a freedom of speech case

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Free Speech Supreme Court Cases

The First Amendment to the U.S. Constitution provides that the government must not “abridge the freedom of speech, or of the press.” Free speech has long been considered one of the pillars of a democracy. Explaining its importance, Justice Oliver Wendell Holmes, Jr. declared that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” A faith in this marketplace of ideas continues to buttress First Amendment law.

Since the First World War, the Supreme Court has grappled with how far the government can go in restricting speech. This often requires asking a threshold question: what is “speech” for First Amendment purposes? The Supreme Court has found that speech may extend beyond the spoken and written word into the area of expressive conduct, in which actions send a symbolic message. For example, burning a flag or wearing a black arm band has received First Amendment protection. Cases involving campaign financing have shown that sometimes even certain uses of money are considered speech.

The distinction between content-based and content-neutral laws has played a key role in free speech cases. Content-based laws regulate speech based on its substance, while content-neutral laws generally control the time, place, and manner of speech. The government bears a heavy burden in defending content-based restrictions, since they are subject to strict scrutiny. In contrast, content-neutral regulations are reviewed under a form of intermediate scrutiny, which means that they are more likely to survive a challenge.

Below is a selection of Supreme Court cases involving free speech, arranged from newest to oldest.

Author: Neil Gorsuch

The First Amendment prohibits a state from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.

Author: Elena Kagan

Although true threats of violence are outside the bounds of First Amendment protection, the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of their statements. However, the state only needs to prove recklessness, which means that the defendant consciously disregarded a substantial risk that their communications would be viewed as threatening violence.

Author: Sonia Sotomayor

A distinction between on-premises and off-premises signs was facially content neutral under the First Amendment and thus not subject to strict scrutiny.

Author: Brett Kavanaugh

When a private entity operates public access channels on a cable system, it is not performing a traditional, exclusive public function, and it is not transformed into a state actor by opening its property for speech by others. Thus, it is not subject to First Amendment constraints on its editorial discretion.

Author: Samuel A. Alito, Jr.

The state's extraction of agency fees from non-consenting public-sector employees violates the First Amendment.

Author: John Roberts

A ban on voters wearing a political badge, political button, or anything bearing political insignia inside a polling place on Election Day violated the Free Speech Clause.

Author: Stephen Breyer

When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer's actions are based on a factual mistake about the employee's behavior.

Author: Clarence Thomas

Since content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. Speech regulation is content-based if a law applies to particular speech because of the topic discussed or the idea or message expressed.

Congress may regulate campaign contributions to protect against corruption or the appearance of corruption, but it may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.

A public employee's sworn testimony outside the scope of their ordinary job duties is entitled to First Amendment protection.

Author: Anthony Kennedy

There is no general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression that the First Amendment seeks to guarantee.

Author: Antonin Scalia

Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium.

Speech in aid of pharmaceutical marketing is a form of expression protected by the Free Speech Clause.

The First Amendment can serve as a defense in state tort claims, including claims for intentional infliction of emotional distress. Whether the First Amendment prohibits holding a defendant liable for their speech turns largely on whether the speech is of public or private concern, as determined by all the circumstances of the case.

The government may not suppress political speech on the basis of the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of non-profit or for-profit corporations.

The placement of a permanent monument in a public park is a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.

A principal may restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use.

When public employees make statements pursuant to their official duties, the Constitution does not insulate their communications from employer discipline.

When plaintiffs challenge a content-based speech restriction, the government has the burden to prove that the proposed alternatives will not be as effective as the challenged statute.

Author: Sandra Day O’Connor

While a state may ban cross burning carried out with the intent to intimidate, a provision in a statute treating any cross burning as prima facie evidence of intent to intimidate rendered the statute unconstitutional.

Author: William Rehnquist

The governmental interest in preventing the actual or apparent corruption of federal candidates and officeholders constitutes a sufficiently important interest to justify contribution limits.

A canon of judicial conduct that prohibits a candidate for a judicial office from announcing their views on disputed legal or political issues violates the First Amendment.

A law's reliance on community standards to identify what material is harmful to minors did not by itself render the statute substantially overbroad for First Amendment purposes.

Viewpoint-based funding decisions may be sustained when the government is the speaker, or when the government uses private speakers to transmit information pertaining to its own program. It does not follow that viewpoint-based restrictions are proper when the government does not speak or subsidize transmittal of a message that it favors but instead expends funds to encourage a diversity of views from private speakers.

Although the First Amendment applies in the subsidy context, Congress has wide latitude to set spending priorities. Also, when the government is acting as patron rather than sovereign, the consequences of imprecision in its decision-making criteria are not constitutionally severe.

Author: John Paul Stevens

Although the government has an interest in protecting children from potentially harmful materials, a law cannot pursue this interest by suppressing a large amount of speech that adults have a constitutional right to send and receive if less restrictive alternatives would be at least as effective in achieving the law's legitimate purposes.

In determining whether the government is acting to preserve the limits of the forum that it has created so that the exclusion of a class of speech is legitimate, there is a distinction between content discrimination and viewpoint discrimination. Content discrimination may be permissible if it preserves the purposes of the limited forum. Viewpoint discrimination is presumed impermissible when directed against speech that is otherwise within the forum's limitations. Also, the guarantee of neutrality toward religion is respected when the government, following neutral criteria and even-handed policies, extends benefits to recipients whose ideologies and viewpoints, including some that are religious, are broad and diverse.

Author: Harry Blackmun

Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.

Areas of speech that can be regulated because of their constitutionally proscribable content still cannot be made vehicles for content discrimination unrelated to their distinctively proscribable content. However, when the basis for the content discrimination consists entirely of the very reason why the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular secondary effects of the speech, so the regulation is justified without reference to the content of the speech.

Nude dancing at adult entertainment establishments is expressive conduct within the outer perimeters of the First Amendment, but only marginally so. The enforcement of a public indecency law to prevent totally nude dancing does not violate the First Amendment guarantee of freedom of expression.

The government may make a value judgment favoring childbirth over abortion and implement that judgment by the allocation of public funds. In so doing, the government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another.

Author: William Brennan

The government generally has a freer hand in restricting expressive conduct than in restricting the written or spoken word. However, it may not proscribe particular conduct because it has expressive elements.

Even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided that the restrictions are justified without reference to the content of the regulated speech, they are narrowly tailored to serve a significant governmental interest, and they leave open ample alternative channels for communication of the information.

Author: Byron White

Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns.

Author: Warren Burger

The use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a public school.

A broad ban on all editorializing by every broadcast station that receives public funds exceeds what is necessary to protect against the risk of government interference or to prevent the public from assuming that editorials by public broadcasting stations represent the official view of the government.

When a public employee speaks as an employee on matters only of personal interest, a federal court is generally not the appropriate forum to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.

States are entitled to greater leeway in the regulation of pornographic depictions of children. The standard of Miller v. California for determining what is legally obscene is not a satisfactory solution to the child pornography problem.

A public employee does not forfeit their First Amendment protection when they arrange to communicate privately with their employer, rather than expressing their views publicly.

Author: Per Curiam

Restrictions on individual contributions to political campaigns and candidates did not violate the First Amendment. However, restrictions on independent expenditures in campaigns, limits on expenditures by candidates from their personal or family resources, and limits on total campaign expenditures violated the First Amendment. Also, any appointee exercising significant authority pursuant to the laws of the United States is an “Officer of the United States” and must be appointed in the manner prescribed by the Appointments Clause.

Author: Lewis Powell

So long as they do not impose liability without fault, states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood that injures a private individual and whose substance makes substantial danger to reputation apparent.

States have a legitimate interest in regulating commerce in obscene material and its exhibition in places of public accommodation, including adult theaters.

The guidelines for the trier of fact in an obscenity case are whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The First Amendment does not relieve a newspaper reporter of the obligation to respond to a grand jury subpoena and answer questions relevant to a criminal investigation. Therefore, the First Amendment does not afford a reporter a constitutional testimonial privilege for an agreement that they make to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of their source or evidence of it.

Author: John Marshall Harlan II

A state could not make the simple public display of a single four-letter expletive a criminal offense.

It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail. The right of the viewers and listeners, rather than the right of the broadcasters, is paramount.

Freedoms of speech and press do not permit a state to forbid advocacy of the use of force or of law violation except when such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Author: Abe Fortas

A student may express their opinions, even on controversial subjects, if they do so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school, and without colliding with the rights of others. However, conduct by a student that materially disrupts classwork or involves substantial disorder or invasion of the rights of others is not immunized by the constitutional guarantee of freedom of speech.

Author: Thurgood Marshall

When a public employee's false statements concerned issues that were currently the subject of public attention and did not interfere with the performance of their duties or the general operation of their employer, they were entitled to the same protection as if the statements had been made by a member of the general public.

Author: Earl Warren

When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms. A government regulation is sufficiently justified if it is within the constitutional power of the government, it furthers an important or substantial governmental interest, the governmental interest is unrelated to the suppression of free expression, and the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

A public figure who is not a public official may recover damages for defamatory falsehood substantially endangering their reputation on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily maintained by responsible publishers. (In a concurrence, Justice Warren advised applying the New York Times standard.)

Author: Arthur Goldberg

Allowing unfettered discretion to local officials in the regulation of the use of the streets for peaceful parades and meetings is an unwarranted abridgment of freedom of speech.

A state cannot award damages to a public official for defamatory falsehood related to their official conduct unless they prove actual malice, which means that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.

Obscenity is not within the area of constitutionally protected freedom of speech or press under the First Amendment.

Author: Tom C. Clark

Expression by means of motion pictures is included within the free speech and free press guaranty of the First Amendment. A state may not place a prior restraint on the showing of a motion picture on the basis of a censor's conclusion that it is sacrilegious.

Author: Felix Frankfurter

In the face of a history of tension and violence and its frequent obligato of extreme racial and religious propaganda, a state legislature was not without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented.

Author: Fred M. Vinson

Courts must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.

When a speaker passes the bounds of argument or persuasion and undertakes incitement to riot, the police are not powerless to prevent a breach of the peace.

Author: William O. Douglas

Freedom of speech, although not absolute, is protected against censorship or punishment unless it is shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.

Author: Robert H. Jackson

The action of a state in making it compulsory for children in public schools to salute the flag and pledge allegiance violates the First Amendment. The issue does not turn on the possession of particular religious views or the sincerity with which they are held. (This decision overturned Gobitis .)

Author: Frank Murphy

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words, which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Author: Owen Josephus Roberts

When a clear and present danger of riot, disorder, interference with traffic on the public streets, or other immediate threat to public safety, peace, or order appears, the power of the state to prevent or punish is obvious.

Author: Charles Evans Hughes

In determining the extent of the constitutional protection for the freedom of the press, it has been generally considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication.

Author: Louis Brandeis

No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.

Author: Edward Terry Sanford

The government cannot reasonably be required to defer taking measures against revolutionary utterances advocating the overthrow of organized government until they lead to actual disturbances of the peace or imminent danger of the government's destruction. (This case is also significant for applying the First Amendment to the states via the Fourteenth Amendment.)

Author: Oliver Wendell Holmes, Jr.

It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion when private rights are not concerned.

The delivery of a speech in such word and such circumstances that the probable effect will be to prevent recruiting, and with that intent, is not protected because of the fact that the purpose to oppose the war and obstruct recruiting, and the expressions used in that regard, were but incidental parts of a general propaganda of socialism and expressions of a general and conscientious belief.

The First Amendment, while prohibiting legislation against free speech as such, was not intended to give immunity to every possible use of language.

Words that, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

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17 Freedom of Speech Court Cases You Should Know

By Freedom Forum

As long as there has been a First Amendment , people have pushed the boundaries of what free speech means and the government has pushed back. Freedom of speech court cases, especially these key Supreme Court cases, have helped clarify and define this fundamental freedom.

Discover 17 of the most prominent freedom of speech court cases in history

1. state laws must be consistent with the first amendment and not violate freedom of speech | gitlow v. new york (1925).

In this case, the Supreme Court’s ruling relied on the idea that the First Amendment’s opening words – “Congress shall make no law” – really means government at all levels.

More specifically, the ruling said that state governments must uphold the Constitution and protect the rights in it, including freedom of speech and the press. This is called “incorporation.” Later cases affirmed that all levels of government are required to uphold all First Amendment freedoms.

In this freedom of speech court case, the court agreed with the conviction of Benjamin Gitlow, a socialist accused of writing a “seditious manifesto.” But it pointed out that the New York state law he violated needed to be consistent with the First Amendment.

2. First Amendment freedom of speech includes nonverbal expression | Stromberg v. California (1931)

In this case, the Supreme Court declared that free speech protects more than the words we say .

A California state law made it a crime to display a red flag (associated with communism) for any of several reasons, including as a symbol of opposition to organized government. Yetta Stromberg, a summer camp counselor who raised the red Communist Party flag at camp, was convicted under this law.

The Supreme Court had said six years earlier that the First Amendment applies to state laws. Now it ruled that California’s state law was unconstitutional for violating free speech rights.

Importantly, the court also considered a nonverbal expression – flying a flag – as free speech when it said that the law against “a sign, symbol, or emblem” violated the First Amendment.

3. The First Amendment prevents government from requiring speech just as it prevents government from limiting speech | West Virginia Board of Education v. Barnette (1943)

In 1940, the Supreme Court said Pennsylvania could expel public school students for declining to salute the flag and say the pledge, citing a need for “national unity.”

Just three years later, the court reversed that ruling. It said that a West Virginia law requiring students to pledge violated the free speech rights of Jehovah’s Witnesses, who refused to participate for religious reasons.

The court ruled that people can’t be forced to say words they don’t believe. This established the principle that freedom of speech protects the right not to speak as well as the right to express your views.

“[I]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” ― Supreme Court Justice Robert H. Jackson in 1943

4. First Amendment freedom of speech includes anonymous speech | Talley v. California (1960)

In 1958, the Supreme Court said the NAACP in Alabama should not be required to reveal its member list, protecting the right to associate as part of the First Amendment right to assembly .

Two years later, the court said the First Amendment also protects anonymous speech. It ruled in favor of civil rights activists who wanted to distribute an anonymous pamphlet about discrimination.

In both of these freedom of speech court cases, forcing activists to name themselves could have put them in danger. The court cited a long history of publishing opinions anonymously or under pen names for safety and other reasons.

It said a ban on all anonymous pamphlets was too broad and not a good enough reason on its own to overcome freedom of speech.

One judge who disagreed pointed to requirements for transparency in political lobbying and campaigning as limits on anonymous speech. Some such limits have been upheld, but within narrow boundaries.

5. The bar for limiting symbolic speech includes four criteria | United States v. O’Brien (1968)

The Supreme Court previously ruled that freedom of speech includes more than spoken words. It can also include acts of expression.

Now it laid out when the government may limit “expressive conduct.” It required the government to meet four criteria to limit such expression with laws or regulations:

• The law or regulation must be within the government’s constitutional power.
• The law or regulation must further “an important or substantial” government interest; in other words, it must be a very good reason related to the government’s responsibilities.
• The law or regulation must not be related to “the suppression of free expression,” which means that it cannot restrict the expression based on the message it is trying to convey.
• The impact of the law or regulation must be no greater than necessary to achieve the goal.

In this freedom of speech court case, the court ruled that the government did meet all four criteria when it punished Paul O’Brien for burning his draft card in front of a Boston courthouse. O’Brien argued the act was political speech. The court disagreed 8-1, saying the government was not punishing O’Brien for opposing the draft, it was protecting its ability to administer the draft because draft cards were the only means of identifying an individual’s draft status.

6. Some speech advocating for violence or crime can be protected; the bar to punishment is high | Brandenburg v. Ohio (1969)

In this case, the court raised the bar for when inflammatory speech can be limited, setting the current, very high standard.

It said the speech must “incite imminent lawless action.” In other words, inflammatory speech loses First Amendment protection if the speaker intended to provoke or directly cause crime or violence, right here and now.

For example, saying that all such-and-such people should be executed may be an extreme and alarming view. But it is most likely protected speech. A more specific and immediate statement, such as pointing at a person and telling a crowd to take them out, may not be protected. It directly asks for (incites) a crowd to injure or kill someone (lawless action) right then (imminently).

In ruling that a white supremacist’s vaguely threatening statements were protected speech, the court came to the opposite conclusion it had earlier in the Gitlow case above (though it did not overturn that case’s principle that the First Amendment applies to government at all levels).

7. To be punished, threatening speech must be a “true threat” | Watts v. United States (1969)

The Supreme Court again considered when inflammatory speech loses First Amendment protection, and again it set a high bar.

It ruled that threatening speech can be protected, unless the statement constitutes a “ true threat .” To determine if a statement is a true threat depends on factors including the context of the statement and its reception.

In this freedom of speech court case, it ruled that an anti-war protestor couldn’t be punished for his speech about then-President Lyndon B. Johnson. When Robert Watts said, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.,” the court said this was a hypothetical and exaggerated statement that made people nearby laugh and wasn’t a credible, real threat.

In June 2023, the court clarified that a statement is not necessarily a true threat if the person it’s about feels afraid. The person who makes the statement must act recklessly, knowing the statement would likely make the recipient afraid but making it anyway.

8. Public school students have First Amendment free speech rights at school | Tinker v. Des Moines Independent Community School District (1969)

This ruling said that students at public schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Three Iowa students – John Tinker, Mary Beth Tinker and Christopher Eckhardt – were suspended from school for wearing black armbands to protest the Vietnam War. They appealed their punishment all the way to the Supreme Court and won. The court declared they should have been allowed to wear the armbands.

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According to the court, schools can only limit students’ expression if they can be relatively sure it will truly and substantially disrupt school or harm others’ rights. Schools cannot punish a student just because they don’t agree with or like what a student is saying.

MORE: Free speech in schools: What can students say?

9. Even profane speech – unless it is of a few specific, well-defined types – is protected as free speech | Cohen v. California (1971)

The court said that profanity can be protected as free speech, like other types of controversial or inflammatory speech.

The court said that Paul Robert Cohen should not have been convicted for breach of the peace simply because he wore a jacket with a curse word on it to court.

It was a close decision (5-4), but the majority said Cohen’s speech didn’t meet the criteria for unprotected categories of speech .

The government cannot punish speech just because someone might find it offensive. This sort of vagueness invites selective prosecution by the government. The answer, the court indicated, was for those offended to just look away.

10. To be legally considered obscene – and not free speech – speech must meet three specific criteria | Miller v. California (1973)

In this freedom of speech court case, the court created a three-part test to narrowly define what legally can be considered obscene. The three parts of the test are:

• Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest. In other words, is it overall excessively, unwholesomely lewd?
• Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law. In other words, is it obviously offensively vulgar?
• Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. In other words, does it have no other message, meaning or use in our society?

In short, a work may be considered obscene and lose free speech protections if, and only if, the government can show the work meets all three of these elements.

This ruling didn’t immediately settle all questions of potentially obscene expression. Courts still must decide on a case-by-case basis whether challenged works under various state laws meet this legal definition. But it did standardize the considerations and significantly narrow the definition of obscenity .

11. Speech that may be considered hateful is still protected free speech | National Socialist Party of America v. Village of Skokie (1977)

This free speech court case didn’t explicitly define hate speech (there isn’t such a category in U.S. law), but it did say that offensive, even hateful speech is protected , unless it falls within one of the specific otherwise defined types, like true threats.

Is hate speech illegal? How does it apply to the First Amendment? Are there any exceptions? ➡️ https://t.co/jkbE77xLaR pic.twitter.com/oRBD5lgZCg — Freedom Forum (@1stForAll) August 29, 2023

A small suburb of Chicago banned political protests in its public parks, in part because white supremacists wanted to hold a demonstration there due to the large population of Jewish people and Holocaust survivors.

The white supremacist group challenged the regulations in court, and the Illinois Supreme Court declined to immediately review the First Amendment claim while the protest was on hold.

The Supreme Court said that, procedurally, such a First Amendment case should be heard quickly, and courts should err on the side of allowing controversial free speech while final judgments are pending.

The lower courts, when they got the case back at the Supreme Court’s instruction, said the protest couldn’t be banned just because the message was hateful.

In the end, counterprotests drew larger crowds than any original planned protest by the supremacist group.

In 2011, the Supreme Court restated the idea that even hateful speech can be protected when it upheld the First Amendment right of the Westboro Baptist Church to protest near military members’ funerals with signs the military families found hateful.

“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. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” — Chief Justice John G. Roberts Jr. in 2011

12. Flag burning is protected free speech | Texas v. Johnson (1989)

A Texas law against flag desecration violated freedom of speech, the Supreme Court ruled. It threw out the conviction of “Joey” Johnson for desecrating a “venerated object” when he burned an American flag during the 1984 Republican National Convention in Dallas.

There can be some limits on flag burning, such as for fire safety, but it cannot be limited just because some might disagree with the method or message.

Proposed constitutional amendments to outlaw flag burning have narrowly failed.

13. Corporations’ money independently spent on political campaigns is free speech | Citizens United v. FEC (2010)

The Supreme Court’s view in this ruling is that political spending is free speech.

The court said election laws that put limits on how much corporations could spend on political ads violate the First Amendment.

Corporations giving money directly to candidates is still subject to limits and disclosure laws. But groups like unions and corporations may spend as much as they wish to promote candidates or causes through ads the groups produce themselves.

14. Free speech is protected on the internet | Reno v. ACLU (1997)

When the internet was relatively new, Congress passed the Communications Decency Act, which restricted some types of content online in the interest of protecting children. This freedom of speech court case not only declared that law unconstitutional, but it firmly stated that the internet is deserving of full First Amendment protection.

The Supreme Court unanimously said that the Communications Decency Act was too restrictive of speech. The court ruled that the law was too broad in how it defined harmful content and would restrict adults’ access to speech they had every right to see. At the same time, it was not broad enough because the credit card-based restrictions wouldn’t really prevent all kids from accessing adult content.

Today, while websites and social media companies can create their own policies for content, there is a high bar for the government to regulate content online, just like the high bar to regulate speech in public.

MORE: The complete guide to free speech on social media

15. Lying is sometimes protected free speech | United States v. Alvarez (2012)

In 2005, Congress passed the Stolen Valor Act, making it illegal to lie about having received military medals. A California man who falsely claimed that he was a Congressional Medal of Honor recipient faced prosecution under this law. He challenged the law as violating his free speech.

The Supreme Court agreed, ruling that there is no exception to the First Amendment for lies . It ruled in this freedom of speech court case that the government had good reason to promote accuracy about military honors, but that the government must use the narrowest means possible to achieve its aim to protect military integrity. The court said a better way would be for the government to use its own speech and create an official database of military honors so people can confirm the accuracy of such claims, instead of punishing false claims.

It is illegal, though, to lie about military service to receive financial benefits.

16. Students’ off-campus social media posts may be protected free speech | Mahanoy Area School District v. B.L. (2021)

The Supreme Court said in June 2021 that a high school student shouldn’t have been punished for a curse-filled social media post about the school and cheerleading team, which she posted while off campus, because it was free speech and didn’t interfere with school. This decision was based on the standard set in the 1969 Tinker case, which said that schools can only limit disruptive student speech.

MORE: The ultimate guide to free speech on college campuses

17. Business owners may not be required to speak in violation of their beliefs | 303 Creative LLC v. Elenis (2023)

Owners of businesses that produce speech or creative messages cannot be required to produce messages for customers with which the owners disagree. The Supreme Court ruled in June 2023 that a website designer could not be required to create websites celebrating the weddings of same-sex couples , because the First Amendment protects the right not to speak.

A final word on freedom of speech court cases

Freedom of speech court cases, like these and many others in courts across the country, ensure that people can continually push back on government attempts to infringe on First Amendment rights. Courts can examine how the First Amendment applies in specific circumstances and can interpret how it relates to new technologies, questions and challenges. Lawsuits are one way people can push the government to uphold freedom of speech and to enforce its limits where appropriate.

Kevin Goldberg, First Amendment specialist for the Freedom Forum, contributed to this article. He can be reached at  [email protected] .

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The first amendment, schenck v. united states: defining the limits of free speech.

November 2, 2015 | by Joshua Waimberg

Note:  Landmark Cases , a C-SPAN series on historic Supreme Court decisions—produced in cooperation with the National Constitution Center—continues on Monday, Nov. 2 at   9pm ET. This week’s show features  Schenck v. United States .

In a case that would define the limits of the First Amendment’s right to free speech , the Supreme Court decided the early 20 th -century case of Schenck v. United States .

The case began, as many do, with an act of Congress. Shortly after the United States entered into World War I, Congress passed the Espionage Act of 1917. It was passed with the goals of prohibiting interference with military operations or recruitment, preventing insubordination in the military, and preventing the support of hostile enemies during wartime.

At the time, Charles Schenck was an important Philadelphia socialist. He was the general secretary of the Socialist Party of America, and was opposed to the United States’ entry into the war. As part of his efforts to counter the war effort, Schenck organized the distribution of 15,000 leaflets to prospective military draftees encouraging them to resist the draft.

The leaflet began with the heading, “Long Live The Constitution Of The United States; Wake Up America! Your Liberties Are in Danger!” It went on to quote Section One of the 13 th Amendment , which outlawed slavery and involuntary servitude. Schenck’s leaflet asserted that the draft amounted to involuntary servitude because “a conscripted citizen is forced to surrender his right as a citizen and become a subject.” The leaflet’s other side, titled “Assert Your Rights,” told conscripts that, “[i]f you do not support you rights, you are helping to ‘deny or disparage rights’ which it is the solemn duty of all citizens and residents of the United States to retain.”

Schenck was arrested, and, among other charges, was indicted for “conspir[ing] to violate the Espionage Act … by causing and attempting to cause insubordination … and to obstruct the recruiting and enlistment service of the United States.” Schenck and Elizabeth Baer, another member of the Socialist Party who was also charged, were both convicted following a jury trial and sentenced to six months in prison.

Schenck and Baer appealed their convictions to the Supreme Court. They argued that their convictions—and Section Three of the Espionage Act of 1917, under which they were convicted—violated the First Amendment. They claimed that the Act had the effect of dissuading and outlawing protected speech about the war effort, thereby abridging the First Amendment’s protection of freedom of speech.

In a unanimous decision written by Justice Oliver Wendell Holmes, the Supreme Court upheld Schenck’s conviction and found that the Espionage Act did not violate Schenck’s First Amendment right to free speech. The Court determined that Schenck had, in fact, intended to undermine the draft, as the leaflets instructed recruits to resist the draft. Additionally, even though the Act only applied to successful efforts to obstruct the draft, the Court found that attempts made by speech or writing could be punished just like other attempted crimes.

When it came to the Act’s alleged violation of the First Amendment, the Court found that context was the most important factor. The Court said that, while “in many places and in ordinary times” the leaflet would have been protected, the circumstances of a nation at war allowed for greater restrictions on free speech. Justice Holmes wrote, “When a nation is at war, many things that might be said in a time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

Holmes famously analogized the United States’ position in wartime to that of a crowded theater:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic … The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

This quote, while famous for its analogy, also gave the Court a pragmatic standard to use when faced with free speech challenges. The “clear and present danger” standard encouraged the use of a balancing test to question the state’s limitations on free speech on a case-by-case basis. If the Court found that there was a “clear and present danger” that the speech would produce a harm that Congress had forbidden, then the state would be justified in limiting that speech.

It was only a year later that Holmes attempted to redefine the standard. In the 1919 case of Abrams v. United States , the Justice reversed his position and dissented, questioning the government’s ability to limit free speech. Holmes did not believe that the Court was applying the “clear and present danger” standard appropriately in the case, and changed its phrasing. He wrote that a stricter standard should apply, saying that the state could restrict and punish “speech that produces or is intended to produce clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.”

But the “clear and present danger” standard would last for another 50 years. In Brandenburg v. Ohio , a 1969 case dealing with free speech, the Court finally replaced it with the “imminent lawless action” test. This new test stated that the state could only limit speech that incites imminent unlawful action. This standard is still applied by the Court today to free speech cases involving the advocacy of violence.

The Espionage Act of 1917 lives on as well. Since the decision in Schenck v. United States , those who have been charged under the act include Socialist presidential candidate Eugene Debs, executed communists Julius and Ethel Rosenberg, and Pentagon Papers whistleblower Daniel Ellsberg. Most recently, both Chelsea Manning and Edward Snowden have also been charged under the Act.

Joshua Waimberg is a legal fellow at the National Constitution Center.

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A case on free speech and immigration at the Supreme Court

NPR's Scott Detrow speaks with Amanda Shanor, a First Amendment scholar, about the case United States v. Hansen , which will be argued before the Supreme Court on Monday.

SCOTT DETROW, HOST:

Tomorrow, the Supreme Court will hear arguments in United States v. Hansen. At the heart of the case is a federal law that bars someone from encouraging or inducing unlawful immigration to the U.S. And that wording - encouraging or inducing - gets to the broader question the court will examine - whether the law violates the free speech rights established in the First Amendment of the Constitution. And given that potential impact, we wanted to learn more about this case, so we called Amanda Shanor. She is a constitutional law scholar whose work focuses on the First Amendment, and she currently teaches at the University of Pennsylvania. Professor Shanor, welcome to ALL THINGS CONSIDERED.

AMANDA SHANOR: Thanks so much. It's great to be with you, Scott.

DETROW: So let's start with the details of the case that the justices will be hearing about. What happened, and what's the main question here?

SHANOR: So the case is about a man, Helaman Hansen, who, for about four years, falsely promised undocumented immigrants that they could, if they paid him, become U.S. citizens through what he called an adult adoption program. But that program was actually a ruse that would not lead to citizenship. So he was charged under the law that you said that prohibits or criminalizes encouraging or inducing unlawful immigration.

DETROW: Now, is this one of those cases that isn't really about that violation specifically? Because it sounds to me - I hear that, and it seems like - well, that seems pretty clear-cut fraud. It seems pretty clear-cut that this person broke the law.

SHANOR: Yeah.

DETROW: Or is this more about what that implies on broader questions?

SHANOR: Exactly. It's about what it implies on broader questions, and the case really has the potential to have a pretty significant effect on the future of First Amendment law. So I guess I should explain. So it's a First Amendment challenge to this law that prohibits encouraging or inducing people either to unlawfully come to the United States or to reside in the United States. And the challenge brought by Hansen is actually under something called the overbreadth doctrine. And what the overbreadth doctrine is - it's an important First Amendment doctrine that allows somebody to whom the law could be constitutionally applied to challenge it because the law is so broad that it actually criminalizes a whole set of other protected speech.

DETROW: OK. So me saying to you, give me money, and I'll give you something that I have no intention of giving you, again, seems like it's on the more clear-cut end of things. What is a hypothetical example that lawyers have been talking about as this case has made its way through the courts that is more murky and that might be up in the air?

SHANOR: Well, so the law criminalizes encouraging someone to, like I said, either come or reside in the United States unlawfully. So that might include, for example, a grandmother who tells her undocumented grandchild that she doesn't want the child to leave her or a doctor who advises a patient with an expiring visa that she needs medical treatment that's only available in the United States. There's a whole host of examples like that that seem like, on a normal reading - just a straightforward reading of encouragement could be captured by the act and seem like they would be protected by the First Amendment.

DETROW: What is the federal government's argument against that framing?

SHANOR: So the federal government has taken a different position in the courts of appeals than it did originally at Hansen's trial. It now says that the law - specifically encourage or induce, that language - means soliciting or aiding and abetting, which are terms of art in criminal law that are much narrower and wouldn't, for example, capture something like the grandmother or the doctor example. And so they say that the court should read the law in a narrower way that wouldn't raise all of these First Amendment concerns that Hansen has raised, and therefore the court shouldn't strike down the law as unconstitutional.

DETROW: You talked about the big implications for the First Amendment. I mean, what's the wide range of outcomes that we could see here when it comes to how this could be applied, depending on what the justices decide?

SHANOR: Well, because this case has - well, so first, of course, it could bear on - you know, have effects on immigration enforcement. But it could have a bigger effect on the trajectory of First Amendment law with implications for dissent and incitement, solicitation and aiding and abetting liability - what's constitutional under those doctrines - as well as social media regulation. So, for example, aiding and abetting liability and incitement have exceptions from First Amendment law. And part of the question here is, how big are those exceptions? How much does the First Amendment protect or not?

And that could have big implications down the line for a whole host of things, but including even, you know, if former President Trump is indicted for incitement, the kinds of questions and the court's opinion here could bear on that. It could also bear on the scope of potential liability for social media companies. There's another couple cases before the court now that this case interacts with.

DETROW: Well, that leads to a question about this political moment and this particular court because we know that in the current makeup, you know, despite everything that Chief Justice Roberts wishes, this court has shown a willingness to overturn longstanding precedent. It does not shy away from broad and controversial rulings. Do you think there's a world where the court takes this case and uses it to issue pretty broad, new understandings of the First Amendment?

SHANOR: So I think that's the big question here. I mean, part of what we're going to see in this case is whether or not this newly configured court is going to stay with a set of earlier courts' trends to adopt ever more speech protective rules or if they're going to chart, potentially, a very different course. And I think we're going to have to wait and see. I think the only thing that we know for sure is that the argument on Monday will be very interesting, and I think that the opinion and resulting law will be important.

DETROW: OK. So I feel like experts like you always get annoyed when reporters like me say, well, what did you make of the oral arguments? What sort of tea leaves were there? So I'm going to be even more annoying and ask you before the arguments happened, what are the types of things that you will be on the lookout for as the justices ask their questions?

SHANOR: I expect to see the government really trying to get away from all of the hypotheticals about grandmothers and doctors and priests and lawyers that are certainly going to come up at argument. And so I think that they're going to say essentially, you know, you should read this law more narrowly and probably remand it - essentially make the case be much less important and much narrower than it was originally teed up. But I anticipate that a significant part of the court is going to be underwhelmed by the notion that mere encouragement alone could get you caught up in a criminal law that could send you to jail for five or 10 years. But it's hard to say, again, because, you know, this court has been known for making big moves, and this is an area that they could make big moves that would affect, you know, like I said, a very diverse set of possible cases in the future.

DETROW: That was Amanda Shanor, a constitutional law scholar whose work focuses on the First Amendment. She teaches at the University of Pennsylvania. Professor Shanor, thank you so much for talking to us today.

SHANOR: Thanks so much for having me.

Copyright © 2023 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

The Amendment the Court Forgot in Twitter v. Taamneh

• Genevieve Lakier
• Evelyn Douek

There was something conspicuously absent from the courtroom when the Supreme Court heard arguments in Twitter v. Taamneh last week. For decades now, the Court has been accused of weaponizing , or “Lochnerizing,” the First Amendment by extending free speech protections so far into so many areas of ordinary law that it has become something of an all-purpose deregulatory device. And yet, last Wednesday, in what could be an incredibly consequential case for freedom of speech online, members of the Court appeared to forget almost entirely about the existence of the First Amendment altogether. Indeed, the word “speech” was not uttered a single time during oral argument in Taamneh , and the First Amendment came up only once, in passing.

And yet, Taamneh is a case with speech at its center. At issue is whether tech companies should bear liability for the use of their platforms by terrorist groups. This could incentivize platforms to take down vastly more speech — and not just terrorist speech — than they currently do, in order to avoid even the chance of liability. For this reason, Taamneh, like its companion case Gonzalez v. Google , could dramatically reshape the internet . These cases have generated intense interest among free speech litigators, civil rights groups, and scholars, in part because the stakes of a bad decision for digital free expression are high in either case. Yet on the case’s free speech ramifications, the arguments in Taamneh were unsettlingly silent.

The question Taamneh raises is whether platforms can be found liable for aiding and abetting terrorist acts under section 2333 of the Anti-Terrorism Act (ATA) . The Taamneh plaintiffs’ theory is that Twitter aided and abetted a 2017 terrorist attack in Turkey because it had general knowledge that ISIS used its platform for organizing and recruitment purposes and did not do enough to remove all ISIS content. This, the plaintiffs argued , helped ISIS become “the most feared terrorist group in the world” and substantially assisted the group in carrying out the 2017 (and presumably other) attacks.

From this description, it should be clear that the Taamneh plaintiffs’ theory of aiding and abetting liability is incredibly broad; the alleged causal chain between Twitter’s actions and the attack in Turkey is extremely attenuated. No one disputes that ISIS made effective use of Twitter for purposes of propaganda and recruitment. But, likewise, no one disputes that Twitter had an extensive content moderation program dedicated to removing terrorist content. Furthermore, theplaintiffs provided no evidence that the ISIS member who carried out the 2017 attack ever had a Twitter account, or that Twitter had knowledge of any particular ISIS content they failed to remove, or that the service was used in the planning of the particular attack.

The argument in Taamneh was therefore very focused on questions of statutory construction and general tort principles, with the Justices pushing on what level of knowledge and assistance is necessary for a finding of liability under the ATA. Much of this back-and-forth took the form of testing different analogies: Was what the platforms did like a bank that gives a terrorist a bank account, knowing that they are a member of a foreign terrorist organization? Or like a gun dealer selling a known gang member a gun? Or like a Chinese restaurant that sells that gangster a meal? The Justices kept throwing off different hypotheticals as they tried to work through the difficult questions of statutory interpretation raised by the convoluted language of the ATA.

But to focus solely on the issues of statutory interpretation is a mistake. Platforms are not like banks, or gun dealers, or Chinese restaurants in one important respect: they truck in speech, not money or other goods. And so while it may be true, as one scholars’ brief argued , that Congress intended to create “sweeping secondary liability” under the ATA, there are also important free speech interests implicated by the question of platform liability that are not implicated — as directly at least — when Congress makes banks liable for aiding and abetting terrorism or regulates gun dealers. A broad interpretation of aiding and abetting under the ATA as applied to social media platforms — in particular, the very broad interpretation the Taamneh plaintiffs argue for — would almost certainly have a profound (and negative) impact on the diversity of speech online.

Perhaps many would shrug this off if it were simply about terrorists’ speech interests. But when thinking about what liability intermediaries should be exposed to for carrying others’ speech, it is important to be cognizant of platforms’ incentive structures and how this impacts their risk tolerance for carrying other non-mainstream speech. As Professor Seth Kreimer observed nearly two decades ago , online intermediaries are the “weakest link” in the complex system that protects free expression in the public sphere because they have limited incentives to avoid overcensorship. The marginal benefit speech intermediaries receive from hosting any particular piece of speech is usually minimal, but liability of the kind the plaintiffs are arguing for in Taamneh makes the risk of failing to remove even a single needle in the haystack very high. As Daphne Keller put it , “[t]wenty years of experience . . . tells us that when platforms face legal risk for user speech, they routinely err on the side of caution and take it down.” Combine these incentive structures with the difficulties of moderating content at the scale of a major internet platform (hundreds of millions of tweets a day) and the inability of artificial intelligence content moderation tools to take context into account, and the result is, almost certainly, the loss of a great deal of valuable speech from the internet. In particular, it would result in the loss of valuable speech from marginalized and vulnerable communities .

Indeed, platforms are already incentivized to take down valuable speech by the specter of liability that currently hangs over them as a result of the legal uncertainty about the reach of the ATA, and as a result of other countries’ laws. For example, platforms routinely and disparately suppress content from Palestinians and their supporters, including content that alleges or describes human rights abuses. In one case, Instagram removed hashtags about the Al-Aqsa Mosque in Jerusalem because its content moderation system mistakenly associated the site’s name with a terrorist organization. In another instance, YouTube removed tens of thousands of hours of videos that documented war crimes in Syria. There are many possible reasons for such mistakes, but one is surely that legal risk incentivizes platforms to overmoderate in areas or languages that have higher volumes of content from groups classified as foreign terrorist organizations. That is: many nonterrorists are silenced because they speak Arabic, or live in Gaza, or because their content is flagged by an algorithm for removal because it possesses some other feature that is, wrongly or rightly, associated with terrorism.

Despite the very obvious implications of the plaintiffs’ reading of the ATA for speech online, no one — none of the Justices, nor Twitter’s lawyer Seth Waxman, nor the Deputy Solicitor General who argued as amicus curiae in support of Twitter — spent any time discussing the free speech implications of the case. In fact, during the almost three hours of argument, the only person to raise the possibility that the First Amendment might have something to say about the application of aiding and abetting liability to social media platforms was the plaintiffs’ lawyer — who invoked it as a reason why the Court shouldn’t be too concerned about the free speech implications of a broad reading of the ATA. The lawyer, Professor Eric Schnapper, was asked by Justice Kavanaugh whether his reading of the ATA would mean television stations like CNN would be exposed to liability for interviews they aired of known terrorists like Osama bin Laden. Schnapper understood that the only good response to this question was a no. But bereft of a principled interpretive reason why liability would not extend so far, he explained that “the First Amendment is going to solve that” problem. That is — don’t worry about the free speech implications of imposing liability now; we can sort those out later. Justice Kavanaugh did not press the point, the argument moved on, and the free speech implications of the case never came up again.

The disregard for free speech interests in the Taamneh arguments was even more disquieting when it came to discussion about the relationship between platforms and governments. It was repeatedly suggested throughout the arguments that the ATA’s knowledge standard would be satisfied if a government actor notified a platform about specific accounts it suspected were involved in terrorist activity. Seth Waxman volunteered (rather surprisingly) that if “the Turkish police, the Istanbul police come and say there are 10 accounts, 10 Twitter accounts that appear to be involved in planning some sort of terrorist attack here” and Twitter did not take them down, that would be enough to have a culpable level of knowledge under the ATA. For anyone who has followed the history of online-speech debates, this was a jaw dropping moment.

Free speech concerns should be at their highest when government actors are involved in the suppression of speech. One of the longest-standing free speech concerns of the platform era is the fear of government jawboning — that is, that state actors will use informal pressure on social media companies to get them to censor speech without having to comply with constitutional constraints on state power. This is not just one of the oldest concerns about free speech online — it is also one of the most prominent today. Just a few weeks before the arguments in Taamneh , the House Oversight Committee held a six-hour hearing about whether Twitter and the government colluded to suppress a New York Post story about Hunter Biden’s laptop in the lead up to the 2020 U.S. presidential election. Waxman’s reference to Turkish law enforcement authorities should have made the potential dangers of this reading of the ATA even starker. Indeed, at virtually the same moment that Waxman made his concession in the Taamneh arguments, the Turkish government was bringing charges of terrorism against reporters and suppressing criticism of its handling of the response to the recent earthquakes as “disinformation.”

But if any members of the Court had concerns about platforms taking marching orders from governments to suppress speech based on pure government say-so, they did not show it in the Taamneh hearings. Indeed, they seemed more concerned about the opposite — that a platform might not heed all the government warnings they got about terrorist speech.

Of course, Taamneh is not a constitutional case, but a statutory one. And, although civil society organizations raised First Amendment arguments in the brief they filed in support of Twitter, the people in the courtroom showed little interest in ventilating the very obvious constitutional implications of the case.

One possible explanation is that the Justices assumed that these issues could be more properly addressed by a direct First Amendment challenge to the aiding and abetting provisions of the ATA at some future date. It is not obvious that this is a good assumption to make, however. An innocent social media user whose post gets taken down because the platforms want to avoid liability under the ATA will likely not know the reason their post is removed, let alone have standing to challenge the platform’s decision in court. And while CNN has an obvious interest in using the First Amendment to defend itself if it is sued for airing an interview with bin Laden, it’s much less obvious that platforms have adequate incentives to bring such arguments on behalf of their users’ speech, for all the reasons laid out above. Eric Schnapper may believe the “First Amendment will solve” the free speech problems raised by his argument, and perhaps members of the Court believe it too, but it is not at all clear that this is true as a practical matter.

There is another possible, and more dispiriting, explanation for why free speech interests did not come up last week. The total lack of interest the Court showed towards the free speech questions raised by Taamneh might just reflect the Justices’ assumption that the repression of foreign speech — particularly terrorist-adjacent foreign speech — simply does not raise important-enough First Amendment concerns. This, of course, is the implication of the Court’s infamous 2010 decision in Holder v. Humanitarian Law Project . It is hard to believe that if this case concerned the speech of U.S. citizens, the First Amendment could have been so studiously ignored.

Whatever the reason, the lack of any engagement with the First Amendment produced a set of oral arguments that failed to grapple with the true nature of the problem before the Court — in essence, how to protect freedom of speech online while also protecting against terrorism. That is no easy tightrope to walk, but it is the core difficulty that this case presents. For all the First Amendment expansionism the Court has overseen in recent years, the Taamneh arguments reflected an unduly constricted view of the Court’s role in safeguarding free speech values.

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Supreme Court wary of restricting government contact with social media platforms in free speech case

By Melissa Quinn

Updated on: March 18, 2024 / 8:43 PM EDT / CBS News

Washington — The Supreme Court on Monday appeared wary of limiting the Biden administration's contacts with social media platforms in a closely watched dispute that  tests how much the government can  pressure social media companies to remove content before crossing a constitutional line from persuasion into coercion.

The case, known as Murthy v. Missouri, arose out of efforts during the early months of the Biden administration to push social media platforms to take down posts that officials said spread falsehoods about the pandemic and the 2020 presidential election. 

A U.S. district court judge said White House officials, as well as some federal agencies and their employees, violated the First Amendment's right to free speech by "coercing" or "significantly encouraging" social media sites' content-moderation decisions. The judge issued an injunction restricting the Biden administration's contacts with platforms on a variety of issues, though that order has been on hold.

During oral arguments on Monday, the justices seemed skeptical of a ruling that would broadly restrict the government's communications with social media platforms, raising concerns about hamstringing officials' ability to communicate with platforms about certain matters.

"Some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information," Justice Ketanji Brown Jackson told Benjamin Aguiñaga, the Louisiana solicitor general. "I'm really worried about that, because you've got the First Amendment operating in an environment of threatening circumstances from the government's perspective, and you're saying the government can't interact with the source of those problems."

Justice Amy Coney Barrett warned Aguiñaga that one of the proposed standards for determining when the government's actions cross the bound into unlawful speech suppression — namely when a federal agency merely encourages a platform to remove problematic posts — "would sweep in an awful lot." She questioned whether the FBI could reach out to a platform to encourage it to take down posts sharing his and other Louisiana officials' home addresses and calling on members of the public to rally.

Aguiñaga said the FBI could be encouraging a platform to suppress constitutionally protected speech.

The legal battle is one of five that the Supreme Court is considering this term that stand at the intersection of the First Amendment's free speech protections and social media. It was also the first of two that the justices heard Monday that involves alleged jawboning, or informal pressure by the government on an intermediary to take certain actions that will suppress speech.

The second case raises whether a New York financial regulator  violated the National Rifle Association's free speech rights  when she pressured banks and insurance companies in the state to sever ties with the gun rights group after the 2018 shooting in Parkland, Florida. Decisions from the Supreme Court in both cases are expected by the end of June.

The Biden administration's efforts to stop misinformation

The social media case stems from the Biden administration's efforts to pressure platforms, including Twitter, now known as X, YouTube and Facebook, to take down posts it believed spread falsehoods about the pandemic and the last presidential election.

Brought by five social media users and two states, Louisiana and Missouri, their challenge claimed their speech was stifled when platforms removed or downgraded their posts after strong-arming by officials in the White House, Centers for Disease Control, FBI and Department of Homeland Security.

The challengers alleged that at the heart of their case is a "massive, sprawling federal 'Censorship Enterprise,'" through which federal officials communicated with social media platforms with the goal of pressuring them to censor and suppress speech they disfavored.

U.S. District Judge Terry Doughty found that seven groups of Biden administration officials violated the First Amendment because they transformed the platforms' content-moderation decisions into state action by "coercing" or "significantly encouraging" their activities. He limited the types of communications agencies and their employees could have with the platforms, but included several carve-outs.

The U.S. Court of Appeals for the 5th Circuit then determined that certain White House officials and the FBI violated free speech rights when they coerced and significantly encouraged platforms to suppress content related to COVID-19 vaccines and the election. It narrowed the scope of Doughty's order but said federal employees could not "coerce or significantly encourage" a platform's content-moderation decisions.

The justices in October agreed to decide whether the Biden administration impermissibly worked to suppress speech on Facebook, YouTube and X. The high court temporarily paused the lower court's order limiting Biden administration officials' contact with social media companies.

In filings with the court, the Biden administration argued that the social media users and states lack legal standing to even bring the case, but said officials must be free "to inform, to persuade, and to criticize."

"This case should be about that fundamental distinction between persuasion and coercion," Brian Fletcher, principal deputy solicitor general, told the justices. 

Fletcher argued that the states and social media users were attempting to use the courts to "audit all of the executive branch communications with and about social media platforms," and said administration officials public statements are "classic bully pulpit exhortations."

But Aguiñaga told the justices that the platforms faced "unrelenting pressure" from federal officials to suppress protected speech.

"The government has no right to persuade platforms to violate Americans' constitutional rights," he said. "And pressuring platforms in in backrooms shielded from public view is not using the bully pulpit at all. That's just being a bully."

The oral arguments

Several of the justices questioned whether the social media users who brought the suit demonstrated that they suffered a clear injury traceable to the government or could show that an injunction against the government would correct future injuries caused by the platforms' content moderation, which much be shown to bring a challenge in federal courts.

"I have such a problem with your brief," Justice Sonia Sotomayor told Aguiñaga. "You omit information that changes the context of some of your claims. You attribute things to people that it didn't happen to. ... I don't know what to make of all this because I'm not sure how we get to prove direct injury in any way."

Aguiñaga apologized and said he takes "full responsibility" for any aspects of their filings that were not forthcoming.

Justice Elena Kagan asked Aguiñaga to point to the piece of evidence that most clearly showed that the government was responsible for his clients having material taken down.

"We know that there's a lot of government encouragement around here," she said. "We also know that the platforms are actively content moderating, and they're doing that irrespective of what the government wants, so how do you decide that it's government action as opposed to platform action?"

The justices frequently raised communications between the federal government and the press, which often involve heated discussions.

Justice Samuel Alito referenced emails between federal officials and platforms, some of which he said showed "constant pestering" by White House employees and requests for meetings with the social media sites.

"I cannot imagine federal officials taking that approach to the print media, our representatives over there," he said, referencing the press section in the courtroom. "If you did that to them, what do you think the reaction would be?"

Alito speculated that the reason why the federal officials felt free to pressure the platforms was because it has Section 230, a key legal shield for social media companies, and possible antitrust action "in its pocket," which he called "big clubs available to it." 

"It's treating Facebook and these other platforms like they're subordinates," Alito said. "Would you do that to the New York Times or the Wall Street Journal or the Associated Press or any other big newspaper or wire service?"

Fletcher conceded that officials' anger is "unusual," but said it's not odd for there to be a back-and-forth between White House employees and the media.

Kavanaugh, though, said that he "assumed, thought, experienced government press people throughout the federal government who regularly call up the media and berate them." He also noted that "platforms say no all the time to the government."

Chief Justice John Roberts — noting that he has "no experience coercing anybody" — said the government is "not monolithic, and that has to dilute the concept of coercion significantly." Roberts said one agency may be attempting to coerce a platform one way, while another may be pushing it to go the other direction.

The NRA's court fight

In the second case, the court considered whether the former superintendent of the New York State Department of Financial Services violated the NRA's free speech rights when she pushed regulated insurance companies and banks to stop doing business with the group.

Superintendent Maria Vullo, who left her post in 2019, had been investigating since 2017 two insurers involved in NRA-endorsed affinity programs, Chubb and Lockton, and determined they violated state insurance law. The investigation found that a third, Lloyd's of London, underwrote similar unlawful insurance products for the NRA.

Then, after the Parkland school shooting in February 2018, Vullo issued guidance letters that urged regulated entities "to continue evaluating and managing their risks, including reputational risks" that may arise from their dealings with the NRA or similar gun rights groups.

Later that year, the Department of Financial Services entered into consent decrees with the three insurance companies it was investigating. As part of the agreements, the insurers admitted they provided some unlawful NRA-supported programs and agreed to stop providing the policies to New York residents. 

The NRA then sued the department, alleging that Vullo privately threatened insurers with enforcement action if they continued working with the group and created a system of "informal censorship" that was designed to suppress its speech, in violation of the First Amendment.

A federal district court sided with the NRA, finding that the group sufficiently alleged that Vullo's actions "could be interpreted as a veiled threat to regulated industries to disassociate with the NRA or risk DFS enforcement action."

But a federal appeals court disagreed and determined that the guidance letters and a press release couldn't "reasonably be construed as being unconstitutionally threatening or coercive," because they "were written in an even-handed, nonthreatening tone" and used words intended to persuade, not intimidate.

The NRA appealed the decision to the Supreme Court, which agreed to consider whether Vullo violated the group's free speech rights when she urged financial entities to sever their ties with it.

"Allowing unpopular speech to form the basis for adverse regulatory action under the guise of 'reputational risk,' as Vullo attempted here, would gut a core pillar of the First Amendment," the group, which is represented in part by the American Civil Liberties Union, told the court in a filing .

The NRA argued that Vullo "openly targeted the NRA for its political speech and used her extensive regulatory authority over a trillion-dollar industry to pressure the institutions she oversaw into blacklisting the organization."

"In the main, she succeeded," the organization wrote. "But in doing so, she violated the First Amendment principle that government regulators cannot abuse their authority to target disfavored speakers for punishment."

Vullo, though, told the court that the insurance products the NRA was offering its members were unlawful, and noted that the NRA itself signed a consent order with the department after Vullo left office after it found the group was marketing insurance producers without the proper license from the state.

"Accepting the NRA's arguments would set an exceptionally dangerous precedent," lawyers for the state wrote in a Supreme Court brief. "The NRA's arguments would encourage damages suits like this one and deter public officials from enforcing the law — even against entities like the NRA that committed serious violations."

The NRA, they claimed, is asking the Supreme Court to give it "favored status because it espouses a controversial view," and the group has never claimed that it was unable to exercise its free speech rights.

• Biden Administration
• Supreme Court of the United States
• Social Media
• Free Speech

Melissa Quinn is a politics reporter for CBSNews.com. She has written for outlets including the Washington Examiner, Daily Signal and Alexandria Times. Melissa covers U.S. politics, with a focus on the Supreme Court and federal courts.

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First Amendment Cases Outline

The First Amendment of the U.S. Constitution broadly prevents the government from restricting the freedom of speech or the press. It also prevents the government from prohibiting the free exercise of religion or passing laws regarding an establishment of religion. In addition, the First Amendment protects freedom of association, although this is not explicitly mentioned in the text. Below is an outline of key cases in First Amendment law with links to the full text of virtually every case, provided free by Justia.

• 1 Incitement, Fighting Words, and Free Speech
• 2 Expressive Conduct and Free Speech
• 3 Hate Speech Under the First Amendment
• 4 Obscenity and Free Speech
• 5 Libel and Free Speech
• 6 Elections and the First Amendment
• 7 Public Schools and Free Speech
• 8 Government Speech Under the First Amendment
• 9 Public Forums and Free Speech
• 10 Reporter Shields and the First Amendment
• 11 The Free Exercise Clause
• 12 The Establishment Clause
• 13 Freedom of Association

Incitement, Fighting Words, and Free Speech

The government may prohibit speech that is directed to inciting or producing imminent unlawful conduct and is likely to incite or produce it. The First Amendment also does not protect fighting words that by their utterance inflict an injury or tend to incite an immediate breach of the peace.

Schenck v. U.S. 一 Words that, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Frohwerk v. U.S. 一 The First Amendment, while prohibiting legislation against free speech as such, was not intended to give immunity to every possible use of language.

Debs v. U.S. 一 The delivery of a speech in such word and such circumstances that the probable effect will be to prevent recruiting, and with that intent, is not protected because of the fact that the purpose to oppose the war and obstruct recruiting, and the expressions used in that regard, were but incidental parts of a general propaganda of socialism and expressions of a general and conscientious belief.

Abrams v. U.S. (Holmes dissent) 一 It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion when private rights are not concerned.

Gitlow v. New York 一 The government cannot reasonably be required to defer taking measures against revolutionary utterances advocating the overthrow of organized government until they lead to actual disturbances of the peace or imminent danger of the government’s destruction.

Whitney v. California (Brandeis concurrence) 一 No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.

Dennis v. U.S. 一 Courts must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.

Brandenburg v. Ohio 一 Freedoms of speech and press do not permit a state to forbid advocacy of the use of force or of law violation except when such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Cantwell v. Connecticut 一 When a clear and present danger of riot, disorder, interference with traffic on the public streets, or other immediate threat to public safety, peace, or order appears, the power of the state to prevent or punish is obvious.

Chaplinsky v. New Hampshire 一 There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words, which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Cohen v. California 一 A state could not make the simple public display of a single four-letter expletive a criminal offense.

Terminiello v. Chicago 一 Freedom of speech, although not absolute, is protected against censorship or punishment unless it is shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.

Feiner v. New York 一 When a speaker passes the bounds of argument or persuasion and undertakes incitement to riot, the police are not powerless to prevent a breach of the peace.

Forsyth County v. Nationalist Movement 一 Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.

Expressive Conduct and Free Speech

Sometimes called symbolic speech, expressive conduct that is intended to convey a certain message may be entitled to some constitutional protection, but a more lenient standard known as intermediate scrutiny may apply.

U.S. v. O’Brien 一 When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms. A government regulation is sufficiently justified if it is within the constitutional power of the government, it furthers an important or substantial governmental interest, the governmental interest is unrelated to the suppression of free expression, and the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Texas v. Johnson 一 The government generally has a freer hand in restricting expressive conduct than in restricting the written or spoken word. However, it may not proscribe particular conduct because it has expressive elements.

Barnes v. Glen Theatre, Inc. 一 Nude dancing at adult entertainment establishments is expressive conduct within the outer perimeters of the First Amendment, but only marginally so. The enforcement of a public indecency law to prevent totally nude dancing does not violate the First Amendment guarantee of freedom of expression.

Hate Speech Under the First Amendment

There is no categorical First Amendment exception for hate speech, which is generally treated as a form of political speech. The Supreme Court has acknowledged that hurtful speech on public issues must be protected to avoid stifling public debate.

Beauharnais v. Illinois 一 In the face of a history of tension and violence and its frequent obligato of extreme racial and religious propaganda, a state legislature was not without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented.

R.A.V. v. City of St. Paul 一 Areas of speech that can be regulated because of their constitutionally proscribable content still cannot be made vehicles for content discrimination unrelated to their distinctively proscribable content. However, when the basis for the content discrimination consists entirely of the very reason why the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular secondary effects of the speech, so the regulation is justified without reference to the content of the speech.

Virginia v. Black 一 While a state may ban cross burning carried out with the intent to intimidate, a provision in a statute treating any cross burning as prima facie evidence of intent to intimidate rendered the statute unconstitutional.

Snyder v. Phelps 一 The First Amendment can serve as a defense in state tort claims, including claims for intentional infliction of emotional distress. Whether the First Amendment prohibits holding a defendant liable for their speech turns largely on whether the speech is of public or private concern, as determined by all the circumstances of the case.

Obscenity and Free Speech

The First Amendment does not protect obscenity or child pornography. The three-part test for obscenity in Miller v. California limits this term to a narrow category of adult pornography. Disputes sometimes arise over material that is not obscene but may be harmful to children.

Roth v. U.S. 一 Obscenity is not within the area of constitutionally protected freedom of speech or press under the First Amendment.

Miller v. California 一 The guidelines for the trier of fact in an obscenity case are whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

New York v. Ferber 一 States are entitled to greater leeway in the regulation of pornographic depictions of children. The standard of Miller v. California for determining what is legally obscene is not a satisfactory solution to the child pornography problem.

Paris Adult Theatre I v. Slaton 一 States have a legitimate interest in regulating commerce in obscene material and its exhibition in places of public accommodation, including adult theaters.

American Booksellers Association, Inc. v. Hudnut 一 An ordinance cannot establish an approved view of women and allow only those who espouse the approved view to use sexual images.

Reno v. ACLU 一 Although the government has an interest in protecting children from potentially harmful materials, a law cannot pursue this interest by suppressing a large amount of speech that adults have a constitutional right to send and receive if less restrictive alternatives would be at least as effective in achieving the law’s legitimate purposes.

Ashcroft v. ACLU I 一 A law’s reliance on community standards to identify what material is harmful to minors did not by itself render the statute substantially overbroad for First Amendment purposes.

Ashcroft v. ACLU II 一 The government failed to show that it would be likely to disprove the contention that blocking and filtering software would be a less restrictive alternative.

Libel and Free Speech

A public official or public figure pursuing a libel claim must show a certain level of fault by the defendant to establish that the First Amendment does not shield them from liability. Private individuals generally need to meet only the standard provided by state law.

New York Times Co. v. Sullivan 一 A state cannot award damages to a public official for defamatory falsehood related to their official conduct unless they prove actual malice, which means that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.

Curtis Publishing Co. v. Butts 一 A public figure who is not a public official may recover damages for defamatory falsehood substantially endangering their reputation on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily maintained by responsible publishers. (In a concurrence, Justice Warren advised applying the New York Times standard.)

Gertz v. Robert Welch, Inc. 一 So long as they do not impose liability without fault, states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood that injures a private individual and whose substance makes substantial danger to reputation apparent.

U.S. v. Alvarez 一 There is no general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression that the First Amendment seeks to guarantee.

Elections and the First Amendment

Money spent on campaigns is considered political speech. The First Amendment affects campaign contributions and expenditures in different ways. Political speech may receive protection even if it comes from a corporation.

Buckley v. Valeo 一 Restrictions on individual contributions to political campaigns and candidates did not violate the First Amendment. However, restrictions on independent expenditures in campaigns, limits on expenditures by candidates from their personal or family resources, and limits on total campaign expenditures violated the First Amendment.

Citizens United v. FEC 一 Corporate funding of independent political broadcasts in candidate elections cannot be limited. Political speech is indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation.

McCutcheon v. FEC 一 Congress may regulate campaign contributions to protect against corruption or the appearance of corruption, but it may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.

Republican Party of Minnesota v. White 一 A canon of judicial conduct that prohibits a candidate for a judicial office from announcing their views on disputed legal or political issues violates the First Amendment.

Minnesota Voters Alliance v. Mansky 一 A ban on voters wearing a political badge, political button, or anything bearing political insignia inside a polling place on Election Day violated the Free Speech Clause.

Public Schools and Free Speech

Disputes over free speech in school settings usually involve either speech by students on controversial subjects or speech in school-sponsored expressive activities. For example, schools often can restrict student speech that promotes illegal conduct.

West Virginia State Board of Education v. Barnette 一 The action of a state in making it compulsory for children in public schools to salute the flag and pledge allegiance violates the First Amendment. The issue does not turn on the possession of particular religious views or the sincerity with which they are held.

Tinker v. Des Moines Independent Community School District 一 A student may express their opinions, even on controversial subjects, if they do so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school, and without colliding with the rights of others. However, conduct by a student that materially disrupts classwork or involves substantial disorder or invasion of the rights of others is not immunized by the constitutional guarantee of freedom of speech.

Hazelwood School District v. Kuhlmeier 一 Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns.

Morse v. Frederick 一 A principal may restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use.

Government Speech Under the First Amendment

Constitutional free speech requirements do not apply to government speech, which sometimes includes publicly funded private speech. Government employees may have free speech rights when they are speaking as private citizens on matters of public concern, but not as employees on matters of personal interest.

FCC v. League of Women Voters 一 A broad ban on all editorializing by every broadcast station that receives public funds exceeds what is necessary to protect against the risk of government interference or to prevent the public from assuming that editorials by public broadcasting stations represent the official view of the government.

Rust v. Sullivan 一 The government may make a value judgment favoring childbirth over abortion and implement that judgment by the allocation of public funds. In so doing, the government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another.

Legal Services Corp. v. Velazquez 一 Viewpoint-based funding decisions may be sustained when the government is the speaker, or when the government uses private speakers to transmit information pertaining to its own program. It does not follow that viewpoint-based restrictions are proper when the government does not speak or subsidize transmittal of a message that it favors but instead expends funds to encourage a diversity of views from private speakers.

National Endowment for the Arts v. Finley 一 Although the First Amendment applies in the subsidy context, Congress has wide latitude to set spending priorities. Also, when the government is acting as patron rather than sovereign, the consequences of imprecision in its decision-making criteria are not constitutionally severe.

Red Lion Broadcasting Co., Inc. v. FCC 一 It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail. The right of the viewers and listeners, rather than the right of the broadcasters, is paramount.

Pleasant Grove City v. Summum 一 The placement of a permanent monument in a public park is a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.

Pickering v. Board of Education 一 When a public employee’s false statements concerned issues that were currently the subject of public attention and did not interfere with the performance of their duties or the general operation of their employer, they were entitled to the same protection as if the statements had been made by a member of the general public.

Givhan v. Western Line Consolidated School District 一 A public employee does not forfeit their First Amendment protection when they arrange to communicate privately with their employer, rather than expressing their views publicly.

Connick v. Myers 一 When a public employee speaks as an employee on matters only of personal interest, a federal court is generally not the appropriate forum to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.

Garcetti v. Ceballos 一 When public employees make statements pursuant to their official duties, the Constitution does not insulate their communications from employer discipline.

Lane v. Franks 一 A public employee’s sworn testimony outside the scope of their ordinary job duties is entitled to First Amendment protection.

Heffernan v. City of Paterson 一 When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment.

Public Forums and Free Speech

A three-part test applies to “time, place, and manner” restrictions that a government can impose on protected speech in public forums. When the government limits access to a designated public forum, it generally can engage in content discrimination but not viewpoint discrimination.

Ward v. Rock Against Racism 一 Even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided that the restrictions are justified without reference to the content of the regulated speech, they are narrowly tailored to serve a significant governmental interest, and they leave open ample alternative channels for communication of the information.

Rosenberger v. Rector and Visitors of the University of Virginia 一 In determining whether the government is acting to preserve the limits of the forum that it has created so that the exclusion of a class of speech is legitimate, there is a distinction between content discrimination and viewpoint discrimination. Content discrimination may be permissible if it preserves the purposes of the limited forum. Viewpoint discrimination is presumed impermissible when directed against speech that is otherwise within the forum’s limitations.

Reporter Shields and the First Amendment

The First Amendment does not create a privilege for members of the media who seek to shield their sources during a criminal investigation.

Branzburg v. Hayes 一 The First Amendment does not relieve a newspaper reporter of the obligation to respond to a grand jury subpoena and answer questions relevant to a criminal investigation. Therefore, the First Amendment does not afford a reporter a constitutional testimonial privilege for an agreement that they make to conceal facts relevant to a grand jury’s investigation of a crime or to conceal the criminal conduct of their source or evidence of it.

In re Miller 一 There is no First Amendment privilege that protects journalists’ confidential sources in the context of a grand jury investigation. If any federal common law privilege exists, it is not absolute.

The Free Exercise Clause

The First Amendment prevents the government from prohibiting the free exercise of religion. The federal Religious Freedom Restoration Act requires strict scrutiny for federal laws that burden free exercise, unless the burden is only incidental. In contrast, state and local laws in states that have not passed their own versions of RFRA are generally subject only to rational basis review as long as they are neutral and generally applicable.

Sherbert v. Verner 一 A substantial infringement of an individual’s right to religious freedom must be justified by a compelling state interest.

Employment Division v. Smith 一 The Free Exercise Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that their religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for non-religious reasons.

City of Boerne v. Flores 一 Although Congress can enact legislation enforcing the constitutional right to the free exercise of religion, its power to enforce under Section 5 of the Fourteenth Amendment is only preventive or remedial.

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal 一 The Religious Freedom Restoration Act prohibits the federal government from substantially burdening a person’s exercise of religion, unless the government demonstrates that the application of the burden to the person represents the least restrictive means of advancing a compelling interest.

Burwell v. Hobby Lobby Stores, Inc. 一 RFRA applies to regulations that govern the activities of closely held for-profit corporations. Protecting the free exercise rights of closely held corporations protects the religious liberty of the people who own and control them.

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 一 If the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral. It is invalid unless it is justified by a compelling interest and narrowly tailored to advance that interest.

Locke v. Davey 一 A state’s exclusion of the pursuit of a devotional theology degree from its otherwise inclusive scholarship aid program did not violate the Free Exercise Clause.

Goldman v. Weinberger 一 Review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society.

Wisconsin v. Yoder 一 The state interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause and the traditional interest of parents with respect to the religious upbringing of their children.

Bowen v. Roy 一 While the Free Exercise Clause affords an individual protection from certain forms of governmental compulsion, it does not afford an individual a right to dictate the conduct of the government’s internal procedures.

Lyng v. Northwest Indian Cemetery Protective Association 一 Incidental effects of government programs, which may interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require the government to bring forward a compelling justification for its otherwise lawful actions.

Reynolds v. U.S. 一 A party’s religious belief cannot be accepted as a justification for committing an overt act made criminal by the law of the land.

Trinity Lutheran Church of Columbia, Inc. v. Comer 一 Denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion. Thus, laws imposing special disabilities on the basis of religious status trigger the strictest scrutiny.

Espinoza v. Montana Department of Revenue 一 A state need not subsidize private education, but once a state decides to do so, it cannot disqualify some private schools solely because they are religious.

Fulton v. Philadelphia 一 A law is not generally applicable under the Free Exercise Clause if it invites the government to consider the particular reasons for a person’s conduct by creating a mechanism for individualized exemptions. When such a system of individual exemptions exists, the government may not refuse to extend that system to cases of religious hardship without a compelling reason.

Kennedy v. Bremerton School District 一 The Free Exercise and Free Speech Clauses protect an individual engaging in a personal religious observance from government reprisal. The Constitution neither mandates nor permits the government to suppress such religious expression.

The Establishment Clause

The First Amendment also prevents the government from establishing a religion. The Supreme Court articulated a three-part test in Lemon v. Kurtzman for Establishment Clause challenges. These often arise in the context of government benefits, school facilities and activities, and public religious displays. Establishment Clause cases tend to be highly fact-specific.

Lemon v. Kurtzman 一 To comply with the Establishment Clause, a law must have a secular legislative purpose, its principal or primary effect must neither advance nor inhibit religion, and it must not foster an excessive government entanglement with religion.

Everson v. Board of Education 一 The First Amendment does not prohibit a state from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools.

Mueller v. Allen 一 A statute does not violate the Establishment Clause when it allows state taxpayers to deduct expenses incurred in providing tuition, textbooks, and transportation for their children attending an elementary or secondary school, even if parents take the tax deduction for expenses incurred in sending their children to parochial schools.

Zelman v. Simmons-Harris 一 A government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their genuine and independent private choice.

Rosenberger v. Rector and Visitors of the University of Virginia 一 The guarantee of neutrality is respected when the government, following neutral criteria and even-handed policies, extends benefits to recipients whose ideologies and viewpoints, including some that are religious, are broad and diverse.

McCollum v. Board of Education 一 The utilization of a state’s tax supported public school system and its machinery for compulsory public school attendance to enable sectarian groups to give religious instruction to public school pupils in public school buildings violated the First Amendment.

Zorach v. Clauson 一 A program did not violate the First Amendment when it permitted public schools to release students during school hours, on written requests of their parents, so that they may leave the school buildings and grounds and go to religious centers for religious instruction or devotional exercises.

Engel v. Vitale 一 State officials may not compose an official state prayer and require that it be recited in public schools, even if the prayer is denominationally neutral, and even if students may remain silent or be excused.

Lee v. Weisman 一 Including clergy who offer prayers as part of an official public school graduation ceremony is forbidden by the Establishment Clause.

Santa Fe Independent School District v. Doe 一 A policy permitting student-led, student-initiated prayer at football games violated the Establishment Clause.

Abington School District v. Schempp 一 No state law or school board may require that passages from the Bible be read or that the Lord’s Prayer be recited in public schools, even if students may be excused from attending or participating upon written request of their parents.

Epperson v. Arkansas 一 A state could not prohibit teachers in state-supported schools and universities from teaching or using a textbook that teaches the theory of evolution.

Edwards v. Aguillard 一 A state cannot forbid teaching the theory of evolution in public schools unless accompanied by instruction in creation science, even if the law does not require teaching either theory unless the other is taught.

Lynch v. Donnelly 一 A city’s inclusion of a creche in its annual Christmas display in a private park, which also included secular symbols, did not violate the Establishment Clause.

Allegheny County v. ACLU 一 A creche display violated the Establishment Clause when the creche angel’s words endorsed a patently Christian message, and nothing in the creche’s setting detracted from that message.

McCreary County v. ACLU of Kentucky 一 When the text of the Ten Commandments is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message that goes beyond an excuse to promote the religious point of view.

Van Orden v. Perry 一 While the Ten Commandments are religious, they also have a historical meaning. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC 一 The Establishment and Free Exercise Clauses bar lawsuits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.

Town of Greece v. Galloway 一 Legislative prayer, while religious in nature, is compatible with the Establishment Clause.

American Legion v. American Humanist Association 一 When time’s passage imbues a religiously expressive monument, symbol, or practice with familiarity and historical significance, removing it may no longer appear neutral, especially to the local community. The passage of time thus gives rise to a strong presumption of constitutionality.

Freedom of Association

The Constitution implicitly provides not only a right to associate but also a right not to associate. Some freedom of association cases involve the involuntary collection of funds to support an association. In other cases, the right of a group to exclude certain people from membership clashes with anti-discrimination laws.

NAACP v. Alabama ex rel. Patterson 一 Immunity from state scrutiny of NAACP membership lists is so related to the right of NAACP members to pursue their lawful private interests privately and to associate freely with others in doing so that it comes within the protection of the Fourteenth Amendment.

Abood v. Detroit Board of Education 一 A union’s expenditures for ideological causes not germane to its duties as a collective bargaining representative must be financed from charges, dues, or assessments paid by employees who do not object to advancing such causes and who are not coerced into doing so against their will by the threat of loss of governmental employment.

Glickman v. Wileman Brothers & Elliott, Inc. 一 Assessments to fund a lawful collective program may be used to pay for non-ideological speech over the objection of some members of the group if the speech is germane to the purpose for which the compelled association was justified.

U.S. v. United Foods, Inc. 一 Compelled subsidies for speech have not been upheld in the context of a program in which the principal object is speech itself.

Johanns v. Livestock Marketing Association 一 Citizens may challenge compelled support of private speech but have no First Amendment right not to fund government speech. This is no less true when the funding is achieved through targeted assessments devoted exclusively to the program to which the assessed citizens object.

Janus v. AFSCME 一 The state’s extraction of agency fees from non-consenting public-sector employees violates the First Amendment. (This decision overturned Abood , although largely on free speech grounds.)

Roberts v. U.S. Jaycees 一 Infringements on the right to associate for expressive purposes may be justified by regulations adopted to serve compelling state interests that are unrelated to the suppression of ideas and cannot be achieved through means significantly less restrictive of associational freedoms.

Boy Scouts of America v. Dale 一 Government actions that unconstitutionally burden the right of expressive association include intruding into a group’s internal affairs by forcing it to accept a member whom it does not desire. Such forced membership is unconstitutional if the person’s presence significantly affects the group’s ability to advocate public or private viewpoints.

Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc. 一 A state may not require private citizens who organize a parade to include among the marchers a group imparting a message that the organizers do not wish to convey.

Rumsfeld v. Forum for Academic and Institutional Rights, Inc. 一 Congress could require law schools to provide equal access to military recruiters without violating the schools’ freedoms of speech and association.

This outline has been compiled by the Justia team for solely educational purposes and should not be treated as an independent source of legal authority or a summary of the current state of the law. Students should use this outline as a supplement rather than a substitute for course-specific outlines.

Last reviewed August 2023

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What Does Free Speech Mean?

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

The First Amendment states, in relevant part, that:

“Congress shall make no law...abridging freedom of speech.”

Freedom of speech includes the right:

• Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette , 319 U.S. 624 (1943).
• Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”). Tinker v. Des Moines , 393 U.S. 503 (1969).
• To use certain offensive words and phrases to convey political messages. Cohen v. California , 403 U.S. 15 (1971).
• To contribute money (under certain circumstances) to political campaigns. Buckley v. Valeo , 424 U.S. 1 (1976).
• To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council , 425 U.S. 748 (1976);  Bates v. State Bar of Arizona , 433 U.S. 350 (1977).
• To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson , 491 U.S. 397 (1989);  United States v. Eichman , 496 U.S. 310 (1990).

Freedom of speech does not include the right:

• To incite imminent lawless action. Brandenburg v. Ohio , 395 U.S. 444 (1969).
• To make or distribute obscene materials. Roth v. United States , 354 U.S. 476 (1957).
• To burn draft cards as an anti-war protest. United States v. O’Brien , 391 U.S. 367 (1968).
• To permit students to print articles in a school newspaper over the objections of the school administration.  Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988).
• Of students to make an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser , 478 U.S. 675 (1986).
• Of students to advocate illegal drug use at a school-sponsored event. Morse v. Frederick, __ U.S. __ (2007).

Disclaimer: These resources are created by the Administrative Office of the U.S. Courts for use in educational activities only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on legislation. 

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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Freedom of Speech Court Cases

Click below to see which landmark court cases defined the meaning of free speech within each category.

Political Speech

Speech that criticizes and may threaten government or government action, ex parte mccardle (1869).

Supreme Court Justices

NUMERICAL VOTE:

8-0 unanimous Decided, April 12, 1869.

BACKGROUND:

In 1867, Congress passed an Act to Provide for the More Efficient Government of the Rebel States. This law was the first of the Reconstruction Acts that divided the South into five military districts and provided the means by which the seceded southern states could return to the Union. Each district was governed by a military general who exercised great power over the citizens of the former Confederate states. William H. McCardle, a Confederate veteran and editor of the Vicksburg Times in Mississippi, published a series of articles critical of Reconstruction and, in particular, the major general in command of his military district, Edward O. C. Ord. He ordered the arrest of McCardle for inciting insurrection and impeding the efforts of Reconstruction. McCardle was brought before a military court and convicted of the charges. He claimed that the Reconstruction Acts used against him were unconstitutional and sought a writ of habeas corpus. The court refused to issue the writ, which would have freed him from prison on the basis of an unconstitutional arrest and charge. McCardle appealed this decision to the Supreme Court arguing that a congressional statute had given the Court jurisdiction over such cases with the Habeas Corpus Act of 1867. Between the hearing and decision in this case, Congress repealed the former Habeas Corpus Act. In so doing, it protected the Reconstruction Acts from judicial review.

Does Congress have the right to withdraw jurisdiction from the Supreme Court to review decisions of lower courts after that jurisdiction had originally been granted? The sub-issue here is whether Congress can create another anti-sedition act, much like the one enacted in 1798, that will be enforced by military courts in areas where martial law has been declared. In effect, do the First Amendment protections remain in force for all citizens in those areas?

The Supreme Court unanimously dismissed McCardle’s appeal because the Court no longer had jurisdiction over the case. Article III, Section 2 of the Constitution includes the Exceptions Clause, which gives Congress the power to deny the Supreme Court jurisdiction over particular cases. In writing the majority opinion for the court, Samuel Chase stated, "The provision of the act of 1867 affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception." McCardle’s prior conviction was upheld. As a result, the decisions by the military courts denying the First Amendment rights to McCardle remained in force.

SIGNIFICANCE:

In ex parte McCardle , Congress demonstrated its authority to prevent the US Supreme Court from hearing cases that were deemed politically sensitive. Congress did so by invoking Article III, Section 2 of the Constitution. This is the first and only time Congress imposed this restriction. As a result, martial law imposed on the former Confederate states during Reconstruction represented the greatest national anti-sedition law since 1798.

Schenck v. United States (1919)

9-0 unanimous Decided March 3, 1919.

In May 1917 Congress passed the Military Conscription Act to draft men into the American Expeditionary Forces in World War I. It also enacted the Espionage Act (1917), making it illegal to interfere in any way with the draft or the war effort. Charles Schenck, general secretary of the local branch of the Socialist Party in Philadelphia, opposed US involvement in World War I and sought to influence the public to peacefully oppose the draft. He organized the distribution of 15,000 leaflets through the mail encouraging men to refuse to submit to the draft. Schenck argued that the draft was a violation of the Thirteenth Amendment, which had ended slavery in the United States. He urged his readers to “assert your rights ... do not submit to intimidation.” Police raided the headquarters of the Socialist Party and arrested Schenck. He was convicted of violating the Espionage Act of 1917 and sentenced to ten years in jail.

Was Schenck’s distribution of materials encouraging resistance to the draft during wartime protected by the First Amendment?

The unanimous court decided that Schenck’s actions and messages violated the Espionage Act. Justice Oliver Wendell Holmes wrote, “We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” He further argued, “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right.”

This decision represented the first time the Court examined the role of the federal government in limiting free speech protected by the First Amendment. While the First Amendment reads “Congress shall make no law ... abridging Freedom of Speech,” the law can punish the action following, and possibly caused by, the speech, and not the speech itself. Holmes decided to create a balancing test that measured the closeness of the linkage between the allegedly offending speech and the possibly dangerous action that might result from it, the “clear and present danger” test: “The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” So, in theory, Holmes would need to see people failing to register for the draft, and the military negatively affected by that fact, leading to problems fighting the war. However, because it was wartime, and a period of emergency for the country, he argued that the speech could be limited.

Debs v. United States (1919)

9-0 unanimous Decided March 10, 1919.

Eugene V. Debs was a well-known labor activist and leader of the Socialist Party in the United States. On June 16, 1918, he delivered a speech in Canton, Ohio, to an audience of approximately 1,200 people. As a pacifist, Debs opposed US involvement in World War I. However, in this speech he intentionally avoided language that could be interpreted as advocating any illegal action in resistance to the war, telling the audience that he had to be “prudent” with what he said and how he said it. Despite that, he expressed concern and sympathy for other Socialists who had recently been arrested for making antiwar statements and inciting resistance to the draft. He also shared his view that “the master class has always declared wars; the subject class has always fought the battles.” While the link between the speech and the draft was vague, Debs had, weeks before, signed the Anti-War and Proclamation Program, which very explicitly criticized the draft. Congress had expanded limits on free expression by passing the Sedition Act in 1918, which made it illegal to use “language intended to cause contempt or scorn for the form of government of the United States, the Constitution, or the flag and made it a crime to oppose the cause of the United States.” Weeks after delivering his speech in Ohio, Debs was arrested under both the Espionage Act of 1917 and the Sedition Act. During his trial, Debs chose to defend himself in order to bring attention to his socialist views and the importance of protecting free speech. He was found guilty and sentenced to ten years in prison.

Was Debs’s arrest and conviction under the Espionage Act of 1917 and the Sedition Act of 1918 a violation of his First Amendment right to freedom of speech? Did Debs, like Schenck, present a “clear and present danger” to the US war effort?

Chief Justice Oliver Wendell Holmes upheld Debs’s conviction on grounds similar to those established in the Schenck case. Holmes suggested that Debs’s words presented a “clear and present danger” during wartime even though he never advocated outright resistance to the draft. Here he was judging more than the emergency of the wartime situation; he was arguing that Debs’s speech might lead to danger, and the government could not afford to wait to see what would result. According to Holmes, Debs’s general intent and support for others who advocated resistance were enough to proceed with the conviction.

The Espionage and Sedition Acts passed during World War I significantly curtailed freedom of speech. Eugene V. Debs’s socialist views and his public comments were seen as a direct challenge to the safety and security of the United States. While serving his sentence Debs ran his fifth presidential race in 1920, earning almost one million votes. He was pardoned in 1921 by President Warren G. Harding. After this case, though, Holmes realized that by using his “Clear and present danger” test to judge the mindset of Debs, rather than his actual speech and the direct action resulting from that speech, he had gone too far. He would have to change his definition of the test to allow for more tolerance of speech that was critical of the government.

Abrams v. United States (1919)

7-2 split decision Decided: November 10, 1919.

In the midst of World War I, Jacob Abrams, a Russsian-born American, was charged with and convicted of inciting resistance to the war effort and urging curtailment of the production of essential war materials. He and others had thrown two leaflets from the windows of a building in New York City. These leaflets, signed “revolutionists,” denounced sending US troops to Russia and called for an end to the production of weapons to be used against the Soviet Union. The defendants used language that criticized the United States as “their hypocritical, cowardly, and capitalistic enemy.” They also urged a general strike of workers in ammunition factories. The defendants were found guilty and sentenced to twenty years in prison under the Espionage Act of 1918.

Does the Espionage Act and its amendments violate the Free Speech Clause of the First Amendment?

In a 7-2 decision, the US Supreme Court voted to uphold the convictions of the defendants on the grounds that their actions had violated the “clear and present” doctrine established by Justice Holmes in Schenck v. United States earlier in 1919. In his majority opinion, Justice John H. Clarke stated, “The language of these circulars was obviously intended to provoke and encourage resistance to the United States in the war...and that the defendants’ actions had therefore passed the ‘clear and present’ threshold.” However, in one of the greatest dissents of his career, Holmes reframed the “clear and present danger” test to judge speech in the free marketplace of ideas. For him, Abrams was a “poor and puny anonymity” who was no threat to the government or America.

This case represents a shift in the thinking of Justice Oliver Wendell Holmes, who provided a dissenting opinion challenging the conviction of Jacob Abrams and the other defendants. Holmes made a distinction in this case by indicating that Abrams was not convicted for what he actually did, but for what he believed. Holmes emphasized his support of the decisions in the cases of Schenck and Debs, but he demonstrated how this case was different: “We should be eternally vigilant against attempts to check the expression of opinions we loath and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” He further argued, “The ultimate good desired is better reached by free trade in ideas.” With these words, like Judge Learned Hand, who convinced him to change his direction in this case, Holmes was now advocating more tolerance of such speakers and their ideas. Nine years later, in Whitney v. California , Holmes and Brandeis would re-create their test to be much more protective of speech.

Gitlow v. New York (1925)

7-2 split decision Decided: June 8, 1925.

The New York Criminal Anarchy Law of 1902 prohibited behavior that advocated the overthrow of government by force. Benjamin Gitlow, a leader of the American Communist Party, was charged under this law for distributing 16,000 copies of the “Left Wing Manifesto” advocating strikes and class action in order to establish socialism in the United States. Gitlow was indicted because he “advocated, advised and taught the duty, necessity and propriety of overthrowing...organized government by force, violence or lawful means” and for publishing materials supporting these actions. In his defense, Gitlow argued that the Manifesto did not advocate violent overthrow of the government. Gitlow’s guilt was upheld by the New York Court of Appeals.

Does the First Amendment prevent a state from punishing political speech that directly advocates the overthrow of the government? Does the First Amendment Free Speech provision now apply to the states?

In a 7-2 decision, the Court for the first time applied the Free Speech provision of the First Amendment to the states, but then it upheld the conviction of Gitlow under the New York Criminal Anarchy Law. Justice Edward Sanford declared that “for present purposes we may and do assume that freedom of speech and of the press...are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Despite this “doctrine of incorporation,” Sanford’s majority opinion recognized the right of individual states to determine restrictions on free speech that might promote violence. In doing so, rather than using the “clear and present danger” test, Sanford used a “bad tendency” test, by which the Court allows a legislature to declare that some words are dangerous for society, in themselves. In effect certain words and thoughts could be banned outright. The legislature believed dangerous actions would inevitably result from those words. Justice Oliver Wendell Holmes’s dissent in this case, however, used the “clear and present danger” test, as he searched for the dangerous actions that would result from the speech. He found no evidence that Gitlow’s words or actions provoked a clear and present danger as established in the Schenck case. He indicated that Gitlow’s publications were protected by the due process clause in the Fourteenth Amendment. He therefore reached a different conclusion in this case than he had in Patterson v. Colorado .

Although through the “doctrine of incorporation” the Court applied the free speech provision of the First Amendment to the states, Gitlow still lost his case. Holmes found that Gitlow would win the case based on the prevailing “clear and present danger” test, since there were no direct actions resulting from this speech. However, the Court used an additional “bad tendency” test that allowed the state legislature to declare certain words to be unacceptable regardless of the other circumstances. The Court signaled that they wanted the free speech provision to be available for future cases at the state level, while establishing the bad tendency test to ensure that Gitlow lost his case.

Whitney v. California (1927)

9-0 unanimous Decided: May 16, 1927.

In 1919 California created the Criminal Syndicalism Act, which declared that “any doctrine or precept advocating, teaching, or aiding and abetting the commission of crime, sabotage ... or unlawful acts of force ... as a means of accomplishing a change in industrial ownership ... or effecting any political change” was a felony. Charlotte Anita Whitney was charged with violating that law when she helped organize the Communist Labor Party of America, joined the group, attended its events, and spoke at some of the events. According to the State of California, her actions raised the threat of the violent overthrow of the state and federal governments.

Did the California Criminal Syndicalism Act of 1919 violate the Fourteenth Amendment’s due process and equal protection clauses? Did Whitney’s organizing activities and speeches constitute “a clear and present danger of substantive evil”?

The US Supreme Court ruled that freedom of speech is not an absolute right, and this state law violated neither the due process nor the equal protection clauses of the Fourteenth Amendment. The Court argued that words with a “bad tendency” can be punished. This was a prevalent test used during World War I to protect the war effort from any expression of speech that might lead to behavior or attitudes that did not support the nation’s cause.

Justice Louis Brandeis and Justice Holmes joined in a separate concurrence, rather than support a majority decision with which they clearly did not agree. Since Whitney’s attorney referenced the bad tendency test from the Gitlow case but not the clear and present danger test, Holmes and Brandeis had a chance in their separate opinion to further define what represented clear and present danger after their change in the Abrams case. Brandeis identified the connection between free speech and the need for public discussion in a democratic society, thereby helping to shape how free speech cases are viewed by the courts. He stated, “Fear of serious injury cannot alone justify suppression of free speech and assembly ... To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced.” Here, Holmes and Brandeis were arguing that one must look at the “imminence” and “seriousness” of the action that likely resulted from the speech.A revised version of this clear and present danger test was later used in Brandenburg v. Ohio in 1949.

Dennis v. United States (1951)

6-2 split decision Decided: June 4, 1951.

In 1948, eleven Communist Party leaders, including Eugene Dennis, the chairman of the Communist Party of the United States of America (CPUSA), were convicted of advocating the violent overthrow of the US government and for violating several points of the Smith Act. The act made it illegal to advocate or conspire to teach the overthrow of the US government by force or belong to an organization that promoted this objective. The party members who had been petitioning for socialist reforms claimed that the act violated their First Amendment right to freedom of speech and that their beliefs served no clear and present danger to the nation.

Did the Smith Act (1940) violate Americans’ constitutional right of protected free speech guaranteed by the First Amendment?

In its 6-2 decision the US Supreme Court upheld the constitutionality of the Smith Act (1940) and the convictions of the eleven Communist Party leaders. The ruling stated that the Smith Act and the ensuing criminal convictions did not “inherently” violate their First Amendment right to freedom of speech. In the plurality opinion (a controlling opinion that does not have the support of a majority), the Court acknowledged that there was a distinction between the mere teaching of Communist philosophies and principles and active advocacy of those ideas, which created a clear and present danger that threatened the US government. Chief Justice Fred M. Vinson employed Judge Learned Hand’s modified version of the “clear and present danger of a serious substantive evil” test: “In each case,” Vinson wrote, courts “must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” This ruling afforded far less protection to freedom of expression than the clear and present danger test. Given the gravity of the consequences amid the threatening circumstances of the Cold War, the Supreme Court contended that success or probability of success was not necessary to justify restrictions on freedom of speech.

This decision featured an adaptation of the clear and present danger test in which the plurality opinion stated, “In each case [courts] must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger.” The threat of American Communists taking over the government was so grave an existential threat to democracy that all that would have to be shown was that the defendants were, in fact, Communists. Vinson took the test that Judge Hand had invented to promote tolerance for dissenters and skewed it to uphold an almost automatic limitation on the free speech of self-identified Communists. The US Department of Justice used this ruling to vigorously pursue and prosecute the activities of the Communist Party of the United States of America and its leaders. The Supreme Court somewhat limited this ruling in Yates v. United States (1957), stating that the Smith Act did not prohibit the mere belief in the theory of forcible overthrow of the government, but rather ”actual advocacy” of this idea. The Court has never specifically repudiated the grave and probable danger theory from Dennis v. United States em> (1951). Indeed, Chief Justice Roberts seems to have used a variation of this idea in his majority opinion in Holder v. Humanitarian Law Project (2010). However, in Brandenburg v. Ohio (1969), a key free speech case, the Warren Court refused to use this test, choosing instead to create a much more supportive test based on a variation of the Whitney v. California (1928) ruling.

Brandenburg v. Ohio (1969)

9-0 unanimous decision Decided: June 9, 1969.

Criminal syndicalism has been defined as a doctrine that “advocates crime, sabotage, violence, or other unlawful methods of terrorism as a means of accomplishing industrial or political reform.” In summer 1964, Clarence Brandenburg, a Ku Klux Klan leader in Ohio, delivered a televised speech at a Klan rally on a farmer’s property in Cincinnati in which he accused the US government of suppressing the “Caucasian race.” A cross was burned, and guns were displayed on the news video of the episode for a local TV channel. That video was not published for days, as other more pressing news topics were aired. When the news footage was aired on TV, Brandenburg was arrested for violating the criminal syndicalism law. Subsequently, he was convicted of violating the Ohio Criminal Syndicalism Statute, which prohibited public speech that advocated and incited illegal actions and activities.

Did Ohio’s criminal syndicalism law, which prohibited public speech that advocated various illegal actions and activities, violate an individual’s right to protected free speech, as guaranteed by the First and Fourteenth Amendments?

In its ruling the US Supreme Court ignored the prevailing Dennis v. United States “gravity of the evil” test, which could have been used by a more conservative court to uphold the state’s regulation. Instead, the liberal justices returned to Justices Holmes’s and Brandeis’s version of the “clear and present” test in their concurrence for the Whitney v. California case in 1928, using the “imminence of the threat” and the “seriousness of the danger” to the state. The Court found that abstract discussions are not the same as actually preparing or inciting individuals to engage in illegal acts. Therefore, Ohio could only limit speech that would incite “imminent unlawful action.” To measure the kind of “imminent lawless action” that would trigger the restriction of speech, the Court, in an unsigned, usually unanimous, per curiam opinion, introduced a two-pronged test stipulating that the government cannot punish inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Notice that there are two key elements here: 1. speech can be prohibited if its purpose is to incite or produce “imminent lawless action” and 2. doing so is likely to incite or produce such an action.

Here, the key fact was the immediacy of the threat, posed by a gathering on a farm in Cincinnati that possibly could represent a threat to the Ohio state government in Columbus, over 100 miles away. The key fact here, that the tape of this event had been in some TV news editor’s desk drawer for days without anything happening, made the decision easy for the Court. As a result, the Ohio criminal syndicalism law was declared unconstitutional because that statute broadly prohibited the mere advocacy of violence.

This case created the test for protecting political speech we still use today. It reversed the rulings in two earlier cases. In 1927, the majority of the Court in Whitney v. California had ruled that speech the California Criminal Syndicalism law should be upheld on the ground that merely “advocating” violent means to effect political and economic change involves such danger to the security of the state that the state may outlaw it. Then, in 1951, the Court sustained the constitutionality of the US government’s Smith Act in Dennis v. United States , saying that the statute protected the state from “grave” dangers posed by a group seeking the overturning of the government. However, in later decisions the Supreme Court began to question and discredit both rulings, and favor the separate opinions of Justices Holmes and Brandeis in Whitney and Justices Douglas and Black in Dennis. In the Brandenburg v. Ohio ruling, the Supreme Court explicitly overturned the majority opinion in the Whitney v. California decision (and ruled in favor of the separate concurrence of Holmes and Brandeis in that case, stating that “the constitutional guarantees of free speech and free press do not permit a State to forbid ... advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action ... A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments.” This case is another one that demonstrates the problems for the Warren Court. This opinion went unsigned because it was originally drafted by Justice Abe Fortas, a liberal, who was forced to resign from the Court that year because of an ethics scandal before the opinion could be announced. So the opinion was finished and redrafted by Justice William Brennan, and it was announced as an unsigned per curiam opinion of the Court.

Holder v. Humanitarian Law Project (2010)

6-3 split decision Decided: June 21, 2010.

Plaintiffs in this case included six organizations, a retired federal administrative law judge, and a surgeon. They filed suit in 1998 when they wished to provide human rights and conflict resolution training to the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), both designated as foreign terrorist organizations by the US. The Humanitarian Law Project (HLP) postponed the training pending the outcome of the case, fearing criminal prosecution. Represented by the Center for Constitutional Rights (CCR), HLP argued that the material support statute violated their First and Fifth Amendment rights.The case wound its way through the federal courts, up to the Ninth Circuit Court of Appeals, which invalidated the definitions of training, expert advice, or assistance derived from specialized knowledge and service as unconstitutionally vague. It did uphold the definitions of personnel and expert advice or assistance derived from scientific or technical knowledge. The Ninth Circuit ruling was limited to the HLP and the facts of its case (as was the Supreme Court case). The Ninth Circuit’s decision reaffirmed that Congress’s attempts to adjust the statute have failed to fix the constitutional problems. In June 2009, the Department of Justice (DOJ) asked the Court to consider the ruling of the Ninth Circuit. HLP opposed Supreme Court review, but also filed a cross petition asking the Court to consider all contested terms if it accepted the case. In September 2009, the Supreme Court granted that request and consolidated the cases.

Are provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA), which prohibit providing “any ... service, ... training, or other specialized knowledge” to designated foreign terrorist organizations, unconstitutionally vague?

The Supreme Court found that requiring proof of specific intent to support terrorism is inconsistent with the text of the statute and the intent of Congress. Here Chief Justice John Roberts, speaking for the majority, seemed to be leaning toward the Dennis v. United States “gravity of the evil” test that would restrict speech if the Court agreed that Congress viewed the result of the expression to be very dangerous. Roberts made it clear that he was deferring to Congress’s definition of terrorism here and accepting their position that any work with these ethnic groups, whatever the reason, might aid a portion of their members who Congress saw as being terrorists. The Court reasoned that multiple factors supported this conclusion that terrorism would benefit from the Humanitarian Law Project’s work. First, a literal reading of 18 USC 2339B clearly prohibits “knowingly” providing material support to terrorism. Second, because two other parts of the law, 2339A and 2339C, not at issue in this case, require that the accused “intend” to provide material support in order to be found in violation of the law, Congress purposefully chose a “knowledge” requirement for 2339B. Finally, the Court rejected a reading that required specific intent only as applied to speech but no other activities. Such a reading, reasoned the Court, would require it to revise the statute as opposed to merely interpret it. In dissent, Justice Stephen Breyer argued that the standard for restricting political speech was still the Brandenburg test as to whether that expression led to “imminent and lawless action and likely to produce such action.” However, Breyer then seemed to offer somewhat less than that level of protection by implying that he would support such regulation if the authorities could specifically link the speech to support for the terrrorist groups that might endanger the United States.

The federal government may prohibit providing non-violent material support for terrorist organizations including legal services and advice without violating the free speech clause of the First Amendment. It is not clear just how protective Chief Justice Roberts and the Court majority were about restricting the right of free speech of those Americans who aid people who might be somehow incidentally connected to terrorism, as Congress had defined it.

Press Regulation and Censorship

Government regulation or censorship of the press, patterson v. colorado (1907).

7-2 split decision Decided April 15, 1907.

Thomas Patterson, a former US senator and publisher of a Denver newspaper, wrote a series of articles and published a cartoon criticizing the Colorado Supreme Court in a pending case. He was held in contempt by the court.

Were Patterson’s First Amendment rights violated by a contempt citation issued by the Colorado Supreme Court? Can the government punish an author/editor/newspaper after the fact once the piece has been published?

The majority opinion was offered by Justice Oliver Wendell Holmes. Holmes argued that the framers’ vision of the First Amendment’s protection was to prevent prior censorship, what is called “prior restraint.” However, he added, it would be possible under some circumstances to protect society’s interests by regulating publications, or even speech, after the language in questions is published or spoken. Holmes asserted, “A publication likely to reach the eyes of a jury declaring a witness in a pending cause a perjurer ... would tend to obstruct the administration of justice...The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Holmes asserted that the editorials written by Patterson were so critical of the state supreme court that contempt was an appropriate remedy. The judge and the judiciary needed to be protected from criticism while a trial is underway so that the judgments will be respected.

The US Supreme Court upheld the right to punish press publication after the fact, in this case to use a contempt citation. However, prior censorship is not allowed. This case relied on the “bad tendency test,” which would be used in later cases involving seditious behavior during wartime. Holmes indicated that in this case, truth was irrelevant to criminal libel. He indicated “the provocation [the bad tendency] and not the falsity, is the thing to be punished criminally.” Justice John Marshall Harlan’s dissent argued that the Fourteenth Amendment applied the rights of free press to the states.

Near v. Minnesota (1930)

5-4 split decision Decided June 1, 1931.

State law in Minnesota allowed the government to censor newspapers prior to publication if they could not demonstrate “good motives and justifiable ends” for what was to be printed. It was also a crime to publish materials that were “obscene or malicious.” Jay Near published articles in the Saturday Press that claimed that elected officials, including the governor and the chief of police, were corrupt. Near was charged with violating Minnesota’s Public Nuisance Law, because his words were “malicious, scandalous, and defamatory,” and was prevented from publishing his newspaper.

Does Minnesota’s “gag law” violate the Free Press Clause of the First Amendment? And would the free press provision of the First Amendment apply to the states under the Fourteenth Amendment’s Due Process Clause?

Like Justice Holmes in Patterson v. Colorado , Chief Justice Charles Evans Hughes argued that while the government may not censor or prohibit a publication in advance, it was still possible for the state to punish the press after publication on such issues as libel, obscenity, and threats to national security. Since the Minnesota law constituted a “prior restraint” and therefore was not valid under the First Amendment, the Court overturned it. Inhe majority opinion Hughes argued, “The question is whether a statute authorizing such proceedings in restraint of publication is consistent with the conception of the liberty of the present as historically conceived and guaranteed. In determining the extent of the constitutional protection, it has been generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication.” But, Hughes argued, there were two exceptions that might allow prior censorship of the press. Drawing from the emergency of wartime analogy of Justice Holmes in the 1919 cases, he argued that the state could ban any press or speech that threatened to reveal “troop movements or sailing dates” of the military.

This was a landmark case involving freedom of the press in two ways. First, the Court applied the “incorporation doctrine,” which applied the rights protected in the Bill of Rights to the individual states under the Fourteenth Amendment. Hughes’s test, making it almost impossible to censor the press in advance, did allow for the subsequent punishment of the press if the effects of those words involved libel, obscenity, and a negative effect on national security. Beyond this, the Court decided that the government could not censor or prohibit a publication in advance except with very narrow exceptions of whether the press was revealing “troop movements or sailing dates.” This test would be central for guiding the Court in 1971 in the Pentagon Papers case, New York Times v. United States .

New York Times v. Sullivan (1964)

9-0 unanimous decision Decided: January 6, 1964.

This case began when the New York Times published a full-page advertisement, entitled “Heed Their Rising Voices,” by the supporters of Dr. Martin Luther King that described the Civil Rights Movement in the South and appealed for donations to defend King on perjury charges. In the text of the advertisement there were several minor factual inaccuracies, including the name of the song sung by the protesters on the steps of the Alabama State Capitol, the reason why the student protesters were expelled from school, and the number of times King had been arrested during the protests.

Even though the name of L. B. Sullivan, the Montgomery public safety commissioner, was not specifically mentioned in the advertisement, he believed that the criticism of his subordinates reflected badly on him and the entire Police Department. Therefore, he brought a civil defamation suit against the newspaper and a group of African American ministers, alleging that he had been libeled by the inaccurate statements in the advertisement. The trial judge in the local county court instructed the jury that the printed statements were libelous due to the presumption of falsity and malice and punitive damages could be awarded. The jury returned a judgment for Sullivan and awarded him $500,000 in damages. After the Alabama state supreme court affirmed this decision, the New York Times appealed the verdict to the US Supreme Court.

Did Alabama’s libel law unconstitutionally infringe on the freedom of speech and freedom of the press protections guaranteed by the First Amendment? If so, what is the standard to determine whether a public figure has been libeled? (It is noteworthy that to sustain a claim of defamation or libel, the First Amendment requires that the plaintiff must show the defendant knew that a statement was false and/or was willfully reckless in deciding to publish the information without investigating its accuracy.)

In March 1964, the Supreme Court issued a unanimous 9-0 decision, written by Justice William J, Brennan, ruling that the Alabama libel law violated the First Amendment and was unconstitutional for its failure to provide safeguards for freedom of speech and of the press. Moreover, the evidence presented in the case was insufficient to support a judgment for Commissioner Sullivan. The standard for judging libel was whether “negligence” had been involved in writing a piece, that is, whether a simple mistake had been made or whether it was technically false and defamatory. Such a standard required publications to take extreme measures to ensure their work was accurate and acceptable. However, for public figures or public officials this would require a great deal of work to confirm the accounts. In sum, the Court ruled that "the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false) or in reckless disregard of their truth or falsity.” The essential difficulty, Brennan acknowledged, was that the “actual malice” standard may protect inaccurate speech, but that the “erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive.” HeBrennan concluded that the United States is founded on the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

In this case, the Supreme Court adopted, for public figures and public officials, the term “actual malice” and gave it constitutional significance to protect the right of the press to report on those individuals freely. The Court held that a public official must prove that the statement in question was made with “actual malice.” Justice Brennan argued that such public figures and officials did not need such legal protection because they could hold press conferences and get public attention to protect themselves. Brennan also wanted to ensure that the press had wide leeway to report on the government to inform citizens and guide their voting. This decision also defended and enhanced free and open news reporting of civil rights activities in the southern United States during the 1960s and 1970s. Moreover, it is one of the key legal decisions that has supported freedom of the press and reduced the financial liability of newspapers and other periodicals from defamation claims and lawsuits, and thereby frustrated the efforts of public officials to use these claims to suppress political criticism.

Time Inc. v. Hill (1967)

5-4 split decision Decided: January 9, 1967.

In 1952, James Hill, his wife, and five children were held hostage in their southeastern Pennsylvania home by three escaped convicts for about nineteen hours. After the family was released unharmed, the three criminals were apprehended by the police in a violent standoff in which two of the convicts were killed. A year later, Joseph Hayes authored a bestselling novel, entitled The Desperate Hours , based on the Hill family’s ordeal. This story, depicting a similar hostage incident, was later produced as a Broadway play. When Life magazine published an article about the play, it contained many inaccuracies and misrepresentations that did not depict the Hills’ actual experiences. But the main issue was that they placed the actors inside the Hill’s house, making it look like this play was an accurate account of the attack. Subsequently, members of the Hill family sued Time, Inc., the publisher of Life magazine, alleging that the magazine deliberately misrepresented the story using fictional details that invaded their right to privacy and caused great emotional distress. As a result of litigation in the New York state supreme court, the Hills were awarded damages of $30,000. Time, Inc. appealed this decision to the US Supreme Court, where the Hill family was represented by lawyer Richard M. Nixon, the future President of the United States.

Is the publication of an account that contains inaccuracies or coverage about a private person who was involved in a public episode protected by the freedom of speech guarantees of the First Amendment?

In its 5-4 decision the US Supreme Court set aside the New York court’s appellate ruling against Time, Inc. because the lower court failed to instruct the jury that Time, Inc.’s liability was contingent upon demonstrating the tenets of the New York Times v. Sullivan libel standard, that it knowingly and recklessly published inaccurate and misleading information about the Hill family. In the absence of proving such malicious intent on the part of the publisher, the Supreme Court asserted that news and press statements are protected by the First Amendment, even if they are otherwise inaccurate and misleading. In the majority opinion Justice William Brennan, who had previously written the majority opinion in the case of New York Times Co. v. Sullivan in 1964, argued that while the Hills were private, their involvement in the public crisis made the incident a public one. Thus, the usual negligence standard that would have been used to judge a libel case for private people would have to be balanced against the right of the public to know and the press’s right to publish about this episode. Brennan said that he would apply and extend the “actual malice” rule to the New York privacy statute when he wrote that states cannot judge in favor of plaintiffs “to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or reckless disregard of the truth.” Cases of “false light privacy,” such as the Hill family’s situation of being put in a false light by fictionalizing a story about them, require demonstration and proof that these inaccuracies and misrepresentations were actually reckless or willful.

The Supreme Court’s decision in Time Inc. v. Hill extended the application of the “actual malice” ruling of New York Times Co. v. Sullivan (1964) in which the Court held that plaintiffs who were public officials could not recover damages for defamation and libel unless they could prove that the defamation had been published with “actual malice,” that is, “with knowledge that it was false or with reckless disregard of whether it was false or not.” The Supreme Court’s decision in Time Inc. v. Hill extended the “actual malice” rule to actions alleging that a plaintiff’s privacy had been upset by “false reports of matters of public interest.” The other significance of this case was its demonstration of the disharmony on the liberal Warren Court. When this case was initially argued, liberal justice Abe Fortas wrote a draft majority opinion ruling against the press using the negligence standard. In response, the great liberal Hugo Black said that he needed the upcoming summer to write “the greatest dissent of his career on behalf of the Freedom of the Press.” So the case was argued the following term, and Chief Justice Earl Warren re-assigned the opinion to Justice Brennan.

The New York Times Co. v. United States (1971)

6-3 split decision Decided: June 30, 1971.

During the late 1960s and early 1970s, an increasing number of Americans became critical of US involvement in the war in Vietnam. By 1971, approximately 58,000 American soldiers had been killed, and there was widespread dissent against policies that escalated American participation in the war.

In 1967, Secretary of Defense Robert McNamara had commissioned a classified study of American involvement in Vietnam. Upon its completion in 1968, this project ran to 47 volumes (more than 7,000 pages). In early 1971, Daniel Ellsberg, a RAND Corporation employee who had done work on this project, secretly made copies of the documents, known as the “Pentagon Papers,” and shared them with the New York Times , which began publishing them on June 13, 1971. President Richard Nixon obtained a restraining order on the grounds of protecting national security, which suspended subsequent publication of these classified documents.

When this order was sustained by the Second Circuit Court of Appeals, the New York Times filed an appeal with the US Supreme Court, claiming that freedom of the press superseded the need of the executive branch of the federal government to maintain the secrecy of this information.

Can the executive branch of the federal government block the printing of classified information to protect national security without violating the First Amendment’s guarantees of free speech and a free press? Was it possible for the New York Times and the Washington Post to publish the then-classified “Pentagon Papers” without risk of government censorship or punishment?

The Supreme Court issued its ruling in a 6-3 decision that dissolved the executive restraining order and permitted the New York Times and Washington Post to resume publication, claiming that the First Amendment protected the right of the newspapers to print the classified information. Because of the speed at which the Court had to decide this case, they could not reach a signed majority opinion. Instead, six of the justices agreed to an unsigned, per curiam opinion, saying that there is a “heavy presumption against [the] constitutional validity” of the government censoring the press. This meant that the government has a greater obligation to prove the need to censor than the press has to assert its First Amendment right to print. The test here—which did not become the major test judging governmental prior restraint, or censorship, of the press—was that the government “carries a heavy burden of showing justification for the imposition of such a restraint.” Six justices agreed that the government had not met the burden of proving a need for prior restraint.

In separate opinions, based on their reading of the original meaning of the First Amendment, Justices Black and Douglas went beyond this standard to argue an absolutist protection standard that the press could never be censored by the government for any reason. Black wrote: “I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment ... The press was protected so that it could bare the secrets of government and inform the people ... To find that the President has ‘inherent power’ to halt the publication of news by resort to the courts would wipe out the First Amendment.”

Justice Potter Stewart took a slightly more limited but still very protective stance, saying that the government could only censor the press if it could show a “direct, immediate, and irreparable harm” caused by the printing. He seemed to be using a version of the Whitney v. California test for freedom of speech. This is the most frequently used test to judge the government’s attempts to censor the press coming out of this case.

Justice William Brennan, in a separate opinion, argued a position between these two, creating a test to justify censorship that the government could almost never successfully argue. He used an updated version of Hughes’s test in Near v. Minnesota , which would allow prior censorship if the articles created an emergency by revealing “troop movements and sailing dates,” arguing that the government needed to show that “publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea [to] support even the issuance of an interim restraining order.” He and the other six justices supporting freedom of the press here did not see such a threat.

As a result of this landmark ruling on the freedom of the press, the US Supreme Court enabled the New York Times and Washington Post to publish the “Pentagon Papers” and it became almost impossible for the government to justify prior censorship. While the executive branch of the federal government is endowed with enormous political power in the areas of national security and international relations, an effective check on executive power resides in an enlightened and informed citizenry to protect the nation’s democratic principles and values.

However, this was not a total victory for the press. Two justices went beyond the issue in this case to ask whether there was any reason to punish the press after their publication with such severe fines and perhaps jail time that the press might censor itself. Justices Byron White and Thurgood Marshall argued that such subsequent punishment might be appropriate here because there were secrecy laws that empowered the government to fine and imprison members of the press, after publication, for such revelations. By combining their two votes with the three dissenting justices who argued that the government had proven their case for regulation, and, in Chief Justice Burger’s case, that this was stolen material and not the press’s to use, it would seem to turn the 6-3 vote against prior censorship into a 5-4 case supporting punishment by the government after the fact. This is the precedent that the government employed in later cases.

First Amendment Level of Protection

Judicial level of scrutiny protecting individual rights against state interests, carolene products footnote 4 (1938).

8-1 split decision Decided April 25, 1938.

In 1923 Congress passed the Filled Milk Act, which made it unlawful to manufacture or ship “filled milk” in interstate commerce. According to the law, “filled milk” is an “adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public.” Carolene Products, a milk manufacturer, was indicted under this act for shipping skimmed milk that was combined with coconut oil. Carolene Products claimed that the Filled Milk Act was unconstitutional according to the commerce clause of Article I, Section 8 of the Constitution and was also a violation of their Fifth Amendment rights.

Does the Filled Milk Act violate the commerce clause of the US Constitution and the due process clause of the Fifth Amendment? What is the role of the Supreme Court in dealing with legislation that regulates economic policy, as opposed to the role of the Court in defining Bill of Rights protections?

The constitutionality of the Filled Milk Act was upheld by the Supreme Court. Justice Stone used the “rational basis” test to determine if the act was constitutional, signaling that after the court-packing battle of 1937, which was resolved by Chief Justice Hughes and Justice Owen Roberts changing their votes, the Court would now defer to Congress on issues of economic regulation. The Filled Milk Act was deemed rational because Congress has the constitutional authority to regulate interstate commerce and to impose economic regulations in order to protect the public welfare. However, in Footnote 4, these same justices indicated that there was a new dual level of scrutiny, since they were now more interested in upholding rights and using “more exacting scrutiny” in cases dealing with civil rights and liberties. Here the Court said it would be more likely to rule in the litigants’ favor in cases dealing with the Bill of Rights. This would be particularly true in cases dealing with speech and organizing relating to the voting process, and in cases dealing with “discrete and insular minorities.”

The most significant result of the Carolene Products case was Footnote 4 inserted by Justice Harlan F. Stone. Stone demonstrated his concern that Congress might see the power of judicial restraint as an opportunity to restrict civil liberties and civil rights. He distinguished between laws dealing with economic issues and those dealing with the “very essence of ordered liberty,” which would call for greater judicial inspection. He suggested different degrees of judicial scrutiny can be applied to different pieces of legislation. This Footnote has been cited as one of the most significant in Supreme Court history. It is the beginning of the Court’s protection of civil rights and liberty, especially after President Franklin D. Roosevelt filled all of the seats of the Court (including elevating Associate Justice Harlan Fiske Stone to the Chief Justiceship).

Minors' First Amendment Rights

Level of protection for the first amendment rights of minors from school or state regulation, tinker v. des moines independent community school district (1969).

7-2 split decision Decided: February 24, 1969.

In December 1965, a small group of students (including Christopher Eckhardt, Mary Beth Tinker, John Tinker, Hope Tinker, and Paul Tinker) planned to wear black armbands to their schools in the Des Moines (Iowa) Independent Community School District as a silent protest against the Vietnam War. When the principals became aware of the plan, the students were warned that they would be suspended if they wore the armbands to school because the protest might cause a disruption in the schools’ learning environment. There was a brief, potentially disruptive episode when a student briefly verbally harassed Mary Beth Tinker, but when another student told him to stop, he did. Despite the warnings, some students wore the armbands, were suspended, and were told they could not return to school until they agreed to remove their armbands. The students returned after the Christmas/winter recess without armbands, but as a protest wore black attire for the remainder of the school year.

Subsequently, the students through their parents sued the school district for violating their right to free speech and freedom of expression. The US District Court for the Southern District of Iowa sided with the school’s position, ruling that wearing the armbands could disrupt learning. The students then appealed to the US Court of Appeals for the Eighth Circuit but lost and finally appealed their case to the US Supreme Court.

Does the prohibition against wearing armbands in public schools, as a form of symbolic protest, violate students’ freedom of expression and speech guaranteed by the First Amendment?

In a 7-2 decision, the Supreme Court ruled, in a majority opinion by Justice Abe Fortas, that the constitutional protections of the First Amendment applied to public schools and neither students nor teachers “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.” In order to justify the suppression of students’ protected free expression and speech rights, school administrators and officials must prove that the conduct in question “would materially and substantially disrupt the work and discipline of the school.” The school district’s actions in this case evidently emanated from a fear of possible disruption, and not any actual disruption or interference with the school’s operation. The Supreme Court took the position that silently wearing black armbands, on a political issue, did not disrupt the learning environment of the schools.

The dissenting opinion, written by Justice Hugo Black, argued that the First Amendment does not grant the right to express any opinion at any time. Students attend school to learn, not teach. The armbands were a distraction to the educational process and learning environment. Therefore, school officials, acting on a legitimate interest in school order, should have broad authority to maintain a productive learning environment.

This landmark decision by the US Supreme Court defined the First Amendment rights of students in American public schools. In Tinker v. Des Moines , the Supreme Court presented a “substantial disruption” test, which is still used by courts today to determine whether a school’s policies and procedures to prevent disruption to its learning process and environment interfere and infringe upon students’ First Amendment rights to freedom of expression and speech in public schools. While students’ constitutional rights to freedom of speech and symbolic freedom of speech are protected in the school, they are not as extensive as they might be outside of the school. Within the school building and grounds, those free speech rights can be limited under this “materially and substantially” disruption test based on the observed effect on the discipline and work of the school.

Hazelwood School District et al. v. Kuhlmeier et al. (1980)

5-3 split decision Decided: January 13, 1988.

The school-sponsored newspaper at Hazelwood East High School, the Spectrum , was written and edited by students as part of a journalism class. When Robert E. Reynolds, the school principal, received the proofs for the May 13 issue, he found two of the articles inappropriate because they dealt with teen pregnancy and the impact of divorce on families. He ordered that those pages be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court.

Did the principal’s deletion of the articles from a school newspaper that operated as part of a class violate the students’ rights under the First Amendment?

The US Supreme Court held that the principal’s actions did not violate the students’ freedom of speech. The Court noted that the paper was sponsored by the school and was part of a class directed by a teacher. As such, the school had a legitimate interest in preventing the publication of articles it deemed inappropriate, bolstered by the academic function of the school, and that the newspaper would appear to have the imprimatur of the school.

The Court noted that the paper was not intended as a public forum in which everyone could share views; rather, it was a limited forum for journalism students to write articles, subject to school editing, that met the requirements of their journalism class. This decision restricts students’ First Amendment rights by giving school officials wide latitude to control student expression as part of a class sponsored by the school.

Board of Education, Island Trees Union Free School District No. 26 v. Pico (1982)

5-4 split decision Decided: June 25, 1982.

The local school board had ordered that certain books written by celebrated authors such as Richard Wright and Kurt Vonnegut be removed from the district’s school libraries. The board characterized the books as “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy.” Some students at the affected schools brought suit against the school board, arguing that the board’s actions violated their First Amendment rights.

Did the Board of Education’s decision to ban certain books, based on their content, from its junior high and high school libraries violate the First Amendment’s freedom of speech protections?

The Court, in a 5-4 decision, held that as centers for voluntary inquiry and the dissemination of information and ideas, school libraries enjoyed a special affinity with the rights of free speech and press. Therefore, the board could not restrict the availability of books in its libraries simply because its members disagreed with their content.

School boards were constitutionally prevented under the First Amendment from removing library books in order to deny access to ideas with which they disagreed for political reasons. This is an interesting question because it depends on how you frame your point of view for analysis. Is this case one of censorship by the school in banning certain books from the libraries? If so, do the school authorities have as their argument the right to choose how to educate students and maintain discipline? On the other side, do the students have the right to read what they believe will help educate them? Or do students have the freedom of thought to explore ideas and the right of academic freedom to get an education? The Courts saw the issue from this last perspective: the right of the students to expose themselves to a range of ideas. In addition, as in Adderley v. Florida , the Court was concerned that the school authorities were banning the books based on their content, and were thus restricting the speech of the authors and publishers. Combining freedom of speech and freedom of the press results in a stronger “right to receive information and ideas” and freedom of thought protections for the students.

Bethel School District No. 403 v. Fraser (1986)

7-2 split decision Decided: July 7, 1986.

At a school assembly of approximately 600 high school students, Matthew Fraser made a speech nominating a fellow student for elective office. In his speech, Fraser used what some observers believed was a graphic sexual metaphor. As part of its disciplinary code, Bethel High School enforced a rule prohibiting conduct that “substantially interferes with the educational process ... including the use of obscene, profane language or gestures.” Fraser was suspended from school for two days.

Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly?

The Court sided with school officials. Chief Justice Burger noted a “marked distinction” between the political speech in Tinker v. Des Moines and Fraser’s sexual speech. “The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior,” Burger wrote. “Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.” In a sense, he was using the reasoning in Chaplinsky v. New Hampshire to argue that this lewd and possibly obscene speech, given to an audience that included very young students, could be banned in itself because it crossed over the line into being conduct that could be regulated. Justice William J. Brennan Jr. concurred, writing that school officials could discipline Fraser because they could reasonably forecast that his speech would be disruptive.

The Court ruled that unlike the political speech in Tinker v. Des Moines , vulgar and offensive speech was not protected under the First Amendment. Because of public schools’ “interest in teaching students socially appropriate behavior,” disciplinary action could be taken if speech undermines the fundamental educational mission of a public school and causes a disruption. It also set the precedent that inappropriate language could be defined by school boards since there are no constitutional references to lewd or suggestive language. It is revealing, though, that this speech went so far that even the great liberal, William Brennan, supported conservative Warren Burger’s ruling (which rarely happened in the First Amendment cases). The issues left unexplored were 1) what is the definition of lewd and obscene speech and symbolism in a school, and who determines that definition, and 2) what if the speech or symbolism was, as in Cohen v. California , arguably “lewd” but also had a political message? If that were true, would Tinker v. Des Moines School District be a better case precedent, and would Fraser’ statement be protected speech?

Morse v. Frederick (2007)

5-4 split decision Decided: June 25, 2007.

Joseph Frederick, a senior at Juneau-Douglas High School, held up a banner on which was scrawled, “Bong Hits 4 Jesus” during the Olympic Torch Relay through Juneau, Alaska, in 2002. Frederick’s attendance at the event was part of a school-supervised activity. School principal Deborah Morse told Frederick to put away the banner because it could be interpreted as advocating illegal drug activity. When Frederick refused, she took the banner. Frederick was suspended for ten days for violating a school policy forbidding advocacy of illegal drug use. The US District Court for the District of Alaska in Juneau ruled for the principal, saying that Frederick’s action was not protected by the First Amendment. The US Court of Appeals for the Ninth Circuit reversed the decision and held that Frederick’s banner was constitutionally protected. The principal appealed, and the US Supreme Court agreed to hear the case.

Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events? Does a school official have qualified immunity from a damages lawsuit under 42 USC 1983 when, in accordance with school policy, she disciplines a student for displaying a banner with a drug reference at a school-supervised event?

The Court reversed the Ninth Circuit by a 5-4 vote, ruling, based on Bethel v. Fraser ’s ban on obscene messages in public schools, that school officials can prohibit students from displaying messages that promote illegal drug use. Chief Justice John Roberts’s majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school’s important mission to discourage drug use. The majority held that Frederick’s message, though “cryptic,” was reasonably interpreted as promoting marijuana use, equivalent to “Take bong hits” or “bong hits are a good thing.” In dissent, though, Justice John Paul Stevens argued that this statement could have been understood as having a political message, perhaps lobbying for the legalization of marijuana in Alaska.

The Court held that schools may “take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use” without violating a student’s First Amendment rights. That kind of message was more like conduct than protected speech. However, a careful reading of the case indicates that had the Court been persuaded that the message was political in nature, the Tinker v. Des Moines School District case would have been triggered, and the vote might have been at least 5-4 in favor of protecting the speech.

Brown v. Entertainment Merchants Association (2011)

7-2 split decision Decided: June 27, 2011.

California Assembly Bill 1179 prohibited the sale or rental of “violent video games” to minors. Using the 1973 Miller test, these games were banned if “taken as a whole, [they] lack[ed] serious literary, artistic, political, or scientific value.” This included games that depicted killing, maiming, dismembering, or sexually assaulting an image of a human being. The act also required the video games to be labeled “over 18.” The Entertainment Merchants Association filed a pre-enforcement action against the governor of California, claiming that the statute violated the First and Fourteenth Amendments. The district court found in favor of the plaintiffs and prevented the enforcement of the law. On appeal, the US Court of Appeals for the Ninth Circuit affirmed, holding that violent video games did not constitute “obscenity” under the First Amendment, that the state did not have a compelling interest in preventing psychological or neurological harm to minors allegedly caused by video games, and even if the state had a compelling interest, the law was not narrowly tailored enough to meet that objective.

Does the First Amendment bar a state from restricting the sale of violent video games to minors? Did California Assembly Bill 1179 violate the First Amendment?

The Supreme Court majority, speaking through Justice Antonin Scalia, found that the statute violated the First Amendment. According to Scalia, who used his historical originalism theory in tracing what the First Amendment’s free speech provision meant during the founding era, the narrative story arc in video games, like all literature, was a protected means of expression under the First Amendment. Scalia also argued that Grimm’s fairy tales and Saturday cartoons were very violent, so children were often exposed to these images. The Court determined that the statute was seriously under-inclusive because it did not preclude minors from having access to information about violence in other forms, only in video games. Furthermore, the Court held that it was seriously over-inclusive because it abridged the First Amendment rights of young people whose parents (and aunts and uncles) thought that violent video games were a harmless pastime. In conclusion, the Court ruled that the statute did not survive a strict scrutiny analysis. A concurrence by Samuel Alito and a dissent by Stephen Breyer raised questions about whether these video games were in fact protected speech, as the media form allowed game players to participate in the action. And, Breyer added, it could not definitely be proven that there was a link between violent images in such games and violent actions by children. They called on Congress to consider regulation in this area to settle the issue. In dissent, Justice Clarence Thomas argued that in fact during the founding era children were the property of their parents and one needed their permission to make such images available to them.

There are certain categorical exceptions to First Amendment protections that have been defined by the legislature, and they cannot be expanded from that traditional group. The Court relied heavily on history in making this decision and others related to it. As with other recent landmark cases, the Court clashed with public opinion on the topic. Empirical data suggests that most Americans would prefer states to be able to regulate the distribution of violent video games and that most Americans support giving parents substantial control over their children’s access to violent content.

Times, Places, and Manners/Protest Speech

Regulation of protected speech versus unprotected conduct in public gatherings, murdock v. pennsylvania (1941).

5-4 split decision Decided on May 3, 1943.

The City of Jeannette, Pennsylvania, passed an ordinance that required that “all persons canvassing for or soliciting within said Borough, ... shall be required to procure...a license to transact said business and shall pay to the Treasurer ... sums for which said license shall be granted.” Robert Murdock, a Jehovah’s Witness, went door to door in Jeannette distributing religious literature and asking for donations. He had not obtained the necessary license to do so and was arrested, convicted, and fined for his actions. Murdock ultimately appealed his conviction to the US Supreme Court after the Supreme Court of Pennsylvania rejected his case.

Is it a violation of the First Amendment for a state to tax people selling religious merchandise? What level of protection will be afforded to religion under the First Amendment’s free exercise of religion as it is applied to states using the Fourteenth Amendment’s due process clause?

In a 5-4 decision, the US Supreme Court determined that the ordinance was unconstitutional because the tax was a violation of the First Amendment’s free exercise clause. Justice William O. Douglas offered the majority opinion: “The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down.” Here he was arguing that the “freedom of speech, press and religion” was in a “preferred position,” meaning that it would receive the “most exacting scrutiny” that was promised in Footnote 4 of Carolene Products. For Douglas, that meant that the Jehovah’s Witnesses, and other religious litigants, would likely win his vote.

The Court decided that the actions of the City of Jeannette violated not only the free exercise of religion, but also free press and free speech. The opinion put forward in Murdock v. Pennsylvania was reinforced by the 2002 decision in Watchtower Bible and Tract Society v. Village of Stratton . The Court once again determined that individuals, especially those evangelizing for their religious views by taking money for their supporting literature, could not be required to obtain a permit to conduct door-to-door solicitations.

Chaplinsky v. New Hampshire (1942)

9-0 split decision Decided March 9, 1942.

Walter Chaplinsky, a Jehovah’s Witness, was distributing religious pamphlets in Rochester, New Hampshire, when he was approached by a gathering crowd. Chaplinsky’s words included insults of other established religions. At first, his right to speak was protected by the local marshall, but when the marshall realized the crowd was growing hostile he approached Chaplinsky. Chaplinsky shouted, “You are a ... damned racketeer and a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” Chaplinsky was arrested for violating a state law that “prohibited intentionally offensive, derisive, or annoying speech to any person who is lawfully in a street or public area.”

Under what circumstances can speech be banned, and punished, and what is the difference between speech and conduct, which can be regulated?

The Court unanimously upheld Chaplinsky’s conviction. In the majority opinion, Justice Frank W. Murphy wrote, “it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Murphy argued that such “fighting words” could be identified if they incited someone to reach out and hit, or fight with, the speaker. According to the Court, Chaplinsky’s insults fell under that category since they angered the peace officer, who was trained not to react, and incited a crowd to gather and block the street. Such words were not protected by the First Amendment. In order to maintain order and civil behavior, a state has the right to use its police power to curb this type of speech.

Justice Murphy, whose decisions were more likely to extend additional protection for free speech, voted reluctantly against Chaplinsky, distinguishing here between speech, which he did see as fully protected, and conduct, which could be regulated. He explained that speech had “social worth” and contributed to the free marketplace of ideas, while expression such as libel, slander, and obscenity, or threats to national security, had no social worth and should not be protected. Beyond this, for the first time, the Court established the doctrine of “fighting words,” that just by their expression and meaning were not protected by the First Amendment and could be banned (much like the “bad tendency” test used in the Gitlow case). This doctrine was later expanded to include symbolic speech in cases addressing similar issues, such as Cohen v. California (1971) and R.A.V. v. St. Paul (1992). In the R.A.V. case, the speech versus conduct approach led to the banning of “hate speech.”

Terminiello v. City of Chicago (1949)

5-4 split decision Decided: May 16, 1949.

While Father Arthur Terminiello, a suspended Catholic priest, was addressing a sympathetic audience of approximately 800 people inside an auditorium, a hostile crowd of approximately 1,000 protesters gathered outside and denounced his remarks as anti-Semitic, pro-Fascist, racist, and politically inflammatory. At one point in the speech, they began throwing objects at the building. The City of Chicago police had great difficulty maintaining order and quelling disturbances by the “angry and turbulent” protesters. Father Terminiello was arrested and convicted for a “breach of the peace” ordinance and fined one hundred dollars for his vitriolic speech, which incited a riot.

Did the City of Chicago ordinance violate Father Terminiello’s right of freedom of expression and speech guaranteed by the First Amendment of the Bill of Rights?

In its majority 5-4 decision the Supreme Court ruled that the “breach of the peace” city ordinance infringed on Father Terminiello’s constitutional right to freedom of speech. The Court, speaking through William O. Douglas, upheld the “preferred position” of freedom of speech, using the “most exacting scrutiny” of the Carolene Products Footnote 4, arguing that “[t]he vitality of civil and political institutions in our society depends on free discussion,” and a citizen’s speech could be restricted only in the event that it was “likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Justice William O. Douglas wrote that “a function of free speech under our system is to invite dispute. It may best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even incites people to anger.” In sum, according to Justice Douglas, although Father Terminiello’s speech was provocative in its content and profoundly unsettling in its effects, it was constitutionally protected against censorship or punishment because it did not produce “a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” In dissent, though, Justice Robert Jackson, just as he had in the Murdock case, disagreed with Douglas’s recitation of the facts. He saw more similarities with the Chaplinsky case, arguing that Terminiello was inciting a riot, making this action not speech, but conduct, which would be regulated. He closed by arguing “the Constitution is not a suicide pact.”

This court case and ruling demonstrated the great challenges of applying the abstract provisions of the First Amendment to emotionally charged situations where speakers use provocative and inflammatory language that results in conflict. The Supreme Court has ruled that our nation’s constitutional guarantee of protected free speech can include the expression of language and views that may be angersome, disagreeable, inflammatory, and even untrue. The alternative would be restrictions that would lead to a uniformity of ideas and undermine creativity, public discussion, and Americans’ fundamental freedoms and rights.

Feiner v. New York (1951)

6-3 split decision Decided January 15, 1951.

In 1949, Irving Feiner, a white student at Syracuse University, delivered a provocative and inflammatory speech via a public address system attached to an automobile to a racially mixed crowd of seventy-five to eighty people on a street corner in Syracuse, New York. Feiner made derogatory remarks about President Harry S. Truman, local politicians, including the mayor of Syracuse, and patriotic organizations such as the American Legion, and he urged African Americans to take up arms and fight for equal rights. The crowd became unruly; some people supported Feiner while others opposed him. As tension and the threat of violence filled the air, a police officer asked Feiner three times to stop speaking. After Feiner’s third refusal, a man who was there with his family approached the police and told them that if they did not stop the speaker, he would. At that point, the police arrested Feiner for violation of a New York statute that forbade the use of abusive, offensive, or threatening language with intent to provoke a breach of the peace. At his trial Feiner contended that his First Amendment right to freedom of expression and speech had been violated. He was found guilty and sentenced to thirty days in jail. Feiner appealed his conviction and sentence.

Did Irving Feiner’s arrest for inciting a breach of the peace violate his constitutional right to freedom of expression and speech guaranteed by the First Amendment?

The Supreme Court now had two Truman-appointed conservatives replacing two Roosevelt-appointed liberals, turning the ideological orientation of the Court from liberal to conservative. In its 6-3 decision, written by Chief Justice Fred Vinson, the Supreme Court upheld Feiner’s arrest and conviction as justified, necessary, and constitutional to preserve order in the face of a clear and present danger to safety. The Court reaffirmed that a speaker cannot be arrested for the content of his speech, but the police attempted to suppress Feiner’s message not based on its content but rather on the perceived reactions of the crowd and the danger of impending violence. The justices applied the clear and present danger test originally articulated in Schenck v. United States . However, in a strongly worded dissent, Justice William O. Douglas argued that the “breach of the peace” law was too general to be used to restrict speech, and the reason for an arrest under this law could be very subjective in the minds of the police. Douglas concluded the evidence did not show that a riot was imminent, and Feiner had been arrested primarily because his views on matters of civil rights and public policy were unpopular.

The Court used a three-step method for analyzing such freedom of speech cases, looking first at the Constitution to determine the level of protection for free speech, then at the nature of the law being cited to see whether it unfairly limited free speech, and finally at the facts in the case to see why the arrests really occurred. This decision seemed to accept a “heckler’s veto,” whereby a threatening reaction by an audience might allow the restriction of free speech.

Adderley v. Florida (1966)

5-4 split decision Decided November 14, 1966.

In 1966, a group of thirty-two Florida A & M University students protested against racial segregation in the Leon County jail as well as other local government and public facilities. On the following day, a group of approximately two hundred university students, including Harriet Louise Adderley, assembled at the jail, where there was no “No Trespassing” sign, and blocked access to the driveway, chanting slogans, clapping hands, singing songs, etc. The sheriff advised the group that they were trespassing on county property and would be arrested if they did not leave the premises. When several dozen students, including Adderley, refused to depart from the driveway area, they were arrested and convicted in a county court for violating a Florida statute on the charge of “trespass with a malicious and mischievous intent.” These students contended that their convictions, which were later affirmed by the Florida circuit court and the district court of appeal, deprived them of their constitutional “rights of free speech, assembly, petition, due process of law and equal protection of the laws,” according to the provisions of the First and Fourteenth Amendments.

Were the student petitioners denied their rights of free speech, assembly, petition, due process of law, and equal protection of the laws guaranteed by the First and Fourteenth Amendments on prison grounds where the state was asserting danger to its security function?

In its 5-4 decision the US Supreme Court upheld the students’ trespassing conviction, where the necessity of law and order justified restraint by public safety authorities. The Court contended that the Florida statute was clearly defined, appropriately applied, and did not impose broad, ill-defined infringements on freedom of expression and speech. The majority opinion, written by Justice Hugo Black, argued that jails were not public places, and the students were trespassing, which threatened the security function of the jail. Therefore, these arrests did not infringe on the students’ right to assembly, because it was not speech, but rather conduct that the state could regulate because the prisoners might have endangered the prison security if they had heard the group outside. Also, Black argued, states had the right to protect their property for lawful, nondiscriminatory purposes, such as protection from damage by demonstrators. Moreover, since the purposes of the sheriff’s actions were to maintain access to the jailhouse and protect its property, and not because the sheriff “objected to what was being sung ... or disagreed with the objectives of the protest,” there were no violations of the First Amendment.

In a minority opinion, Justice William Douglas argued that in order to protest actions taking place at the jail, they had to be near the jail, and the driveway was the best place for the protesters to assemble. Also, there were no “No Trespassing” signs, and no one knew why the police had arrested the protesters. Perhaps, he suggested, they might have arrested them because they did not like their message. All in all, Douglas argued that they did not threaten or engage in violence nor did they prevent entrance to the jail. Based on this interpretation of the First Amendment, it was argued that public officials should not be given discretion to decide which public places can be used for the expression of ideas.

While it is indisputable that the US Supreme Court contributed significantly to the landmark achievements and successes of the Civil Rights Movement, especially in declaring local and state segregation facilities and laws to be unconstitutional, some legal scholars have contended that by the late 1960s the Supreme Court, especially Justice Black, who had suffered a stroke and was now voting more as a conservative, was becoming concerned about the growing militancy of civil rights demonstrations. Moreover, with the enactment of the Civil Rights Acts of 1964 and 1968 and the Voting Rights Act of 1965, some scholars have claimed that these legal protections diminished the need for additional constitutional initiatives, interventions, and judgments into local and state nonpublic episodes of racial discrimination and segregation.

Texas v. Johnson (1989)

5-4 split decision Decided: June 21, 1989.

Gregory Lee Johnson protested the Reagan administration’s foreign policy in Central America outside the 1984 Republican National Convention in Dallas, Texas. During this protest, he burned an American flag. Johnson was arrested and charged with violating a Texas statute that prevented the desecration of a venerated object, including the American flag, if such action were likely to incite anger in others. A Texas court tried and convicted Johnson. He appealed, arguing that his actions were symbolic speech protected by the First Amendment. The Supreme Court agreed to hear his case.

Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

The Supreme Court held that Johnson’s burning of an American flag was protected symbolic expression under the First Amendment. Justice Brennan gave the broadest possible protection to the symbolic expression of speech, noting that “if there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The Court majority looked at the two prior political symbolism cases, O’Brien and Cohen , and argued that the key issue here was whether flag burning was speech that was protected or conduct that could be regulated. The conclusion was that since the American flag itself was a symbol (see Robert Jackson in West Virginia v. Barnette ), then burning that flag constituted a symbolic message. Thus, the Court found that Johnson’s actions fell into the category of expressive conduct that possessed a distinctively political nature. By arresting him for burning the flag, the police infringed on his freedom of speech by regulating the content of his message. Justice Brennan adopted the strict scrutiny test of Justice Harlan in the Cohen case to say that this expression must be protected at the highest level, meaning that the state had to prove that there was “a more particularized and compelling reason for its actions.” They could not do so, especially since in this case a state was using its laws to protect a national symbol. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to allow symbols to be used to communicate only limited sets of messages.

No matter how unpopular it is to burn an American flag, the First Amendment protects that and other forms of political expression and symbolic speech. The federal government tried again to protect the flag from being burned in US v. Eichman , but Justice Brennan again wrote for the same 5-4 majority that the high level of scrutiny used to protect symbolic political expression prevented the federal government from banning flag burning. An interesting feature of the Texas v. Johnson case is the way that the voting blocs were formed. John Paul Stevens, then a moderate conservative who usually supported symbolic speech, voted this time in favor of the Texas law. His service in the US Navy during World War II made him very protective of the flag as a patriotic symbol. But, unexpectedly, Justice Antonin Scalia, a conservative who normally supported state regulations, did not do so here because his examination of what the framers of the Constitution and the Bill of Rights intended told him that this political symbolic expression was exactly what the First Amendment was written to protect.

Snyder v. Phelps (2011)

8-1 split decision Decided: March 2, 2011.

Fred Phelps and his followers at the Westboro Baptist Church, believing that God was punishing the United States for its tolerance of homosexuality, particularly within the military, often picketed at military funerals to demonstrate their beliefs. Albert Snyder’s son, Lance Corporal Matthew Snyder, was killed in the line of duty in Iraq in 2006. Westboro picketed Matthew Snyder’s funeral displaying signs that stated, for instance, “God Hates the USA/Thank God for 9/11,” “Thank God for Dead Soldiers,” and “Don’t Pray for the USA.” Church members also sang hymns and recited Bible verses. The church notified local authorities in advance that they intended to picket the funeral, staged the picket on public land adjacent to a public street, and complied with all police instructions. Since Albert Snyder could only see the tops of the picket signs on the day of the funeral, he could not read what was written on them. It was not until he saw a news story about the funeral and the picketing that he became aware of the church’s message. The Court chose not to consider that news story as part of the case, and it did not consider the website that had photographs of the signs interspersed with Bible passages, which Mr. Snyder also saw. Snyder sued Phelps and the church claiming, among other things, that their actions caused him severe emotional distress. In defense, Phelps argued that his speech (the picketing and the signs) was protected under the First Amendment. The US district court in Maryland agreed with Snyder, but the Fourth Circuit Court of Appeals reversed judgment, finding that Phelps’s speech was protected.

Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?

The US Supreme Court affirmed the Fourth Circuit Court of Appeals. Chief Justice Roberts, writing for the majority, held that Phelps’s speech was on an issue of public concern. He held that the link to the funeral did not transform the context of the speech from public to private because the Westboro Baptist Church picketed on public land. The Court also addressed liability under the captive audience theory. If Snyder were a captive audience at his son’s funeral, he could possibly recover from the harmful effects of the speech because he would be an unwilling listener. However, the Court stressed that the picketers did not interrupt the funeral, shout profanities, or behave “unruly.” Snyder could not see any of the signs during the funeral and in fact did not know what they said until after the funeral was over. The Court left open whether time, place, or manner restrictions on picketing at funerals would violate the First Amendment, or whether the issues would change if the religious group argued that it was their religious beliefs that were motivating the behavior. In dissent, Justice Samuel Alito argued that the messages on these signs violated the Chaplinsky rule, constituting more conduct than speech. Since they were targeting the family of a dead soldier during a funeral, a time of great distress, their conduct represented an intentional infliction of emotional distress (IIED). As a result, the words themselves could be banned, regardless of any political message they were said to be conveying.

The case changed the way IIED claims are decided. Snyder v. Phelps shifted the way speech is analyzed. Rather than focusing mainly on the status of the target of speech, Snyder requires one look first, and possibly only, to the dominant thrust of the speech. If the dominant thrust of the speech is on a matter of public concern, conveyed on public land, that speech receives constitutional protection regardless of the target.

Symbolic Speech

Silent conduct or imagery that purposefully expresses a message, political or otherwise, west virginia state board of education et al. v. barnette et al. (1943).

6-3 split decision Decided: June 14, 1943.

In January 1942, the West Virginia State Board of Education required all public school students and teachers to participate in a daily flag salute as a school activity. For teachers, refusing to participate was grounds for dismissal, and reemployment was denied until there was assurance of compliance. For students, the punishment for noncompliance was expulsion from school, and their parents would be liable for prosecution on grounds of fostering “unlawful absence” and juvenile delinquency. In this case, the salute also included reciting the Pledge of Allegiance. Two sisters, Marie and Gathie Barnette, who were Jehovah’s Witnesses and attended Slip Hill Grade School in Charleston, West Virginia, were instructed by their father not to salute the American flag and recite the pledge on the grounds that it denied their First Amendment right to freedom of religion and freedom of speech and the Fourteenth Amendment’s due process and equal protection clauses.

Can school administrators and districts require compulsory flag salute and pledge of allegiance activities for students and teachers? Is refusal to participate in the flag salute and recitation of the Pledge of Allegiance protected by the freedom of speech guarantee of the First Amendment?

In a 6-3 split decision, the US Supreme Court concluded that a compulsory flag salute and pledge of allegiance for public school children violated their First Amendment and Fourteenth Amendment rights. Justice Robert H. Jackson, in the majority opinion, gave freedom of speech, or in this case the freedom to remain silent, the “most exacting scrutiny” promised in the Carolene Products Footnote 4. He asserted that national symbols like the American flag should not receive a level of deference that transcends an individual’s constitutional right to freedom of expression and speech. Moreover, he contended that curtailing or eliminating dissent was an improper and ineffective way to generate national patriotism, unity, and popular opinion. In dissent, Justice Felix Frankfurter took a very different point of view. He argued that even though he, as a Jewish man, had faced discrimination in the past, as a judge, it was his role to defer to Congress. He argued that during wartime, in order to promote citizenship and patriotism in the public schools, laws requiring that children salute the flag were necessary.

In its decision the Supreme Court overturned its prior ruling, written by Felix Frankfurter speaking for an eight-justice majority, in Minersville School District v. Gobitis (1940). In that case, the Court had upheld a law that mandated flag salute and recitation of the Pledge of Allegiance in public schools and had stated that saluting and pledging allegiance to the American flag were appropriate and effective ways to promote patriotism and national unity. For Justice Jackson—unlike his decision in the Murdock case, in which he determined that the home owners’ right of privacy and property ownership were greater than the rights of the Jehovah’s Witnesses—here he completely supported the rights of the religious group. For him, this case involved not only freedom of speech, but also freedom of thought. The Bill of Rights compelled him to protect the right to dissent, especially when that dissent was directed by one’s belief in their religion. In the West Virginia State Board of Education v. Barnette decision the Supreme Court ruled that the flag salute and Pledge of Allegiance were forms of speech, and the government could not compel citizens to express such beliefs without violating their constitutionally protected freedom of speech.

United States v. O'Brien (1968)

7-1 split decision Decided: May 27, 1968.

In 1948, the US Congress established a peace-time military draft with the enactment of the Selective Service Act, which required all male American citizens to register with a local draft board upon reaching the age of eighteen. In 1965, Congress amended this law to prohibit the willful destruction of “draft cards” or registration certificates. In March1966, David Paul O’Brien and three companions burned their draft cards on the steps of the South Boston Courthouse to demonstrate their anti-Vietnam War beliefs and persuade others to oppose the war. He and his companions were convicted under a federal statute that prohibited the knowing destruction and mutilation of these registration certificates. O’Brien appealed this conviction on the grounds that the federal statute was unconstitutional because it abridged his right of free speech.

Was the federal law that prohibited the knowing destruction and mutilation of draft cards an unconstitutional infringement of an individual’s freedom of speech?

In its 7-1 decision, the US Supreme Court rejected O’Brien’s claim and established a test for determining when government laws and regulations were constitutional and justified in freedom of expression cases involving symbolic speech. The blueprint of this test required that the government interest be important, specific, substantial, valid, and unrelated to the suppression of free speech. Moreover, any limitation on First Amendment freedoms must be no greater than was essential to achieve the objectives of the government’s interest. Chief Justice Earl Warren, in the majority opinion, explained that the regulation must be “closely tailored” to the line between protected speech (the symbolic burning of the draft card in this case) and the conduct (in this case the need to regulate the draft process, which was prevented by the destruction of the card). The regulation could not go too far into the speech area and restrict protected expression. Warren wrote, “[W]e think it clear ... that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest.” In sum, the Supreme Court concluded that David O’Brien’s conduct frustrated and interfered with the government’s valid interest (to facilitate, organize, and support an army), which was unrelated to the suppression of free speech, and, therefore, his conviction was upheld. Interestingly, the Court ignored that in fact the laws were passed specifically to prevent the use of draft cards in anti-Vietnam protests and to limit the symbolic speech of draft protestors. This test should have been used to uphold O’Brien’s rights.

The ruling in United States v. O’Brien established a test for determining when government laws and regulations were constitutional and justified in freedom of expression cases involving symbolic speech. The key to this test was that a judge must first ask if the purpose of the law was to regulate conduct, rather than speech.

As the United States’ economic and military involvement and presence in the Vietnam War escalated during the late 1960s, Americans’ frustration and opposition to the war increased and protests proliferated throughout American society. In later decisions the Supreme Court supported the position of antiwar protesters in Tinker v. Des Moines Independent Community School District (1969), which involved public schools students who were suspended for wearing black armbands, and in Cohen v. California , which overturned a man’s conviction for allegedly disturbing the peace by wearing a jacket with an emblazoned provocative anti-draft expletive in a state courthouse.

This O’Brien test would be significantly curtailed in Cohen v. California in 1971. But even after the Cohen case, in cases where laws regulated conduct but also simultaneously restricted speech as a result, the O’Brien test could be used.

Cohen v. California (1971)

5-4 split decision Decided: June 7, 1971.

In 1968, Paul Robert Cohen wore a leather jacket emblazoned with an anti-draft expletive (“F--k The Draft. Stop The War”) in a Los Angeles courthouse corridor. He was arrested and convicted for violating a California statute that prohibited any individual from “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person [by] tumultuous or offensive conduct.” He was sentenced to thirty days in jail. The California Court of Appeal upheld his conviction, declaring that the State of California could determine what language was not suitable for use in public, and that Cohen used (displayed) words that were below the “minimum standard of propriety and the accepted norm of public behavior.” Upon appeal to the US Supreme Court, the issue was whether or not the speech (the words on his jacket) fell within a specific category of speech that is protected by the First Amendment.

Did a California statute, which prohibited the display of offensive messages, violate an individual’s freedom of expression and speech protections guaranteed by the First Amendment?

Based on the Court’s 5-4 decision, the majority opinion explored the nature of the wording to determine whether it was symbolic speech on a political issue, which must not be regulated, or offensive, obscene expression, which represented conduct, which should be regulated. Writing for the majority, Justice John Harlan asserted that the emblazoned, provocative expletive on the jacket was not directed toward anyone specifically and there was no evidence that a substantial number of people would be provoked into belligerent and militant action by the words (so there were no Chaplinsky -like “fighting words” here that could be banned). As for whether or not this was offensive, obscene speech that could be regulated as conduct, Justice Harlan reasoned that no objective distinctions can be made between vulgar and non-vulgar political speech. He elaborated, “It is often true that one man’s vulgarity is another’s lyric ... words [which] are often chosen as much for their emotive as their cognitive force.” So Harlan argued that there were two protected categories or elements of speech, the expression of emotion (“emotive”) and the expression of ideas (“cognitive”). To Harlan, this was symbolic speech on a political issue that must be protected by the Court using a very high judicial standard. As a result, governments must convey and demonstrate a better reason than an apprehension or a perception for generally disturbing the peace when they ban displaying an expletive in a public space. The state could not restrict protected political symbolic speech “absent a more particularized and compelling reason for its actions.” This meant that the state would have to show that the reasons for their regulation were either so great, the interests involved were so important, or this was the only way the state could achieve its goal to justify the regulation.

The Supreme Court ruling in this case, representing a significant restriction on the reach of the O’Brien case, declared that the government cannot criminalize the display of profane or vulgar words in public places if those words represent a political message as part of symbolic expression. The case thus established a precedent that has been applied in cases concerning the power of states to regulate free speech in order to maintain public civility and to establish a balance between individual and societal rights as well as protected constitutional freedoms and permissible government regulations. By expanding the constitutional foundation and scope for protecting provocative and potentially offensive speech, the Cohen v. California ruling has become a landmark decision cited in many subsequent court rulings.

Written or visual material that can be regulated because it lacks social worth and is “lewd, filthy, or disgusting”

Roth v. united states (1957).

6-3 split decision Decided: June 24, 1957.

The Supreme Court traditionally limited freedom of expression in cases involving obscenity, libel, or “fighting words.” However, they never arrived at a definition of obscenity that could be applied to future cases. A federal obscenity statute declared that using the US mail to distribute obscene materials was against the law: “every obscene, lewd, lascivious, or filthy book, pamphlet, picture ... or other publication of an indecent character ... is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office.” Samuel Roth, a New York publisher, was arrested under this statute and charged with mailing obscene circulars and an obscene book in order to attract potential customers, using provocative language and symbolism to highlight the obscene nature of the material he was selling.

(1) Are obscene forms of expression in speech and the press within or beyond the province and protection of the First Amendment? (2) How has the Supreme Court defined obscenity in its decisions? (3) Do state and federal statutes that prohibit the sale and/or transfer of obscene materials impinge on an individual’s freedom of expression as guaranteed by the First and Fourteenth Amendments?

The US Supreme Court upheld Samuel Roth’s conviction in a 6-3 decision. Justice William Brennan developed a test for determining what was obscene that was designed to protect the freedom of the press as much as possible. He argued that “the guaranties of freedom of expression ... gave no absolute protection for every utterance.” In addition, “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance ... We hold that obscenity is not within the area of constitutionally protected speech or press.” His test was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest” and is “utterly without redeeming social importance.”

Before the Roth decision, obscenity was considered to be beyond the province of the First Amendment because the words considered conduct that could be regulated to protect societal norms. So, although laws that prohibited the sale and/or distribution of obscene literature and materials have existed in the United States since the early part of the nineteenth century, those laws and their enforcement were not applied or interpreted under the purview of the freedom of speech and press clauses of the First Amendment. Instead, the early test, the Hicklin Rule, judged the effect of a small portion of the literature on people most susceptible to being corrupted by this work. In Roth v. United States , Justice Brennan tried to make prosecution for obscenity much more difficult by making it almost impossible to define literature as obscene. The Court had to find, based on the entire work, judged by a more worldly entire population, relying on “contemporary community standards,” that it both “appealed to one’s prurient interest” and was “utterly without redeeming social importance.” Since there was always some expert who could find a “redeeming social importance” in a work, successful prosecutions were very unlikely.

Miller v. California (1973)

5-4 split decision Decided: June 21, 1973.

Marvin Miller, after conducting a mass mailing campaign to advertise the sale of “adult” material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller’s brochures complained to the police, initiating the legal proceedings.

Is the sale and distribution of obscene materials by mail protected under the First Amendment”s freedom of speech guarantee?

The Court ruled that obscenity is a category of speech that is unprotected by the First Amendment. They then changed the prevailing definition of obscenity from Roth v. United States in 1957 to allow for more regulation. Roth had made censorship much less likely by arguing that it could only be done if, “to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest” and was “utterly without any redeeming social value.” Thus, successful prosecution for obscenity could be defeated by at least one person seeing value in the work. The Miller rule was designed to lower that standard and make the definition of obscenity much broader and more easily regulated. The new test was whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest ... whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Based on this test, the Supreme Court ruled Miller guilty of distributing obscene material.

By making the new standard based on state law, the test allowed for variation in the regulation standards in different places. This would force publishers and movie/television producers to create materials that would be acceptable to the lowest common denominator of state regulations. And, more importantly, Roth ’s expansive “utterly without redeeming social value” test was specifically overturned and replaced with a much easier to demonstrate rule that the work, “taken as a whole, lacks serious literary, artistic, political, or scientific value.”

Campaign/Corporate Speech

Constitutionally protected political advertisements, statements, or campaign donations made by corporations or groups of individuals, buckley v. valeo (1976).

Unsigned per curiam opinion Decided: January 30, 1976

In 1974, Congress amended the Federal Election Campaign Act of 1971, which set limits on contributions to political campaigns and required transparency in reporting. The amendments included the creation of the Federal Election Commission to enforce the statute. Of the eight members, two would be the secretary of the Senate and the clerk of the House of Representatives, who would be non-voting members. Both Houses of Congress would be required to confirm each of the other six, voting members by a majority vote, and the three pairs of voting members needed to each contain a member from each political party. A group of plaintiffs, including Senator James Buckley, filed a claim in the District of Columbia court against Francis Valeo, who was the secretary of the Senate and thus a non-voting member of the FEC. Their petitions for declaratory and injunctive relief under the First and Fifth Amendments were initially denied.

Did the spending limits mandated by the 1974 amendments to FECA, and related amendments to the Internal Revenue Code, violate freedoms of speech and association protected under the First Amendment as well as rights of due process under the Fifth Amendment?

The Supreme Court affirmed in part and reversed in part the judgment of the lower court, while affirming the judgment of the district court. The Supreme Court highlighted a distinction between contributions and expenditures; while upholding the federal campaign contribution limits, the Court overturned limits on expenditures. Limits on campaign contributions “served the government’s interest in safeguarding the integrity of elections,” but, citing First Amendment concerns, the effect of “expenditure limitations is to restrict the quantity of campaign speech by individuals, groups and candidates.” The decision acknowledged that restrictions on campaign limits and expenditures both have potential First Amendment implications, but that the FECA’s limitations on expenditures constituted “significantly more severe restrictions on protected freedom of political expression and association than do its limitations on financial contributions.” While there were many restrictions on the campaign contributions of individuals, nothing was done about groups of individuals bundling and pooling their money together to support their candidate. This ruling gave rise to a profusion of political action committees (PACs), representing many individuals, donating large amounts of money to campaigns.

While the case reshaped campaign finance laws entirely, there were so many loopholes in the decision, and so many ways for individuals, political parties, corporations, and groups to challenge the regulations in court that in time the ruling was greatly limited. Perhaps the most significant change, however, was the Court’s ruling that there could be no restrictions on contributions from individuals for their own campaigns. Here, the Court argued that the expenditure of money on one’s own campaign was the equivalent of speech and could not be limited under the First Amendment. Also, the decision did nothing about individuals who donated “soft money,” or funds that could be spent for the good of the political parties, and not tied to any specific candidate. Thus, unlimited money could be used on “issue ads” that talked about different issues in the campaign but did not specifically urge voters to choose a candidate. One could, however, make very clear from the framing of the issue which candidate the ad supported. In addition, there was no restriction on donations by combined groups of individuals, as long as they were independent of any official election campaigns.

Citizens United v. Federal Election Commission (2010)

5-4 split decision Decided: January 21, 2010.

In 2008, Citizens United, a nonprofit organization funded partially by corporate donations, produced Hillary: The Movie , a film created to persuade voters not to vote for Hillary Clinton as the 2008 Democratic presidential nominee. Citizens United wanted to make the movie available to cable subscribers through video on demand services and broadcast TV advertisements for the movie in advance. The Federal Election Commission said that Hillary: The Movie was intended to influence voters, and therefore, the Bipartisan Campaign Reform Act (BCRA) applied. That meant that the organization was not allowed to advertise the film or pay to air it within thirty days of a primary election. Citizens United sued the FEC in federal court, asking to be allowed to show the film. The district court heard the case and decided that even though it was a full-length movie and not a traditional TV ad, the film was definitely an appeal to vote against Hillary Clinton, and therefore the bans in the BCRA applied: corporations and organizations could not pay to air this sort of direct appeal to voters so close to an election.

Because of a special provision in the BCRA, Citizens United could appeal the decision directly to the US Supreme Court. Citizens United asked the Court to decide whether a feature-length film really fell under the rules of the BCRA and to decide whether the law violated the organization’s First Amendment right to engage in political speech. The Supreme Court asked both parties to submit additional written responses to a further question: whether the Court should overrule its prior decisions about the constitutionality of the BCRA.

Is political spending a form of protected speech under the First Amendment? Can organizations spend unlimited amounts of money to advocate for or against political candidates? Does a Political Action Committee have the same political speech rights as individuals under the First Amendment?

A 5-4 majority of the Supreme Court sided with Citizens United, ruling that corporations and other outside groups can spend unlimited money on elections. In the Court’s opinion, Justice Anthony Kennedy wrote, limiting “independent political spending” from corporations and other groups violates the First Amendment right to free speech. The justices who voted with the majority assumed that independent spending cannot be corrupt and that the spending would be transparent. With its decision, the Supreme Court overturned election spending restrictions that date back more than 100 years. Previously, the Court had upheld certain spending restrictions, arguing that the government had a role in preventing corruption. But in Citizens United, a bare majority of the justices held that “independent political spending” did not present a substantive threat of corruption, provided it was not coordinated with a candidate’s campaign. As a result, corporations can now spend unlimited funds on campaign advertising if they are not formally “coordinating” with a candidate or political party.

The 2010 Supreme Court decision further tilted political influence toward wealthy donors and corporations. While wealthy donors, corporations, and special interest groups have long had an outsized influence in elections, that sway has dramatically expanded since the Citizens United decision, with negative repercussions for American democracy and the fight against political corruption.

Hate Speech

Speech, writing, symbols, or behavior that is unconstitutionally intimidating and threatening to minority individuals or groups.

9-0 unanimous decision Decided March 9, 1942.

Terminello v. City of Chicago (1949)

This case created the test for protecting political speech we still use today. It reversed the rulings in two earlier cases. In 1927, the majority of the Court in Whitney v. California had ruled that speech the California Criminal Syndicalism law should be upheld on the ground that merely “advocating” violent means to effect political and economic change involves such danger to the security of the state that the state may outlaw it. Then, in 1951, the Court sustained the constitutionality of the US government’s Smith Act in Dennis v. United States , saying that the statute protected the state from “grave” dangers posed by a group seeking the overturning of the government. However, in later decisions the Supreme Court began to question and discredit both rulings, and favor the separate opinions of Justices Holmes and Brandeis in Whitney and Justices Douglas and Black in Dennis . In the Brandenburg v. Ohio ruling, the Supreme Court explicitly overturned the majority opinion in the Whitney v. California decision (and ruled in favor of the separate concurrence of Holmes and Brandeis in that case, stating that “the constitutional guarantees of free speech and free press do not permit a State to forbid ... advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action ... A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments.” This case is another one that demonstrates the problems for the Warren Court. This opinion went unsigned because it was originally drafted by Justice Abe Fortas, a liberal, who was forced to resign from the Court that year because of an ethics scandal before the opinion could be announced. So the opinion was finished and redrafted by Justice William Brennan, and it was announced as an unsigned per curiam opinion of the Court.

R.A.V. v. City of St. Paul (1992)

9-0 unanimous decision Decided: June 22, 1992.

A bias-motivated crime ordinance instituted in St. Paul, Minnesota, prohibited “the display of a symbol which one knows or has reason to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” R.A.V., a juvenile, was charged under this law for allegedly burning a crudely made cross in the fenced yard of an African American family. The trial court dismissed the charges against R.A.V. as being too broad. The city appealed to the state supreme court, which reversed the trial court decision claiming the actions of R.A.V. constituted “fighting words” that were not speech but rather conduct that was unprotected by the First Amendment as determined in Chaplinsky v. New Hampshire (1942). R.A.V. appealed to the Supreme Court of the United States.

(1) Is it constitutional for the First Amendment to protect content-based discriminatory and provocative speech? (2) To what extent do broadly written statutes violate the free speech clause of the First Amendment? (3) Is it permissible to prohibit speakers from expressing and displaying biased and racist views and hostile actions?

The US Supreme Court reversed the decision of the Minnesota Supreme Court determining that the St. Paul ordinance was invalid. Justice Antonin Scalia wrote the majority opinion saying that the law was not “closely tailored,” in that it banned some protected speech and also left unregulated some damaging conduct. “We conclude that, even as narrowly construed by the Minnesota Supreme Court, the ordinance is facially unconstitutional.” The government may not impose restrictions on speech and behavior based on its disagreement over the ideas presented.” According to Scalia, “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” He further stated, “Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”

During the late 1980s and early 1990s, “hate speech” became an important and relevant issue amid a series of cross burnings, acts of biased graffiti vandalism, and the display and use of racist appellations, symbols, and objects. In response, the federal government and more than one-half of the states enacted “hate crime” statutes. The problem for the federal courts and the Supreme Court was finding a hate crime law that perfectly drew the line between acceptable speech that was legally protected, even if it might offend people, and unprotected conduct, or expression that was clearly designed to intimidate people, lower their self-esteem, and/or cause illegal activity or incite danger. The Supreme Court invalidated the St. Paul ordinance and stated that it was constitutionally unacceptable because it was “overbroad,” that is, it could be used to limit speech or expression that would otherwise deserve constitutional protection. Moreover, the St. Paul ordinance that prohibited words that insulted or provoked violence was unconstitutional because it imposed a content-based discrimination as well as a viewpoint discrimination, that is, it was targeted speech that the arresting officer may not have liked. The First Amendment does not permit the government to punish actions and speech because it disapproves with the expressed ideas. As a result of this decision, doubts were cast on other state and local hate speech laws. After 1992, anti-bias statutes were written with more content-neutral language and provisions.

Virginia v. Black (2003)

7-2 split decision Decided: April 7, 2003.

Barry Black, Richard Elliott, and Jonathan O’Mara were convicted separately of violating a Virginia statute that made it a felony “for any person ... with the intent of intimidating any person or group ... to burn ... a cross on the property of another, a highway or other public place,” and specifies that “any such burning ... shall be prima facie evidence of an intent to intimidate a person or group.” At trial, Black objected on First Amendment grounds to a jury instruction that cross burning by itself is sufficient to infer the required “intent to intimidate.” He was found guilty. O’Mara pleaded guilty to charges of violating the statute but reserved the right to challenge its constitutionality. In Elliott’s trial, the judge did not give an instruction on the statute’s prima facie evidence provision. Ultimately, the Supreme Court of Virginia held, among other things, that the cross-burning statute was unconstitutional on its face and that the prima facie evidence provision made the statute overbroad because the probability of prosecution under the statute chilled the expression of protected speech.

Does the Commonwealth of Virginia’s cross-burning statute, which prohibits the burning of a cross with the intent of intimidating any person or group of persons, violate the First Amendment?

In a plurality opinion authored by Justice Sandra Day O’Connor, the Supreme Court found that while a state may ban cross burning carried out with the intent to intimidate, treating the act of cross burning as prima facie evidence of intent to intimidate was unconstitutional. Cross burning may be carried out for a reason other than intent to intimidate, according to the Court, such as at a political rally. Even if the act of cross burning “arouses a sense of anger or hatred among the vast majority of citizens,” that “anger or hatred” is not enough to prohibit the burning. Only “cross burnings done with the intent to intimidate” are prohibited under the First Amendment, “because burning a cross is a particularly virulent form of intimidation.” A blanket state ban on cross burning was an unconstitutional content-based restriction on free speech.

This was the one of the most visible and important early cases in which Justice Clarence Thomas became involved in the questioning and the written argument on the issues. Here, Justice Thomas argues in dissent that there is no other reason for a burning cross as a symbol, and no other meaning to infer from it, than to intimidate, harass, and frighten racial minorities. For him it was covered by the Chaplinsky case’s speech v. conduct rule, and cross burning was conduct that could be regulated. All cross burnings, based on his argument, should be banned outright. Thomas was creating the concept of a negative or harmful political symbol, which became the foundation of some anti-hate-speech laws.

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First Amendment

By: History.com Editors

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

The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the right to peaceful protest and to petition the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rights—a written document protecting civil liberties under U.S. law. The meaning of the First Amendment has been the subject of continuing interpretation and dispute over the years. Landmark Supreme Court cases have dealt with the right of citizens to protest U.S. involvement in foreign wars, flag burning and the publication of classified government documents.

Bill of Rights

During the summer of 1787, a group of politicians, including James Madison and Alexander Hamilton , gathered in Philadelphia to draft a new U.S. Constitution .

Antifederalists, led by the first governor of Virginia , Patrick Henry , opposed the ratification of the Constitution. They felt the new constitution gave the federal government too much power at the expense of the states. They further argued that the Constitution lacked protections for people’s individual rights.

The debate over whether to ratify the Constitution in several states hinged on the adoption of a Bill of Rights that would safeguard basic civil rights under the law. Fearing defeat, pro-constitution politicians, called Federalists , promised a concession to the antifederalists—a Bill of Rights.

James Madison drafted most of the Bill of Rights. Madison was a Virginia representative who would later become the fourth president of the United States. He created the Bill of Rights during the 1st United States Congress, which met from 1789 to 1791 – the first two years that President George Washington was in office.

The Bill of Rights, which was introduced to Congress in 1789 and adopted on December 15, 1791, includes the first ten amendments to the U.S. Constitution.

First Amendment Text

The First Amendment text reads:

“Congress shall 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 right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

While the First Amendment protected freedoms of speech, religion, press, assembly and petition, subsequent amendments under the Bill of Rights dealt with the protection of other American values including the Second Amendment right to bear arms and the Sixth Amendment right to a trial by jury.

Freedom of Speech

The First Amendment guarantees freedom of speech . Freedom of speech gives Americans the right to express themselves without having to worry about government interference. It’s the most basic component of freedom of expression.

The U.S. Supreme Court often has struggled to determine what types of speech is protected. Legally, material labeled as obscene has historically been excluded from First Amendment protection, for example, but deciding what qualifies as obscene has been problematic. Speech provoking actions that would harm others—true incitement and/or threats—is also not protected, but again determining what words have qualified as true incitement has been decided on a case-by-case basis.

Freedom of the Press

This freedom is similar to freedom of speech, in that it allows people to express themselves through publication.

There are certain limits to freedom of the press . False or defamatory statements—called libel—aren’t protected under the First Amendment.

Freedom of Religion

The First Amendment, in guaranteeing freedom of religion , prohibits the government from establishing a “state” religion and from favoring one religion over any other.

While not explicitly stated, this amendment establishes the long-established separation of church and state.

Right to Assemble, Right to Petition

The First Amendment protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes. It also protects the right to protest the government.

The right to petition can mean signing a petition or even filing a lawsuit against the government.

First Amendment Court Cases

Here are landmark Supreme Court decisions related to the First Amendment.

Free Speech &  Freedom of the Press :

Schenck v. United States , 1919: In this case, the Supreme Court upheld the conviction of Socialist Party activist Charles Schenck after he distributed fliers urging young men to dodge the draft during World War I .

The Schenck decision helped define limits of freedom of speech, creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, the Supreme Court viewed draft resistance as dangerous to national security.

New York Times Co. v. United States , 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman , Dwight D. Eisenhower , John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Texas v. Johnson , 1990: Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the administration of President Ronald Reagan .

The Supreme Court reversed a Texas court’s decision that Johnson broke the law by desecrating the flag. This Supreme Court Case invalidated statutes in Texas and 47 other states prohibiting flag-burning.

Freedom of Religion:

Reynolds v. United States (1878): This Supreme Court case upheld a federal law banning polygamy, testing the limits of religious liberty in America. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.

Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the “Lemon Test” for determining when a state or federal law violates the Establishment Clause—that’s the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.

Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry , the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU , the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.

Right to Assemble & Right to Petition:

NAACP v. Alabama (1958): When Alabama Circuit Court ordered the NAACP to stop doing business in the state and subpoenaed the NAACP for records including their membership list, the NAACP brought the matter to the Supreme Court. The Court ruled in favor of the NAACP, which Justice John Marshall Harlan II writing: “This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.”

Edwards v. South Carolina (1962): On March 2, 1961, 187 Black students marched from Zion Baptist Church to the South Carolina State House, where they were arrested and convicted of breaching the peace. The Supreme Court ruled in an 8-1 decision to reverse the convictions, arguing that the state infringed on the free speech, free assembly and freedom to petition of the students.

The Bill of Rights; White House . History of the First Amendment; The University of Tennessee, Knoxville. Schenck v. United States ; C-Span .

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Freedom of speech: historical background.

• U.S. Constitution Annotated

First Amendment :

Congress shall 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 right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Madison’s version of the speech and press clauses, introduced in the House of Representatives on June 8, 1789, provided: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” 1 Footnote 1 Annals of Cong. 434 (1789) . Madison had also proposed language limiting the power of the states in a number of respects, including a guarantee of freedom of the press. Id. at 435 . Although passed by the House, the amendment was defeated by the Senate. See “Amendments to the Constitution, Bill of Rights and the States,” supra . The special committee rewrote the language to some extent, adding other provisions from Madison’s draft, to make it read: “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.” 2 Footnote Id. at 731 (August 15, 1789). In this form it went to the Senate, which rewrote it to read: “That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.” 3 Footnote The Bill of Rights: A Documentary History 1148–49 (B. Schwartz ed. 1971) . Subsequently, the religion clauses and these clauses were combined by the Senate. 4 Footnote Id. at 1153 . The final language was agreed upon in conference.

Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause, and there is no record of debate in the Senate. 5 Footnote The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. 1 Annals of Cong. 731–49 (Aug. 15, 1789) . There are no records of debates in the states on ratification. In the course of debate, Madison warned against the dangers that would arise “from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.” 6 Footnote Id. at 738 . That the “simple, acknowledged principles” embodied in the First Amendment have occasioned controversy without end both in the courts and out should alert one to the difficulties latent in such spare language.

Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone. “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.” 7 Footnote 4 W. Blackstone’s Commentaries on the Laws of England 151–52 (T. Cooley, 2d rev. ed. 1872) . See 3 J. Story , Commentaries on the Constitution of the United States 1874–86 (1833) . The most comprehensive effort to assess theory and practice in the period prior to and immediately following adoption of the Amendment is L. Levy , Legacy of Suppression: Freedom of Speech and Press in Early American History (1960) , which generally concluded that the Blackstonian view was the prevailing one at the time and probably the understanding of those who drafted, voted for, and ratified the Amendment.

Whatever the general unanimity on this proposition at the time of the proposal of and ratification of the First Amendment , 8 Footnote It would appear that Madison advanced libertarian views earlier than his Jeffersonian compatriots, as witness his leadership of a move to refuse officially to concur in Washington’s condemnation of “[c]ertain self-created societies,” by which the President meant political clubs supporting the French Revolution, and his success in deflecting the Federalist intention to censure such societies. I. Brant , James Madison: Father of the Constitution 1787–1800 at 416–20 (1950) . “If we advert to the nature of republican government,” Madison told the House, “we shall find that the censorial power is in the people over the government, and not in the government over the people.” 4 Annals of Cong. 934 (1794) . On the other hand, the early Madison, while a member of his county’s committee on public safety, had enthusiastically promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period. 1 Papers of James Madison 147, 161–62, 190–92 (W. Hutchinson & W. Rachal, eds., 1962) . There seems little doubt that Jefferson held to the Blackstonian view. Writing to Madison in 1788, he said: “A declaration that the Federal Government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.” 13 Papers of Thomas Jefferson 442 (J. Boyd ed., 1955) . Commenting a year later to Madison on his proposed amendment, Jefferson suggested that the free speech-free press clause might read something like: “The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” 15 Papers , supra , at 367. it appears that there emerged in the course of the Jeffersonian counterattack on the Sedition Act 9 Footnote The Act, 1 Stat. 596 (1798), punished anyone who would “write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute.” See J. Smith , Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (1956) . and the use by the Adams Administration of the Act to prosecute its political opponents, 10 Footnote Id. at 159 et seq. something of a libertarian theory of freedom of speech and press, 11 Footnote L. Levy , Legacy of Suppression: Freedom of Speech and Press in Early American History ch. 6 (1960) ; New York Times Co. v. Sullivan, 376 U.S. 254, 273–76 (1964) . But compare L. Levy , Emergence of a Free Press (1985) , a revised and enlarged edition of Legacy of Expression , in which Professor Levy modifies his earlier views, arguing that while the intention of the Framers to outlaw the crime of seditious libel, in pursuit of a free speech principle, cannot be established and may not have been the goal, there was a tradition of robust and rowdy expression during the period of the framing that contradicts his prior view that a modern theory of free expression did not begin to emerge until the debate over the Alien and Sedition Acts. which, however much the Jeffersonians may have departed from it upon assuming power, 12 Footnote L. Levy , Jefferson and Civil Liberties: The Darker Side (1963) . Thus President Jefferson wrote to Governor McKean of Pennsylvania in 1803: “The federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked it in an opposite direction; that is, by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. . . . This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.” 9 Works of Thomas Jefferson 449 (P. Ford ed., 1905) . was to blossom into the theory undergirding Supreme Court First Amendment jurisprudence in modern times. Full acceptance of the theory that the Amendment operates not only to bar most prior restraints of expression but subsequent punishment of all but a narrow range of expression, in political discourse and indeed in all fields of expression, dates from a quite recent period, although the Court’s movement toward that position began in its consideration of limitations on speech and press in the period following World War I. 13 Footnote New York Times Co. v. Sullivan, 376 U.S. 254 (1964) , provides the principal doctrinal justification for the development, although the results had long since been fully applied by the Court. In Sullivan , Justice Brennan discerned in the controversies over the Sedition Act a crystallization of “a national awareness of the central meaning of the First Amendment ,” id. at 273 , which is that the “right of free public discussion of the stewardship of public officials . . . [is] a fundamental principle of the American form of government.” Id. at 275 . This “central meaning” proscribes either civil or criminal punishment for any but the most maliciously, knowingly false criticism of government. “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . [The historical record] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment .” Id. at 276 . Madison’s Virginia Resolutions of 1798 and his Report in support of them brought together and expressed the theories being developed by the Jeffersonians and represent a solid doctrinal foundation for the point of view that the First Amendment superseded the common law on speech and press, that a free, popular government cannot be libeled, and that the First Amendment absolutely protects speech and press. 6 Writings of James Madison , 341–406 (G. Hunt ed., 1908) . Thus, in 1907, Justice Holmes could observe that, even if the Fourteenth Amendment embodied prohibitions similar to the First Amendment , “still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all.” 14 Footnote Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis in original, citation omitted). Justice Frankfurter had similar views in 1951: “The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. . . . ‘The law is perfectly well settled,’ this Court said over fifty years ago, ‘that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.’ Robertson v. Baldwin, 165 U.S. 275, 281 (1897) . That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years.” Dennis v. United States, 341 U.S. 494, 521–522, 524 (1951) (concurring opinion). But as Justice Holmes also observed, “[t]here is no constitutional right to have all general propositions of law once adopted remain unchanged.” 15 Footnote Patterson v. Colorado, 205 U.S. 454, 461 (1907) .

But, in Schenck v. United States , 16 Footnote 249 U.S. 47, 51–52 (1919) (citations omitted). the first of the post-World War I cases to reach the Court, Justice Holmes, in his opinion for the Court upholding convictions for violating the Espionage Act by attempting to cause insubordination in the military service by circulation of leaflets, suggested First Amendment restraints on subsequent punishment as well as on prior restraint. “It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose . . . . We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. . . . The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Justice Holmes, along with Justice Brandeis, soon went into dissent in their views that the majority of the Court was misapplying the legal standards thus expressed to uphold suppression of speech that offered no threat to organized institutions. 17 Footnote Debs v. United States, 249 U.S. 211 (1919) ; Abrams v. United States, 250 U.S. 616 (1919) ; Schaefer v. United States, 251 U.S. 466 (1920) ; Pierce v. United States, 252 U.S. 239 (1920) ; United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921) . A state statute similar to the federal one was upheld in Gilbert v. Minnesota, 254 U.S. 325 (1920) . But it was with the Court’s assumption that the Fourteenth Amendment restrained the power of the states to suppress speech and press that the doctrines developed. 18 Footnote Gitlow v. New York, 268 U.S. 652 (1925) ; Whitney v. California, 274 U.S. 357 (1927) . The Brandeis and Holmes dissents in both cases were important formulations of speech and press principles. At first, Holmes and Brandeis remained in dissent, but, in Fiske v. Kansas , 19 Footnote 274 U.S. 380 (1927) . the Court sustained a First Amendment type of claim in a state case, and in Stromberg v. California , 20 Footnote 283 U.S. 359 (1931) . By contrast, it was not until 1965 that a federal statute was held unconstitutional under the First Amendment . Lamont v. Postmaster General, 381 U.S. 301 (1965) . See also United States v. Robel, 389 U.S. 258 (1967) . voided a state statute on grounds of its interference with free speech. 21 Footnote See also Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) ; Herndon v. Lowry, 301 U.S. 242 (1937) ; DeJonge v. Oregon, 299 U.S. 353 (1937) ; Lovell v. City of Griffin, 303 U.S. 444 (1938) . State common law was also voided, with the Court in an opinion by Justice Black asserting that the First Amendment enlarged protections for speech, press, and religion beyond those enjoyed under English common law. 22 Footnote Bridges v. California, 314 U.S. 252, 263–68 (1941) (overturning contempt convictions of newspaper editor and others for publishing commentary on pending cases).

Development over the years since has been uneven, but by 1964 the Court could say with unanimity: “we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 23 Footnote New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) . And, in 1969, the Court said that the cases “have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 24 Footnote Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) . This development and its myriad applications are elaborated in the following sections.

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The Debate Over Free Speech, Disinformation and Censorship

More from our inbox:, senator ted cruz responds, talking to children about cancer, why we keep our landlines, internet access.

To the Editor:

Re “ Trump Allies Are Winning War Over Disinformation ” (front page, March 17):

The U.S. Supreme Court put limits on free speech, saying you can’t falsely shout “fire” in a crowded theater. Fundamental to our democracy is an informed electorate. Yet our courts seem to be OK with a flood of lies and propaganda masquerading as news and aimed at burning down our democracy.

This should concern every American for several reasons, including the surge of social media sites that contain much misinformation, the closure of many local newspapers, a decline in the number of real journalists, and an increase in the amount of misinformation spread by adversaries like Russia and China in an attempt to affect the outcome of our elections.

Richard Dickinson Richmond Hill, Ga.

In the same way that semiautomatic guns and bump stocks were never foreseen by the founding fathers when establishing the Second Amendment, social media and A.I. escaped their prescience when it came to issues of free speech.

The commerce of ideas as they addressed it consisted primarily of public discourse via the printed or spoken word at social, political and religious gatherings. The idea that citizens would someday own portable electronic devices that facilitated both the easy manufacture and distribution of subjective realities certainly surpassed anything imagined in the Sedition Act.

America must now address two pressing questions that Madison, Hamilton and others were spared. How do we prevent the yelling of “fire” in a crowded theater when there is neither an actual theater nor an assembled crowd? And how do we stop domestic and foreign profiteers who would embrace the resultant turmoil?

Anthony Nannetti Philadelphia

There is a difference between supporting the First Amendment and hiding behind it. A presidential campaign that uses disinformation to subvert a fair and legal election is undermining the very democracy for which free speech is a bulwark.

Louis Greenstein Pleasantville, N.J.

A Supreme Court decision preventing the Biden administration from deciding what can and cannot be said on social media would also prevent a potential future Trump administration from deciding what can and cannot be said on social media.

Ronald J. DeFelice Irvine, Calif.

Re “ An Islamophobic Smear Campaign Is Dividing Democrats ,” by Lydia Polgreen (column, March 21):

Ms. Polgreen blames Islamophobia for Adeel Abdullah Mangi’s difficulty in getting confirmed to the U.S. Court of Appeals for the Third Circuit, and she accuses me of conducting “bad faith ambushes” because I asked Mr. Mangi during a Senate Judiciary hearing if he condemns Hamas’s Oct. 7 attack on Israel.

The reason I asked Mr. Mangi this question — which Ms. Polgreen fails to mention — is that Mr. Mangi has refused to denounce statements by the director of Rutgers’s Law School Center for Security, Race and Rights in which the director referred to Israel as an “occupying force” and accused Israel of engaging in “settler colonialism.” Mr. Mangi donated to the center and served for years on its board of advisers.

Ms. Polgreen also fails to note that the Senate confirmed another nominee, Zahid Quraishi, who, like Mr. Mangi, is Muslim and Pakistani American, with 81 votes — one of the highest vote totals for any judicial nominee of the Biden presidency.

The White House and Senate Democrats don’t want to defend Mr. Mangi on the merits of his record, so they instead accuse his critics of Islamophobia. That is a shameful attack.

Ted Cruz Houston The writer is a Republican senator from Texas.

Re “ How to Talk to Children About Cancer ,” by Talya Minsberg (Live, nytimes.com, March 22):

We were saddened to learn that Catherine, Princess of Wales, has been diagnosed with cancer. Our thoughts as therapists immediately turned to her children and the challenge of having difficult conversations. We agree with Ms. Minsberg’s recommendations.

No one can provide better care than a parent as their child experiences emotional trials. Illness is inevitable, and caring for a child through a family illness is an inevitable part of parenting. This affects the parent, too, but they can be most effective in helping a child by attending to their own feelings first; then they can fully focus on their child’s needs.

We believe that being honest with a child is always best. Tell the truth, but only the amount that a child can hear and digest at any given moment. Take the lead from what a child asks, making sure the tone and the answer align with where a child is. This conversation is an ongoing one that will be elaborated on over time.

We believe that the best antidote to the fear and pain of loss is togetherness. As Catherine said : “Please do not lose faith or hope. You are not alone.”

Elena Lister Michael Schwartzman New York The writers, a psychiatrist and a psychologist, respectively, are co-authors of “Giving Hope: Conversations With Children About Illness, Death and Loss.”

Re “ Speaking Out for Landlines in Digital Age ” (front page, March 17):

My wife and I are on the high side of 65, and we pay for a landline only as a lifeline as we deal with the never-ending onslaught of power outages wrought by National Grid in Massachusetts, some as long as 10 days in our years here.

We also live in a mobile phone dead zone. So our mobile phones must depend on internet Wi-Fi for all calls. When the electricity goes out, so does the internet, hence our lifeline to the outside world in times of crisis.

We plug in two touch-tone phones to replace cordless phones when there is no juice from National Grid. Whether AT&T, Verizon and others like it or not, plain old telephone service (POTS) is as close to 100 percent reliable as you can get. But now they want to tear out the copper, forcing us to unreliable telephone service.

Ben Myers Harvard, Mass.

You’ll have to pry my landline phone from my cold, dead hands.

I find it absolutely ridiculous and user-unfriendly to hold a screen to my ear, as well as to then hold the phone back where I can see the screen in order to find the keypad, while missing the spoken conversation.

Claire Albahae Brewster, N.Y.

Re “ Millions Are Set to Lose Internet Access Subsidies ” (news article, March 24):

During our history, Americans brought mail service, electrification and telephone service to all corners of the country. Why the lessons learned from these experiences can’t be used to solve the challenge of similarly providing residential internet access coast to coast as well is a damning indictment of our broken national politics.

Gary Rucinski Newton, Mass.

• International

Israel-Hamas war

2024 campaign and primaries

Trump's Georgia election subversion case faces key hearing

By Hannah Rabinowitz , Holmes Lybrand , Nick Valencia and Dan Berman , CNN

The hearing on Trump's Georgia election case wrapped without a ruling. Here's a recap of what each side said 

From CNN staff

The hearing in Fulton County, Georgia, over efforts to dismiss the state election subversion case against Donald Trump and his co-defendant David Shafer on First Amendment grounds concluded after nearly two hours of arguments.

The judge did not rule from the bench, nor did he say when he would rule. The Georgia case is one of four criminal cases Trump is facing while his 2024 presidential campaign is underway — and the stakes are high for the former president and the country.

Here's a recap of what each side said during today's hearing :

Trump's attorney: Trump attorney Steve Sadow argued that the former president's statements about the 2020 presidential election in Georgia are " core political speech” and he therefore cannot be prosecuted. The attorney repeatedly argued that the charges against Trump should be dropped because his actions alleged in the indictment were protected under the First Amendment. Sadow also claimed that Fulton County prosecutors cannot prosecute the former president only on the basis that his allegations were “false.”

Fulton County prosecutors: Donald Wakeford, a prosecutor with the Fulton County district attorney’s office, said that it was “premature to consider” First Amendment arguments and that such arguments should be put before a jury during trial. Wakeford added that all the communication from Trump in the indictment related to charges in the case are not protected by the First Amendment. Wakeford pushed back on Trump’s argument that his false claims were protected, saying that his lies furthered a criminal conspiracy. “He’s never been prosecuted for lying,” Wakeford said. “He’s been prosecuted for lying to the government.” The prosecutor also pointed to a federal judge’s ruling against Trump's First Amendment argument in the parallel  election subversion case  in DC.

Shafer's attorney: Craig Gillen, an attorney for Shafer, the former chair of the Georgia Republican Party who allegedly acted as a 2020 fake elector in the state, disputed the allegation in the indictment that Shafer was not a “duly” appointed elector. Gillen also put forth an argument that other co-conspirators have also raised in the case: that they were merely following legal advice. 

No trial date yet: A trial date has not been set, but the Fulton County District Attorney Fani Willis still hopes to go to trial before the November election. Willis previously asked for the trial to start in August, and said she may re-up that request. Earlier this week, a judge ruled Trump's criminal hush money trial will start in April 15.

With reporting from CNN’s Hannah Rabinowitz and Holmes Lybrand.

It's been a wild week of legal developments for Trump

From CNN's Jeremy Herb, Lauren del Valle and Kara Scannell

The Fulton County hearing today in the Georgia election subversion case is only one of the many legal developments former President Donald Trump has faced this week.

On Monday, Trump received both a lifeline from the courts and a trial date for the first criminal trial of a former president in US history.

The twin rulings, which came roughly within an hour of each other, hit the intersection of challenges to Trump’s image and his famed business empire as he seeks a second term in the White House.

Trump’s historic criminal trial in the New York hush money case against him will begin with jury selection on April 15, Judge Juan Merchan said Monday, after a dispute over the late production of documents caused the judge initially to  push back the start date . Trump attended the hearing.

For Trump, however, the more significant ruling Monday may have been a New York appeals court allowing him to post a  reduced $175 million bond  as he appeals the $464 million New York civil fraud judgment against him, his adult sons and his company. Trump told reporters he will cover the bond using cash as a collateral.

Read more about those rulings .

CNN legal analyst: Judge McAfee will likely reject Trump's First Amendment argument

From CNN's Dan Berman

CNN senior legal analyst Elie Honig said he believes that Donald Trump's attempt to have the Georgia election subversion indictment dismissed on First Amendment grounds will fail given how another judge in Washington, DC, ruled regarding a similar argument.

"Trump’s legal team argues that his charged conduct here is political speech, protected by the First Amendment (even if the speech was false or unpopular). But prosecutors allege that Trump’s speech was part of a larger criminal plan to steal the election and hence not covered by the First Amendment," he said.

"Judge Tanya Chutkan, who is presiding on the other, federal election subversion case, had already rejected a similar defense argument. Judge McAfee is not bound by that decision, but he likely will reach a similar conclusion," Honig added.

McAfee did not rule from the bench during Thursday's hearing, nor did he say when he would rule.

Georgia prosecutor says Trump is not being prosecuted for lying — but for lying to the government

From CNN's Hannah Rabinowitz

Fulton County prosecutor Donald Wakeford pushed back on Donald Trump’s argument that his false claims were protected under the First Amendment, saying that his lies furthered a criminal conspiracy.

“He’s never been prosecuted for lying,” Wakeford said. “He’s been prosecuted for lying to the government.”

Trump’s attorneys are arguing that his false speech is protected by the First Amendment, Wakeford said.

“That’s not what the indictment says,” Wakeford argued. “It’s not just that he lied over and over and over again, as counsel for the defendant points out by listing all of the instances in the indictment.”

Instead, the Indictment alleges that “each of those was employed as part of criminal activity with criminal intentions.”

“In the end, no matter how much we hear about the noble protections afforded by the First Amendment, all of this is an effort to get your honor not to look at the basic fact that this speech, this expression, all this activity, is employed as part of a pattern of criminal conduct,” Wakeford said.

Defense lawyer calls the term fake electors "really nasty" in attempt to strike it from case

From CNN's Hannah Rabinowitz and Holmes Lybrand

Fulton County prosecutors and a defense attorney for Donald Trump co-defendant David Shafer bickered Thursday over whether it was appropriate to refer to “fake electors” as part of the 2020 election interference case.

Craig Gillen, an attorney for Shafer, asked the judge to strike the term “fake elector” from the case, saying that the term was “pejorative,” a “legal conclusion” and “really nasty.”

Shafer served as one of the so-called “alternate electors” for Trump in Georgia.

“They want to have [the term] ingrained in the minds of the community and of jurors — a concept that if you are not a Democratic elector … then you are a ‘fake’ elector.”

Prosecutor Will Wooten shot back, saying that “nowhere in the indictment is the term ‘fake elector.’ It does not exist.”

Trump co-defendant tries range of arguments against Georgia election subversion case

From CNN's Holmes Lybrand

An attorney for one of the alleged fake electors in Georgia made several arguments in an effort to get charges in the election subversion case dismissed, including over who was a "duly" appointed elector for Georgia after the 2020 election.

Craig Gillen, an attorney for David Shafer, the former chair of the Georgia Republican Party who allegedly acted as a 2020 fake elector in the state, disputed the allegation in the indictment that Shafer was not a “duly” appointed elector.

In December, when Shafer and others allegedly submitted a false document claiming to be Georgia electors, declaring Trump had won Georgia, “there were no duly elected and qualified presidential electors from the state of Georgia,” Gillen argued Thursday.

Gillen also put forth an argument that other co-conspirators have also raised in the case: that they were merely following legal advice. In his court filing on the matter, Gillen wrote that Shafer was “attempting to comply with the advice of legal counsel” and trying to follow the law that governs the electoral count when he submitted the allegedly fake document declaring Trump had won the state.

Gillen also has argued that, under the law, Shafer never acted as a “public officer,” as the indictment alleges and pushed back on the notion that Shafer committed forgery in signing the elector document.

Key things to know about the Supreme Court ruling on military medals that Trump’s lawyer is citing

From CNN's Devan Cole

During today's hearing, Trump attorney Steve Sadow has repeatedly cited a 2012 Supreme Court case dealing with free speech to bolster his argument that the charges against the former president should be dismissed.

The court, in US v. Alvarez, struck down a law that had made it a crime to falsely claim that military medals were earned. Writing for a majority, then-Justice Anthony Kennedy said that the law violated free speech protections. 

“The nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace,” he wrote. 

Then-Justice Stephen Breyer wrote in a concurrence that the government could find "less restrictive ways" to "achieve its legitimate objectives."  Conservative Justices Samuel Alito, Clarence Thomas and Antonin Scalia dissented, saying that the law did not go too far.

Alito, writing for the three justices, said that the court’s ruling “breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest.”

Sadow on Thursday invoked both Alito and Breyer.

“Essentially, the state's position is, ‘because, as alleged what President Trump said, speech-wise, or expressed either through his speech or conduct, which is still freedom of expression, because that's false in the eyes of the state it’s lost all protection of the First Amendment.’ And the concurring opinion and the dissenting opinion in Alvarez suggests just the opposite. If anything, under the circumstances, it needs more protection, not less protection,” he said.

Previous First Amendment challenges by former Trump co-defendants have been unsuccessful

From CNN's Nick Valencia and Jason Morris

In a hearing this morning, Donald Trump’s lead attorney in Georgia is arguing that the indictment should be dismissed because the former president’s political speech is protected by the First Amendment. 

Previous First Amendment challenges by former Trump co-defendants Kenneth Chesebro and Sidney Powell were unsuccessful.

Chesebro and Powell were two of the former president’s lawyers who later pleaded guilty in exchange for their testimony and cooperation. They had attempted to have the indictment dismissed under the US Constitution’s supremacy clause but failed.

In his denial at the time, Judge Scott McAfee ruled that various case law pointed to facts and evidence needing to be established in a courtroom before a First Amendment challenge can even be considered.

Federal judge in Washington, DC, case already said Trump's speech isn't protected, prosecutor notes

Responding to Donald Trump’s argument that the indictment against him in Georgia should be dismissed because his actions were protected by the First Amendment, a prosecutor for Fulton County’s District Attorney pointed to a federal judge’s decision on the same issue in Trump’s parallel election subversion case in Washington, DC.

“To address the first elephant in this courtroom,” prosecutor Donald Wakeford said during Thursday’s hearing, Judge Tanya Chutkan “has evaluated all these questions” under Supreme Court precedent.

Chutkan is overseeing the election subversion case against Trump brought by special counsel Jack Smith in DC. The case has been on pause for several months as the Supreme Court is set to take up Trump’s arguments of immunity in the case.

In denying Trump’s effort to dismiss the election subversion charges against him in Washington, DC – arguing he had absolute immunity as president – Chutkan wrote in December that the First Amendment “does not protect speech that is used as an instrument of a crime.”

Wakeford argued that Trump’s lies were in furtherance of criminal activity, seeking to overturn election results in the state.

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Donald Trump's lawyer in Georgia: election lies are protected speech

Donald Trump’s lawyer argued Thursday the former president can’t be prosecuted in Georgia for trying to steal the 2020 election because his alleged conduct was political speech that must be protected under the First Amendment − even speech that was lies.

“Falsity alone is not enough,” Trump's lawyer, Steven Sadow , said. “Clearly, being president at the time, dealing with elections and campaigning, calling into question what had occurred – that’s the height of political speech.”

Sadow urged Fulton County Superior Judge Scott McAfee to dismiss the charges against Trump because they are based on his statements questioning the election results and pressuring state officials to overturn them.

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“It’s the speech that’s being punished,” Sadow said. “Take out the political speech, no charges.”

McAfee didn’t rule immediately on the request. But he sounded skeptical that he could make any decision about whether the First Amendment protected Trump before holding the trial.

Prosecutors argued Trump’s statements contributed to a wide-ranging conspiracy of making false statements to government officials, submitting false and forged documents and impersonating public officials. Trump asked Georgia Secretary of State Brad Raffensperger, a fellow Republican, to "find" the votes he would need to carry the Peach State.

“It’s not just that he lied over and over and over again,” said prosecutor Donald Wakeford. “It’s that each of those was employed as part of criminal activity with criminal intentions.”

U.S. District Judge Tanya Chutkan has already rejected Trump’s argument that his statements are protected by the First Amendment, in a federal case with similar charges of election interference. Wakeford directed McAfee to her reasoning for a detailed explanation for why Trump is wrong.

“It’s not a basis for dismissing the indictment,” Wakeford added.

Trump and 14 co-defendants have pleaded not guilty to election racketeering. Four defendants have pleaded guilty. McAfee hasn’t scheduled the trial yet but prosecutors have proposed starting in August.

Co-defendant Shafer argues Georgia had no legitimate presidential electors in 2020

Another defendant, David Shafer, who is chairman of the Georgia Republican Party, also sought to dismiss his charges Thursday. His lawyer, Craig Gillen, also asked to erase phrasing in the indictment describing Shafer as a “fake” presidential elector .

Shafer and two others are charged with impersonating public officials and forgery for meeting Dec. 14, 2020, and submitting paperwork as if they were Republican presidential electors for Trump. President Joe Biden narrowly won the state and Congress recognized his Democratic electors as legitimate.

Gillen argued that no electors – neither Republicans nor Democrats – should have been recognized because a Trump and Shafer lawsuit challenging the results was still pending Dec. 14, 2020.

“There were no duly elected and qualified presidential electors from the state of Georgia,” Gillen said.

Georgia Gov. Brian Kemp certified the election results and the electors, which Congress accepted.

Shafer, state GOP chair, objects to being called 'fake elector'

Gillen also complained about prosecutors calling Shafer and others “fake electors” and argued the phrase should be removed from the indictment.

“It’s a pejorative statement,” Gillen said.

Will Wooten, another prosecutor, said the term “fake elector” doesn’t appear in the indictment, which does refer to as “unlawful” or “false Electoral College documents.”

This article originally appeared on USA TODAY: Donald Trump's lawyer in Georgia: election lies are protected speech

US wants to ban TikTok, but First Amendment demands stronger case on national security

Many fear china's manipulation of americans' data collected on tiktok, but users info is already available for purchase on the open market through data brokers..

The H ouse voted 352-65 a week ago to pass the Protecting Americans from Foreign Adversary Controlled Applications Act. It would prohibit the distribution, maintenance or updating of TikTok or another designated app “controlled by a foreign adversary” within 180 days of the bill’s enactment unless there's a “qualified divestiture” – a sale approved by the government’s executive branch.

The proposal raises concerns for the speech rights of 170 million American users if the government’s actions require a sale or an outright ban of TikTok.

Notably, unlike past proposals, the bill is not an immediate ban but rather provides an option for a sale or divestiture approved by the government. The distinction between a straightforward “TikTok ban” and a forced sale or divestment might not impact users if a sale is unable to occur.

However, it will be important in any legal challenges under First Amendment analysis.

While there are other platforms for short-form video, TikTok’s users – content creators, consumers or small businesses – have chosen that platform as the one that best fits their needs and preferences. To overcome First Amendment concerns, the government will likely need to demonstrate that forced divestment or otherwise banning the app advances a compelling government interest and represents the least restrictive means of advancing that interest.

Regulating TikTok opens door to censoring Facebook, X

What might that compelling government interest be?

TikTok is headquartered in Singapore and Los Angeles , but its parent company ByteDance is a Chinese company . Because of this connection, some in Congress are primarily concerned with the data TikTok collects on Americans and how, if given to the Chinese Communist Party, that data could be used against U.S. interests.

Others say Beijing could manipulate the TikTok algorithm to engage in nefarious activities such as election interference or misinformation.

Hands off TikTok: Biden has shown us why government and social media shouldn't mix

However, much of the data collected by TikTok is already available for purchase on the open market through data brokers , and it seems China would rather gain information that way than torpedoing TikTok altogether.

Further, the government regulating TikTok because of concerns about how it organizes its algorithm could open the door for similar regulation and censorship of U.S. companies that collect data on its users – such as Facebook and X (formerly Twitter) – should a president decide to allege their leadership is influenced by foreign adversary in some way.

National security vs. 'our commitment to free expression'

Many have found that while there might be concerns about TikTok that lead to different individual choices around whether to use the app, the government has not yet made a strong enough case on national security.

In fact, the House Intelligence Committee's ranking member, Rep. Jim Himes, D-Conn., voted against the proposal, writing that he believes there is “a way to address the challenge posed by TikTok that is consistent with our commitment to free expression .”

Even in cases of known propaganda like the publication RT America , the U.S.-based broadcast of the Kremlin-backed Russia Today, the United States did not ban access to information but rather trusted Americans to choose the truth in the market of expression. Ultimately, it was the decisions of private actors and not the government that led the decade-old news outlet to go off the air in 2022 (though RT content in English can still be accessed via certain online streaming services).

Pick your presidential waffling: Trump flip-flops on TikTok ban, Biden plays both sides

Right now, we don’t know what the Chinese government is doing with TikTok data, or what if any influence it might have over decisions about the algorithm. This is why, in order to protect Americans, there are less restrictive steps Congress could consider that would have less of an impact on speech short of forced divestment.

The U.S. government has, for instance, banned TikTok from government devices . It could further consider requiring apps to post disclaimers if they have ties to the Chinese government or other adversarial nations, so that users are aware of concerns about propaganda, or it could require data be held at local sites.

These actions also have trade-offs and consequences, but they'd have less of an impact on free speech rights of TikTok’s American users.

Notably, the bill may not solely impact foreign businesses. It focuses on the distribution, maintenance or updating of a designated app or website. As a result, the burdens and penalties related to its enforcement could fall on U.S. companies.

These are companies that have chosen to allow TikTok in their app stores, for example, and, if a divestment does not occur, may be forced to remove the app even if they felt it met their data security requirements.

This raises concerns about potentially unconstitutional government intrusion into the decisions of these platforms regarding what content to host. Further, it could set a dangerous precedent of government intervention in the online space that many would find anathema in the offline space.

Given the potential impact on speech, concerns about TikTok must be addressed in a nuanced way, and there should be a high burden of proof for the government’s national security concerns.

The focus should not be merely on the company but on the impact on the millions of Americans who have chosen TikTok as a forum for expression – and the potential precedent it could set for government intervention into social media. 

Jennifer Huddleston is a technology policy research fellow at the Cato Institute and an adjunct professor at George Mason University’s Antonin Scalia Law School.

Prosecutors say Trump team trying to 'rewrite indictment' in bid to dismiss Georgia election case

The judge did not make a ruling at the end of arguments in Thursday's hearing.

Attorneys for Donald Trump said that Trump's comments "calling into question" the election of 2020 were "the height of political speech," in arguments seeking the dismissal of the former president's Georgia election interference case Thursday.

Trump's lawyers were back in a Fulton County courtroom, where they argued that the election interference charges against Trump should be dismissed because his actions related to the 2020 election were "political speech advocacy that lie at the heart of the First Amendment."

Fulton County Judge Scott McAfee ended the hearing without making any rulings on the motions.

MORE: Fani Willis vows nothing 'will derail' Trump's election interference trial

"I don't think there's any question that statements, comment, speech, expressive conduct that deals with campaigning or elections has always been found to be at the zenith of protected speech," Trump attorney Sadow argued, saying that even if Trump's statements were false, they are protected as a valuable contribution to public discourse.

"The only reason it becomes unprotected in the State's opinion is because they call it false," Sadow said.

But prosecutor Donald Wakeford fired back, telling the court that the former president's speech was part of a conspiracy to commit crimes.

"It's not just that he lied over and over and over again," Wakeford said. "It is that each of those was employed as part of criminal activity with criminal intentions. "

Arguing that Trump was part of a "criminal organization," Wakeford said that his speech was not protected by the First Amendment because he was using his words to commit crimes.

"It's not that the defendant has been hauled into a courtroom because the prosecution doesn't like what he said," Wakeford said. "What he is not allowed to do is employ his speech and his expression and his statements as part of a criminal conspiracy, to violate Georgia's RICO [racketeering] statute, to impersonate public officers to file false documents, and to make false statements to the government."

Wakeford also argued that Trump's motion to dismiss was premature and that it failed to form a basis to dismiss the indictment.

"What we have heard here today is an attempt to rewrite the indictment to take out the parts that are inconvenient and only say, 'Well, it's all speech ... and he was just a guy asking questions,'" Wakeford said. "All of this is an effort to get Your Honor not to look at the basic fact that this speech, this expression, all this activity is employed as part of a pattern of criminal conduct."

John Floyd, an expert on racketeering laws with the DA's office, argued that Trump's election comments could still be part of a criminal conspiracy even if they could be considered free speech.

"It doesn't matter whether that's First Amendment conduct or not ... this is a RICO conspiracy case," Floyd said. "It could be First Amendment protected conduct that also shows there's a conspiracy in operation."

Attorneys for Trump co-defendant and former Georgia Republican Party Chair David Shafer, meanwhile, asked the court to strike several phrases from the indictment, including "duly elected and qualified presidential electors," "lawful electoral votes" and "false Electoral College votes."

Shafer's attorney Craig Gillen argued that the so-called fake electors cannot be defined as "public officers."

"Just because the fact that they were nominated by their party doesn't make them a public official," Gillen said. "This particular count is flawed for the very purpose of these electors cannot be under Georgia law, public officers."

"By law, by federal law, they did not have the authority," Gillen said.

A prosecutor for the DA's office argued that "anything that purports to be someone acting by authority of the government" is a public officer.

"It doesn't even have to be a real public officer, it doesn't have to be a state officer," the prosecutor said. "Anything that purports to be someone acting by authority of the government is a public officer, and that's certainly what presidential electors do."

Gillen also sought to have the team "fake elector" removed from the indictment, saying, "They want to have ingrained in the minds of the community and of jurors a concept that if you are not Democratic elector on December the 14th ... then you are a fake elector. That is a pejorative term, not necessary for the charges, and should be stricken."

"The phrase fake elector does not exist in this indictment," a prosecutor responded.

The hearing in Fulton County, Georgia, marked the first time that the parties in the case returned to court since the failed disqualification effort against Fulton County District Attorney Fani Willis. Trump and several co-defendants in the case received permission last week to appeal that decision .

Trump himself did not attend the proceedings.

Trump and 18 others pleaded not guilty last August to all charges in a sweeping racketeering indictment for alleged efforts to overturn the results of the 2020 presidential election in the state of Georgia. Four defendants subsequently took plea deals in exchange for agreeing to testify against other defendants.

Earlier this month, Judge McAfee dismissed six of the counts against Trump and his co-defendants, for soliciting the oath of a public officer, due to a technical fault in the indictment. McAfee ordered Thursday's hearing to consider three motions from lawyers for Trump and Shafer related to the dismissal of the indictment.

In their motions, Trump's lawyers argued that the First Amendment protects the former president's conduct related to the 2020 election, and makes the indictment "categorically invalid."

"President Trump enjoys the same robust First Amendment rights as every other American," Sadow argued in a filing before the hearing. "The indictment here does not merely criminalize conduct with an incidental impact on protected speech; instead, it directly targets core protected political speech and activity."

"Every charge and overt act alleged against President Trump rests on core acts of political speech and advocacy that lie at the heart of the First Amendment," the filing said.

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