Changing Views of Free Speech in the U.S.
Many Americans, including many who supported the new Constitution, criticized the document because it lacked a bill of rights—a listing of the basic rights held by people against the new national government. That criticism was soon met: ten amendments, the Bill of Rights, were added to the Constitution in 1791. The guarantees of freedom of speech and press, set out in the 1st Amendment, have produced controversy for more than 200 years now.
The Alien and Sedition Acts give the president the power to deport undesirable aliens and make it a crime to criticize the government in speech or writing (sedition) The laws are meant to stifle opponents of John Adams and the Federalists. Some twenty-five people were charged and ten convicted under the Acts.
Thomas Jefferson becomes president and pardons those who ran afoul of the Alien and Sedition Acts. The Acts, which were never challenged in court, are not renewed.
Congress passes the first of a series of laws to prevent the mailing of obscene materials.
In Mutual Film Corporation v. Ohio the Supreme Court upholds a state law that bars the showing of any film that is not of a "moral, educational, or harmless and amusing character." The Court declares that showing movies is a business and that movies are not a part of the press. Thus they are not afforded the same level of constitutional protection. Individual states quickly set up movie review and censorship boards.
The Sedition Act is added to the Espionage Act of 1917. It prohibits speech, writing, or publishing critical of the form of government of the United States. More than 2,000 people are convicted for violating the Act and its constitutionality is affirmed by the Supreme Court several times.
In the case of Schenck v. United States the Supreme Court upholds the Sedition Act, ruling that sending written material to eligible men urging them to resist the draft is unlawful. The Court's opinion, written by Oliver Wendell Holmes, established the "clear and present danger" standard—that is, speech that threatens national security can be censored.
Supreme Court strikes down a state law in Near v. Minnesota that prohibited the publication of any "malicious, scandalous, and defamatory" periodical. Although the Constitution allows the government to punish some utterances after they are made, the government cannot place prior restraint on spoken or written words except in very particular circumstances.
The Smith Act is passed. The Act makes it a crime to advocate the violent overthrow of the government, to distribute any material that teaches or advocates such, or to belong to a group with such an aim.
In Dennis v. United States, the Supreme Court upholds the Smith Act of 1940 and rejects a challenge to the law by eleven Communist Party leaders convicted of conspiring to teach and advocate violent overthrow of the government.
The Court reverses its position on movies in Burstyn v. Wilson, asserting that "liberty of expression by means of motion pictures is guaranteed by the 1st and 14th Amendments."
The Supreme Court modifies its 1951 holding regarding the Smith Act. In Yates v. United States, the Court overturned the conviction of several Communist Party leaders under the Smith Act on the grounds that merely urging a person to believe something, as opposed to urging a person to do something, can not be made illegal.
The Court finds in Roth v. United States that banning the mailing of obscene materials is a proper exercise of postal power and defines obscene materials as something the "average person" applying contemporary community standards will find appealing to prurient interest.
The Supreme Court decides, in Tinker v. Des Moines School Disctrict, that the Constitution protects students who wear armbands in school to protest the Vietnam War.
In Red Lion Broadcasting Co. v. FCC the Supreme Court rules that the 1st Amendment does not prohibit FCC regulation of broadcasting, stating that there is "no unabridged right to broadcast comparable to the right of every individual to speak, write, or publish." The tighter regulation of broadcasting is based on broadcasters' use of public airwaves.
The government tries to stop the New York Times from publishing the "Pentagon Papers" about the Vietnam War. The Court upholds the paper's right to publish the Pentagon Papers in New York Times v. United States.
Reporters have long asserted a right to keep their sources confidential. In Brandzburg v. Hayes, however, the Court rules that reporters must respond to questions put to them in valid grand jury inquiries or criminal trials, and that protection for reporters who don't disclose their sources must be granted by Congress or State legislatures. Consequently, some 30 states have passed shield laws to do that.
In Miller v. California the Court lays down a three-part test to determine what material is obscene.
The Court finds, in Buckley v. Valeo, that campaign donations are a form of symbolic speech protected by the 1st Amendment—a decision that greatly complicates campaign finance regulation.
The speech of public school students is not guaranteed 1st Amendment protection. In Hazelwood School District v. Kuhlmeier, the Court holds that educators can exercise "editorial control" over student speech in a school-sponsored activity such as a school newspaper or play.
In a very controversial ruling, the Supreme Court decides in Texas v. Johnson that burning an American flag as a political protest is "symbolic speech" protected by the 1st Amendment and the 14th Amendment. In response Congress passes the Flag Protection Act of 1989.
The Court strikes down the Flag Protection Act in United States v. Eichman on the grounds set out in Johnson.
In most of its recent commercial speech (speech for business purposes) cases, the Court has struck down arbitrary restrictions on advertising. In P. Lorillard Co. v. Reilly, the Court holds that a law barring tobacco product advertising within 1,000 feet of a school or playground is a violation of the 1st and 14th Amendments.
The Supreme Court rules that Congress can require public libraries that receive federal funds to use filters that block access to Internet pornography in United States v. American Library Association.
In Ashcroft v. American Civil Liberties Union the Supreme Court upholds an injunction against implementation of the Child Online Protection Act (COPA). The Court finds that the Act's requirement that online publishers prevent children from accessing "material that is harmful to minors" is likely to violate the 1st Amendment by restricting too much protected speech and that Congress has failed to show that the Act's requirements are more effective than other, less restrictive, methods of protecting minors.
The Supreme Court heard two cases related to the public display of the Ten Commandments. In Van Orden v. Perry, the Court ruled, 5–4, that taken in historical context, the 6-foot-tall monument of the Ten Commandments on display on the grounds of the Texas Capitol in Austin does not violate the Establishment Clause. The monument, which has been up for about 40 years without causing controversy, is one of 17 in the 22-acre park. "Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause," said Chief Justice Rehnquist. However, in McCreary County v. American Civil Liberties Union, the justices, 5–4, found that the framed copies of the Ten Commandments on display inside two county courthouses in Kentucky are unconstitutional because officials in the counties sought to promote religion.
In Morse v. Frederick, the Supreme Court supporteds schools' right to censor student speech if it advocates drug use. The Court rulec, 6–3, that a principal who suspended a student for holding up a "Bong Hits 4 Jesus" banner did not violate the student's right to free speech.
In Citizens United v. Federal Election Commission, the Supreme Court ruled, 5–4, that the government cannot restrict the spending of corporations for political campaigns, maintaining that it's their First Amendment right to support candidates as they choose. This decision upsets two previous precedents on the free-speech rights of corporations. President Obama expressed disapproval of the decision, calling it a "victory" for Wall Street and Big Business.
The Supreme Court ruled in Snyder v. Phelps that hurtful or hateful speech at a funeral is protected by the First Amendment. Members of the Westboro Baptist Church protested at the funeral of Lance Cpl. Matthew Snyder, a U.S. Marine who was killed in Iraq.
In another Free Speech case of the 2010–2011 term, Brown v. Entertainment Merchants Association, the Court ruled that video games are a form of speech protected by the First Amendment. California had tried to ban the sale of violent video games to minors, and the Court said the ban was unconstitutional.
The Supreme Court ruled in the Town of Greece v. Galloway the town did not violate the Establishment Clause of the First Amendment by beginning a legislative meetings with a prayer because the practice "comports with our tradition and does not coerce participation by nonadherents."