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.

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.

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 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.

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.