History of Free Speech

Abuses by England’s King John cause a revolt by nobles, who compel him to recognize rights for both noblemen and ordinary Englishmen. This document, known as the Magna Carta, establishes the principle that no one, including the king or a lawmaker, is above the law, and establishes a framework for future documents such as the Declaration of Independence and the Bill of Rights.

The Petition of Right is a statement of the objectives of the 1628 English legal reform movement that leads to civil war and the deposing of King Charles I in 1649. This important document sets out the rights and liberties of the common man as opposed to the prerogatives of the crown and expresses many of the ideals that later led to the American Revolution.

The Massachusetts General Court formally adopts the first broad statement of American liberties, the Massachusetts Body of Liberties. The document includes a right to petition and a statement about due process.

New York publisher John Peter Zenger is tried for libel after publishing criticism of the Royal Governor of New York. Zenger is defended by Andrew Hamilton and acquitted. His trial establishes the principle that truth is a defense to libel and that a jury may determine whether a publication is defamatory or seditious. 

Virginia’s House of Burgesses passes the Virginia Declaration of Rights. The Virginia Declaration is the first bill of rights to be included in a state constitution in America.

The Continental Congress adopts the final draft of the Declaration of Independence on July 4.

The U.S. Constitution is adopted into law on September 17th by the Federal Constitutional Convention and later ratified by the states on June 21, 1788.

Originally published in New York newspapers as “The Federalist”, the papers are widely reprinted in newspapers throughout the United States. “The Federalist Papers” are a unique collection of 85 essays written by Alexander Hamilton, James Madison and John Jay urging ratification of the Constitution. In Federalist No. 84, Alexander Hamilton writes on the subject of the liberty of the press, declaring that “the liberty of the press shall be inviolably preserved.” The exact date of the reprints could not be found.

On December 15, Virginia becomes the 11th state to approve the first 10 amendments to the Constitution, thereby ratifying the Bill of Rights.

President John Adams oversees the passage of the Alien and Sedition Acts. In response, Thomas Jefferson introduces the “Kentucky Resolution” and James Madison issues the “Virginia Resolution” to give states the power to determine the constitutionality of the Alien and Sedition Acts. On Sept. 12, newspaper editor Benjamin Franklin Bache, the grandson of Benjamin Franklin, is arrested under the Sedition Act for libeling President John Adams.

Congress lets the Sedition Act of 1798 expire, and President Thomas Jefferson pardons all persons convicted under the Act. Among other things, the Act punished those who uttered or published “false, scandalous, and malicious” writings against the government.

The U.S. House of Representatives adopts gag rules preventing discussion of antislavery proposals. The House repeals the rules in 1844.

John Stuart Mill publishes the essay “On Liberty”. The essay expands John Milton’s argument that if speech is free and the search for knowledge unfettered, then eventually the truth will rise to the surface. The exact date of the essay’s publication in 1859 could not be found.

General Ambrose Burnside of the Union Army orders the suspension of the publication of the Chicago Times on account of repeated expression of disloyal and incendiary sentiments. President Lincoln rescinds Burnside’s order three days later.

By order of President Lincoln, General John A. Dix, a Union commander, suppresses the New York Journal of Commerce and the New York World and arrests the newspapers’ editors after both papers publish a forged presidential proclamation purporting to order another draft of 400,000 men. Lincoln withdraws the order to arrest the editors and the papers resume publication two days later.

The 14th Amendment to the Constitution is ratified. The amendment, in part, requires that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Anti-obscenity reformer Anthony Comstock successfully lobbies Congress to pass the Comstock Law. This is the first comprehensive anti-obscenity statute enacted at the federal level. The law targets the “Trade in and Circulation of, obscene literature and Articles for immoral use” and makes it illegal to send any “obscene, lewd or lascivious” materials or any information or “any article or thing” related to contraception or abortion through the mail.

Deciding whether a city can prohibit an individual from preaching on a city’s common without a permit from the mayor.

Patterson v. Colorado is the first free press case. The Supreme Court determines it does not have jurisdiction to review the “contempt” conviction of U.S. senator and Denver newspaper publisher Thomas Patterson for articles and a cartoon that criticized the state supreme court. The Court writes that “what constitutes contempt, as well as the time during which it may be committed, is a matter of local law.” Leaving undecided the question of whether First Amendment guarantees are applicable to the states via the 14th Amendment, the Court holds that the free speech and press guarantees only guard against prior restraint and do not prevent “subsequent punishment.”

Congress passes the Espionage Act, making it a crime “to willfully 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.”

The Civil Liberties Bureau, a forerunner of the American Civil Liberties Union (ACLU), is formed in response to the passage of the Espionage Act.

Congress passes the Sedition Act, which forbids spoken or printed criticism of the U.S. government, the Constitution or the flag.

In Schenck v. United States, Supreme Court Justice Oliver Wendell Holmes sets forth his clear-and-present-danger test: “whether 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 the substantive evils that Congress has the right to prevent.” Schenck and others had been accused of urging draftees to oppose the draft and “not submit to intimidation.” Justice Holmes also writes that not all speech is protected by the First Amendment, citing the now-famous example of falsely crying “fire” in a crowded theater.

In Frohwerk v. United States, a unanimous Supreme Court, per Justice Oliver Wendell Holmes, upheld the conviction under the Espionage Act of 1917 of a German-language newspaper editor who in a series of articles denounced the government’s involvement in foreign wars.

In Debs v. United States, the Supreme Court upholds the conviction of socialist and presidential candidate Eugene V. Debs under the Espionage Act for making speeches opposing World War I. Justice Oliver Wendell Holmes claims to apply the “clear and present danger” test; however, he phrases it as requiring that Debs’ words have a “natural tendency and reasonably probable effect” of obstructing recruitment.

The Supreme Court upholds the convictions of five individuals charged with violating the Espionage Act in Abrams v. United States. The individuals had circulated pamphlets critical of the U.S. government and its involvement in World War I. In a dissenting opinion, Justice Oliver Wendell Holmes writes that “the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This passage forms the foundation of the “marketplace of ideas” theory of the First Amendment.

Roger Baldwin and others start up a new organization dedicated to preserving civil liberties called the American Civil Liberties Union (ACLU).

Congress repeals the Sedition Acts of 1918.

President Warren Harding commutes Eugene Debs’ sentence to time served.

In Gitlow v. New York, the Supreme Court upholds under the New York criminal anarchy statute Benjamin Gitlow’s conviction for writing and distributing “The Left Wing Manifesto.” The Court assumes, however, that the free speech clause of the First Amendment applies to the states through the due process clause of the Fourteenth Amendment.

New York Governor Al Smith pardons Benjamin Gitlow on December 11th.

H.L. Mencken is arrested for distributing copies of American Mercury. Censorship groups in Boston contend the periodical is obscene.

The Supreme Court upholds California’s criminal syndicalism law in Whitney v. California. The case involves Charlotte Anita Whitney, a member of the Socialist Party and former member of the Communist Labor Party. Justice Louis Brandeis writes in his concurring opinion a passage that becomes a fundamental First Amendment principle: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Whitney was pardoned on June 27th by California Governor Clement Calhoun Young.

In People of State of New York ex rel. Bryant v. Zimmerman, the Supreme Court upholds a New York law that mandated organizations requiring their members to take oaths file certain organizational documents with the secretary of state.

In Stromberg v. California, the Supreme Court reverses the state court conviction of Yetta Stromberg, a 19 year old female member of the Young Communist League, who violated the state’s Red Flag Law which prohibits the display of a red flag as “an emblem of opposition to the United States government.” Legal commentators cite this case as the first in which the Court recognizes that protected speech may be nonverbal or a form of symbolic expression. Also, the Court formally held that the free speech guarantee of the states applies to the states. Two years later, California repeals its Red Flag Law.

In Near v. Minnesota, the Supreme Court invalidates a permanent injunction against the publisher of The Saturday Press. The Court rules that the Minnesota statute granting state judges the power to enjoin as a nuisance any “malicious, scandalous and defamatory newspaper, magazine or other periodical” is “the essence of censorship.” The Court concluded that the primary aim of the First Amendment was to prevent prior restraints of the press.

President Franklin D. Roosevelt pardons those convicted under the Espionage and Sedition Acts.

In Grosjean v. American Press Co., the Supreme Court invalidates a state tax on newspaper advertising applied to papers with a circulation exceeding 20,000 copies per week as a violation of the First Amendment. The Court finds the tax unconstitutional because “it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties.”

In De Jonge v. Oregon, the Supreme Court reverses the conviction of an individual under a state criminal syndicalism law for participation in a Communist party political meeting. The Court writes that “peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed.”

Life magazine is banned in the U.S. for publishing pictures from the public health film “The Birth of a Baby.”

Georgia, Massachusetts, and Connecticut finally ratify the Bill of Rights.

In Thornhill v. Alabama, the Supreme Court strikes down an Alabama law prohibiting loitering and picketing “without a just cause or legal excuse” near businesses. The Court writes: “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.”

The Court upholds a Pennsylvania flag-salute law in Minersville School District v. Gobitis by a vote of 8-1. A Jehovah’s Witness family that had two children in the public schools challenged their expulsion on First Amendment grounds. “National unity is the basis of national security,” Justice Felix Frankfurter wrote for the majority. Only Chief Justice Harlan F. Stone dissented from the Court’s ruling, which would be overruled three years later in West Virginia State Board of Education v. Barnette.

Congress passes the Smith Act, Title I of the Alien Registration Act of 1940, which makes it a crime to advocate the violent overthrow of the government.

Congress authorizes President Franklin D. Roosevelt to create the Office of Censorship.

The Supreme Court determines “fighting words” are not protected by the First Amendment. In Chaplinsky v. New Hampshire, the Court defines “fighting words” as “those which by their very utterance inflict injury or tend to incite an immediate breach of peace.” The Court states that such words are “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

In National Broadcasting Co. v. United States, the Supreme Court states that no one has a First Amendment right to a radio license or to monopolize a radio frequency.

In West Virginia State Board of Education v. Barnette, the Supreme Court ruled that a West Virginia requirement to salute the flag violates the free speech clause of the First Amendment.

Alexander Meiklejohn publishes his book “Free Speech and its Relation to Self-Government.” The exact date of the book’s publication in 1948 could not be found.

In Terminiello v. Chicago, the Supreme Court limits the scope of the “fighting words” doctrine. Writing for the majority, Justice William O. Douglas says that the “function of free speech … is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

In Dennis v. United States, the Supreme Court upholds the convictions of 12 Communist Party members convicted under the Smith Act of 1940. The Court finds that the Smith Act, a measure banning speech which advocates the violent overthrow of the federal government, does not violate the First Amendment. The case has yet to be overruled.

In Burstyn v. Wilson, the Supreme Court, for the first time, finds that motion pictures are included within the free speech and free press guaranty of the First Amendment. The Court finds a New York statute that permits the banning of motion pictures on the ground that they are “sacrilegious” to be unconstitutional after the New York State Board of Regents rescinds the license of the distributor of the film “The Miracle” to show the film in the state.

In Roth v. United States, the Supreme Court determines that obscenity is a category of speech not protected by the First Amendment. In his opinion, Justice William Brennan writes: “Obscene material is material which deals with sex in a manner appealing to prurient interest.” A five-part test is set up in Roth to determine obscenity in written works. Only the “dominant theme” of the “work as a whole” using “community standards” can justify a ban based on obscenity.

On October 3, 1957, California Municipal Judge Clayton Horn rules in People v. Ferlinghetti that the poem Howl is not obscene.

The Supreme Court allows the NAACP of Alabama to withhold its membership list from Alabama lawmakers. In NAACP v. Alabama, the Court states that the demand by Alabama officials for the NAACP to provide them with a membership list violates members’ associational rights.

In Bates v. City of Littlerock the Supreme Court struck down a City of Little Rock license tax ordinance that required the compulsory disclosure of any local organization’s membership list in order to verify its tax-exempt status.

The Supreme Court upholds the conviction of a college professor who refuses, on First Amendment grounds, to answer questions before the House Un-American Activities Committee. In Barenblatt v. United States, the Court states that “where First Amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.” The Court concludes that the investigation is for a valid legislative purpose and that “investigatory power in this domain is not to be denied Congress solely because the field of education is involved.”

The Supreme Court denies the First Amendment claims of two applicants for admission to the Illinois and California bars respectively in Konigsberg v. State Bar of California.

Comedian Lenny Bruce is arrested in San Francisco for obscenity. He is acquitted by a jury on March 8, 1962.

Comedian Lenny Bruce is arrested for obscenity for his performance at The Gate of Horn in Chicago. He is convicted after an eight-month trial. His Illinois obscenity conviction, however, is overturned by the Illinois Supreme Court on November 24, 1964.

In NAACP v. Button, the Supreme Court struck down an Alabama anti-solicitation law as applied to the NAACP’s civil rights litigation activities.

In New York Times Co. v. Sullivan, the Supreme Court overturns a libel judgment against The New York Times. The Court rules that public officials may not recover damages for a defamatory falsehood relating to their conduct unless they prove the statement was made with actual malice. The Court defines actual malice as “with knowledge that it was false or with reckless disregard of whether it was false or not.” In what would become one of the most famous passages in First Amendment history, Justice Brennan announced our First Amendment freedoms represented a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

In Cox v. Louisiana, the Court overturns disturbance of the peace and obstruction of public passageways convictions for peaceful demonstrations and concludes that the petitioner’s First Amendment rights to freedom of speech and assembly were violated.

In Freedman v. Maryland, the Supreme Court refuses to overturn Maryland’s film censorship statute entirely. The court also set out procedural requirements that place the burden of proof on the censors, not the theater owner. A Baltimore theater owner brought this challenge to court in order to show the French film “La Jeune Folle,” also know as “Desperate Decisions” and “Revenge at Daybreak.” The Motion Picture Association of America advised its members not to bother submitting films to any remaining state or municipal censorship boards soon after this decision.

In Lamont v. Postmaster General the Supreme Court declares for the first time that a federal law is unconstitutional on First Amendment grounds. It was also the first case in which the precise phrase “marketplace of ideas” was employed, albeit by Justice Brennan in his concurrence.

The Supreme Court invalidates a Massachusetts court decision that found the 1750 book “Memoirs of a Woman of Pleasure” (commonly known as “Fanny Hill”) obscene. In Memoirs v. Massachusetts, Justice William Brennan writes that a book cannot be declared obscene unless it is found to be “utterly without redeeming social value.”

In Elfbrandt v. Russell, the Supreme Court invalidates an Arizona statute requiring the dismissal of any state employee who knowingly becomes a member of the Communist Party or any party whose intentions include overthrowing the government.

In Sheppard v. Maxwell, the Supreme Court reverses the murder conviction of Dr. Sam Sheppard because the trial judge failed to quell publicity surrounding the trial. In its opinion, the Court recognizes gag orders as a legitimate means of controlling pretrial and trial publicity.

The Supreme Court invalidates a New York law prohibiting the employment of public school and university teachers who belong or had belonged to “subversive” groups such as the Communist Party. The Court in Keyishian v. Board of Regents emphasizes the importance of academic freedom, writing: “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.”

In United States v. O’Brien, the Supreme Court upholds the conviction of David Paul O’Brien, an anti-war protester accused of violating a federal statute prohibiting the public destruction of draft cards. O’Brien claims that the burning of draft cards is “symbolic speech” protected by the First Amendment.

The Supreme Court rules that school board officials violated the First Amendment rights of Illinois public school teacher Marvin Pickering, who was fired for writing a letter critical of the school administration to a local newspaper. The Court writes in Pickering v. Board of Education that the “problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

Congress approves and President Lyndon B. Johnson signs the Federal Flag Desecration Law in the wake of a highly publicized Central Park flag burning incident in protest of the Vietnam War. The federal law made it illegal to knowingly cast “contempt” upon “any flag of the United States by publicly mutilating, defacing, defiling, burning or trampling upon it.” The law defined a flag in an expansive manner similar to most States.

The Supreme Court rules in Tinker v. Des Moines Independent School District that Iowa public school officials violated the First Amendment rights of several students by suspending them for wearing black armbands to protest U.S. involvement in Vietnam. The Court determines that school officials may not censor student expression unless they can reasonably forecast that the expression will cause a substantial disruption of school activities.

In Brandenburg v. Ohio, a leader of a Ku Klux Klan group is convicted under Ohio law and sentenced to prison primarily on the basis of a speech he made at a Klan rally. The Supreme Court unanimously rules that speech advocating the use of force or crime is not protected if (1) the advocacy is “directed to inciting or producing imminent lawless action” and (2) the advocacy is also “likely to incite or produce such action.”

In Stanley v. Georgia, the Supreme Court rules that the First and 14th Amendments protect a person’s “private possession of obscene matter” from criminal prosecution. The Court notes that the state, although possessing broad authority to regulate obscene material, cannot punish private possession of such in an individual’s own home.

In Red Lion Broadcasting Co. v. Federal Communication Commission, the Supreme Court finds that Congress and the FCC did not violate the First Amendment when they required a radio or television station to allow response time to persons subjected to personal attacks and political editorializing on air.

In Baird v. State Bar of Arizona the Supreme Court, in a 5-4 ruling, concludes that a state’s power to inquire about a person’s beliefs or associations was limited by the First Amendment, which prohibits a state from excluding a person from a profession solely because of membership in a political organization or because of their beliefs.

In Law Students Civil Rights Research Council v. Wadmond another divided Court concluded that a requirement that an applicant furnish proof that they “believes in the form of government of the United States and is loyal to such government,” is not constitutionally invalid.

In Cohen v. California, the Supreme Court reverses the breach-of-peace conviction of an individual who wore a jacket with the words “Fuck the Draft” into a courthouse. The Court concludes that offensive and profane speech are protected by the First Amendment.

In New York Times v. United States, the Supreme Court allows continued publication of the Pentagon Papers. The Court holds that the central purpose of the First Amendment is to “prohibit the widespread practice of governmental suppression of embarrassing information.” This case establishes that the press has almost absolute immunity from pre-publication restraints.

In Lloyd Corp. v. Tanner, the Supreme Court rules that owners of a shopping center may bar anti-war activists from distributing leaflets at their center. The Court finds that citizens do not have a First Amendment right to express themselves on privately owned property.

The Supreme Court rules in Branzburg v. Hayes that the First Amendment does not exempt reporters from “performing the citizen’s normal duty of appearing and furnishing information relevant to the grand jury’s task.” The Court rejects a reporter’s claim that the flow of information available to the press will be seriously curtailed if reporters are forced to release the names of confidential sources for use in a government investigation.

The Supreme Court rules in Paris Adult Theatre I v. Slaton that a state may constitutionally prohibit exhibitions or displays of obscenity, even if access to the exhibitions is limited to consenting adults.

The Supreme Court in Miller v. California defines the test for determining if speech is obscene: (1) whether the “average person applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

In Miami Herald Publishing Co. v. Tornillo, the Supreme Court invalidates a state law requiring newspapers to give free reply space to political candidates the newspapers criticize. The Court rules that the right of newspaper editors to choose what they wish to print or not to print cannot be infringed to allow public access to the print media.

In Spence v. Washington, the Supreme Court held that the State of Washington could not convict a person for attaching removable tape in the form of a peace sign to a flag.

Buckley v. Valeo revolves around the Federal Election Campaign Act of 1971, as amended in 1974, which contained a large variety of restrictions on political campaign giving and spending. Along with Senator James Buckley of New York, various federal officeholders, candidates, and supporting political organizations brought suit against appellees (the Secretary of the Senate, Clerk of the House, Comptroller General, Attorney General, and the Commission) seeking declaratory and injunctive relief against several statutory provisions on various constitutional grounds. The Supreme Court ruled that certain provisions of the Federal Election Campaign Act of 1976 violate the First Amendment.

The Supreme Court rules that the First Amendment does not apply to privately owned shopping centers. In Hudgens v. National Labor Relations Board, the Court holds that as long as the state does not encourage, aid or command the suppression of free speech, the First Amendment is not subverted by the actions of shopping-center owners.

The Supreme Court rules that the public has a First Amendment right to the free flow of truthful information about lawful commercial activities. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, the Court invalidates a Virginia law prohibiting the advertisement of prescription drug prices.

The Supreme Court finds that an appropriately defined zoning ordinance, barring the location of an “adult movie theatre” within 100 feet of any two other “regulated uses,” does not violate the First Amendment—even if the theater is not showing obscene material. In Young v. American Mini Theatres, the Court concludes that the ordinance is not a prior restraint and is a proper use of the city’s zoning authority.

In Abood v. Detroit Board of Education, the Supreme Court declares that a state may require a public employee to pay dues to organizations such as unions and state bars, as long as the money is used for purposes such as collective bargaining and contract and grievance hearings. The Court notes that, pursuant to the First Amendment, state workers may not be forced to give to political candidates or to fund political messages unrelated to their employee organization’s bargaining function.

In First National Bank of Boston v. Bellotti the Supreme Court ruled that a state criminal statute that forbade certain expenditures by banks and business corporations for the purpose of influencing the vote on referendum proposals violated the First Amendment.

The Illinois Supreme Court rules in NSPA v. Skokie that the National Socialist Party of America (NSPA), a neo-Nazi group, can march through Skokie, Ill., a community inhabited by a number of Holocaust survivors.

The Supreme Court upholds the power of the Federal Communications Commission to regulate indecent speech broadcast over the air. In FCC v. Pacifica, the Court allows FCC regulation because the broadcast media are a “uniquely pervasive presence” and easily accessible to children. The Court, however, does make clear that, although the government can constitutionally regulate indecent speech in the broadcast media, it does not have power to enforce a total ban on such speech.

In Central Hudson Gas & Electric Corporation v. Public Service Commission, the Supreme Court sets forth a four-part test for determining when commercial speech may or may not be regulated by states. The test states that: (1) the commercial speech must not be misleading or involve illegal activity; (2) the government interest advanced by the regulation must be substantial; (3) the regulation must directly advance the asserted government interest; and (4) the government regulation must not be more extensive than is necessary to serve the government interest at stake.

In Richmond Newspapers, Inc. v. Virginia the Supreme Court ruled that concluded that the right of the public and press to attend criminal trials is guaranteed under the First and Fourteenth Amendments.

The Supreme Court rules in Board of Education v. Pico that school officials may not remove books from school libraries because they disagree with the ideas contained in the books. The Court states that “the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom,” and makes clear that “students too are beneficiaries of this principle.”

The Supreme Court rules in New York v. Ferber that child pornography is not protected by the First Amendment.

In NAACP v. Claiborne Hardware the Supreme Court held that while states have broad power to regulate economic activities, there is no comparable right to prohibit peaceful political activity such as that found in peaceful political boycotts.

The Supreme Court rules in Connick v. Myers that the First Amendment rights of a former assistant district attorney were not violated when she was dismissed for distributing a questionnaire criticizing workplace practices. The case, along with the Court’s 1968 Pickering decision, forms the basis of much public-employee First Amendment law.

Congress passes the Equal Access Act. The federal law prohibits secondary schools that are receiving federal financial assistance from denying equal access to student groups on the basis of religious, political or philosophical beliefs or because of the content of their speech.

The Supreme Court upholds a zoning law regulating the location of adult businesses. The Court determines in City of Renton v. Playtime Theatres, Inc. that the law does not discriminate on the basis of the expression of the adult businesses because it focuses on the harmful secondary effects allegedly associated with such businesses.

The Supreme Court case Bethel School District v. Fraser curtailed the protections established in the Tinker case. Bethel School District in Spanaway, Wash., suspended 17 year old Matthew Fraser, an honors student, for two days after what was considered a lewd spring election campaign speech at a school assembly with 600 students present. His candidate won. However, the courts held that the manner of speech, delivered before a captive audience, rather than the content, was disruptive and contrary to the values the school intended to promote.

The Supreme Court upholds a Missouri regulation limiting inmates’ mail correspondence, while striking down a regulation prohibiting inmates from marrying. The Court in Turner v. Safley establishes the following standard in inmate cases: “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is ‘reasonably related’ to legitimate penological interests.”

In Hazelwood School District v. Kuhlmeier, the Supreme Court rules that school officials may exercise editorial control over the content of school-sponsored student publications if they do so in a way that is reasonably related to legitimate pedagogical concerns.

In Hustler Magazine, Inc. v. Falwell, Hustler Magazine publishes a parody of a liquor advertisement in which televangelist Jerry Falwell is depicted in a lewd manner. A unanimous Supreme Court rules that a public figure must show that actual malice was committed by a publication in order to recover money for intentional infliction of emotional distress. The Court rules that political cartoons and satire “have played a prominent role in public and political debate.”

In Texas v. Johnson, the Supreme Court rules that burning the American flag is a constitutionally protected form of free speech.

Congress passes the Flag Protection Act. The act punishes anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any U.S. flag.”

The Supreme Court in United States v. Eichman invalidates the Flag Protection Act of 1989. The Court finds that the statute violates free speech. Following the Eichman decision, Congress considered and rejected a Constitutional Amendment specifying that “the Congress and the States have the power to prohibit the physical desecration of the flag of the United States.”

The Supreme Court determines in Milkovich v. Lorain Journal that there is no wholesale exemption from libel for all statements alleged to be opinions. The Court writes: “We are not persuaded that, in addition to these protections, an additional separate constitutional privilege for ‘opinion’ is required to ensure the freedom of expression guaranteed by the First Amendment.”

The Supreme Court in Rust v. Sullivan upholds a federal program that prevents those receiving federal funding for reproductive health services from discussing abortion as a method of family planning. The Court explains: “The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way.”

In Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, the Supreme Court invalidates the New York Son of Sam law that requires accused or convicted persons to turn over to the state proceeds from any work describing their crimes. Justice Sandra Day O’Connor finds that the law is overbroad and that it regulates speech based on content.

In R.A.V. v. City of St. Paul, the Supreme Court invalidates a St. Paul, Minnesota hate-speech ordinance, saying it violates the First Amendment.

In Rosenberger v. Rector and Visitors of the University of Virginia, the Supreme Court invalidates a policy denying funds to a Christian student newspaper on free speech grounds. The Court finds that the university committed viewpoint discrimination by denying funding on the basis of the religious ideas expressed in the publication.

President Clinton orders the Department of Education to send guidelines on religious expression to every public school district in the United States.

Congress passes the Communications Decency Act and President Bill Clinton signs it into law. This is one of Congress’ first attempts at regulating pornography on the internet. The act is immediately challenged on First Amendment grounds. The Supreme Court in Reno v. ACLU rules that the act is unconstitutional.

The U.S. Supreme Court in 44 Liquormart, Inc. v. Rhode Island, invalidates a state law forbidding advertising of liquor prices.

The Supreme Court in Reno v. ACLU rules that the federal Communications Decency Act of 1996 is unconstitutional. The Court concludes that the act, which makes it a crime to display indecent or patently offensive material on the Internet where a child may find it, is too vague and tramples on the free speech rights of adults.

In Arkansas Educational Television Commission v. Forbes, the Supreme Court rules that a public television station’s exclusion of a political candidate from its televised debate does not violate the First Amendment. The Court declares the station-sponsored debate to be a non-public forum, ruling that exclusion of the candidate for reasonable and viewpoint-neutral reasons is allowed.

The Supreme Court rules in National Endowment for the Arts v. Finley that a federal statute requiring the National Endowment for the Arts to consider general standards of decency before awarding grant money to artists does not infringe on First Amendment rights.

The Child Online Protection Act (COPA), which attaches federal criminal liability to the online transmission for commercial purposes of material considered harmful to minors, is enacted by Congress.

FIRE was founded in 1999 by University of Pennsylvania professor Alan Charles Kors and Boston civil liberties attorney Harvey Silverglate after the overwhelming response to their 1998 book The Shadow University: The Betrayal Of Liberty On America’s Campuses.

In United States v. Playboy Entertainment Group the Supreme Court rules that a federal law requiring cable operators to “fully scramble” indecent and sexually explicit programming on adult stations violates the First Amendment.

In Boy Scouts of America v. Dale, the Supreme Court rules that application of a public-accommodation law to force the Boy Scouts to accept a gay scoutmaster is a violation of the private organization’s freedom of association guaranteed by the First Amendment.

The Supreme Court rules in Bartnicki v. Vopper that a federal law prohibiting the publication of illegally intercepted wire communications violates the First Amendment rights of those who published the communications, though they were not the ones who intercepted them. The Court reasoned that application of the law to the defendants in this case “implicates the core provision of the First Amendment because it imposes sanctions on the publication of truthful information of public concern.”

The Supreme Court rules in Republican Party of Minnesota v. White that a provision prohibiting judicial candidates from announcing their views on disputed legal or political issues violates the First Amendment.

The Supreme Court rejects constitutional challenges, including one based on the First Amendment, to the Copyright Term Extension Act, which extended the copyright protection term by 20 years. The Court reasoned in Eldred v. Ashcroft that copyright law already has built-in First Amendment protections in the fair-use doctrine and the expression-idea dichotomy principle (providing that copyright protects expressions, not ideas).

The Supreme Court rules in Virginia v. Black that a state law banning cross-burning largely passes constitutional muster. The Court reasons that many cross-burnings are so intimidating that they constitute true threats. The Court invalidates a part of the Virginia law that presumed that all cross-burnings were done with the intent to intimidate.

The Supreme Court upholds the Children’s Internet Protection Act in United States v. American Library Association, Inc. The law requires public libraries and public schools to install filtering software on computers to receive federal funding.

In Nike v. Kasky, the Supreme Court considered whether Nike could be prosecuted for violating a state consumer protection laws concerning allegedly false advertising when it made statements in response to charges made by its critics. Though argued, the case was dismissed on jurisdictional grounds.

The Supreme Court upholds the vast majority of the federal campaign finance law, the Bipartisan Campaign Reform Act, against First Amendment challenge in McConnell v. Federal Election Commission.

New York Governor George Pataki posthumously pardons the comedian Lenny Bruce. It is the first such pardon in the state’s history.

The Supreme Court rejects a First Amendment based challenge to a government program that called for mandatory assessments from beef producers to fund generic advertising. The Court in Johanns v. Livestock Marketing Association said the program constituted government speech and, thus, was immune from First Amendment scrutiny.

The Supreme Court upholds a lower court’s preliminary injunction preventing enforcement of the Child Online Protection Act. The Court reasons in Ashcroft v. ACLU II that “filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children’s access to materials harmful to them.”

In Garcetti v. Ceballos a divided Supreme Court held that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

In Morse v. Frederick, the Supreme Court rules that principal Deborah Morse did not violate the First Amendment rights of high school student Joseph Frederick when she punished him for displaying a “Bong Hits 4 Jesus” banner on a public street directly across from his school while the Winter Olympic Torch Relay passed through Juneau, Alaska. The Court creates a “drug speech” exception to the Court’s landmark student speech case, Tinker v. Des Moines Independent Community School District.

In Davis v. Federal Election Commission the Supreme Court set aside a federal campaign finance law—the so-called “Millionaire’s Amendment”—that relaxed campaign finance limits for opponents of congressional candidates spending more than $350,000 of their own money.

In Citizens United v. Federal Election Commission the Supreme Court concluded that restrictions on the broadcast of ads to promote a critical campaign film about presidential candidate Hillary Clinton violated the First Amendment.

In United States v. Stevens the Court set aside a federal law that banned the knowing sale of depictions of animal cruelty with the intention of placing such depictions in interstate commerce for commercial gain.

In Snyder v. Phelps, the Westboro Baptist Church picketed on public land one thousand feet from the funeral of Marine Lance Corporal Matthew Snyder with signs that read “Fags Doom Nations,” “You’re Going to Hell,” and “Thank God for Dead Soldiers.” Snyder’s father sued under state civil law, including for intentional infliction of emotional distress. The Supreme Court of the United States ruled that the picketing was protected expression.

In Brown v. Entertainment Merchants, a group of video game and software companies filed a pre-enforcement challenge to a California law restricting the sale or rental of violent video games to minors. The Supreme Court ruled in favor of the companies and found that the games qualified for First Amendment protection, noting that like “the protected books, plays, and movies that preceded them, video games communicate ideas . . . through features distinctive to the medium (such as the player’s interaction with the virtual world).”

In McCutcheon v. FEC, Shaun McCutcheon challenged a federal campaign law, known as the Bipartisan Campaign Reform Act, which limited individuals to $48,600 in contributions to candidates and $74,600 in contributions to political parties, with an aggregate cap of $123,200. The Supreme Court ruled that the aggregate limit unconstitutionally hindered political speech and did not curb corruption, the stated purpose of the act. 

In Matal v. Tam, The Slants were denied a trademark for their band’s name by the Patent and Trademark Office, citing the Disparagement Clause of the Lanham Act of 1946 and the rationale that the name may be disparaging towards “persons of Asian descent.” Simon Tam appealed the decision. The Supreme Court ruled that the clause violated the First Amendment. In his opinion, Justice Alito reasoned that the clause constituted viewpoint discrimination and said that “speech may not be banned on the grounds that it expresses ideas that offend.”

In Masterpiece, after a religious baker refused to bake a cake for a wedding between two men, the couple filed a complaint with the Colorado Civil Rights Commission alleging discrimination. The commission found that the cake shop had violated the Colorado Anti-Discrimination Act. The baker believed this violated his First Amendment rights of freedom of religion and freedom of speech. The baker took his case to the Supreme Court, where he won by a 7–2 margin, but on very narrow grounds.

In Iancu v. Brunetti the owner of the clothing brand “FUCT” was granted the right to register his brand name, invalidating the Lanham Act’s ban on the registration of “immoral” trademarks. The federal ban “distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. This facial viewpoint bias in the law results in viewpoint discriminatory application.”

Many officials have responded to COVID-19 with significant restrictions in the form of emergency stay-at-home orders, executive orders closing all but “essential” businesses, and bans on public gatherings — often of more than 10 people. Such measures have received pushback from church parishioners who want to worship together, business owners that want to re-open to avoid economic collapse, and persons who want to be able to assemble together either for communal, protesting, or other purposes.

In Barr, the Court ruled that the government-debt exception to the 1991 Telephone Consumer Protection Act’s automated-call restriction violated the First Amendment, and severed the exception from the remainder of the statute.