It may come as a surprise to many Americans, but the United States Supreme Court has been reinterpreting the First Amendment and its protections through monumental case decisions for more than 100 years.
In fact, it was the 20th century that most dramatically changed the way in which Americans are protected by the First Amendment. Generations after its adoption in 1791, court decisions throughout the 1900’s led to significant limitations on what kind of speech the First Amendment protects. These rulings changed the course of history forever, affecting not only the core of all media and communication, but each and every United States citizen.
1. Schenck v. United States (1919) – Limiting Speech In Wartime & Speech That Creates a Clear and Present Danger
In what many experts believe is the most important case in First Amendment history, Schenck v. United States completely transformed the legal understanding of the First Amendment and its protections. The court issued a game-changing declaration that the First Amendment does not protect your right to any and all speech.
The case began when Charles Schenck and Elizabeth Baer were charged with a conspiracy to violate the Espionage Act of 1917 after they distributed leaflets that encouraged the public to disobey the draft, claiming that the draft was a violation of the Thirteenth Amendment constraint against involuntary servitude. Upon conviction, Schenck and Baer appealed on the grounds that their First Amendment rights were being violated.
Ultimately, the court unanimously held that the Espionage Act did not violate the First Amendment and was within Congress’ wartime authority. Justice Oliver Wendell Holmes even went on to conclude on behalf of the court that the courts should be more considerate towards the government in wartime, even when constitutional rights may be threatened. Holmes stated that the First Amendment does not protect speech that approaches creating a clear and present danger of a ‘significant evil’ that Congress has power to prevent. Holmes then famously compared the leaflets to falsely shouting “fire!’ in a crowded theater.
Schenck v. United States became one of the first of many exceptions to the First Amendment protection of speech, previously thought to be a solidified constitutional right. Holmes’ ruling on the case set a precedent for the future exceptions to come. Historian and Boston University Professor Christopher B. Daly explains the result of Schenck v. United States in his Washington Post article A Century of Rulings: How The Supreme Court Has Remade Free Speech:
“…the Supreme Court weighed in for one of the first times in history on the meaning of the First Amendment, deciding that it did not actually guarantee Americans the unlimited right to say anything they’d like, at any time, in any setting. Through that ruling, the high court forever changed the country’s legal understanding of the First Amendment.”
2. Gitlow v. New York (1925) – First Amendment Free Speech Protections Apply to State Governments
It was actually more than 134 years after the adoption of the First Amendment that the Supreme Court officially ruled on how the Constitution’s First Amendment free speech protections also apply to state governments. The court held that the due process clause of the Fourteenth Amendment, which is the amendment that addresses citizenship and the rights of citizens, required state governments to follow the same standards as the federal government in regulating speech.
The landmark case came about after Benjamin Gitlow and his associate Alan Larkin were arrested for ‘criminal anarchy’ under New York law for distributing a “Left Wing Manifesto” via their newspaper that contained material based on “The Communist Manifesto” by Karl Marx and Friedrich Engels. The writings advocated a violent overthrow of the U.S. government.
Gitlow was convicted in New York, and the decision was upheld by the state appellate court. The Supreme Court actually maintained Gitlow’s conviction, but at the same time held that “freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”
3. New York Times Co. v. Sullivan (1964) – Defamation & Actual Malice
Imagine a world where the media could no longer report on the actions of those in public office due to the fear that one mistake could lead to a multi-million dollar defamation lawsuit. The court decision in New York Times Co. v. Sullivan set the standard for what’s required to successfully sue for defamation. The court held that any public official or person running for public office suing for defamation must not only prove that false and defamatory speech was made against them, but that the statements were made with ‘actual malice’, a term that means the defendant either knew the statement was false or recklessly disregarded whether or not it was true.
David McCraw, deputy general counsel at The Times, recently summarized the results of the case in his 2018 piece How a Times Court Decision Revolutionized Libel Law:
“Sullivan led to a series of other court decisions that curtailed the ability of libel plaintiffs to win their lawsuits. None of it was intended to be a balancing. It was an imbalancing, a conscious decision by the courts to free journalists to pursue the truth without fear of triggering a lawsuit that could bankrupt their publisher. The Sullivan decision, like the First Amendment itself, was anchored in the belief that competing voices rather than lawsuits were the best way to get at the truth. The Times has long believed that as well. Its policy of not paying money to plaintiffs to settle libel suits in the United States against the newspaper traces back to a 1922 letter written by the publisher.”
New York Times Co. v. Sullivan started in the 1960s amidst the Civil Rights movement. The New York Times published an advertisement calling for donations to defend Martin Luther King Jr. on perjury charges, which included a number of minor factual inaccuracies. Even though he was not mentioned in the ad, city Public Safety Commission L.B. Sullivan wrote a request to The Times to publicly retract the statements in the ad, as he felt the criticism of his subordinates placed him in a negative light. The Times refused, and Sullivan initiated a libel action against The Times and a group of ministers mentioned in the advertisement. A New York state court jury awarded Sullivan $500,000 in damages, which the state supreme court affirmed and The Times appealed to the Supreme Court.
4. Chaplinsky v. New Hampshire (1942) – Slanderous & Profane Speech, Obscenities, & ‘Fighting Words’
The case of Chaplinsky v. New Hampshire led to the further designation of certain types of speech that the Supreme Court declared to be outside of the First Amendment’s protections, which included obscenities, certain slanderous and profane speech, and language dubbed ‘fighting words’ – words “which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.”
As Nadine Strossen, Professor of Constitutional Law at New York Law School & former President of the American Civil Liberties Union writes in HATE: Why We Should Resist It with Free Speech, Not Censorship:
“Fighting words” constitute a type of punishable incitement: when speakers intentionally incite imminent violence against themselves (in contrast with third parties), which is likely to happen immediately. In the fighting words situation the speaker hurls insulting language directly at another person, intending to instigate that person’s imminent violent reaction against the speaker himself/herself, and that violence is likely to occur immediately (64).
It began on a public sidewalk in Rochester, where Walter Chaplinsky disseminated written materials that attacked various religions and labeled the town marshal a “God-damned racketeer” and a “damned Fascist.” After being arrested under a New Hampshire law that blocked individuals from engaging in offensive, derisive, or annoying speech towards any person in a public area, Chaplinsky argued that the law violated the First Amendment as it was overly vague. The Supreme Court unanimously upheld the conviction, and in doing so outlined categorical exceptions to the First Amendment free speech protections.
5. New York Times Co. vs. United States (1971)
Does national security always supercede the First Amendment? In the case of New York Times Co. v. United States and the famous Pentagon Papers, the Supreme Court reviewed another issue that could have dramatically limited the nation’s free press.
It was 1971, and the country was locked into a debate over the validity and efficacy of the Vietnam War. The Times obtained and published a copy of the internal Defense Department report that included government discussions regarding the war: the Pentagon Papers. The U.S. government filed a temporary injunction ordering The Times not to publish the papers, citing national security concerns. In response, The Times appealed, arguing that to prevent the publication of the documents was to violate the First Amendment.
The Supreme Court ruled 6-3 in favor of the Times, with Justice Hugo Black writing:
“The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”
As these cases and many others show, the First Amendment and its protections are continually being re-examined and reinterpreted by the court, and substantive change is often just a single ruling away. For better or for worse, the First Amendment that James Madison and the Founding Fathers knew has taken on an entirely new legal definition in contemporary times.