Free Speech Terms
Get down with the lingo.
Abrams V. United StatesIn this 1919 case, the United States Supreme Court affirmed the conviction of Jacob Abrams et al under the 1918 Sedition Act for publishing pamphlets criticizing the war. The Sedition Act made it illegal to "willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States." The Court utilized the clear and present danger test established in Schenck v. United States in affirming Abrams's conviction. Justice Oliver Wendell Holmes, the author of the clear and present danger test, dissented from the majority arguing that not all anti-government speech presented a clear and present danger and Congress "certainly cannot forbid all effort to change the mind of the country." 11
Bethel School District V. FraserIn this 1986 case, the United States Supreme Court decided that the First Amendment did not protect high school students from punishment for disruptive or offensive speech in school. The particular disruptive and offensive speech in question was an off-color nomination address delivered during a 1983 student body election in a Washington high school by a student named Matthew Fraser. In Bethel, the Supreme Court rejected Fraser's argument that the First Amendment protected his innuendo-laced commentary, ruling that the school had every right to restrict "offensively lewd and indecent" speech that disrupted the learning environment. Bethel thus began rolling back the liberal conception of student freedom of expression established in Tinker. 12
Brandenburg V. OhioIn this 1969 case, the United States Supreme Court overturned the conviction of Ku Klux Klansman Clarence Brandenburg prosecuted under an Ohio law that made it illegal to advocate "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," or to assemble "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." The Court ruled that the "advocacy of the use of force or of law violation" was protected except where "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."13
Bridges V. CaliforniaIn this 1941 case, the United States Supreme Court overturned the contempt citations issued against a labor leader and newspaper for criticizing judicial decisions. The Court further clarified the clear and present danger test in holding that "what finally emerges from the 'clear and present danger' cases, is a working principle that the substantive evil must be extremely serious, and the degree of imminence extremely high, before utterances can be punished."14
Chaplinsky V. New HampshireIn this 1942 case, the United States Supreme Court held that "fighting words," defined as "epithets likely to provoke the average person to retaliation," were not protected by the First Amendment. The conviction of Walter Chaplinsky for calling a public official a "damned Fascist" and a "damned racketeer" was thus affirmed.15
Dennis V. United StatesIn this 1951 case, the United States Supreme Court held that the Smith Act of 1940, which made it illegal to advocate, verbally or in print, the "desirability, or propriety of overthrowing or destroying the government of the United States," did not violate First Amendment rights.16 In reaching this decision, the Court drew a distinction between teaching and advocacy, between harmless discussion and dangerous preparation. "If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required."17
Doctrine Of IncorporationThis legal doctrine states that the restrictions and demands placed on the federal government by the Bill of Rights apply selectively to the states as well. Even though initially these restrictions and demands were addressed only to the federal government, they have been extended to the states by the due process clause of the Fourteenth Amendment. The Fourteenth Amendment declares that the states may not "deprive any person of life, liberty, or property, without due process of law." The Court has held that the protections extended under the Bill of Rights are central to our understanding of liberty and therefore "fundamental" to the states’ guarantee of due process of law.
Espionage And Sedition Acts Of 1917 And 1918Hoping to silence opposition to American involvement in World War I, Congress passed two acts criminalizing various forms of criticism of the government. For example, the Sedition Act made it a crime to "willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States."18
Ginzburg V. United StatesIn this 1966 case, the United States Supreme Court affirmed the conviction of Ralph Ginzburg for pandering, or advertising, erotic materials. The Court held that even though the advertisements themselves were not pornographic per se—that is, they contained no depictions of sex and they used no obscene words—they could be legitimately evaluated by the court "against a background of commercial exploitation of erotica solely for the sake of their prurient appeal." Within this broader context, the Court argued that the advertisements took on an obscene character because they highlighted "the sexually provocative aspects" of the material for sale "in order to catch the salaciously disposed."19
Gitlow V. New YorkIn this 1925 case, the United States Supreme Court affirmed the conviction of socialist Benjamin Gitlow under the state's criminal anarchy act. Gitlow was prosecuted for distributing pamphlets urging the establishment of a socialist state through strikes and other forms of class action. In the majority opinion, Justice Edward Terry Sanford argued that revolutionary words "by their very nature" present a danger to the security of the public and the State. The Court also utilized the bad tendency test in arguing that "a single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration."20
Hazelwood V. KuhlmeierIn this 1988 case, the United States Supreme Court ruled that school administrators did have the constitutional grounds to censor the school newspaper because the paper—which was produced as part of a for-credit journalism class—was not a "forum for public expression" but was rather a "regular classroom activity." As such, the paper deserved not the broad protection offered to the free press under the First Amendment, but rather the much narrower protection offered to students in a classroom setting, where "educators are entitled to exercise greater control."21
Miller V. CaliforniaIn this 1973 case, the United States Supreme Court affirmed the conviction of Marvin Miller for advertising obscene materials in violation of a state statute. Within the ruling, the Court established a revised definition of pornography. The new definition held that pornographic works "taken as a whole, appeal to the prurient interest in sex . . . portray sexual conduct in a patently offensive way, and . . . as a whole, do not have serious literary, artistic, political, or scientific value." Among the more important details within this ruling was that the judge and jury could use local community standards in applying these criteria, not those of some "hypothetical national standard." For these reasons, the Miller decision largely shielded obscenity convictions from appellate review.22
Morse V. FrederickIn this 2007 case, the United States Supreme Court held that the First Amendment did not protect a student from school disciplinary action for unfurling a large banner reading "BONG HiTS 4 JESUS" just across the street from his high school during a school-sanctioned event. The Morse ruling represented a further narrowing of the scope of students' rights to exercise free speech while in school since the decision made in Tinker v. Des Moines in 1969.
Regina V. HicklinIn this 1868 case, a British court set a test for obscenity later adopted by American courts. According to the Hicklin test, an entire work could be judged obscene "by the effect of isolated passages upon the most susceptible persons."23
Sedition Act Of 1798Hoping to silence the opposition to the Federalist administration's foreign and domestic policies, the Federalist-dominated Congress passed a Sedition Act making it illegal to "write, print, utter, or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President."24
Schenck V. United StatesIn this 1919 case, the United States Supreme Court affirmed the conviction of Socialist Party official Charles Schenck under the 1917 Espionage Act, which made it a felony to "cause, or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or . . . [to] willfully obstruct the recruiting or enlistment service of the United States." In the opinion written by Justice Oliver Wendell Holmes, Jr., the Court held that speech was not protected if "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about . . . substantive evils."25
Smith ActAmid anxieties surrounding the outbreak of war in Europe, Congress passed the Smith Act in 1940, making it illegal to advocate, verbally or in print, the "desirability, or propriety of overthrowing or destroying the government of the United States."26
Stanley V. GeorgiaIn this 1969 case, the United States Supreme Court held that individuals have a limited right to possess pornography, except child pornography, in their own homes. The ruling implicitly denied the contention made in Roth v. United States that all pornography fell outside First Amendment protections. To reach this exception, the Court coupled this limited First Amendment speech protection to privacy protections suggested by other amendments in the Bill of Rights. Because the ruling rested on the combining of two rights—privacy and expression—it did not extend to the commercial production or distribution of pornography. These remained outside the realm of First Amendment protection.
Terminiello V. City Of ChicagoIn this 1949 case, the United States Supreme Court overturned the conviction of Arthur Terminiello for breach of peace, arguing that the definition of breach of peace employed during the trial violated the First Amendment. During Terminiello's original trial, the judge had instructed jury members to find Terminiello guilty if they concluded that his speech "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance." The Supreme Court held that this criteria was too intolerant and that speech was protected "unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."27
Tinker V. Des MoinesIn this 1969 case, the United States Supreme Court established a standard favorable to a broad interpretation of students' First Amendment rights. In a case prompted by the suspension of three Iowa public school students for wearing black armbands to school in silent protest against the Vietnam War, the Court decided that the First Amendment did apply to public school students. "It can hardly be argued," Justice Abe Fortas wrote in the majority opinion, "that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."28 As the Des Moines students' silent protest had not significantly disrupted the educational process, the school had no right to punish them for expressing their views.
Tunis WortmanWortman, a lawyer and member of the Republican Party, published A Treatise Concerning Political Inquiry and the Liberty of the Press in 1800. Written in the wake of the controversy spawned by the Sedition Act of 1798, the treatise argued for a very broad right of free speech. In order to advance knowledge and promote the improvement of society, Wortman argued, people should be guaranteed the freedom to "reflect and communicate their sentiments upon every topic."29
Yates V United StatesIn this 1957 case, the United States Supreme Court ruled for a second time that the Smith Act of 1940, which made it illegal to advocate, verbally or in print, the "desirability, or propriety of overthrowing or destroying the government of the United States," was constitutional.30 But the Court narrowed the law's application in holding that for advocacy to be illegal it must aim at achieving concrete results. Advocacy of violent anti-government action "as an abstract principle" did not justify government intervention. And this sort of abstract advocacy was protected even when "such advocacy or teaching is engaged in with evil intent," so long as it was "divorced from any effort to instigate action to that end."31
John Peter ZengerThis New York newspaper owner was acquitted on charges of seditious libel for published criticisms of New York's colonial governor. Zenger's attorney, Andrew Hamilton, argued that the truth of Zenger's statements was a defense against the charges, and that a jury, rather than the judge, should be allowed to determine whether Zenger's statements constituted seditious libel. The legal arguments advanced in Zenger's victory set a precedent for subsequent sedition trials in the colonies.
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