Freedom of Speech Resources

"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.

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.

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.

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.

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.

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.

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.