Freedom of Speech Court Cases

Supreme Court Justices

• 
  CHIEF JUSTICE: Salmon Portland Chase
• 
  Samuel Nelson
• 
  Robert Cooper Grier
• 
  Nathan Clifford
• 
  Noah Haynes Swayne
• 
  Samuel Freeman Miller
• 
  David Davis
• 
  Stephen Johnson Field
• 
  vacant seat

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 Between the hearing and decision in this case, Congress repealed the former Habeas Corpus Act.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.

ISSUE:

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?

DECISION:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Edward Douglass White
• 
  James Clark McReynolds
• 
  Oliver Wendell Holmes
• 
  Louis Dembitz Brandeis
• 
  Willis Van Devanter
• 
  John Hessin Clarke
• 
  Mahlon Pitney
• 
  Joseph McKenna
• 
  William Rufus Day

NUMERICAL VOTE:

9-0 unanimous Decided March 3, 1919.

BACKGROUND:

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.

ISSUE:

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

DECISION:

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.”

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Edward Douglass White
• 
  James Clark McReynolds
• 
  Oliver Wendell Holmes
• 
  Louis Dembitz Brandeis
• 
  Willis Van Devanter
• 
  John Hessin Clarke
• 
  Mahlon Pitney
• 
  Joseph McKenna
• 
  William Rufus Day

NUMERICAL VOTE:

9-0 unanimous Decided March 10, 1919.

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Edward Douglass White
• 
  James Clark McReynolds
• 
  Oliver Wendell Holmes
• 
  Louis Dembitz Brandeis
• 
  Willis Van Devanter
• 
  John Hessin Clarke
• 
  Mahlon Pitney
• 
  Joseph McKenna
• 
  William Rufus Day

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: William Howard Taft
• 
  James Clark McReynolds
• 
  Oliver Wendell Holmes
• 
  Louis Dembitz Brandeis
• 
  Willis Van Devanter
• 
  George Sutherland
• 
  Edward Terry Sanford
• 
  Harlan Fiske Stone
• 
  Pierce Butler

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: William Howard Taft
• 
  James Clark McReynolds
• 
  Oliver Wendell Holmes
• 
  Louis Dembitz Brandeis
• 
  Willis Van Devanter
• 
  George Sutherland
• 
  Edward Terry Sanford
• 
  Harlan Fiske Stone
• 
  Pierce Butler

NUMERICAL VOTE:

9-0 unanimous Decided: May 16, 1927.

BACKGROUND:

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.

ISSUE:

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”?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Fred Moore Vinson
• 
  Sherman Minton
• 
  Felix Frankfurter
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Stanley Forman Reed
• 
  Harold Hitz Burton
• 
  Robert Houghwout Jackson
• 
  Tom Campbell Clark

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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

DECISION:

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.

SIGNIFICANCE:

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 Statesem> (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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Earl Warren
• 
  William J. Brennan Jr.
• 
  vacant seat
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Byron Raymond White
• 
  Potter Stewart
• 
  John Marshall Harlan
• 
  Thurgood Marshall

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: John G. Roberts Jr.
• 
  Sonia Sotomayor
• 
  Stephen G. Breyer
• 
  Elena Kagan
• 
  Anthony M. Kennedy
• 
  Ruth Bader Ginsburg
• 
  Samuel A. Alito Jr.
• 
  Antonin Scalia
• 
  Clarence Thomas

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Melville Weston Fuller
• 
  David Josiah Brewer
• 
  Oliver Wendell Holmes
• 
  Byron Raymond White
• 
  Rufus Wheeler Peckham
• 
  Joseph McKenna
• 
  William Rufus Day
• 
  John Marshall Harlan
• 
  William Henry Moody

NUMERICAL VOTE:

7-2 split decision Decided April 15, 1907.

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Charles Evans Hughes
• 
  James Clark McReynolds
• 
  Oliver Wendell Holmes
• 
  Louis Dembitz Brandeis
• 
  Willis Van Devanter
• 
  George Sutherland
• 
  Owen Josephus Roberts
• 
  Harlan Fiske Stone
• 
  Pierce Butler

NUMERICAL VOTE:

5-4 split decision Decided June 1, 1931.

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Earl Warren
• 
  William J. Brennan Jr.
• 
  Arthur Joseph Goldberg
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Byron Raymond White
• 
  Potter Stewart
• 
  David Josiah Brewer
• 
  Tom Campbell Clark

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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.)

DECISION:

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.”

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Earl Warren
• 
  William J. Brennan Jr.
• 
  Abe Fortas
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Byron Raymond White
• 
  Potter Stewart
• 
  John Marshall Harlan
• 
  Thurgood Marshall

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Warren Earl Burger
• 
  William J. Brennan Jr.
• 
  Harry A. Blackmun
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Byron Raymond White
• 
  Potter Stewart
• 
  John Marshall Harlan
• 
  Thurgood Marshall

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Charles Evans Hughes
• 
  James Clark McReynolds
• 
  Felix Frankfurter
• 
  Louis Dembitz Brandeis
• 
  Hugo Lafayette Black
• 
  Stanley Forman Reed
• 
  Owen Josephus Roberts
• 
  Harlan Fiske Stone
• 
  Pierce Butler

NUMERICAL VOTE:

8-1 split decision Decided April 25, 1938.

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.”

SIGNIFICANCE:

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).

Supreme Court Justices

• 
  CHIEF JUSTICE: Earl Warren
• 
  William J. Brennan Jr.
• 
  Abe Fortas
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Byron Raymond White
• 
  Potter Stewart
• 
  John Marshall Harlan
• 
  Thurgood Marshall

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Warren Earl Burger
• 
  William J. Brennan Jr.
• 
  Harry A. Blackmun
• 
  John Paul Stevens
• 
  Lewis F. Powell Jr.
• 
  Byron Raymond White
• 
  Potter Stewart
• 
  William H. Rehnquist
• 
  Thurgood Marshall

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Warren Earl Burger
• 
  William J. Brennan Jr.
• 
  Harry A. Blackmun
• 
  John Paul Stevens
• 
  Lewis F. Powell Jr.
• 
  Byron Raymond White
• 
  Potter Stewart
• 
  William H. Rehnquist
• 
  Thurgood Marshall

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Warren Earl Burger
• 
  William J. Brennan Jr.
• 
  Harry A. Blackmun
• 
  John Paul Stevens
• 
  Lewis F. Powell Jr.
• 
  Byron Raymond White
• 
  Sandra Day O’Connor
• 
  William H. Rehnquist
• 
  Thurgood Marshall

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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

DECISION:

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.

SIGNIFICANCE:

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?

Supreme Court Justices

• 
  CHIEF JUSTICE: John G. Roberts Jr.
• 
  David H. Souter
• 
  Stephen G. Breyer
• 
  John Paul Stevens
• 
  Anthony M. Kennedy
• 
  Ruth Bader Ginsburg
• 
  Samuel A. Alito Jr.
• 
  Antonin Scalia
• 
  Clarence Thomas

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: John G. Roberts Jr.
• 
  Sonia Sotomayor
• 
  Stephen G. Breyer
• 
  Elena Kagan
• 
  Anthony M. Kennedy
• 
  Ruth Bader Ginsburg
• 
  Samuel A. Alito Jr.
• 
  Antonin Scalia
• 
  Clarence Thomas

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Harlan Fiske Stone
• 
  James Francis Byrnes
• 
  Felix Frankfurter
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Stanley Forman Reed
• 
  Owen Josephus Roberts
• 
  Robert Houghwout Jackson
• 
  Frank Murphy

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Harlan Fiske Stone
• 
  James Francis Byrnes
• 
  Felix Frankfurter
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Stanley Forman Reed
• 
  Owen Josephus Roberts
• 
  Robert Houghwout Jackson
• 
  Frank Murphy

NUMERICAL VOTE:

9-0 split decision Decided March 9, 1942.

BACKGROUND:

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.”

ISSUE:

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

DECISION:

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.

SIGNIFICANCE:

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.”

Supreme Court Justices

• 
  CHIEF JUSTICE: Fred Moore Vinson
• 
  Sherman Minton
• 
  Felix Frankfurter
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Stanley Forman Reed
• 
  Harold Hitz Burton
• 
  Robert Houghwout Jackson
• 
  Tom Campbell Clark

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.”

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Fred Moore Vinson
• 
  Sherman Minton
• 
  Felix Frankfurter
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Stanley Forman Reed
• 
  Harold Hitz Burton
• 
  Robert Houghwout Jackson
• 
  Tom Campbell Clark

NUMERICAL VOTE:

6-3 split decision Decided January 15, 1951.

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Earl Warren
• 
  William J. Brennan Jr.
• 
  Abe Fortas
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Byron Raymond White
• 
  Potter Stewart
• 
  John Marshall Harlan
• 
  Tom Campbell Clark

NUMERICAL VOTE:

5-4 split decision Decided November 14, 1966.

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: William H. Rehnquist
• 
  William J. Brennan Jr.
• 
  Harry A. Blackmun
• 
  John Paul Stevens
• 
  Anthony M. Kennedy
• 
  Byron Raymond White
• 
  Sandra Day O’Connor
• 
  Antonin Scalia
• 
  Thurgood Marshall

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: John G. Roberts Jr.
• 
  Sonia Sotomayor
• 
  Stephen G. Breyer
• 
  Elena Kagan
• 
  Anthony M. Kennedy
• 
  Ruth Bader Ginsburg
• 
  Samuel A. Alito Jr.
• 
  Antonin Scalia
• 
  Clarence Thomas

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Harlan Fiske Stone
• 
  Wiley Blount Rutledge
• 
  Felix Frankfurter
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Stanley Forman Reed
• 
  Owen Josephus Roberts
• 
  Robert Houghwout Jackson
• 
  Frank Murphy

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Earl Warren
• 
  William J. Brennan Jr.
• 
  Abe Fortas
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Byron Raymond White
• 
  Potter Stewart
• 
  John Marshall Harlan
• 
  Thurgood Marshall

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Earl Warren
• 
  William J. Brennan Jr.
• 
  Abe Fortas
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Byron Raymond White
• 
  Potter Stewart
• 
  John Marshall Harlan
• 
  Thurgood Marshall

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Warren Earl Burger
• 
  William J. Brennan Jr.
• 
  Harry A. Blackmun
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Byron Raymond White
• 
  Potter Stewart
• 
  John Marshall Harlan
• 
  Thurgood Marshall

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: William H. Rehnquist
• 
  William J. Brennan Jr.
• 
  Harry A. Blackmun
• 
  John Paul Stevens
• 
  Anthony M. Kennedy
• 
  Byron Raymond White
• 
  Sandra Day O’Connor
• 
  Antonin Scalia
• 
  Thurgood Marshall

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: John G. Roberts Jr.
• 
  Sonia Sotomayor
• 
  Stephen G. Breyer
• 
  Elena Kagan
• 
  Anthony M. Kennedy
• 
  Ruth Bader Ginsburg
• 
  Samuel A. Alito Jr.
• 
  Antonin Scalia
• 
  Clarence Thomas

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Earl Warren
• 
  William J. Brennan Jr.
• 
  Felix Frankfurter
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Charles Evans Whittaker
• 
  Harold Hitz Burton
• 
  John Marshall Harlan
• 
  Tom Campbell Clark

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

(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?

DECISION:

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.”

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Warren Earl Burger
• 
  William J. Brennan Jr.
• 
  Harry A. Blackmun
• 
  William Orville Douglas
• 
  Lewis F. Powell Jr.
• 
  Byron Raymond White
• 
  Potter Stewart
• 
  William H. Rehnquist
• 
  Thurgood Marshall

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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

DECISION:

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.

SIGNIFICANCE:

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.”

Supreme Court Justices

• 
  CHIEF JUSTICE: John G. Roberts Jr.
• 
  Sonia Sotomayor
• 
  Stephen G. Breyer
• 
  Elena Kagan
• 
  Anthony M. Kennedy
• 
  Ruth Bader Ginsburg
• 
  Samuel A. Alito Jr.
• 
  Antonin Scalia
• 
  Clarence Thomas

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Warren Earl Burger
• 
  William J. Brennan Jr.
• 
  Harry A. Blackmun
• 
  John Paul Stevens
• 
  Lewis F. Powell Jr.
• 
  Byron Raymond White
• 
  Potter Stewart
• 
  William H. Rehnquist
• 
  Thurgood Marshall

NUMERICAL VOTE:

Unsigned per curiam opinion Decided: January 30, 1976

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: John G. Roberts Jr.
• 
  Sonia Sotomayor
• 
  Stephen G. Breyer
• 
  Elena Kagan
• 
  Anthony M. Kennedy
• 
  Ruth Bader Ginsburg
• 
  Samuel A. Alito Jr.
• 
  Antonin Scalia
• 
  Clarence Thomas

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Harlan Fiske Stone
• 
  James Francis Byrnes
• 
  Felix Frankfurter
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Stanley Forman Reed
• 
  Owen Josephus Roberts
• 
  Robert Houghwout Jackson
• 
  Frank Murphy

NUMERICAL VOTE:

9-0 unanimous decision Decided March 9, 1942.

BACKGROUND:

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.”

ISSUE:

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

DECISION:

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.

SIGNIFICANCE:

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.”

Supreme Court Justices

• 
  CHIEF JUSTICE: Fred Moore Vinson
• 
  Sherman Minton
• 
  Felix Frankfurter
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Stanley Forman Reed
• 
  Harold Hitz Burton
• 
  Robert Houghwout Jackson
• 
  Tom Campbell Clark

NUMERICAL VOTE:

BACKGROUND:

ISSUE:

DECISION:

SIGNIFICANCE:

Supreme Court Justices

• 
  CHIEF JUSTICE: Fred Moore Vinson
• 
  Sherman Minton
• 
  Felix Frankfurter
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Stanley Forman Reed
• 
  Harold Hitz Burton
• 
  Robert Houghwout Jackson
• 
  Tom Campbell Clark

NUMERICAL VOTE:

6-3 split decision Decided January 15, 1951.

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: Earl Warren
• 
  William J. Brennan Jr.
• 
  vacant seat
• 
  William Orville Douglas
• 
  Hugo Lafayette Black
• 
  Byron Raymond White
• 
  Potter Stewart
• 
  John Marshall Harlan
• 
  Thurgood Marshall

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: William H. Rehnquist
• 
  David H. Souter
• 
  Harry A. Blackmun
• 
  John Paul Stevens
• 
  Anthony M. Kennedy
• 
  Byron Raymond White
• 
  Sandra Day O’Connor
• 
  Antonin Scalia
• 
  Clarence Thomas

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

(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?

DECISION:

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.”

SIGNIFICANCE:

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.

Supreme Court Justices

• 
  CHIEF JUSTICE: William H. Rehnquist
• 
  David H. Souter
• 
  Stephen G. Breyer
• 
  John Paul Stevens
• 
  Anthony M. Kennedy
• 
  Ruth Bader Ginsburg
• 
  Sandra Day O’Connor
• 
  Antonin Scalia
• 
  Clarence Thomas

NUMERICAL VOTE:

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

BACKGROUND:

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.

ISSUE:

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?

DECISION:

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.

SIGNIFICANCE:

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.