Freedom of Speech Supreme Court Cases

Instructor: Erin Krcatovich

Erin teaches undergraduate and graduate classes in Political Science, Public Policy, and Public Administration and has a PhD in Political Science.

Freedom of speech cases offer insight into the ways the First Amendment has been interpreted over time. In this lesson, we will learn about some important free speech cases.

Free Speech

In the First Amendment to the Constitution, there are several important personal protections that are identified. You have the right to express yourself, to practice your religious beliefs, to publish the news. The freedom of speech, however, is the most broad of any of these rights. It is important to remember that it includes your right to spoken and unspoken, or nonverbal, expression. First, we will talk about how your speech can be dangerous to others, and then we will look at some examples of nonverbal, but protected, expression.

Shouting Fire

The Supreme Court has held that there are some reasonable restrictions on what we can say and where. For example, it is unsafe to yell 'Fire!' in a crowded movie theater, because it could create a panic and someone could be trampled. Your right to free speech does not extend to saying anything you want in any context.

In the earliest free speech cases, the government wanted to restrict the rights of protesters to object to the government's actions. In the 1900s, the Court heard two related cases, Abrams v. United States (1919) and Schenck v. United States (1919). In these cases, men were accused of breaking the Alien and Sedition Acts, which punished them for speaking out against the United States during wartime. The Court decided that in both cases, the men were creating a clear and present danger by opposing the government and supporting the enemy. The clear and present danger doctrine argues that speech can be restricted if it leads to a likely threat to the safety of others.

However, the government does not have the power to restrict speech simply because they do not like it. Over time, the decision of the Court to allow the Alien and Sedition Acts to stand has been extremely restricted. Now the government cannot stop speech simply because they do not like its content. The standard of clear and present danger has been overturned by the doctrine of imminent lawless action. This means that to say that speech can be restricted, you must prove that the speech directly threatens someone's safety. For example, a person with a megaphone at a protest, shouting at the crowd to set fire to a building, which they then go and do, can be held accountable for the fire. You cannot encourage someone to break the law, or else you are partially responsible for the consequences of their actions too. In the case of Brandenburg v. Ohio (1969), the Court reviewed an Ohio law that made it illegal to advocate, or speak out in favor of, violence or terrorism. The Ohio law was overturned because the speech was not the direct cause of violence, or ''imminent lawless action.''

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