Freedom of Speech Resources

Texas v. Johnson established that the burning of the American flag was protected under the First Amendment as symbolic speech on similar grounds to Brandenburg v. Ohio. In 1984, Gregory Johnson burned an American flag in front of Dallas City Hall while protesting the Reagan administration. Along with forty-seven other states, Texas had a law against flag desecration and Johnson was prosecuted and convicted for his actions. In a close 5-4 decision, the Court decided that the Texas law violated Johnson's right to free speech. His action, overtly political in nature, constituted an expression of symbolic speech. Moreover, the Court noted that although the flag-burning might have resulted in a disturbance of the peace, that disturbance would have been due to the offense taken by onlookers, which was not in itself the responsibility of the defendant. Johnson's action was not an invitation to confrontation, nor was there evidence that it would incite a riot. Even in the case of flag desecration, the government could not restrain the expression of ideas.

"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."

The original Constitution of the United States proposed for ratification by the Federal Convention of 1787 lacked any explicit reference to freedom of speech or of the press. According to the Federalist Framers of the Constitution, explicit provisions for such freedoms as speech and the press were unnecessary, since the Constitution granted only certain narrow powers to Congress. They argued that by including a Bill of Rights, which seemed to imply such a Bill was necessary, the Constitution might taken as implying that the Congress had more power than it did. Despite this argument, the absence of a Bill of Rights was incredibly unpopular and nearly cost it its ratification. Only by promising to introduce a Bill of Rights as amendments were the Federalist authors of the document able to persuade key states to adopt it, and North Carolina did not ratify it until after the Bill of Rights was actually added.

Harry Keyishian, an English instructor at the State University of New York, Buffalo, was fired along with several of his colleagues when he refused to sign statements required by the State of New York and the university that he was not a communist. The Supreme Court struck down the provisions in the Civil Service Law and the Education Law that required such statements and that punished "seditious ... utterances." In its majority decision, the Court maintained that there is a higher degree of First Amendment protection in the university than in society.

In Virginia v. Black, the Supreme Court struck down a Virginia statute that criminalized cross-burning. The Court ruled that while states have the right to ban cross-burning when it is used to threaten or intimidate individuals, it cannot ban cross-burning as such. The statute in question explicitly stated that cross-burning was to be regarded as sufficient evidence "of an intent to intimidate a person or group." It therefore cut off the opportunity of any defendants to argue that their particular burning of a cross was not intended to threaten anyone but was intended only as a symbolic expression of principles, however objectionable those principles might be.

In this famous case, the Supreme Court ruled that the First Amendment does not permit public figures to sue for damages for "emotional distress" when the speech causing the distress is obviously satirical and fictitious. Evangelist Jerry Falwell sued Hustler magazine in 1983 when it published a fake advertisement for a liqueur, in which Falwell was depicted recounting a sexual encounter with his own mother under the drink's influence. The Supreme Court rejected Falwell's suit in a unanimous decision.

A teenager in St. Paul, Minnesota was charged under a local ordinance pertaining to "Bias-Motivated Crime" after he took part in burning a cross on the lawn of a black family. In a unanimous decision, the Supreme Court overturned the teenager's conviction on the grounds that the ordinance in question was overbroad, which is to say it was not "narrowly tailored" to restrict only the kinds of speech that are not protected by the First Amendment. The Court did not rule that no law could criminalize the burning of crosses on someone's lawn--indeed it emphasized that doing so is illegal under ordinary criminal codes--but concluded only that the particular ordinance used in this case was unconstitutional.

In this case, the Supreme Court qualified the "actual malice" test from New York Times v. Sullivan by a distinction between public and private speech. The Court ruled that in cases where the speech in question is communicated privately and serves purely economic aims, there is less First Amendment protection than in cases where the speech is open to the public and has a political or social function. Dun & Bradsteet was a credit reporting agency that, due to the carelessness of a teenage intern, falsely reported to some of its subscribers that Greenmoss Builders, Inc. had filed for bankruptcy. Greenmoss successfully sued for $350,000 despite the lack of "actual malice" in the report. The Supreme Court's decision was by a narrow margin (5-4), and included a powerful dissent that took issue with the majority opinion's attempt to distinguish economic and political or social speech.

In this case, the Supreme Court qualified the "actual malice" test from New York Times v. Sullivan by a distinction between public and private speech. The Court ruled that in cases where the speech in question is communicated privately and serves purely economic aims, there is less First Amendment protection than in cases where the speech is open to the public and has a political or social function. Dun & Bradsteet was a credit reporting agency that, due to the carelessness of a teenage intern, falsely reported to some of its subscribers that Greenmoss Builders, Inc. had filed for bankruptcy. Greenmoss successfully sued for $350,000 despite the lack of "actual malice" in the report. The Supreme Court's decision was by a narrow margin (5-4), and included a powerful dissent that took issue with the majority opinion's attempt to distinguish economic and political or social speech.

Beginning in the late 1980s, colleges and universities around the country began to institute policies aiming to protect students from offensive and harassing speech. Most of the policies included restrictions on speech that the Supreme Court would not permit of federal or state government. While the legal right of private schools to adopt such policies is for the most part undisputed, the enactment of speech codes in public universities is a matter of continuing controversy. While no case has gone to the Supreme Court, a federal district court struck down a speech code at the University of Michigan as early as 1989, and since then speech code challenges have been consistently successful in lower courts. Despite the uniformity of case law, speech codes have continued to proliferate in various forms, and have continued to generate controversy. Aside from the legal question of the constitutionality of speech codes in public universities, the presence of such policies even in private schools has raised the objection that institutions of higher education ought to be committed to freedom of speech in an even broader sense than that of the First Amendment.

This landmark case established the "actual malice" standard used by the Court to distinguish defamation from protected speech under the First Amendment. It was also the case that put an end to southern states' practice of using defamation suits to prevent the press from reporting on their oppression of black citizens. Sullivan concerned an advertisement published in the New York Times seeking financial support for "The Committee to Defend Martin Luther King and the Struggle for Freedom in the South." Sullivan, the Montgomery Public Safety Officer, sued the New York Times for what he perceived as a negative portrayal of his performance (though he was not named in the article). On appeal, the Supreme Court ruled against Sullivan on the grounds that his counsel failed to prove that the New York Times published the statements in question with "actual malice" toward Sullivan and that it is insufficient to argue simply that the statement happened to be wrong and happened to harm Sullivan.

In 2006, the notorious Westboro Baptist Church, under the leadership of Fred Phelps, picketed the funeral of U.S. Marine Lance Corporal Matthew Snyder. Snyder's father sued the WBC for damages under the tort of emotional distress. In a landmark case, the Supreme Court ruled 8-1 against Snyder on the grounds that the protesters' demonstration related to public matters and did not aim narrowly at distressing the mourners.

When the National Socialist Party of America (NSPA) announced its intention to march through predominately Jewish community of Skokie, Illinois, in 1977, the Circuit Court of Cook County, Illinois issued an injunction prohibiting participants from wearing Nazi uniforms or displaying swastikas. Upon the ACLU's challenge to the injunction, the Supreme Court ordered Illinois to hold a hearing on their ruling, stating that without "strict procedural safeguards," such an injunction "constitutes a denial" of First Amendment rights. Upon the hearing under the Illinois Appellate Court, all parts of the injunction were eliminated except for the prohibition of swastikas, but the Illinois Supreme Court subsequently eliminated that provision as well.

The Alien Registration Act of 1940, commonly known as the "Smith Act" after Representative Howard Smith, its principal author, criminalized a broad range of activities subversive of the U.S. government. The Smith Act was enacted in response to growing fears of fascist and communist sedition, and originally targeted disruptive immigrant leaders of the growing labor movement. However, it would go on to serve in the Second World War as a version of the First World War's Espionage and Sedition Acts, suppressing anti-war agitation and foreign subversion of American war efforts. Later, during the Cold War and "McCarthyism," the Smith Act would be used to prosecute dozens of American communists for suspected subversion. It was in response to this string of convictions that the Supreme Court would finally begin to rule against the government in sedition cases, starting with Yates v. United States. Parts of the Smith Act remain in the U.S. criminal code.

Dennis v. United States is the most prominent cold-war era Supreme Court sedition case. Eugene Dennis and eleven other leaders in the Communist Party of the U.S. were convicted in 1948 under the Smith Act, which criminalized advocating the overthrow of the U.S. government. Following a version of Holmes' and Learned Hand's "clear and present danger" reasoning from the World War I era sedition cases, the Supreme Court ruled against the defendants on the grounds that the First Amendment does not protect speech used in plotting government overthrow. Justice Black and Justice Douglas dissented on the grounds that although the defendants harbored a philosophy unfriendly to the U.S. government, were not shown to have taken any specific actions aiming at its overthrow, and argued accordingly that the Smith Act was unconstitutional.

Prior to the Fourteenth Amendment, the Bill of Rights applied only to the federal government, and did not restrict state legislatures. In Gitlow, the Supreme Court decided that the Fourteenth Amendment extended the freedom of speech and press provisions in the Bill of Rights to apply to the individual states. During the first Red Scare in the wake of World War I, Benjamin Gitlow was charged under New York's "Anarchy Law of 1902" for publishing a "Left Wing Manifesto" in a socialist newspaper. The court upheld Gitlow's conviction, with vigorous dissents from Justice Brandeis and Justice Holmes, but in doing so ruled that the case fell under federal authority.

Harper v. Poway is a case that raises the question of First Amendment protection in public high schools. In a California high school with a history of conflict over sexual orientation, the student-led Gay-Straight Alliance was allowed to conduct a day of silence, during which a student named Tyler Harper wore a T-shirt which read “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED” on the front and “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27’” on the back. Though Harper was not disciplined, he was required by the school Principal to remain in her office throughout the day as long as he refused to take it off. Harper subsequently sued the school, but lost the case.

Doe v. Michigan was the first case challenging the "speech codes" began to be adopted in colleges and universities around the country beginning in the 1980s. Due to a proliferation of incidents involving racism, the University of Michigan instituted in 1988 a “Policy on Discrimination and Discriminatory Harassment,” which prohibited any behavior, including speech, that "stigmatizes or victimizes" someone on the basis of their identity. An unnamed psychology graduate student ("John Doe") challenged the policy on First Amendment grounds and it was struck down by a federal district court on the for being "overbroad," or restricting speech that did not fall under the commonly recognized exceptions to First Amendment protections.

Despite their complaints over the Federalists' use of the Alien and Sedition Acts to prosecute the opposition, Republicans did not hesitate to prosecute Federalist opposition for libel at the state level once they won the presidency with the election of Thomas Jefferson in 1800. Croswell published a small paper called The Wasp, which aggressively criticized Thomas Jefferson and other Republican public officials. When he was a arrested and convicted on charges of libel and sedition by the State of New York, Croswell appealed to the Supreme Court of New York, where he was defended by Alexander Hamilton and James Kent. Though the judges were evenly split and the conviction stood, the case gave a high-profile occasional for Hamilton and Kent to make a case for permitting truth as a defense against libel charges.

Like Schenck, Abrams v. United States concerned the conviction of activists for distributing political leaflets denouncing the U.S. war efforts. The defendants, a group of communist Jewish immigrants in New York City, were charged this time under the broader Sedition Act of 1918. While the Supreme Court upheld their conviction, Oliver Wendell Holmes delivered a famous dissent arguing that the "clear and present danger" test that supported the Schenck conviction did not apply to Abrams. Holmes' Abrams dissent would subsequently guide the Court's understanding of the limits of First Amendment protections in the case of incitement, and represents more generally the beginning of a shift in the Court toward the more libertarian understanding of the First Amendment speech and press protections that it holds today.

This case concerned a statute in Georgia that provided that "[a]ny person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor." After a state court convicted Johnny Wilson of violating the statute, the Supreme Court overturned his conviction in a 5-2 decision, ruling that the provision in question was not sufficiently "narrowly tailored" to restricting unprotected speech under the First Amendment. Gooding was thus, along with Cohen v. California, an occasion for the Court to clarify the limits of its "fighting words" exception to First Amendment protection. These limits proved to be quite narrow.

The Espionage Act of 1917 was a law passed by Congress after the United States entered World War I designed to protect the war effort from disloyal European immigrants. The Act criminalized the publication or distribution of "information" that could harm or hinder US armed forces as well as of "false reports or false statements" intended to promote America's enemies, and it empowered the Postmaster General to seize mail that it judged to fall within these categories. The Sedition Act of 1918 refers to a series of amendments to the Espionage Act that expanded the crimes defined in that law to include, among other things, any expression of disloyalty to or contempt of the US government or military.

This case helped clarify the limits of the Supreme Court's application of the Brandenburg doctrine. Gregory Hess was arrested for disorderly conduct during a protest against the Vietnam war at Indiana University when he threatened to return later to "take the ... street" from the protestors. The Supreme Court reversed his conviction on the grounds that his advocacy of illegal action referred to "some indefinite future time" and thus did not meet Brandenburg's standard of "incitement to immanent lawless action."

In an early test of the Espionage Act of 1917, Judge Learned Hand ruled that since the Espionage Act did not prohibit the publication or distribution of any materials by mail, the Postmaster of New York was obliged to deliver mail he judged to be seditious and that his failure to deliver such mail would violate the First Amendment. Though this decision was subsequently reversed by a higher court, Judge Hand's decision offers an early example of the stricter, more libertarian understanding of First Amendment speech protection that would eventually be adopted by the Supreme Court. Hand's example is known to have influenced the development of Oliver Wendell Holmes' jurisprudence in the Espionage and Sedition Acts era.

In this case the Supreme Court ruled that there is no constitutional right to send unwanted material into someone's home. The decision therefore established an exception to First Amendment protection of speech in the case of a "captive audience." Rowan concerned a 1967 Act of Congress that required Post Offices to order senders to remove individuals from their mailing lists whenever those individuals requested it. A number of businesses that practiced mass-mailing (one of which was owned by Rowan) appealed these orders to the Supreme Court, which upheld the Act.

In Chaplinsky the Supreme Court upheld a New Hampshire banning offensive speech toward others in public. Walter Chaplinsky was arrested under this statute for calling the City Marshal of Rochester, New Hampshire, “a God damned racketeer” and “a damned Fascist,” following a disturbance while Chaplinsky was distributing pamphlets on the Jehovah’s Witnesses religious sect. In its ruling, the court argued that speech that itself inflicts injury or tends to incite an immediate breach of the peace, such as the speech Chaplinsky directed against the City Marshal, falls within a limited class of speech it termed “fighting words,” and is a reasonable exception to the right to freedom of speech.

After Ohio police found photographs in Clyde Osborne's home depicting nude adolescents posed in sexually explicit positions, he was convicted of violating a state statute prohibiting the possession or viewing of photographs or videos of naked children. Upon appeal, the Supreme Court upheld the law, thus extending the argument of Ferber beyond the question of restricting the distribution child pornography to the question of restricting private ownership of it. Osborne thus established limits to the right to privacy implied in the Court's ruling in Stanley v. Georgia.

In Ashcroft v. Free Speech Coalition, the Supreme Court struck down two provisions of the federal Child Pornography Prevention Act of 1996 that extended the definition of child pornography to include any image or video, real or artificial, that even "appears to be" or "conveys the impression it depicts" a "minor engaging in sexually explicit conduct." In Free Speech Coalition we therefore find the Court trying to identify the limits to the states ability to regulate speech on the grounds of a compelling state interest like the protection of children.

In New York v. Ferber, the Supreme Court ruled that the distribution of child pornography can be restricted regardless of whether it meets the legal classification of "obscene." Paul Ferber was convicted under a New York state obscenity law for selling films of young boys masturbating. The Supreme Court upheld that law, reversing a New York Court of Appeals decision which overturned Ferber's conviction on First Amendment grounds.

Roth is a landmark case that overturned the common law rule permitting, without qualification, the prohibition of obscene material. Samuel Roth was convicted under federal statute for selling a quarterly called American Aphrodite. While the Supreme Court ruled 6-3 to uphold Roth's conviction, it did so on the grounds that Congress could only ban material that was "utterly without redeeming social importance," thus qualifying the extent to which the distribution of obscene materials could be restricted. This qualification would eventually lead the Court to overturn obscenity laws, beginning with Miller v. California.

While searching under a warrant for gambling paraphernalia, police found reels of pornography in home of Robert Eli Stanley (in Georgia). He was charged with possession of obscene materials under Georgia law. The Supreme Court, led by Justice Marshall, unanimously overturned the Georgia Supreme Court's decision to uphold his conviction on the grounds that the private possession and viewing of obscene materials is protected under the First and Fourteenth Amendment. This case helped to carve out a "right to privacy" in the Court's interpretation of the Constitution.

Paris Adult Theatre I v. Slaton involved an adult movie theater in Georgia that was charged under a Georgia obscenity law for showing pornographic films. The Supreme Court upheld the Georgia state court ruling that displaying obscene films in public theaters is not protected under the First Amendment. The Burger Court added to the Georgia court's ruling that the public display of obscene films must be distinguished from the private viewing of them. Thus, while Paris Adult Theatre put the breaks on the liberalization of the Court's view of First Amendment protections of obscenity, it was an early precedent recognizing something like a constitutional right to privacy and therefore furthered, in at least one other respect, the libertarian tendency in the Court's understanding of constitutional rights.

Miller v. California concerned the conviction of Marvin Miller, the owner of a mail-order pornography business, under the Californial Penal Code. It is notable for establishing the "Miller test" or the "three-prong standard" for deciding whether obscene speech is constitutionally protected. This test gave a narrower and more precise standard for discriminating between protected and unprotected obscenity than the that offered in the Roth decision. The third "prong" of the Miller test, known as the "SLAPS test," in particular expanded on Roth's "redeeming social importance" standard. The SLAPS test requires that a work have serious literary, artistic, political, or scientific value in order to claim First Amendment protection.

In Beauharnais, the Supreme Court upheld an Illinois law outlawing any publication or exhibition depicting "depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion." Joseph Beauharnais was convicted under this law for distributing leaflets protesting the encroachment of blacks into white Chicago neighborhoods. In his majority opinion Frankfurter argued that Beauharnais's leaflets were libelous, and therefore were not protected by First and Fourteenth Amendments. Justice Black's dissent argues that the law in question was overbroad and permitted regulation far beyond the narrow criteria of criminal libel. In this case, Black argues, Beauharnais's speech, however objectionable, was "a genuine effort to petition [his] elected representatives" and therefore ought to have the protection of the First and Fourteenth Amendments.

Schenck v. United States was an important early test of the constitutionality of the Espionage Act of 1917. In a unanimous decision, the Supreme Court upheld the conviction under the Espionage Act of two leaders of Philadelphia's Socialist Party, who had distributed fliers urging their readers to resist the draft. Though the Court upheld the law, its opinion, delivered by Oliver Wendell Holmes, articulated a standard that would eventually serve to limit libel laws. Holmes offered what became known as the "clear and present danger" test, which classified unprotected speech narrowly to cases where it led immediately and unambiguously to criminal action.

The trial and acquittal of New Yorker John Peter Zenger in 1735 on charges of seditious libel under the British colonial government became a symbol of the American commitment to the freedom of the press. It also informed many Americans' understanding of that freedom when it was established in the bill of rights. Zenger was arrested in 1733 for publishing The New York Weekly Journal, a newspaper that was consistently critical of the colonial governor of New York, William Cosby. Zenger's counsel argued, contrary to the common law standard of seditious libel, that the truth of his newspaper's claims should be considered as grounds for his defense. Despite the colonial judge's firm instructions to the jury that their duty was to decide only whether he had in fact published the essays in question, the jury acquitted Zenger in a bold act of "jury nullification."

Blackstone's Commentaries on the Laws of England was a hugely influential treatise on English law that methodically rendered that massive body of statutes and legal decisions called the "common law" into a coherent system of legal principles intelligible to the lay-person. The Commentaries was the paramount authority on the common-law in the eyes of the American Founders. Its articulation of the logic of the common law was one of the reasons that they chose to establish the American legal system on its basis. Blackstone is still cited today by lawyers and judges in their efforts to articulate the meaning of American laws and the Constitution. The common-law view of freedom of the press found in the Commentaries is more or less what that freedom was understood to mean when it was included in the American Bill of Rights. Blackstone understood the freedom of the press to mean little more than protection against "previous restraint" (now usually called "prior restraint"). In other words, the state could not prevent anyone from publishing anything, but could legitimately punish the publication of nearly anything it perceived dangerous.

This landmark case established the doctrine used by the Supreme Court to this day to decide when speech is no longer protected because of its connection to illegal activities. Clarence Brandenburg was convicted of violating the Ohio Criminal Syndicalism Act for derogatory phrases that he uttered at a Ku Klux Klan rally. The Ohio Criminal Syndicalism Act outlawed “advocating” violence as a way to change political and economic situations, and prohibited individuals from assembling for the purpose of advocating criminal syndicalism. The Supreme Court held that the act violated the First Amendment for failing to distinguish between mere advocacy and incitement to imminent lawless action.

In response to growing opposition to John Adams’s Federalist administration—particularly over its war with France—the Federalists who controlled congress passed a series of highly controversial laws designed to guard against foreign influence in American politics and domestic treason. One of these, the Sedition Act, authorized the federal government to punish “any persons” who “unlawfully combine or conspire” against the federal government and its laws or who “write, print, utter or publish … scandalous and malicious writing or writings against the government of the United States” intending to damage its reputation or incite resistance to its laws. The Sedition Act was thus an early test of the meaning of the freedom of speech and press provisions of the First Amendment.