalidates provisions that restrict candidates’ ability to spend their own money on a campaign, limit campaign expenditures by an outside group, and limit total campaign spending. The Court compares spending restrictions with restrictions on “political speech.” The majority reasons that discussion of public issues and political candidates are integral to the U.S. political system under the Constitution. The Court says government-imposed limits on the amount of money a person or group can spend on political communication reduces “the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”

1976 Justices Protect Commercial Speech

In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , the U.S. Supreme Court strikes down a state law that forbids pharmacists from including the prices of prescription drugs in their ads because it is unprofessional conduct. Although such information does not convey an idea other than proposing that a purchase be made, the Court finds that commercial speech enjoys the same First Amendment protection as noncommercial speech.

1977 Court Allows Publication Of Juvenile’s Identity

In Oklahoma Publishing Company v. District Court , the U.S. Supreme Court finds that when a newspaper obtains the name and photograph of a juvenile involved in a juvenile court proceeding, it is unconstitutional to prevent publication of the information, even though the juvenile has a right to confidentiality in such proceedings. A similar ruling will be made by the court two years later, in Smith v. Daily Mail Publishing Company , when the Court finds that a newspaper’s First Amendment right takes precedence over a juvenile’s right to anonymity.

1978 Nazis Permitted To March In Skokie, Ill.

The 7th U.S. Circuit Court of Appeals invalidates a city law passed in Skokie, Ill., home to 5,000 Holocaust survivors, to prevent a neo-Nazi group from holding a march there. The Court rules in Collin v. Smith that the group should be permitted to march in their uniforms, distribute anti-Semitic leaflets and display swastikas. The court does not deny the group’s symbols are offensive to many observers, but concludes that “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” The U.S. Supreme Court will refuse to review the case.

1978 FCC Can Regulate Indecent Speech

The U.S. Supreme Court, in FCC v. Pacifica Foundation , allows the Federal Communications Commission to regulate indecent speech broadcast over the air. The Court says the FCC can channel broadcasts that contain indecent language to late-night hours, when children are less likely to be listening.

1980 Court Establishes Commercial Speech Test

In Central Hudson Gas & Electric Corp. v. Public Service Commission , the U.S. Supreme Court decides that a state ban on promotional advertising by the electric utility is unconstitutional. The ruling sets up a four-part test to decide when commercial speech can or cannot be regulated: (1) It must not be misleading or involve illegal activity (2) The government interest advanced by the regulation must be significant (3) The regulation must directly advance the government interest (4) The regulation must be limited to serving the asserted government interest.

1982 School Board Cannot Ban Library Books

In Board of Education v. Pico , the U.S. Supreme Court rules that a school board’s decision to remove books from the school library based simply on their content violates the First Amendment’s free speech right. The Court says the First Amendment protects the right to receive information and ideas. The justices allow that books that are “pervasively vulgar” or educationally unsuitable can be removed.

1982 Justices Rule Child Porn Not Protected

In New York v. Ferber , the U.S. Supreme Court holds that the First Amendment does not protect child pornography. Child pornography joins certain categories of speech – libel, “fighting words,” words that present a “clear and present danger” of violence, and obscene material – that are considered to have such negative consequences that it is acceptable for the government to restrict them.

1983 Public Employees’ Free Speech Right Defined

In Connick v. Myers , a landmark free-speech ruling for public employees, the U.S. Supreme Court says that an assistant district attorney’s free speech right was not violated when she was fired for distributing a questionnaire about internal office practices to fellow prosecutors. At least one of Myers’ questions related to a matter of public concern: whether assistant prosecutors felt pressured to work in political campaigns. But, relying on its 1968 Pickering ruling, the Court decides that the employer’s interest in a disruption-free workplace outweighs the employee’s right to comment on an issue of public concern.

1985 Anti-Pornography Law Is Struck Down

In American Booksellers Association v. Hudnut , the 7th U.S. Circuit Court of Appeals strikes down an Indianapolis anti-pornography law. The law had not used the court’s guidelines for deciding what is “obscene” material. The court finds that the law unconstitutionally targeted a certain viewpoint and allowed the government to decide which ideas are good or bad.

1986 Court: Student’s Lewd Speech Not Protected

In Bethel School District v. Fraser , the U.S. Supreme Court decides that a high school senior’s free speech right was not violated when he was disciplined for making a lewd speech at an assembly. Previously, in Tinker v. Des Moines Independent Community School District , the justices had said students do not “shed their constitutional rights” at the schoolhouse door. Chief Justice Warren E. Burger writes that schools can prohibit lewd speech because it is inconsistent with the “fundamental values of public school education.”

1988 Court Allows Censorship Of School Publications

In Hazelwood School District v. Kuhlmeier , the U.S. Supreme Court rules that public school administrators can censor speech by students in publications (or activities) that are funded by the school – such as a yearbook, newspaper, play, or art exhibit – if they have a valid educational reason for doing so.

1989 Court: Flag Burning Is Protected Symbolic Speech

In Texas v. Johnson , the U.S. Supreme Court rules that burning an American flag is protected symbolic speech. Gregory Lee Johnson burned the flag outside Dallas City Hall to protest Reagan administration policies. The justices find that his actions fall into the category of expressive conduct and have a political nature. Speech cannot be prohibited simply because an audience takes offense to certain ideas, the Court says.

1990 Flag Protection Act Ruled Unconstitutional

In U.S. v. Eichman , the U.S. Supreme Court decides that the 1989 Flag Protection Act is unconstitutional. The law provided penalties of up to one year in jail and a $1,000 fine for anyone who “knowingly mutilates, physically defiles, burns, maintains on the floor or ground, or tramples upon” any U.S. flag. The justices rule that the right to free expression supersedes protection of the flag as a national symbol. Justice William J. Brennan writes: “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”

1991 Media Coverage Limited In Gulf War

The Pentagon imposes rules for media coverage of the war in the Persian Gulf, citing the possibility that some news – including information on downed aircrafts, specific troop numbers, and names of operations – may endanger lives or jeopardize U.S. military strategy. Nine news organizations file a lawsuit questioning the constitutionality of limiting media access to the battleground. But a court rules the question moot when the war ends before the case is decided.

1991 Son Of Sam Law Is Struck Down

The U.S. Supreme Court strikes down New York’s Son of Sam law aimed at preventing convicted criminals or those accused of crimes from profiting from the sale of any work discussing their crimes. In Simon & Schuster Inc. v. New York State Crime Victims Board , the Court says the law violates the First Amendment because it singles out earnings from speech or writing.

1992 Court Strikes Down Hate Crime Law

In R.A.V. v. The City of St. Paul , the U.S. Supreme Court reverses the juvenile conviction of a 14-year-old white boy who burned a cross on the lawn of an African American family. The boy was prosecuted under a law prohibiting the placement of certain symbols that were “likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender.” The Court finds that because the law punishes certain conduct only because of the ideas behind it – however offensive those ideas may be – it violates the First Amendment’s free speech clause.

1993 Justices Allow Tougher Hate Crime Penalties

In Wisconsin v. Mitchell , the U.S. Supreme Court upholds a Wisconsin law that increases the penalty for assault if the offender purposely picks his victim “because of the race, religion, color, disability, sexual orientation or national origin or ancestry of that person.” The Court rules that the increased penalty does not violate the offender’s free speech rights because the Wisconsin law is aimed at the offender’s actions.

1994 Justices Uphold Buffer Zones At Abortion Clinics

In Madsen v. Women’s Health Center , the U.S. Supreme Court affirms a Florida court’s ruling that abortion protesters could not demonstrate within 36 feet of an abortion clinic, make loud noises within earshot of the clinic, or make loud noises within 300 feet of a clinic employee’s home. (These distance requirements are known as buffer zones.) Although the Court acknowledges that the ruling restricts the protesters’ speech, it finds the restrictions “necessary to serve a significant government interest” of providing needed health care.

1995 Communications Decency Act Passed

As part of the Telecommunications Act of 1996, Congress enacts the Communications Decency Act. The law is intended primarily to protect minors using the internet by criminalizing the placement of “obscene” and “patently offensive” material on the Web. The Communications Decency Act is almost immediately challenged by a diverse coalition of health-care providers, sex educators and pornographers on the grounds that the law violates the right to free speech.

1996 Child Pornography Prevention Act Passed

The Child Pornography Prevention Act expands the definition of child pornography – which, unlike most pornography involving adult subjects, does not enjoy First Amendment protection and can be criminalized – to include computer-generated depictions of children engaging in sexual activity. The act is challenged on First Amendment grounds by a variety of civil liberties and artistic groups.

1997 ‘Floating’ Buffer Zones At Clinics Struck Down

In Schenck v. Pro-Choice Network of Western New York , the U.S. Supreme Court upholds a 15-foot buffer zone around an abortion clinic’s entrances and driveways, but strikes down a “floating” buffer zone that requires protesters to stay 15 feet away from all cars and patients as they enter and exit the clinic. The Court finds that, in contrast to the “fixed” buffer zone around the clinic, the “floating” zone risks silencing protesters: “Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.”

1997 Equal Access For Military Recruiters Is Upheld

The Solomon Amendment requires institutions of higher education to provide military recruiters with the same access to students as other potential employers. If the school does not, it loses certain federal funds. Members of an association of law schools and law faculties wanted to restrict military recruiting because they objected to the military’s policy on LGBT+ recruits. The U.S. Supreme Court unanimously says that the Solomon Amendment does not place an unconstitutional condition on the receipt of federal funds. The Court says the First Amendment does not prevent Congress from directly imposing the equal access requirement because the Solomon Amendment limits conduct, not speech.

1997 Court Ruling Backs Free Speech On Internet

In Reno v. American Civil Liberties Union , the U.S. Supreme Court gives broad support to free speech on the Internet. The justices rule that the Communications Decency Act violates the First Amendment by criminalizing many kinds of material on the internet that are not obscene or offensive, such as medical information or artistic depictions of the human body.

1998 Court: Public TV Can Exclude Candidates

The U.S. Supreme Court decides that public television stations can exclude minor-party candidates from their debates as long as the decision is not based on the candidates’ views and the debates are not designed as public forums. The decision, in Arkansas Educational Television Commission v. Forbes , strikes down an appeals court ruling that a state-owned TV network is obliged under the First Amendment to allow any candidate who has qualified for the ballot access to a debate.

1998 Decency Test On Arts Grants Is Upheld

In National Endowment for the Arts v. Finley , the U.S. Supreme Court rules that the NEA, the government’s art-funding agency, can include “decency” standards among its criteria for awarding government grants for artists’ work without violating the First Amendment.

1999 Giuliani Targets Publicly Funded Art

Infuriated by a planned exhibit at the Brooklyn Museum of Art that features an image of the Virgin Mary decorated with elephant dung, New York City Mayor Rudy Giuliani threatens to cut all city funding to the museum, evict the museum from its building, and remove the Board of Directors. A subsequent First Amendment lawsuit between the museum and the city will be settled the following year, with the city agreeing to pay an additional $5.8 million in repairs to the museum over the next two years.

2000 Boy Scouts Can Bar LGBT+ Leaders

In Boy Scouts of America v. Dale , the U.S. Supreme Court says the Boy Scouts organization has the right to bar gay people from serving as troop leaders. Assistant scoutmaster James Dale contended that the Boy Scouts had violated a New Jersey statute banning discrimination on the basis of sexual orientation in places of public accommodation. The justices said the law violated the Boy Scouts’ First Amendment right to expressive association.

2000 Court Revisits ‘Floating’ Buffer Zones At Clinics

In Hill v. Colorado , the U.S. Supreme Court upholds a Colorado law that prohibits abortion protesters from “knowingly approaching” within eight feet of a person entering or exiting an abortion clinic. The Court says that, unlike the “floating” 15-foot buffer zone that it struck down in Schenck , the buffer zone in the Colorado law is small, so protesters are still able to exercise their free speech right.

2000 Children’s Internet Protection Act Passed

Congress passes the Children’s Internet Protection Act. The law requires public libraries that receive certain federal funds to use a portion of those funds to buy internet programs for their computer terminals to filter out material that is “harmful to minors.” The American Library Association and the ACLU both bring lawsuits challenging the law on First Amendment grounds.

2002 Ban On ‘Virtual’ Child Porn Struck Down

In Ashcroft v. Free Speech Coalition , the U.S. Supreme Court rules that the Child Pornography Prevention Act’s criminalization of computer-generated depictions of children engaging in sexual activity violates the First Amendment. The Court finds that the law goes further than existing child pornography laws (which ban material involving actual children) to potentially cover many kinds of images that are not pornographic.

2003 Law To Protect Children Passed

The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act, or the PROTECT Act, includes numerous provisions intended to protect children from exploitation, kidnapping, and other crimes. It increases penalties for creating child pornography and strengthens penalties for “virtual” child pornography. Modern technology makes it easier for individuals to produce child pornography without involving “real” children. This law takes steps to prevent that practice. The law also encourages increased cooperation of internet service providers to report suspected child pornography.

2003 Court Rules On Cross-Burning Law

In Virginia v. Black , the U.S. Supreme Court rules that a law prohibiting cross burning could, in theory, be allowed under the First Amendment if it targets only cross burnings that are specifically “intended to intimidate.” Nevertheless, the Court strikes down the Virginia law because it outlaws all cross burnings, including those intended to express a political view.

2003 Law On Library Internet Filters Upheld

In United States v. American Library Association , the U.S. Supreme Court rules that the Children’s Internet Protection Act (CIPA) of 2000, requiring public libraries that receive certain federal funds to buy internet filters for their computers to weed out material that is “harmful to minors,” does not violate the First Amendment. The Court says that Congress has broad authority to attach restrictions to its funding, and that the CIPA restrictions are consistent with library rules that limit children’s access to only age-appropriate materials. The Court says that libraries are allowed to disable the “blocking” software for adults.

2003 Justices Uphold Campaign Finance Law

The Bipartisan Campaign Finance Reform Act of 2002, known as the McCain-Feingold Bill, is an effort to change the way money is raised and spent by political campaigns. Key parts are a ban on unrestricted (“soft money”) donations to political parties (often by corporations and unions) and restrictions on TV ads sponsored by unions, corporations and nonprofit groups up to 60 days before elections. The plaintiffs, including unlikely allies such as the National Rifle Association and the ACLU, say these provisions violate their rights to free speech and association. The U.S. Supreme Court upholds the provisions, finding that they are justified by the government’s interest in preventing corruption or the appearance of corruption that might result.

2004 Child Online Protection Act Struck Down

After the Child Online Protection Act became law, the ACLU sued to stop its enforcement, saying the law violated the right to free speech. The U.S. District Court and the Third U.S. Circuit Court of Appeals both agree with the ACLU. In 2002, however, the U.S. Supreme Court orders the Third Circuit to reevaluate the case, saying the decision was based on insufficient reasoning.

In 2003, the appeals court again finds the law unconstitutional, based on different grounds from the first ruling. The justices agree to rehear the case and, in Ashcroft v. American Civil Liberties Union , strike down the law. Justice Anthony Kennedy writes that children can be protected from inappropriate material by other, less restrictive ways and that the law could prevent adults from accessing information they have a right to view.

2004 Patriot Act Provision Ruled Unconstitutional

A federal judge for the Southern District of New York rules unconstitutional a Patriot Act provision that allows the FBI to demand information about internet users but does not hold the FBI subject to public review or judicial oversight for its actions. The provision also forbids internet service providers from revealing that such information has been requested. Judge Victor Marrero rules that this provision violates the free speech right by prohibiting internet service providers from ever speaking about such FBI requests.

2006 Court Rejects Vermont Campaign Finance Law

Vermont’s Act 64 stringently limits the amounts that candidates for state office may spend on their campaigns and the amounts that individuals, organizations, and political parties may contribute. In Randall v. Sorrell , the U.S. Supreme Court reaffirms its 1976 ruling in Buckley v. Valeo that rejected limits on how much candidates could spend on their own campaigns. Regarding Vermont’s contribution limits, the Court says they are so low that they pose a constitutional risk to the electoral process. Challengers may be unable to mount an effective challenge to better-financed incumbents.

2007 Court Strikes Down Ad Limits In Campaign Law

The U.S. Supreme Court creates an exemption to advertisement restrictions set out in the 2002 McCain-Feingold campaign finance law. In Federal Election Commission v. Wisconsin Right to Life , Chief Justice John G. Roberts Jr. writes that only ads that make specific appeals to vote for or against a candidate can be prohibited in the period covered by the law – 30 days before a primary election and 60 days before a general election. The Court says limits on TV ads sponsored by corporations or unions in that period amount to censorship of political speech, which is protected under the First Amendment.

2007 Justices Restrict Students’ Free Speech Right

In Morse v. Frederick , the U.S. Supreme Court affirms that free speech rights for public school students are not as extensive as those for adults. In this case, a student held up a banner with the message “Bong Hits 4 Jesus,” a slang reference to marijuana use, at a school-supervised event across from the campus. The principal removed the banner and suspended the student for 10 days. The majority opinion says that although students have some right to political speech, it does not include pro-drug messages that may undermine the school’s mission to educate against illegal drug use.

2009 City’s Refusal Of Religious Monument Upheld

The U.S. Supreme Court decides unanimously in Pleasant Grove City v. Summum that a Utah city did not violate the Summum church’s free speech right by refusing a donation of a monument reflecting its beliefs. The church argued that the park, which had a Ten Commandments monument, was a public forum and that the city could not discriminate among speakers. The Court said permanent monuments were government speech and did not have the same free speech protection as speakers or leaflets in a public forum.

2010 Court Lifts Limits On Corporate Election Spending

In Citizens United v. FEC , the U.S. Supreme Court rules, 5-4, to remove limits on corporate spending on elections. Corporations and unions still cannot directly give money to federal candidates or national party committees. The majority opinion says the First Amendment right of free speech extended to corporations. The landmark decision overturns decades of rules that governed the campaign finance and sparked fears that a flood of money into politics would dramatically alter campaigns.

2010 Corporate Spending Limit Rejected

The U.S. Supreme Court decides, 5-4, in Citizens United v. Federal Election Commission , that the government cannot regulate political speech — political spending — by corporations in elections. “If the First Amendment has any force,” Justice Anthony M. Kennedy writes for the majority, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” The dissenters warn of the consequences if a flood of corporate money is unleashed in elections. Justice John Paul Stevens says corporate speech should not be treated the same as that of people. The ruling overturns two precedents about the free speech rights of corporations: Austin v. Michigan Chamber of Commerce , a 1990 ruling that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission , a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.

2011 First Amendment Protects Funeral Protests

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.” Those are Chief Justice John G. Roberts Jr.’s words when the Supreme Court rules in Snyder v. Phelps that the First Amendment’s right to free speech protects hateful protests at military funerals. Members of the Westboro Baptist Church — which believes God is punishing the U.S. for its tolerance of homosexuality — had appeared at the funeral of a Marine who died in Iraq. Albert Snyder, the Marine’s father, sued the protesters for, among other things, intentional infliction of emotional distress. Roberts suggests that laws creating buffer zones around funerals would be a better response than punishing unpopular speech. He says that the nation’s commitment to free speech demands protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”

2012 Person’s Right To Lie Is Protected

The U.S. Supreme Court strikes down the Stolen Valor Act, a federal law that made it illegal for individuals to claim to have won or to wear military medals or ribbons that they didn’t earn. The Court, in a 6-3 ruling, says that the First Amendment protects the right to lie about medals and military service. Justice Anthony M. Kennedy says freedom of speech “protects the speech we detest as well as the speech we embrace.” The government had argued that such lies “inhibit the government’s efforts to ensure that the armed services and the public perceive awards as going only to the most deserving few.”

2012 U.S. Can’t Require Graphic Warnings On Cigarette Packs

The U.S. Court of Appeals for the District of Columbia Circuit rules that the federal Food and Drug Administration cannot require tobacco companies to place large graphic health warnings on cigarette packages to show the effects of smoking. The appeals court upholds a lower court’s decision that the requirement violates the First Amendment’s free speech right. Some of the largest tobacco companies sued the government, arguing that the warnings were not just factual information but advocated against smoking.

2015 States May Limit Judicial Candidates’ Fund-Raising Requests

The U.S. Supreme Court rules, 5-4, in Williams-Yulee v. Florida Bar , No. 13-1499 that states may ban judicial candidates from personally asking their supporters for money. Twenty-nine other states also prohibit personal solicitations, which they say threaten the integrity of the judicial branch and public confidence in the system.

2015 Intent Cited in Online Threats Case

In a social media case, Elonis v. United States , the U.S. Supreme Court reverses the conviction of a Pennsylvania man who had used violent language against his wife on Facebook. The majority opinion says prosecutors failed to prove the defendant’s intent when he published threatening lyrics about his wife on Facebook. The decision makes it harder to prosecute people for threats made on social media.

2015 Court Says Texas May Reject License Plate Design

The U.S. Supreme Court decides in Walker v. Texas Division, Sons of Confederate Veterans, Inc. , 5-4, that Texas may refuse to make a specialty license plate with the Confederate flag. The Sons of Confederate Veterans sued the state when it refused to make such a plate. The group said its First Amendment right to free speech had been violated. The majority opinion says that because license plates “constitute government speech,” Texas could choose which designs to produce.

2015 Town Ordinance On Signs Struck Down

In Reed v. Town of Gilbert, Ariz., the U.S. Supreme Court unanimously strikes down a town law that treated a church’s signs differently from other signs, such as political ads. Unlike other signs, the church signs were limited in size and allowed to be in place for only a certain number of house. The majority opinion says that the town ordinance was based on the content of the sign’s message, which violates the First Amendment’s free speech right.

2019 Federal Ban on ‘Immoral,’ ‘Scandalous’ Trademarks Struck Down

The U.S. Supreme Court rules, 6-3, that the federal government’s ban on registering “immoral” and “scandalous” trademarks violates the First Amendment of the Constitution. The dissenters express concern that the majority opinion goes too far and that the trademark office would be forced to register trademarks containing “the most vulgar, profane, or obscene words and images imaginable.” In the case, Iancu v. Brunetti, a Los Angeles artist, Erik Brunetti, sued the government for refusing to register the trademark for his “subversive” clothing line.

2021 Court Backs Catholic Agency Over Refusal To Work With Same-Sex Couples

The U.S. Supreme Court sides with a Catholic foster care agency that was cut off by the City of Philadelphia from receiving foster care referrals because it refused to work with same-sex couples. The agency believes marriage is between a man and a woman. The Court unanimously rules in Fulton v. City of Philadelphia that the city was wrong to end its foster care contract with Catholic Social Services. Chief Justice John G. Roberts Jr., writing for six of the justices, said the city’s refusal to contract with the foster care agency unless it agreed to certify same-sex couples as foster parents violated the First Amendment.

2021 Court Sides With Cheerleader In Off-Campus Speech

The U.S. Supreme Court rules 8-1 in Mahony Area School District v. B.L. in favor of a Pennsylvania cheerleader who lost her place on the squad because of a profane off-campus rant posted on social media. Although the Court said the punishment violated her First Amendment right of free speech, it declined to say schools never have a role in disciplining students for off-campus speech.

2022 Censure of Politician Is Constitutional, High Court Says

The U.S. Supreme Court unanimously decides in House Community College System v. Wilson that elected bodies do not violate the First Amendment’s free speech clause when they censure a member. Justice Neil M. Gorsuch wrote: “In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers — and to continue exercising their free speech rights when the criticism comes.”

2022 High Court Rules Against Boston On Christian Flag

The U.S. Supreme Court unanimously rules in Shurtleff v. City of Boston that the City of Boston violated the First Amendment when it refused to let a private group raise a Christian flag in front of its City Hall. One of three flagpoles is occasionally made available to groups seeking to celebrate their backgrounds or to promote causes like gay pride. In a 12-year period, the city approved 284 requests to raise flags and rejected only one, from Camp Constitution, which says it seeks “to enhance understanding of our Judeo-Christian moral heritage.” The city’s refusal to let the group fly its flag based on its religious viewpoint violated the free speech clause of the First Amendment, the majority opinion said.

Related Resources

• Book: First Amendment (1791)
• Handout: Freedom of Speech: Finding the Limits
• Book: Chapter 6: The Right to Freedom of Speech
• Video: A Conversation on the Constitution with Justices Stephen Breyer, Anthony Kennedy and Sandra Day O'Connor: Freedom of Speech
• Book: Chapter 8: The Latitude and Limits of Free Speech
• Book: Chapter 10: The Flag-Salute Cases
• Book: Chapter 18: Freedom of Speech in Public Schools

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The First Amendment: Safeguarding Democracy, Protecting Liberties

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91 First Amendment Essay Topic Ideas & Examples

🏆 best first amendment topic ideas & essay examples, 👍 good essay topics on first amendment, 🥇 interesting topics to write about first amendment, ❓ first amendment essay questions.

• Cyberbullying and the First Amendment Under the geographical approach, the defendant can argue that since the event in question occurs online and outside of school property, it is covered by the First Amendment and the school has “no authority to […]
• Analysis of the Case: Violation of the First Amendment History of the case: The candidate filed a lawsuit in the Maryland Circuit Court alleging violations of the First and 14th Amendments to the U.S. We will write a custom essay specifically for you by our professional experts 808 writers online Learn More
• First Amendment: Religion and Education The right to education is protected by human rights legislation guaranteeing to adapt education to the requirements of individuals and communities that are evolving and to the needs of students in their varied socio-cultural contexts.
• Vaccination in the Context of the First Amendment The purpose of this paper is to review the dilemma in the context of the First Amendment and the free exercise of religion.
• The First Amendment: Free Speech and Education However, this is the case only “unless school authorities have reason to believe that such expression will substantially interfere with the work of the school or impinge upon the rights of other students”.
• Pornography or Obscenity and the First Amendment Amendment 1 of the US Constitution states that the “Congress will make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, […]
• The First Amendment – Religion and Expression In the ruling of Skokie case, the Supreme Court of the United States ruled in favor of the residents of Skokie, although it still allowed the planned marching by the NSP to go no.in this […]
• First Amendment Right of Free Speech in the USA In this case, it is seen that the Public Law of New Hampshire which bans under punishment “any offensive, derisive or annoying word to any other person who is lawfully in any street or other […]
• Free Speech in the First Amendment The first amendment of the Constitution states, “Congress will make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the […]
• Religious Establishment Clause of the First Amendment Therefore, based on the theoretical application of the Constitution, the chosen case violates the Religious Establishment Clause of the First Amendment to the U.S.
• Violent Video Games and First Amendment Protection Violent games appear to be a legitimate type of media with its right for free expression; however, minors should also be protected from the violent and sexual content of video games because they lack media […]
• First Amendment in the US Modern Justice System Also, the paper discusses the significance of the verdict passed by the Supreme Court in each case and their relevance or influence on the rights of American citizens today.
• Does Title VII Conflict With the First Amendment The government is not justified to disallow religious expression at workplaces by the Establishment Clause of the First Amendment. Title VII statute and the First Amendment both provide protection for an employee’s religious rights.
• Founding Fathers Religion: The First Amendment Role in the Church-State Separation As a result, a resolute transformation from the Puritan Fathers in 1639, who uphold the religion as a foundation of any society, to the Founding Fathers in 1787, who accepted freedom of religion as an […]
• Journalism, the First Amendment and Egypt This essays suggests that the First Amendment freedom of the press clause has transcended its physical boundaries and now functions as a protective ideological bubble not only for American journalists but for journalists all over […]
• First Amendment: Commercial and Political Free Speech However, the degree to which the First Amendment protects commercial speech is not the same as that for other forms of speech protected by the Amendment.
• What the Founders Meant by the First Amendment? The first amendment was written over 200 years ago by the founders who wanted to protect both the State and religion from interfering in each others tasks.
• Free Speech: First Amendment Obscenity is one of the exceptions, according to the US Miller Test, obscenity is a test used by Supreme Court to determine if an expression or a speech can be termed obscene and whether it […]
• On the First Amendment to the U.S. Constitution The freedom that Americans experience comes at a price because there are conflicts and problems that arise from the interpretation and implementation of the First Amendment, however, many legal experts are saying that it is […]
• The Free Exercise Thereof: Freedom of Religion in the First Amendment The Freedom of Religion clause in the First Amendment represents one of the few official documents on the planet that corroborates free will, specifically, the right to choose, in the arena of religion.
• US Constitution Reflections on the First Amendment Paper The first amendments made on the constitution of the United States of America in the year 1789 concerned the bill of rights.
• First Amendment Rights and Access to Opinions
• Censorship and the First Amendment: The American Citizen’s Right to Free Speech
• The First Amendment and Its Impact on Education
• Should the First Amendment Stop Protecting Hate Speech
• The First Amendment Speaks on the Freedoms of Religion
• Interpreting the First Amendment of the Constitution
• Should Racist Speech Enjoy Protection Under the First Amendment
• How the First Amendment Rights Have On Advancing Democracy
• The First Amendment and the Constitutional Freedoms in American Schools
• The First Amendment and Conservative Rulings of the Supreme Court
• Ever-Changing Freedoms: The First Amendment of the American Constitution and Challenges It Faces
• How the First Amendment Protects Freedom of Speech
• The First Amendment and Its Impact on Media
• Case Problems Involving the First Amendment
• The First Amendment and Its Legal Constrains
• Banning Books Goes Against the First Amendment
• Federal District Court Alleging First Amendment Violations
• The First Amendment and Label Drug Promotion
• Discussing Three Freedoms From the First Amendment
• The First Amendment and Its Impact on Language
• Public Safety Outweigh Petitioner’s First Amendment Right
• The Ambiguity and Confusion From the First Amendment
• The First Amendment and the American Judiciary
• Civil Rights and First Amendment
• Cyberbullying and the First Amendment
• Does the First Amendment Affect Your Livelihood
• The First Amendment and Right to Privacy
• Net Neutrality and the First Amendment: Who Has the Right to Free Speech
• Neo-Nazis and Their First Amendment Rights
• Public High School Students Have the First Amendment Right
• Espionage Act Conflicts First Amendment Rights in Wikileaks Case
• Comparing Our First Amendment Rights to the Rights of Those in George Orwell’s 1984
• The Role and Importance of the First Amendment of the Constitution
• First Amendment Rights and Pragmatic Solutions
• The First Amendment: History and Development
• First Amendment Rights, Privacy, and the Paparazzi
• The First Amendment Constitution on the Freedom of Expression
• The Relation Between the First Amendment and Music Censorship
• The First Amendment Anti-discrimination Law
• Does the First Amendment Protect False Campaign Speech
• What Is the Main Purpose of the First Amendment?
• How Free Speech Under the First Amendment Developed?
• What Is the Connection Between Anti-semitism and the First Amendment?
• Does Banning Books Violate the First Amendment?
• Was the First Amendment to the US Constitution Prohibition?
• What Are the First Amendment Issues?
• Does the First Amendment Guarantee the Right of American Citizens to Freedom?
• How Does Censorship Conflict With First Amendment Freedom of Speech?
• What Rights Does the First Amendment Guarantee to Citizens?
• Does the First Amendment Govern Cyberbullying?
• Did President Hoover Limit the First Amendment Rights of the Bonus Army?
• What Are the First Amendment Freedoms?
• Does the Espionage Act Conflict With First Amendment Rights?
• What Changes Did the First Amendment Make to the Constitution?
• How Does the First Amendment Guarantee Freedom of the Press?
• What Is the Significance of the First Amendment to Civil Society?
• What Is the Work of the First Amendment Committee?
• How Does the Supreme Court Interpret the First Amendment?
• What Religious Cases Does the First Amendment Control?
• How Are First Amendment Rights Applied and Limited?
• Does the First Amendment to the US Constitution Regulate Ever-Changing Freedoms?
• How Do First Amendment Rights Affect the Development of Democracy?
• What Is the Interpretation of the First Amendment to the Constitution?
• Does the First Amendment Affect Your Livelihood?
• Does the First Amendment Limit the Government’s Power?
• What Inappropriate Words Should Be Removed From the First Amendment?
• Does Public Safety Override a Plaintiff’s First Amendment Right?
• Should Rap Songs Be Protected by the First Amendment?
• Does the First Amendment Protect False Campaign Speech?
• Should Racist Speech Enjoy Protection Under the First Amendment?
• Chicago (A-D)
• Chicago (N-B)

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The First Amendment to the U.S. Constitution, 1 Footnote U.S. Const. amend. I . viewed broadly, protects religious liberty and rights related to freedom of speech. Specifically, the Religion Clauses prevent the government from adopting laws “respecting an establishment of religion” —the Establishment Clause—or “prohibiting the free exercise thereof” —the Free Exercise Clause. The First Amendment also expressly protects the freedoms of speech, press, peaceable assembly, and petition to the Government.

The Constitution Annotated essays discussing the First Amendment begin with the Religion Clauses, reviewing the history of these Clauses before explaining, in turn, the Supreme Court’s interpretation of the Establishment and Free Exercise Clauses. The Religion Clause section ends with an essay exploring the relationship between the Religion Clauses and the Free Speech Clause. The Constitution Annotated then turns to this latter Clause, discussing interpretations of the Free Speech Clause before describing Supreme Court cases recognizing constitutional protections for freedom of association. Next, the Constitution Annotated explains the Free Press Clause. The First Amendment essays end by discussing the Clauses protecting the freedoms of assembly and petition.

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Jeff Kosseff, an associate professor of cybersecurity law in the United States Naval Academy’s Cyber Science Department, speaks as part of the Cornell Ann S. Bowers College of Computing and Information Science’s Distinguished Speaker series on free expression.

Like it or not, lies should be protected under First Amendment

By louis dipietro cornell ann s. bowers college of computing and information science.

DeAngelo Bailey picked on the wrong kid – a scrawny fourth-grader named Marshall Mathers – and Bailey found out how big a mistake it was some 20 years later.

That’s when Mathers – then better known by his stage name, Eminem – exacted revenge by embellishing Bailey’s bullying in a song on his 1999 breakout record, “The Real Slim Shady.” Bailey sued Eminem for casting him in a bad light – and lost, even though the lyrics weren’t completely true.

The Bailey vs. Mathers case is one of many examples Jeff Kosseff, associate professor of cybersecurity law in the U.S. Naval Academy’s Cyber Science Department, leans on to make his larger point: that the constitutional right to lie extends to every American – 15-time Grammy award-winning rappers or otherwise – so long as the high judicial bar for fraud, defamation or another narrow category of speech isn’t met. And it should continue to do so, even in the age of misinformation, he said.

“We always have to look at the protections we have,” said Kosseff, who presented the talk, “Why the First Amendment Protects Misinformation, and Why it Should Continue to Do So,”on March 13 in Gates Hall. The lecture was part of the Cornell Ann S. Bowers College of Computing and Information Science’s Distinguished Speaker series on free expression, held in conjunction with the university’s Freedom of Expression theme year.

“I employ a very cautious look at the First Amendment and [want to] be abundantly clear about what we might be sacrificing if we were to start rolling back First Amendment protections,” he said. There isn’t “a perfect solution to misinformation, and there never will be, regulatory or nonregulatory.”

Kavita Bala , dean of Cornell Bowers CIS, prefaced Kosseff’s talk by recognizing Cornell Bowers CIS as a community willing to grapple with questions that don’t have easy answers.

“Propaganda has existed for a long time in human history. That’s not new, but the mechanism of how social media spreads that propaganda is new and could potentially amplify the risks,” she said. “We as a community should be thinking about how to tackle it.”

Limits on free speech won’t fix the problem of misinformation, Kosseff said. Instead, they would pose a larger, more ominous threat where truth is dictated by governments instead of being formed in the “marketplace of ideas.”

An audience member asks a question during the event.

Drawing on examples from his latest book, “Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation,” the lawyer and former journalist argued that the First Amendment should continue protecting much of what we would call misinformation, such as lies about vaccines or stolen elections. The alternative, in which governments become “arbiters of truth,” would give politicians dangerous power to censor, he said.

Kosseff said strategies to address misinformation should play out in the “marketplace of ideas,” where “the best solution for bad speech is more good speech.” It’s a sentiment inspired by Supreme Court Justice Oliver Wendell Holmes in his 1919 defense of free speech that, Kosseff added, has been “the underpinning of United States free speech law for more than a century.”

He said we can formulate meaningful “partial” strategies to address misinformation when we consider, as former President Barack Obama said in 2022, not just the supply of toxic information but also the demand for it. The answer, Kosseff suggests, lies partly among citizens.

 He pointed to Finland’s media literacy training, which was launched in 2016 to inform politicians, journalists and students in college and K-12 schools about misinformation.

 “This is not a panacea,” he said, “but at least helps people understand how to better address the torrent of misinformation coming at them.”

Elsewhere, he cited the need for more sources of rigorously vetted information, and suggested government and nonprofit funding for local media, which continues to flounder across the country as ad revenues dry up. Governments, too, can combat misinformation by building trust, much like Denmark did with its transparent messaging throughout the COVID pandemic, he said.

When an audience member asked about the role of social media companies in disseminating misinformation, Kosseff said there’s been a shift over the past few years where platforms have been sued for functionality that caused harm. He pointed to lawsuits brought against Snapchat for its Speed Filter, which critics said encouraged reckless driving. Snapchat scrapped the feature in 2021.

“That’s a way that courts are starting to impose some accountability on the platforms,” he said, “by not going after the speech component but going after the design component.”

  Louis DiPietro is a writer for the Cornell Ann S. Bowers College of Computing and Information Science

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Supreme Court’s questions about First Amendment cases show support for ‘free trade in ideas’

Assistant Professor of Law, Quinnipiac University

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This term, the U.S. Supreme Court has heard oral arguments in a total of five cases involving questions about whether and how the First Amendment to the Constitution applies to social media platforms and their users. These cases are parts of a larger effort by conservative activists to block what they claim is government censorship of people who seek to spread false information online.

The most recently heard case, on March 18, 2024, was Murthy v. Missouri , about whether the federal government’s direct communication with social media platforms, specifically about online content relating to the COVID-19 public health emergency, violated the First Amendment rights of private citizens.

The case stemmed from the Biden administration’s efforts to combat misinformation that spread online, including on social media, during the pandemic. The plaintiffs said White House officials “ threatened platforms with adverse consequences ” if they didn’t take down or limit the online visibility of inaccurate information – and that those threats amount to the unconstitutional suppression of free speech from private individuals who shared content that contained debunked conspiracy theories and contradicted scientific evidence.

It is not uncommon for government officials to informally pressure private parties, like social media platforms, into limiting, censoring or moderating speech by third parties. As Justice Amy Coney Barrett seemingly implied during the Murthy v. Missouri oral arguments, “vanilla encouragement” by government officials would be constitutionally permissible. But when the informal pressure turns into bullying, threats or coercion, it may trigger First Amendment protections, as the Supreme Court ruled in another case called Bantam Books v. Sullivan, from 1963 .

But the Biden administration said its effort to fight COVID misinformation was normal activity, in which the government is allowed to express its views to persuade others, especially in ways that advance the public interest.

Several justices seemingly agreed with the Biden administration and accepted its view that ordinary pressure to persuade is permissible.

More broadly, the Supreme Court has wrestled with the application of the First Amendment to cases involving social media platforms. Earlier this term, the court heard several cases that involved content moderation – both by the platforms themselves and by public officials using their own social media accounts. As Justice Elena Kagan put it during one round of oral arguments: “ That’s what makes these cases hard , is that there are First Amendment interests all over the place.”

Perhaps most fundamentally, the court seeks to evaluate the relationship between social media platforms and public officials.

A public official or a private social media user?

On March 15, the Supreme Court released its unanimous decision in Lindke v. Freed – another case involving social media platforms. The issue in that case was whether a public official can delete or block private individuals from commenting on the official’s social media profile or posts.

This case involved James Freed, the city manager of Port Huron, Michigan, and Facebook user Kevin Lindke. Freed initially created his Facebook profile before entering public office, but once he was appointed city manager, he began using the Facebook profile to communicate with the public. Freed eventually blocked Lindke from commenting on his posts after Lindke “unequivocally express(ed) his displeasure with the city’s approach to the (COVID-19) pandemic.”

The court ruled that on social media, where users, including government officials, often mix personal and professional posts, “ it can be difficult to tell whether the speech is official or private .” But the court unanimously found that if an official possesses “actual authority to speak” on behalf of the government, and if the person “purported to exercise that authority when” posting online, the post is a government action. In that case, the official cannot block users’ access to view or comment on it.

The court ruled that if the poster either does not have authority to speak for the government, or is not clearly exercising that authority when posting, then the message is private. In that situation, the poster can restrict viewing and commenting because that is an exercise of their own First Amendment rights. But when a public official posts in their official capacity, the poster must respect the First Amendment’s limitations placed on government. The court sent a similar case , O'Connor-Ratcliff v. Garnier , back to a lower court for reconsideration based on the ruling in the Lindke case.

Who controls what’s online?

At the root of the plaintiffs’ claims in both these cases is content moderation – whether a public official can moderate another user’s content by deleting their posts or blocking the user, and whether the federal government can interact with social media platforms to mitigate the spread of debunked conspiracy theories and scientifically disprovable narratives about the pandemic, for instance.

Ironically, though conservatives argue that the federal government cannot interact with the social media platforms to influence their content moderation, Florida and Texas – states governed by Republican majorities in the statehouse and Republican governors – enacted state laws that seek to restrict the platforms’ own content moderation.

While the laws in each state differ slightly, they share similar provisions . First, both laws contain “must-carry provisions,” which “prohibit social media platforms from removing or limiting the visibility of user content in certain circumstances,” according to the Knight First Amendment Institute at Columbia University.

Second, both laws require the social media platforms to provide individualized explanations to any user whose content is moderated by the platform. Both laws were passed to combat the false perception that the platforms disproportionately silence conservative speech .

The Florida and Texas laws were challenged in two cases whose oral arguments were heard by the Supreme Court in February 2024: Moody v. NetChoice and NetChoice v. Paxton , respectively. Florida and Texas argued that they can regulate the platforms’ content moderation policies and processes, but the platforms argued that these laws infringe on their editorial discretion, which is protected by well-established First Amendment precedent.

During oral argument in both cases, the justices appeared skeptical of both laws. As Chief Justice John Roberts stated, the First Amendment prohibits the government, not private entities, from censoring speech . Florida and Texas argued that they enacted these laws to protect the free speech of their citizens by limiting the platforms’ ability to moderate content.

But social media users do not have any First Amendment protections on the platforms, because private entities, like Facebook, are free to moderate the content on their platforms as they see fit. Roberts was quick to respond to Texas and Florida: “The First Amendment restricts what the government can do, and what the government’s doing here is saying you must do this, you must carry these people.”

Where are the online boundaries of free speech?

Collectively, these cases demonstrate the Supreme Court’s interest in defining the boundaries of First Amendment protections as they relate to social media platforms and their users. Moreover, the court seems focused on establishing the limits of the relationship between government and social media platforms.

The justices’ questions during the NetChoice cases suggest that they are skeptical of government regulation that forces social media platforms to carry certain content. In this way, the justices seem poised to affirm the principle that government cannot directly or formally force an individual or, in this case, a private company, to convey a message that it does not wish to carry.

But the justices’ questions during Murthy v. Missouri seem to suggest that it is not a violation of the First Amendment for government officials to informally interact or communicate with social media platforms in an attempt to persuade them not to carry material the government dislikes.

Considering all of these cases together, the court seems posed to further promote a robust “free trade in ideas,” which was a theory first invoked in 1919 by Justice Oliver Wendell Holmes in Abrams v. United States . In Lindke v. Freed, the court identified the distinction between private speech on social media platforms by a public official, which is protected by the First Amendment, and professional speech, which is subject to First Amendment limitations that protect others’ rights.

In the NetChoice cases, the court seems ready to limit a state’s ability to directly compel social media platforms to convey messages that they may moderate. And in Murthy v. Missouri, the justices seem ready to affirm that while indirect compulsion may be unconstitutional, ordinary pressures to persuade social media platforms are permissible.

This promotion of a robust marketplace of ideas appears to stem from neither giving the government extra powers to shape public discourse, nor excluding government from the conversation altogether.

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Supreme Court examines whether government can combat disinformation online

Nina Totenberg

The U.S. Supreme Court will hear arguments Monday on the role of the First Amendment in the internet age. Catie Dull/NPR hide caption

The U.S. Supreme Court will hear arguments Monday on the role of the First Amendment in the internet age.

In a major case testing the role of the First Amendment in the internet age, the U.S. Supreme Court on Monday hears arguments focused on the federal government's ability to combat what it sees as false, misleading or dangerous information online.

Last September, the 5th U.S. Circuit Court of Appeals, the most conservative federal appeals court in the U.S., issued a broad ruling that barred key government officials from contacts with social media companies. Among the personnel targeted in the order were officials at the White House, the Centers for Disease Control and Prevention, the Office of the Surgeon General, the FBI and an important cybersecurity agency.

Supreme Court to hear court ban on government contact with social media companies

The appeals court said that individuals at those agencies likely violated the First Amendment by seeking to coerce social media platforms into moderating or changing their content about COVID-19, foreign interference in elections and even Hunter Biden's laptop. The Supreme Court has put that ruling on hold while it examines the tricky issues in the case.

The facts of the case

The plaintiffs in the lawsuit are two states, Missouri and Louisiana, and five individuals, including vaccine opponents, who either were banned from some internet platforms at the height of the COVID-19 pandemic or whose posts, they say, were not prominently featured on social media sites such as Facebook, YouTube and X, formerly known as Twitter.

Supreme Court justices appear skeptical of Texas and Florida social media laws

The Biden administration notes that under established First Amendment precedent, the government itself is entitled to express its views and to try to persuade others. As the government says in its brief, "A central dimension of presidential power is the use of the office's bully pulpit to seek to persuade Americans—and American companies—to act in ways that would advance the public interest."

The administration's opponents counter that the bully pulpit "is not a pulpit to bully."

Jenin Younes, who represents the individuals who claim they were censored, argues that the government is essentially using social media companies as proxies to censor speech. And that, she contends, is unconstitutional state action.

"We're talking about the government going after all major platforms and trying to get them to censor ... entire points of view," she says.

The government notes that officials in both Republican and Democratic administrations have interacted regularly with social media companies. Indeed, from the beginning of the pandemic in the Trump administration, the companies themselves reached out to government health agencies for guidance on what was and was not reliable medical information.

U.S. is barred from combating disinformation on social media. Here's what it means

Former Obama White House counsel Kathryn Ruemmler said she was particularly struck in reading the lower court opinions in this case because "there really was no recognition ... that the vast majority of these communications between the government officials and the social media companies related to a global health crisis."

"If you think about what is the purpose of the government, why do governments exist? It's really to protect the health and safety and welfare of its citizens," she said during a panel discussion at New York University's School of Law.

How the government interacts with social media companies

The government makes similar arguments about the FBI and other agencies' dealings with social media companies. Former FBI general counsel Andrew Weissmann notes that private companies and the government typically benefit from this sort of back-and-forth.

Untangling Disinformation

Why the fight to counter false election claims may be harder in 2024.

"Let's say that somebody from the Department of Defense alerts you to information about a terrorist group that is identifying" the location and address of a State Department employee abroad and calling for violence against that individual. Typically, Weissman says, "depending on the imminent danger," the FBI general counsel would alert the social media company and have a conversation that would go something like this: "I wanted to flag for you" something that "seems to us it violates your policy. Obviously that's for you to decide, but you can understand why ... there is a grave concern on our part."

The response, most of the time, says Weissmann, is that the social media company is grateful for the information and often takes down the post because it does violate company policy but was missed by the company's algorithms. No algorithm is perfect, he observes, because of the billions, even trillions, of posts worldwide that are on social media platforms every day.

Was speech censored?

That is hardly the picture painted by the other side in this case. They claim their speech was censored. Two of the plaintiffs are epidemiologists who were advocates of exposing most people to get COVID-19 in order to establish herd immunity instead of imposing lockdowns, masks and other steps taken by both the Trump and Biden administrations. The CDC has argued that there is no such thing as herd immunity with a virus like the coronavirus that causes COVID-19, which has constantly morphed and mutated.

But the plaintiffs in the case have produced dozens and dozens of quotes from government emails that they say prove the government's coercive behavior.

"When you read between the lines, what was happening was that the companies were feeling enormous pressure from the White House, and they were caving to that pressure. And the result of that pressure was censoring certain viewpoints," contends lawyer Younes.

That's "kind of silly," says former White House counsel Ruemmler, who notes that the president can't remove existing legal protections for social media companies. Only Congress can do that.

Colin Stretch, former general counsel for Facebook, agrees that the idea of social media platforms bowing to government officials is outlandish.

"These are big companies. They don't scare easy," he says, adding that there always are competing political imperatives in public policy. "That's life in the big leagues," he said at NYU.

A forceful government response

The Biden administration, for its part, rebuts the plaintiffs' coercion allegations in unusually forceful terms. "When I looked at the government's brief, they don't use the L-word, the 'lying' word, but they do everything but," observes former FBI counsel Weissmann.

To cite just one example, the government rebuts the coercion claim drawn by the lower court from a White House email to Facebook. "Are you guys f***ing serious?" the email says, adding, "I want an answer on what happened here and I want it today." Sounds bad, the government says, until you learn that the "admittedly crude email" concerned "a technical problem affecting the President's own Instagram account —it had nothing to do with moderating other users' content."

Beyond the enormous factual disputes in the case, there are basic disagreements about how the courts should treat social media companies under the First Amendment and whether those regulatory policies should be made by the Supreme Court or Congress.

"There is no clear partisan line" in Monday's case, observes NYU law professor Ryan Goodman. And you don't have to be a genius to see that some politicians have a convenient way of switching sides, depending on the content of the speech at issue.

Missouri Attorney General Andrew Bailey, for instance, brought this case accusing the Biden administration of "arguably ... the most massive attack against free speech in United States history." But at the same time, he threatened legal action against Target for selling LGBTQ-themed T-shirts and other merchandise as part of a Pride campaign.

What the social media companies say

None of the social media companies are parties in Monday's Supreme Court case, but they continue to assert that like other media companies, their speech and their choices of what to allow on their platforms are protected by the First Amendment. Those challenging that status contend that social media companies are more like utilities; they are hosts to other people's opinions and thus don't have the same First Amendment protections that newspapers and broadcasters have.

Presidents of both parties and members of Congress can and do say plenty of nasty things about social media companies in public; it's the private communications that make critics suspicious, according to Jameel Jaffer, executive director of the Knight First Amendment Institute.

"It might be naive to expect the social media companies to be reliable proxies for the speech interests of their users," he said at NYU.

Until now, though, the line that has been drawn by the courts is the line between persuasion and coercion. It sounds simple, but as Jaffer observes, "applying that rule is much more difficult than stating what the rule is."

Just where the Supreme Court justices stand on this or other social media questions before the court this term is unclear. But in this case, the court's three most conservative justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — would not have paused the lower court's decision while the case is litigated in the high court. They would have let it take effect.

A separate First Amendment case

After the court finishes the arguments in the social media case on Monday, it will move on to a second case involving government influence and the First Amendment. The National Rifle Association sued the former head of New York state's Department of Financial Services.

The NRA charged that during an agency investigation into so-called "murder insurance," the Department of Financial Services violated the NRA's free speech rights by issuing letters and news releases that dissuaded financial institutions from doing business with the gun rights advocacy group. "Murder insurance" is the derogatory term for insurance that covers the costs of using firearms to shoot another person, and it is illegal in New York. The 2nd U.S. Circuit Court of Appeals dismissed the NRA's complaint, concluding that the news releases and letters were appropriate government speech, and the NRA then appealed to the Supreme Court.

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The State of the First Amendment: Free Speech

The Keller Center  has organized an upcoming presentation and discussion of potential interest to PSCI students, faculty and staff. Mike McDevitt  (from CU Journalism) and Scott Skinner-Thompson  (CU Law) will present the first of a planned semesterly series of "State of the First Amendment"  events on the five 1A freedoms, starting with free speech . Expect discussion not only of current cases and controversies in First Amendment law and jurisprudence but also of broader free speech issues in their social and political dimensions, including campus issues involving limits on or threats to political speech and academic freedom.

The event will be held in UMC 382-84-86  on Wednesday, April 3 , with doors opening at 3 pm  and the presentation starting at 3:15  (ending at 4:45, reserving the last 30 minutes for Q&A and discussion). Refreshments will be available. The event is open to all within the CU community (including alums) with no requirement for prior registration. Please share this announcement with your students - I've attached a .jpg of our promotional poster to facilitate sharing through lecture slides.

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Justices Seem Likely to Side With N.R.A. in First Amendment Dispute

The National Rifle Association argued that a New York official violated the First Amendment by encouraging entities to break ties with the group after the Parkland mass shooting.

By Abbie VanSickle

Reporting from Washington

A majority of the Supreme Court appeared on Monday to embrace arguments by the National Rifle Association that a New York State official violated the First Amendment by trying to dissuade companies from doing business with it after a deadly school shooting.

The dispute, which began after a gunman opened fire in 2018 at Marjory Stoneman Douglas High School in Parkland, Fla., was one of two cases on Monday that centered on when government advocacy crosses a line to violate the Constitution’s protection of free speech.

After the shooting, which killed 17 students and staff members, Maria Vullo, then a superintendent of the New York State Department of Financial Services, said banks and other insurance companies regulated by her agency should assess whether they wanted to continue providing services to the N.R.A.

The gun rights group sued, accusing Ms. Vullo of unlawfully leveraging her authority as a government official.

“It was a campaign by the state’s highest political officials to use their power to coerce a boycott of a political advocacy organization because they disagreed with its advocacy,” said David D. Cole, the national legal director for the American Civil Liberties Union, who argued on behalf of the N.R.A., adding that the officials’ actions had cost the group “millions of dollars.”

The lawyer for the New York officials, Neal K. Katyal, pushed back, arguing that state officials were performing their ordinary duties. “We think that it was an exercise of legitimate law enforcement,” he said.

Solicitor General Elizabeth B. Prelogar, in a friend-of-the-court brief , described some of the N.R.A.’s claims as plausible, namely that Ms. Vullo may have crossed a constitutional line “by coercing regulated entities to terminate their business relationships” with the N.R.A. in a bid to stifle the group’s advocacy.

But the solicitor general urged the court to reject some of the N.R.A.’s broader arguments, claiming that they “would threaten to condemn legitimate government activity if applied in other, more typical circumstances.”

During oral argument, Ephraim McDowell, assistant to the solicitor general, drew a distinction between the N.R.A. case and another heard earlier in the day , on a push by Republican-led states to curb the Biden administration’s efforts to crack down on what it viewed as misinformation on social media. That case, Murthy v. Missouri, met with a rocky reception by the justices.

Like the Murthy case, the N.R.A. argument centered on the line between coercion and persuasion by government officials. Where to draw that line appeared to be front and center for the justices.

“There’s considerable overlap obviously with the first case,” Chief Justice John G. Roberts Jr. said. “Could you articulate what the significant differences are between your position in this case and the office’s position in the prior case?”

Mr. McDowell replied: “There are no differences as to the legal principles. The difference here is that there is a specific coercive threat.”

He was referring to an allegation by the N.R.A. that Ms. Vullo met privately with the organization’s insurance partners and demanded that one of them, Lloyd’s of London, stop “providing insurance to gun groups, especially the N.R.A.”

Mr. McDowell urged the justices “to hinge the First Amendment analysis on the Lloyd’s meeting.”

“It’s just a straightforward way of resolving this case,” he said.

After Justice Brett M. Kavanaugh repeated to Mr. Katyal that he understood the government to be arguing that “the meeting itself is enough” for a First Amendment violation, he pushed back, contending that the New York officials were engaged in normal plea bargaining.

“If that meeting is enough, Justice Kavanaugh, every meeting, every plea negotiation’s enough,” Mr. Katyal said. “That’s literally what they are. They’re done in secret, behind a closed door, to use their insidious language. That’s the natural give-and-take.”

He added that both Ms. Vullo and the governor of New York at the time, Andrew M. Cuomo, “have said things about the N.R.A.,” but “there’s nothing that ties that give-and-take” from the Lloyd’s meeting to “the feelings about the N.R.A.”

The case, N.R.A. v. Vullo, No. 22-842 , arrived at the Supreme Court after a three-judge panel of the U.S. Court of Appeals for the Second Circuit, in New York, ruled against the N.R.A., prompting it to petition the justices for review.

In asking the court to hear the case, the N.R.A. cited what it described as Ms. Vullo’s enormous regulatory power. It added that she applied “pressure tactics — including back-channel threats, ominous guidance letters and selective enforcement of regulatory infractions.” The organization warned of the wide-ranging consequences of a ruling against it, saying that siding with Ms. Vullo would open the door to other government officials making similar pleas about other hot-button issues like abortion and the environment.

Ms. Vullo has pushed back against the claim that she undermined the First Amendment.

In 2017, the Department of Financial Services opened an investigation into an insurance product known as “Carry Guard,” which provided coverage for various issues arising from the use of a firearm, such as personal injury and criminal defense.

The program was brokered, serviced and underwritten by insurance companies and included the N.R.A.’s name, logo and endorsement.

The Department of Financial Services, which regulates more than 1,400 companies and more than 1,900 financial institutions, concluded that Carry Guard violated state insurance law, in part, by providing liability coverage for injury from the wrongful use of a firearm. The department entered into consent decrees with the insurance groups and imposed civil penalties.

In February 2018, after the Parkland shooting, the department re-evaluated “the implications of regulated entities’ relationships with gun-promotion organizations,” according to legal filings for Ms. Vullo.

That spring, the department issued two memos, one to insurance companies and another to financial institutions, titled “Guidance on Risk Management Relating to the N.R.A. and Similar Gun Promotion Organizations.”

The memos encouraged regulated institutions “to review any relationships they have with the N.R.A. or similar gun promotion organizations,” suggesting that they act promptly in the interest of public health and safety.

The same day, Mr. Cuomo released a statement explaining that he had directed the department to press insurance companies and other financial institutions in the state to “review any relationships they may have with the National Rifle Association and other similar organizations.”

Abbie VanSickle covers the United States Supreme Court for The Times. She is a lawyer and has an extensive background in investigative reporting. More about Abbie VanSickle

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Does the First Amendment Protect AI Generated Speech?

Will rasenberger.

Regulating artificial intelligence disinformation could test the First Amendment’s limits.

This election year, as Americans on different sides of political issues shout past one another, the “voices” of artificial intelligence programs could have a great say in who gets elected to federal office.

Advances in generative artificial intelligence, experts warn , could unleash a wave of misinformation and propaganda this coming U.S. presidential election cycle, threatening American democracy. It may seem self-evident that the U.S. Congress has the mandate to address the problem and, in fact, several national lawmakers have proposed bills to combat false or misleading AI-generated “speech.” But the First Amendment might stop these lawmakers in their tracks.

The First Amendment prohibits the government from “abridging the freedom of speech.” “Speech,” as the U.S. Supreme Court has interpreted the term, refers not just to the written or spoken word, but also to art, films, parades, and other forms of expression. Until now, courts have applied the free speech clause to forbid government restrictions on human expression.

But given that the First Amendment protects speech generally, rather than speakers , there is no textual basis for applying different rules depending on the source of speech, natural or artificial.

Indeed, much of the Supreme Court’s First Amendment doctrine treats speech abstractly. The First Amendment, on this view, protects the exchange of ideas in public discourse—or listeners’ access to information—independently of anyone’s right to speak.

In Red Lion Broadcasting v. FCC , for instance, the Supreme Court affirmed the public’s right of  “suitable access” to a variety of social, political, aesthetic, and other information. To this end, the Court explained , the First Amendment’s purpose is to “preserve an uninhibited marketplace of ideas,” where different viewpoints compete for acceptance and the “truth will ultimately prevail.”

These principles have led lower courts to strike down laws regulating the information that enters public discourse. For instance, the 2014 federal appellate court decision Care Committee v. Arenson invalidated a Minnesota law that restricted false or misleading speech by politicians in their campaign materials. The court reasoned that citizens, not the government, are suited to judge the veracity of the content and source of political speech, especially in light of “counterspeech” expressing opposing viewpoints.

And based on these same principles, some scholars argue that the public has a right to access AI-generated content that listeners deem relevant to their political or moral decisions. This right, according to these scholars, extends to completely autonomous AI outputs that humans have not influenced in any meaningful way.

So far as AI “speakers” provide information to human listeners, according to these scholars, the contributions AI makes to public discourse should receive the same First Amendment protection as human speech. It is not for the government to decide what ideas—or what sources—the public hears.

It follows, these scholars contend , that laws banning AI-generated speech based on its content, especially in the political arena, are presumptively unconstitutional. For instance, they assert that the government could not enact a law restricting AI-generated articles or social media posts that deny climate change or advocate an uprising against government.

Some commentators, however, argue that unrestrained AI-generated speech could be catastrophic to democracy. They emphasize the many ways generative AI is poised to transform the information ecosystem, challenging the assumption that citizens can distinguish quality information from junk and truth from falsity.

This assumption fails, some experts say , when public discourse is saturated with conspiracy theories, junk science, or highly realistic “deepfake” videos, all masquerading as quality information from reputable sources. Although lies and propaganda are hardly new to political discourse, these experts argue , generative AI programs such as ChatGPT and Midjourney can make misinformation campaigns much more efficient and effective, as well as harder to detect.

Generative AI’s potential for deception is clear from events within the past year. For example, high-quality fake images and videos of Presidents Joseph R. Biden and Donald J. Trump have circulated in apparent smear campaigns. In an incident with real-world impacts, an image reportedly generated by AI of an explosion near the Pentagon went viral, sending the stock market into a brief fall. These types of incidents could become much more common, some researchers suggest .

More subtly, news sites and social media accounts populated entirely by AI-generated content could sway political discourse with deceptively well-reasoned narratives supported by fake photo and video evidence, researchers report .

In addition, AI bots increasingly can target specific listeners. In learning the patterns in the speech and behavior of an individual or group, a bot can effectively imitate anyone, as well as calibrate its message to the audience’s unique susceptibilities.

Given this ability to customize speech for a given audience, generative AI systems trained to spout certain ideological views could reinforce political echo chambers and worsen partisan biases, researchers suggest . They warn that generative AI could erode any remaining common ground among citizens of different ideological persuasions.

Fact-checking efforts and “counterspeech” meant to neutralize misinformation and propaganda may be overwhelmed by the speed and scale at which AI-generated content could propagate, experts argue . In the long term, a diffusion of deceptive content and an inability to identify it as such could undermine people’s sense of reality and confidence in the political system.

It is difficult to predict what effect generative AI will have on the elections this year and beyond. In any event, legislators seeking to protect the “marketplace of ideas” may need to contend with precedents, such as Care Committee , that assume an alert citizenry and some amount of accurate, honest information in public discourse can counteract false political speech.

There may, however, be a middle ground between prohibiting generative AI from contributing to public discourse and giving it free rein: labeling requirements.

The AI Labeling Act , which U.S. Senators Brian Schatz (D-Hawaii) and John Kennedy (R-La.) introduced last October, would require AI-created images, video, and other media to carry a disclosure of their AI source. According to Senator Schatz, even if such a labeling requirement cannot guarantee a marketplace of ideas in which the truth will prevail, it may prevent a total marketplace failure, while preserving the public’s right to information.

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