New York newspaper owner John Peter Zenger is acquitted on charges of seditious libel for published criticisms of New York's colonial governor. Zenger's attorney, Andrew Hamilton, argues that the truth of Zenger's statements is a defense against the charges and that a jury, rather than the judge, should be allowed to determine whether Zenger's statements constitute seditious libel. The legal arguments advanced in Zenger's victory set a precedent for subsequent sedition trials in the colonies.
New York's state legislature passes a sedition act making it a felony to speak or print that "the King Hath, or of right ought to have, any authority, or Dominion in or over this State."66
The United States Constitution is ratified with a recommendation from several states that a bill of rights be added to the Constitution as quickly as possible.
The First Amendment to the United States Constitution is ratified, guaranteeing that "Congress shall make no law . . . abridging the freedom of speech, or of the press."
The Federalist dominated Congress passes 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."67
Tunis Wortman, a lawyer and member of the Republican Party, publishes A Treatise Concerning Political Inquiry and the Liberty of the Press. Written in the wake of the controversy spawned by the Sedition Act of 1798, the treatise argues for a very broad right of free speech. In order to advance knowledge and promote the improvement of society, Wortman argues, people should be guaranteed the freedom to "reflect and communicate their sentiments upon every topic."68
In Schenck v. United States, the United States Supreme Court affirms 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 holds that speech is 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.69"
In Abrams v. United States, the United States Supreme Court affirms the convictions 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 utilizes 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, dissents from the majority arguing that not all anti-government speech presents a clear and present danger and Congress "certainly cannot forbid all effort to change the mind of the country."70
In Gitlow v. New York, the United States Supreme Court affirms 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 argues that revolutionary words "by their very nature" present a danger to the security of the public and the State. The Court also utilizes 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."71
Amid anxieties surrounding the outbreak of war in Europe, Congress passes the Smith Act making it illegal to advocate, verbally or in print, the "desirability, or propriety of overthrowing or destroying the government of the United States."72
In Bridges v. California, the United States Supreme Court overturns the contempt citations issued against a labor leader and newspaper for criticizing judicial decisions. The Court further clarifies 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."73
In Chaplinsky v. New Hampshire, the United States Supreme Court holds that "fighting words," defined as "epithets likely to provoke the average person to retaliation," are not protected by the First Amendment. The conviction of Walter Chaplinsky for calling a public official a "damned Fascist" and a "damned racketeer" is thus affirmed.74
In Terminiello v. City of Chicago, the United States Supreme Court overturns 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 holds that this criteria is too intolerant and that speech is 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."75
In Dennis v. United States, the United States Supreme Court holds that the Smith Act of 1940, which makes it illegal to advocate, verbally or in print, the "desirability, or propriety of overthrowing or destroying the government of the United States," does not violate First Amendment rights.76 In reaching this decision the Court draws 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."77
In Regina v. Hicklin, a British court sets a test for obscenity later adopted by American courts. According to the Hicklin test, an entire work can be judged obscene "by the effect of isolated passages upon the most susceptible persons."78
In Roth v. United States and Alberts v. California, two cases heard simultaneously, the United States Supreme Court holds that obscenity, being "utterly without redeeming social importance," is not protected by the First Amendment. In reaching this conclusion, the Court rejects the frequently-used obscenity standard developed by British courts in Regina v. Hicklin. In that case, obscenity was judged "by the effect of isolated passages upon the most susceptible persons." Instead, the United States Supreme Court sets a more permissive standard by holding that materials can be labeled obscene if "to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest."79
In Ginzburg v. United States, the United States Supreme Court affirms the conviction of Ralph Ginzburg for pandering, or advertising erotic materials. The Court holds that even though the advertisements themselves are not pornographic per se—that is, they contain no depictions of sex and they use no obscene words—they can 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 argues that the advertisements take on an obscene character because they highlight "the sexually provocative aspects" of the material for sale "in order to catch the salaciously disposed."80
In Yates v. United States, the United States Supreme Court rules for a second time that the Smith Act of 1940, which makes it illegal to advocate, verbally or in print, the "desirability, or propriety of overthrowing or destroying the government of the United States," is constitutional.81 But the Court narrows 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" does not justify government intervention. And this sort of abstract advocacy is protected even when "such advocacy or teaching is engaged in with evil intent," so long as it is "divorced from any effort to instigate action to that end."82
In Brandenburg v. Ohio the United States Supreme Court overturns 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 rules 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."83
In Tinker v. Des Moines, the United States Supreme Court establishes 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 decides that the First Amendment does apply to public school students. "It can hardly be argued," Justice Abe Fortas writes in the majority opinion, "that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."84
In Stanley v. Georgia, the United States Supreme Court holds that individuals have a limited right to possess pornography, except child pornography, in their own homes. The ruling implicitly denies the contention made in Roth v. United States that all pornography fell outside First Amendment protections. To reach this exception, the Court couples this limited First Amendment speech protection to privacy protections suggested by other amendments in the Bill of Rights. But because the ruling rests on the combining of two rights—privacy and expression—it does not extend to the commercial production or distribution of pornography. These remain outside the realm of First Amendment protection.
In Miller v. California, the United States Supreme Court affirms the conviction of Marvin Miller for advertising obscene materials in violation of a state statute. Within the ruling, the Court establishes a revised definition of pornography. The new definition holds 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 is that the judge and jury can use local community standards in applying these criteria, not those of some "hypothetical national standard." For these reasons, the Miller decision largely shields obscenity convictions from appellate review.85
In Bethel School District v. Fraser, the United States Supreme Court decides that the First Amendment does 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 rejects Fraser's argument that the First Amendment protects his innuendo-laced commentary, ruling that the school has every right to restrict "offensively lewd and indecent" speech that disrupts the learning environment. Bethel thus begins rolling back the liberal conception of student freedom of expression established in Tinker.86
In Hazelwood v. Kuhlmeier, the United States Supreme Court rules that school administrators do have the constitutional grounds to censor the school newspaper because the paper—which is produced as part of a for-credit journalism class—is not a "forum for public expression" but is rather a "regular classroom activity." As such, the paper deserves 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."87
In Morse v. Frederick, the United States Supreme Court holds that the First Amendment does 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 represents 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.