1st Amendment Free Speech: Definition & Major Cases

Instructor: Dr. Douglas Hawks

Douglas has two master's degrees (MPA & MBA) and a PhD in Higher Education Administration.

The concept of 'free speech' in the United States is rooted in the First Amendment to the Constitution. In this lesson, we'll discuss why it is not as simple as it sounds and highlight some major court cases related to free speech.

Definition of Free Speech

While we may have gone through elementary school saying 'it's a free country; I can say whatever I want,' we were wrong. It is very unlikely that any of us said anything that isn't protected by the free speech clause of the First Amendment in the U.S. Constitution. While the courts have struggled to define exactly what free speech IS, they have been able to define what it IS NOT: it is not anything we want to say.

As written in the First Amendment, the free speech clause reads, 'Congress shall make no law…abridging the freedom of speech…' Since 1789, when the amendment was ratified, things have been changed. One common example is 'yelling 'FIRE!' in a crowded theater.' The authors of the constitution couldn't have anticipated that as a risk of completely free speech, so the courts have since decided that the risk of injury to others in that situation precludes it from free speech protection. There are a number of exceptions, which have been made exceptions because the courts have deemed certain types of communication 'unprotected speech.'

These different types of unprotected speech - types of communication that are not considered free speech and are therefore not a right - are based on the outcomes of a number of key court cases over the past 200 years. We'll introduce some of the categories of unprotected speech by discussing the court cases in which they were identified.

Schenck v. United States (1919) - 'A Clear and Present Danger'

In 1919, the Supreme Court heard Schenck v. United States, the case from which the 'falsely shouting fire in a theater and causing a panic' example comes from. Charles Schenck was an individual who opposed U.S. involvement in World War I and had mailed 15,000 pamphlets to young men who would be drafted. The pamphlets encouraged them NOT to enter the military.

When charged with 'inciting potential harm,' Schenck cited his First Amendment rights, and was ultimately heard by the Supreme Court. However, the Court did not agree with him, thus establishing the precedent that speech that might encourage violence of lawless action is one exemption to the free speech clause.

Roth v. United States (1957) - Banning Obscene Communication

Roth v. United States resulted in the Supreme Court creating a litmus test for communication or material that could be considered 'obscene,' and therefore, banned by a state or other government authority. Before Roth, anything that might 'corrupt those whose minds are open to such immoral influences' could be considered obscene.

Samuel Roth was a New York publisher who created a publication that included nude photography. He was prosecuted under New York law for publishing 'obscene' material. The Supreme Court actually upheld his conviction and started using the 'Roth Test.' This meant Congress could ban obscene material, defining obscene as material without 'redeeming social importance.'

The Roth Test was used until 1973, when another court case, Miller v. California (1973) was appealed to the Supreme Court. The Court essentially overturned the Roth Test when ruling on Miller, saying that neither Congress, nor any Court, could really say what was obscene. Thus, obscene speech went from being unprotected before and during Roth to protected speech after Miller.

New York Times v. Sullivan (1964) - Defamation, Libel, and Slander

Defamation, libel, and slander are all varying degrees of a similar, unprotected type of speech. They all involve someone saying or publishing someone about someone else that is untrue. If someone is sued for defamation, libel, or slander, they also have a different burden of proof and the individual claiming harm is able to recover different types of penalties.

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