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The Oxford Handbook of the U.S. Constitution edited by Tushnet, Mark; Levinson, Sanford; Graber, Mark A (10th September 2015)

Part IV Rights, Ch.30 Free Speech and Free Press

Stephen M. Feldman

From: The Oxford Handbook of the U.S. Constitution

Edited By: Mark Tushnet, Sanford Levinson, Mark A. Graber

(p. 629) Chapter 30  Free Speech and Free Press

The First Amendment states: “Congress shall make no law … abridging the freedom of speech, or of the press. …” Many Americans view the First Amendment protection of free expression, encompassing speech and writing, as a constitutional lodestar.1 In this vein, numerous Supreme Court justices and legal scholars have proclaimed that democracy cannot exist without robust free expression. Yet, free speech and a free press have not always held this exalted legal status. While courts throughout American history have interpreted free expression in accord with contemporary understandings of democracy, the concept of democracy itself changed in the 1920s and 1930s. That change, from republican to pluralist democracy, engendered a significant transformation in free-expression doctrine.2

Moreover, to understand free expression in America, one must appreciate not only legal doctrine but also the existence of two competing American traditions: a tradition of dissent, and a tradition of suppression. The tradition of dissent embodies the American ethos of speaking one’s mind without fear of governmental punishment. Thus, for instance, although a well-developed theory or legal doctrine of free expression did not yet exist in the 1790s, a robust de facto liberty existed. Yet, alongside this tradition, one must acknowledge the countervailing and equally powerful tradition of suppression. Whereas many Americans have reasonably expected to speak their minds without penalty, many (and often the same) Americans simultaneously have suppressed social and cultural outsiders, whether based on race, religion, or otherwise. Suppression has operated through both official (legal) and unofficial (extralegal) mechanisms. Mob violence, tar-and-feathering, and chasing outsiders from town have been common means of suppressing those who seem to diverge too far from the mainstream. Both traditions, dissent and suppression, reach back to the nation’s beginnings. During the Revolution, Patriots enjoyed a full sense of free expression; in fact, American newspapers were filled with tributes to the glories of a free press.3 Yet, those same Americans were quick to suppress the views of Tories who (p. 630) wanted to voice their support for the British. At the direction of the Continental Congress, numerous towns even created Committees of Observation or Inspection that monitored the output of suspected Tory printers with the ominous vigor of an Orwellian Big Brother.4 Thus, when it comes to free expression, legal doctrine is important, but it is not everything.

As a general matter, legal doctrine harmonized more closely with the tradition of suppression during the era of republican democracy, while doctrine has shifted closer to the tradition of dissent during the era of pluralist democracy (starting in the 1930s). Regardless, in the course of both the republican and pluralist democratic regimes, both traditions have contributed to the experience and understanding of free expression.5 Indeed, doctrine, dissent, and suppression interrelate with each other. Intense governmental suppression implemented through statutes might, for example, spark strong dissent. Likewise, expressions of dissent sometimes provoke in reaction both official and unofficial suppression. And judicial applications of apparently well-established legal doctrines can vary in accordance with the current magnitudes of the competing traditions. If, at a particular time, public opinion strongly supports suppression, then the Supreme Court justices will probably uphold governmental acts punishing unpopular speech and writing, regardless of the predominant doctrine. Much depends on the contemporary political and cultural alignments.

I.  The Framing, Bill of Rights, and Early Doctrinal Developments

The delegates to the Constitutional Convention devoted little energy to questions of free expression. The overwhelming majority of delegates believed a bill of rights, including an express protection of either free speech or free press, was unnecessary. In fact, not a single delegate even mentioned a free-speech clause, other than a speech and debate clause for Congress. Once the Convention delegates had completed their work, though, the national debate over ratification began. While the Anti-Federalist opponents of the Constitution voiced numerous objections to the proposed document, their overriding concern was the continuing viability of state sovereignty vis-à-vis the enhanced sovereign power of the national government.6 Even so, the Anti-Federalists quickly realized that their concerns might garner the most popular traction if they stressed the lack of a bill of rights (which, for many, was also a genuine concern). If the Constitution would vest enormous power in the national government, as the Anti-Federalists feared, then the government would be empowered to trample many essential individual rights and liberties. A bill of rights, the Anti-Federalists therefore argued, was essential to protect those rights and liberties and to prevent governmental tyranny.7 The Anti-Federalists repeatedly hammered on this supposed defect in the proposed Constitution and, in doing so, stressed that freedom of the press, in particular, was unprotected.

(p. 631) Ultimately, of course, the states ratified and adopted the Constitution, but only after James Madison and other Federalist leaders committed to adding a bill of rights. And as promised, Madison, as a member of the first House of Representatives, introduced to the first Congress a draft of a bill of rights on June 8, 1789. Madison’s first draft became all-important because Congress devoted little time and energy to the substance of the various provisions. Many members of Congress believed a bill of rights was relatively inconsequential. They viewed it as an unnecessary redundancy: a bill of rights would reiterate what already was understood, that the national government lacked the power to infringe on individual rights and liberties, such as freedom of the press. For many Federalists, the Bill of Rights remained little more than a political bone that they were tossing to the Anti-Federalists, who then, it was hoped, would quietly lie down and refrain from calling for a new constitutional convention. When Madison initially presented his first draft, numerous representatives, Federalists and Anti-Federalists alike, opined that Congress needed to remain focused on more important matters. South Carolinian Aedanus Burke declared that until “other important subjects are determined, he was against taking this up.”8 Eventually, though, Congress approved the Bill of Rights, which then was ratified in 1791 by the requisite number of states. Nevertheless, the lack of extensive discussion about the meanings of a free press and free speech or the propriety of including protections of speech and writing in the Bill of Rights underscores that the First Amendment did not elucidate the law of free expression.

As of 1791, most Americans believed that they had a right to speak their mind, in accord with the tradition of dissent, but they would not have articulated this right in precise legal terms.9 Other Americans, including lawyers, assumed that legal rights to free expression still, for the most part, tracked the common law. Madison suggested as much when he stated during the congressional debates over the Bill of Rights that he sought to enumerate “simple, acknowledged principles.” The main parameters of the common law of free expression had been long established. As stated by William Blackstone in his Commentaries on the Laws of England, published in the 1760s, the crux of free expression was a prohibition on prior restraints:

The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.

Even before the Constitution was implemented in 1789, Americans generally followed this common law doctrine; in 1788, Chief Justice Thomas McKean of Pennsylvania called the ban on prior restraints the “true liberty of the press.”10 Thus, at a minimum, the First Amendment constitutionalized the prohibition of prior restraints, but beyond this, the precise legal meanings of free speech and free press remained unclear. In particular, whether the national government had the power to punish seditious libel—that is, criticisms of government officials and policies—was ambiguous.

(p. 632) This lack of clarity would contribute to controversy during the 1790s. Early in that decade, political disputes became so ferocious that the Federalists, so recently united in support of constitutional ratification, were rent apart into two opposed “proto-parties,” the Republicans and the Federalists.11 Divergent visions of national power, citizenship, and commercial development emerged. Most notably, James Madison and Thomas Jefferson articulated the Republican vision, based on Virginia’s agrarianism, while Alexander Hamilton enunciated the Federalist vision, based on the Northeast’s mercantilism and incipient industrialism. Both sides believed they represented the common good, but they could not reach consensus. Instead, their conflicts became so intense that each side accused the other of seditious and even treasonous activities. Throughout the decade, Federalists controlled most governmental offices, and they debated among themselves whether to seek criminal punishment for Republicans who allegedly had uttered seditious statements. At the time, most Americans, Federalists and Republicans alike, would have agreed that the state governments retained the power to punish seditious libel, but a national power to act similarly was on less clear footing. Regardless, among Federalists themselves, the disputes over sedition usually focused on the political costs and benefits of prosecutions, not on the legality or constitutionality of such actions. In effect, Federalists recognized the strength of the American tradition of dissent: while the law might permit federal prosecutions, Federalists realized, the tradition of dissent augured caution before taking such action.12

By 1798, however, the politics had shifted sufficiently that the Federalist-controlled Congress passed the Sedition Act. The statute provided for the criminal punishment of any criticisms of the national government or its officials, though the Act tellingly failed to encompass within its protections the Republican vice president, Jefferson. Despite this statutory lacuna, the Federalists remained mindful of the tradition of dissent and thus enacted the most liberal seditious libel statute then imaginable. Even so, Federalists also seemed cognizant of the tradition of suppression. After all, many Federalists could remember how, during the American Revolution, Patriots harassed and banished Tories for speaking their minds. Now, Federalist mobs repeatedly threatened and attacked Republicans, including congressmen and newspaper editors. When the prosecutions began, some Republicans responded by invoking the First Amendment. These invocations led Republicans to elaborate increasingly complex definitions of free expression, but the Republicans’ main critique of the Sedition Act was a jurisdictional (or federalism) argument: that the states but not the national government had the power to punish seditious libel. Kentucky and Virginia issued legislative Resolutions to protest the Act, with Kentucky releasing its Resolutions just over one month after the first prosecution. Jefferson wrote the first draft for the Kentucky legislature, while Madison wrote the first draft for Virginia. Kentucky followed Jefferson’s strong avowal of state sovereignty: whenever the national government attempted to act beyond its enumerated powers, its actions were “unauthoritative, void, and of no force.” Focusing on free expression, Kentucky resolved that “no power over the … freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, and were reserved to the states, or to the people.” Consequently, the Sedition Act was illegal and void, although the states retained “to (p. 633) themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom.”

During the Sedition Act Crisis, the Supreme Court never ruled on the constitutionality of the Act. In fact, the Supreme Court avoided free-expression issues for more than a century after the adoption of the First Amendment. In Barron v. Baltimore (1833)13 and Permoli v. New Orleans (1845)14 the pre–Civil War Court held that Bill-of-Rights guarantees, including those of the First Amendment, applied only against the national government. Thus, when state and local governments regulated speech and writing during the antebellum period, lower courts developed the relevant legal doctrine in accord with state constitutions and the structures of republican democratic government. Under republican democracy, virtuous citizens and officials ostensibly pursued the common good. Courts, therefore, reviewed governmental actions to ensure that they promoted the common good rather than partial or private interests. Consistent with this general practice of republican democratic judicial review, courts articulated a bad tendency test to delineate the scope of free expression. The government could not impose prior restraints on expression, but it could impose criminal penalties for speech or writing that had bad tendencies or likely harmful consequences, in contravention of the common good. Many courts added that the criminal defendant, to be convicted, must also have intended harmful consequences. Even so, under the doctrine of constructive intent, the courts typically reasoned that a defendant was presumed to have intended the natural and probable consequences of his or her statements. If a defendant’s expression was found to have bad tendencies, then the defendant’s criminal intent would be inferred.

Many free-expression disputes arose outside the courts during the nineteenth century, and thus, frequently, the traditions of dissent and suppression mattered more than legal doctrine. Once abolitionism began to spread in the 1830s, slavery and abolition became the flashpoints that sparked the greatest controversies of the pre–Civil War period. Initially, abolitionists sought to persuade whites, including Southern slaveholders, to support abolition because it was right from a moral, religious, and legal standpoint. As abolitionists discovered, though, the nobility of this approach matched only its ineffectiveness in generating a mass movement. Even so, proslavery advocates often reacted violently to abolitionist messages. For instance, anti-abolitionists repeatedly destroyed abolitionist printing presses, and when such tactics failed to silence the abolitionist printers, more violent threats and actions, including murder, were implemented. But once anti-abolitionists began to suppress abolitionist messages violently, then abolitionists were able to chart a convergence of interests among themselves, other whites, and slaves. Abolitionists could now argue that slaveholders and their cohorts not only sought to deny liberty to black slaves but also to free whites. In this context, the reality of the law of free expression mattered little; what was important was that an increasing percentage of Northern whites began to perceive that the “slave power” purposefully denied whites’ rights and liberties so as to protect the slaveholders’ interests.15 With this perception of the slave power, whites could be encouraged to support abolition not merely because it was right—a claim that abolitionists never wavered from—but also because abolition was in the interest of free whites.16

(p. 634) II.  Initial Supreme Court Cases

After the Civil War, the national government became a more active regulator, and the Supreme Court’s caseload gradually grew. Before long, the Court began to hear cases that raised free-expression issues. In the earliest cases, the justices typically subsumed these issues within a due-process or economic-liberty analysis (pursuant to the Fourteenth Amendment, adopted during Reconstruction). For example, early in the twentieth century, attempts to regulate the new technology of motion pictures raised novel questions. In Mutual Film Corp. v. Ohio Industrial Commission (1915),17 Mutual Film argued that a law requiring governmental pre-approval of movies constituted a prior restraint. The Court rejected this claim, reasoning “that the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit.”18 The censorship statute constituted a reasonable regulation on personal liberty—that is, economic liberty—because it was “in the interest of the public morals and welfare.”19

Even when the justices acknowledged a free-expression question, they tended to treat the issue as an aspect of due-process liberty. In Halter v. Nebraska (1907)20 the Court upheld the conviction, under a state flag-desecration statute, of defendants who sold bottled beer affixed with labels bearing the flag. The majority opinion discussed free expression at length but as an aspect of due-process liberty rather than as a First Amendment right per se. “[A] state possesses all legislative power consistent with a republican form of government,” the Court wrote, “therefore each state … may, by legislation, provide not only for the health, morals, and safety of its people, but for the common good, as involved in the well-being, peace, happiness, and prosperity of the people.”21 Thus, “[i]t is familiar law that even the privileges of citizenship and the rights inhering in personal liberty are subject, in their enjoyment, to such reasonable restraints as may be required for the general good.”22 More specifically, free expression was subordinate to any state actions promoting the community’s welfare.

Justice Oliver Wendell Holmes Jr., wrote his first free-expression opinion for the United States Supreme Court in another 1907 decision, Patterson v. Colorado (1907).23 The Colorado Supreme Court had held Patterson in contempt for publishing a cartoon and articles that allegedly could embarrass the court and interfere with its adjudication of pending cases. Holmes assumed, without deciding, that the Fourteenth Amendment proscribed state governments from infringing free expression. While unclear, Holmes seemed to discuss free expression as an aspect of liberty, as had the Halter Court, rather than suggesting that the Fourteenth Amendment applied or incorporated the First Amendment per se against the states. Simultaneously, Holmes seemed to equate Fourteenth-Amendment free-expression liberty with First Amendment free expression. Either way, then, Holmes interpreted free expression, whether primarily a Fourteenth or First Amendment liberty, harmoniously with the Halter Court’s understanding. Echoing Blackstone, Holmes wrote that “the main purpose of such constitutional provisions [protecting free speech and a free press] is ‘to prevent all such previous restraints upon publications as had been practised by other (p. 635) governments.’”24 Yet, consistent with republican democratic principles, constitutional protections of free expression “do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.”25 In short, Holmes and the other justices understood free expression in accord with the standard nineteenth- and early-twentieth-century renditions of legal doctrine. Prior restraints were prohibited, but the government could punish speech with bad tendencies because doing so would promote the common good. Even the proscription of prior restraints, though, was sometimes more rhetorical than real. The Supreme Court, for instance, consistently upheld labor injunctions—enjoining union leaders’ and members’ expressive activities, such as picketing—without acknowledging that such injunctions might be categorized as impermissible prior restraints.

III.  World War I Cases

Soon after Congress declared war against Germany in April 1917, the Wilson administration encouraged Congress to enact the Espionage Act, which proscribed obstructing the draft or causing or attempting to cause insubordination or disloyalty within the military. Less than one year later, Congress overwhelmingly passed an amendment, the Sedition Act of 1918, which clarified the congressional desire to foster suppression. The Department of Justice vigorously enforced both statutes. The first four Espionage/Sedition Act cases to reach the Supreme Court were not argued until January 1919, after hostilities had ended. In the first, Schenck v. United States (1919),26 the general secretary of the Socialist party and an executive board member were convicted for printing several thousand copies of a leaflet and mailing it to draft-eligible men. The leaflet advocated for the repeal of the draft law and argued that conscription violated the Thirteenth Amendment’s proscription of slavery. Holmes wrote a unanimous opinion upholding the convictions. In response to the defendants’ argument that the First Amendment protected their expression, Holmes articulated a doctrinal test: “The question in every case is 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 a right to prevent.”27 While Holmes’s “clear and present danger” terminology was novel (and apparently derived from his book, The Common Law), his application of the test demonstrated that he did not intend to articulate a new standard for delineating the scope of free expression. For Holmes, clear and present danger meant bad tendency. The First Amendment proscribed prior restraints but otherwise allowed the government to punish any speech or writing that would contravene the common good.

One week later, the Court unanimously decided two more Espionage Act cases: Frohwerk v. United States (1919),28 and Debs v. United States (1919)29 (the first case prosecuted under the amended Act to reach the Court). Writing the Court’s opinions in both cases, Holmes ignored his clear and present danger terminology. Indeed, in Debs, Holmes explicitly approved a jury instruction that presented the bad tendency test in conventional terms. (p. 636) The jurors, as charged, “could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service, &c., and unless the defendant had the specific intent to do so in his mind.”30 Holmes also recognized that the jury could find constructive intent; the jury could infer the defendant’s intent to obstruct the draft from the bad tendencies of his words. Any further potential First Amendment issues, Holmes noted, had been “disposed of in Schenck v. United States.”31 Eugene Debs, it is worth noting, was a prominent labor leader and a four-time Socialist candidate for president; President Warren G. Harding commuted his ten-year sentence in December 1921. Regardless, the first set of World War I free-expression cases revealed that all of the justices, including Holmes, considered free expression to be an individual liberty like any other under republican democracy, subordinate to governmental actions furthering the common good. The government could punish any speech or writing that impeded the national war effort because such expression would be deemed harmful or with bad tendencies.

Eight months later, the Court decided its next Espionage Act case, Abrams v. United States (1919).32 The defendants had been convicted for printing and distributing leaflets that criticized President Woodrow Wilson’s leadership during the war. Affirming the convictions, the Court brushed aside the defendants’ First Amendment arguments by reasoning that Schenck and Frohwerk controlled. Surprisingly, Holmes and Justice Louis Brandeis dissented, with Brandeis joining Holmes’s opinion. Holmes asserted the correctness of the Court’s previous decisions in Schenck, Frohwerk, and Debs, and then reiterated his clear and present danger phrasing from Schenck. Now, though, Holmes imbued this phrase with new vigor; it no longer equated with the bad tendency test. In applying the clear and present danger test, Holmes stressed that Abrams and his codefendants were “poor and puny anonymities,” their writings were insignificant, and the government should not have prosecuted.33 “[N]obody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.”34 In short, the government had not proven clear and present danger because the defendants and their writings were so inconsequential.

Holmes reasoned that a societal search for truth justified an expansive concept of free expression under the First Amendment.

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct 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, and that truth is the only ground upon which their wishes safely can be carried out.35

Holmes linked the search-for-truth rationale with the clear and present danger test. “[W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death,” he warned, “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an (p. 637) immediate check is required to save the country.”36 The government, that is, should allow speech and writing to flow into a marketplace of ideas. From this free exchange of ideas, the truth will emerge. Harmful ideas must be met with better ideas—counterspeech—rather than with force or suppression. The only ideas (speech and writing) that should be restricted are those that would inhibit the further exchange of ideas—namely, those that would engender a clear and present (or imminent) danger of unlawful or harmful conduct.

IV.  Democracy and Free Expression Transformed

Through the 1920s, the Court continued to interpret the First Amendment narrowly, in accord with republican democratic principles. Holmes and Brandeis often dissented while relying on the clear and present danger test, as distinct from the bad tendency test. During the war and the postwar Red Scare, numerous states had passed criminal syndicalism statutes—laws that prohibited violence or advocacy of violence as a means of accomplishing political change—and challenges to convictions under these laws began to reach the Court in mid-decade. Gitlow v. New York (1925)37 was first. Benjamin Gitlow had been convicted under a New York statute that proscribed advocating the overthrow of the government. Although Justice Edward Sanford wrote for a seven-justice majority upholding the conviction (Holmes and Brandeis dissented), Sanford began with a point that would facilitate the future expansion of free-expression protections. The Fourteenth Amendment’s due process clause, he wrote, incorporated (or applied) the free speech and free press clauses to restrict state and local governments. This holding assured a steady flow of First Amendment cases into the federal courts, including the Supreme Court. Regardless, Sanford reasoned the Court must defer to the legislature’s determination that the punished language was “inimical to the public welfare,” given that such determination was not arbitrary.

The Court upheld another conviction in Whitney v. California,38 with Sanford again writing the majority opinion. California convicted Charlotte Whitney, a member of the Communist Labor Party, for organizing and belonging to an organization advocating criminal syndicalism, even though Whitney personally sought peaceful political change. Brandeis, joined by Holmes, wrote a separate opinion that functioned as a dissent though it technically concurred in the judgment (because Whitney had not adequately raised the free-expression issues). The defendant, Brandeis explained, should have the opportunity to show that, based on the specific facts of the case, the statute was unconstitutionally applied because no clear and present danger existed. Acknowledging that the parameters of the clear and present danger test remained obscure, Brandeis articulated three justifications for broadly protecting expression—justifications that theorists would develop over the next decades into the primary rationales for an expansive interpretation of the First Amendment. First, Brandeis reiterated the search-for-truth or marketplace rationale, emphasizing that counterspeech “affords ordinarily adequate protection against the (p. 638) dissemination of noxious doctrine.”39 Second, Brandeis linked free expression to democratic government, though he did not argue that freedom to express one’s opinion on political issues is a prerequisite to full democratic participation. Rather, consistent with republican democracy, he maintained “that public discussion is a political duty” and that free discussion of “supposed grievances and proposed remedies” nurtures stable government.40 Through public discussion of political issues, Brandeis implied, the citizenry discerns the public good and discourages government corruption. Third, Brandeis alluded to the inherent value of individual liberty: the Founders “valued liberty both as an end and as a means.”41 Free expression not only was a means to truth or free government; it was valuable in and of itself.

These three philosophical rationales, particularly the search-for-truth and democratic-governance ones, elucidated the clear and present danger test. “[N]o danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion,” Brandeis wrote. “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.”42 The only expression that should be punished is that which would likely engender an imminent (or “present”) danger of unlawful or harmful conduct and would therefore preclude any further discussion or exchange of ideas. Meanwhile, for expression to constitute a “clear” danger, Brandeis explained that it must generate a probability of “serious evil” or injury.43 Because free expression is so significant to republican democratic government, punishment “would be inappropriate as the means for averting a relatively trivial harm to society.”44

In 1931, the Court decided its first two cases validating free-expression claims. In Stromberg v. California45 the state convicted Yetta Stromberg for displaying a red (Communist) flag as a sign of “opposition to organized government.” The Court reasoned that the statute, as interpreted by the state courts, “might be construed to include the peaceful and orderly opposition to a government as organized and controlled by one political party by those of another political party.”46 This statutory proscription on expression was “so vague” on “its face” that the Court held it unconstitutional.47 The case manifested a victory for free expression, though Chief Justice Charles Hughes’s opinion was ambiguous: it could be construed as either relying on free speech, due process, or both. In the second case, Near v. Minnesota,48 J.M. Near’s weekly newspaper repeatedly published anti-Semitic articles accusing Minneapolis public officials of corruption. Pursuant to a state statute providing “for the abatement, as a public nuisance, of a ‘malicious, scandalous and defamatory newspaper, magazine or other periodical,’” a county attorney sought to enjoin further publications.49 The state courts granted the injunction, but the Court reversed, holding that the injunction constituted a prior restraint violating freedom of the press.

At this stage, the justices still conceptualized free expression within the structures of republican democracy. Yet, by the late-1920s and early- to mid-1930s, republican democracy was crumbling, and the practices of pluralist democracy were crystallizing under the pressures of industrialization, immigration, and urbanization. In the republican system, an (p. 639) alleged lack of civic virtue could preclude one from participating in democratic processes. On this ground, the exclusion of African Americans, Irish-Catholic immigrants, and other peripheral groups supposedly had been justified during long stretches of American history. Under pluralist democracy, however, one did not need to demonstrate civic virtue to qualify as a participant. During the thirties, many ethnic and immigrant urbanites who had previously been discouraged from partaking in national politics became voters and actively cast their support for the New Deal. Moreover, pluralist democracy acknowledged that politics was about the pursuit of self-interest. Interest-group efforts to satisfy preexisting values and desires became normal and legitimate. Governmental goals could no longer be condemned as contravening the common good; all such substantive goals were determined through interest-group bargaining and coalition building. Ultimately, then, pluralist democracy was defined through processes that ensured full and fair participation, the assertion of one’s interests and values, especially in the legislative arena.

Starting in 1937 and then in following years, the Court accepted the structures of pluralist democracy, and in doing so, the justices rendered judicial review problematic. Previously, courts had used their power to enforce basic republican democratic principles: upholding governmental actions that promoted the common good and invalidating actions that furthered partial or private interests. With the repudiation of republican democracy, the purpose of judicial review became obscure, but over time, the Court developed new doctrines to implement its power. In the free-expression context, the change began with Herndon v. Lowry, decided on April 26, 1937.50 The Court reversed Georgia’s conviction of Angelo Herndon, a black Communist Party organizer who had attempted to persuade other individuals, mostly African Americans, to join the Party. Justice Owen Roberts’s confusing majority opinion rested on multiple grounds, yet it nonetheless marked a significant doctrinal turn. Roberts invoked the clear and present danger test while repudiating the bad tendency test, and also created a presumption favoring the protection of expression. Subsequently, in a phenomenal string of cases from 1938 to 1940, the Court upheld one free-expression claim after another. For instance, Hague v. C.I.O.51 upheld the right of labor unions to organize and distribute literature in the streets and parks, which the Court now deemed public fora. Cantwell v. Connecticut52 held that a conviction for breach of the peace violated free expression even though the defendant had “incensed” passersby by playing a phonograph record attacking their religion.

V.  Free Expression as Constitutional Lodestar

The post-1937 Court elaborated and primarily relied on Brandeis’s three theoretical rationales to justify the new expansive protection of free expression. The justices persistently reiterated the search-for-truth theory. In Chaplinsky v. New Hampshire,53 the Court reasoned that certain types of speech, particularly so-called fighting words—“those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”—do (p. 640) not deserve constitutional protection because “such utterances are no essential part of any exposition of ideas,” and thus do not contribute to the discovery of “truth.” The justices have continued to invoke the search-for-truth rationale ever since. In Red Lion Broadcasting v. F.C.C.,54 a unanimous Court wrote that “[i]t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”

The justices also relied increasingly on a democratic- or self-governance rationale that they shaped to harmonize with the emergent pluralist democracy. Pluralist democratic government depended on adherence to certain governmental processes, and no liberty seemed more central to those governmental processes than free expression. Free speech and writing allowed diverse groups and individuals to contribute their views in the pluralist political arena. If governmental officials interfered with the pluralist process, if they dictated or controlled public debates, then they would skew the democratic outcomes and undermine the consent of the governed. No less so than voting, free expression was a prerequisite for pluralist democracy. The Court, when discussing free expression in Thornhill v. Alabama,55 emphasized that government cannot be allowed to “diminish the effective exercise of rights so necessary to the maintenance of democratic institutions.” In West Virginia State Board of Education v. Barnette,56 the Court reasoned: “We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.”

During the post–World War II era, scholars developed a self-fulfillment rationale that the justices soon began to invoke. Thomas Emerson began with “the widely accepted premise of Western thought that the proper end of man is the realization of his character and potentialities as a human being.”57 From this premise, Emerson reasoned that “every man—in the development of his own personality—has the right to form his own beliefs and opinions,” as well as “the right to express these beliefs and opinions.”58 When understood in this manner, free expression allows the individual “to realize his potentiality as a human being.”59 In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,60 Justice David Souter described “the fundamental rule of protection under the First Amendment [to be] that a speaker has the autonomy to choose the content of his own message.” Partly because the self-fulfillment rationale is not instrumental—it values expression as an end in itself rather than as a means to other ends, such as truth—it justifies an expansive concept of free expression. As Justice Thurgood Marshall phrased it in his concurrence in Procunier v. Martinez,61 free expression “serves … the needs of … the human spirit—a spirit that demands self-expression.”

In conjunction with these three philosophical rationales, the Court developed two overarching doctrines that it used to adjudicate free-expression disputes: the two-level approach, and a balancing test. Under the two-level approach, the First Amendment fully protects speech and writing unless the expression falls into a low-value category, in which case the expression is unprotected. In Chaplinsky,62 the Court identified several low-value categories: “There are certain well-defined and narrowly limited classes of speech, the (p. 641) prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.” If the Court designated disputed speech to be, for example, obscene, then the government could punish the speaker; the First Amendment did not shield the expression. The Court’s two-level approach to free expression can be contentious in two ways. The Court’s initial designation of expression as a low-value category (or not) can provoke vigorous disagreement; the Court often invokes a theoretical rationale such as self-governance to justify its categorization. And once the Court defines a low-value category, the identification of specific materials as being within that category can generate disputes. Most justices long agreed that obscenity should be a low-value category, but for decades, until Miller v. California,63 they were unable to converge on a single doctrinal test for identifying materials as obscene.

The predominant alternative to the two-level doctrine has been the balancing test, which became especially common in disputes involving time, place, and manner rather than content-based restrictions on expression. In one time, place, and manner case, Martin v. Struthers,64 the Court held that the defendant’s conviction for distributing leaflets door-to-door violated free expression. “We are faced in the instant case with the necessity of weighing the conflicting interests of the appellant in the civil rights she claims,” explained the majority opinion, “as well as the right of the individual householder to determine whether he is willing to receive her message, against the interest of the community which by this ordinance offers to protect the interests of all of its citizens, whether particular citizens want that protection or not.”65 While the Martin Court suggested that it weighed the various interests even-handedly, the Court often skewed the balance against the government to create, in effect, a presumption favoring the protection of speech and writing. In Schneider v. State,66 the Court distinguished free-expression balancing cases from others: “Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.” In numerous cases, the Court translated this skewed balancing test into the clear and present danger standard. For example, when the Court weighed competing interests in Thornhill,67 it focused on whether the statutorily proscribed behavior created a “clear and present danger of destruction of life or property.” As then interpreted, the clear and present danger test strongly protected speech and writing. “What finally emerges from the ‘clear and present danger’ cases,” the Court explained in Bridges v. California,68 “is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.”

Pursuant to the two overarching doctrines—the two-level approach, and the balancing test—and the three philosophical rationales—search-for-truth, self-governance, and self-fulfillment—the Court often treated free expression as a constitutional lodestar. From the mid-1960s to the early-1970s, in particular, the Court decided numerous landmark cases that emphasized the preeminence of the First Amendment. New York Times v. Sullivan,69 asked whether the First Amendment protected the press from civil libel (p. 642) actions brought by governmental officials. The Times had published a full-page advertisement that solicited support for the civil rights movement and that criticized the police commissioner of Montgomery, Alabama. The advertisement, though, contained several minor factual errors. The police commissioner successfully brought a civil action in the state courts for defamation. The Court had previously recognized defamation as a low-value category, yet this case resembled a criminal prosecution for seditious libel: the government, through the institution of the state courts, sought to punish the press for criticizing a public official, the police commissioner. Reversing, a unanimous Court relied on both the self-governance and search-for-truth rationales. “[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”70 After deeming governmental prosecution of seditious libel unconstitutional, the Court reasoned that if a state could not constitutionally punish criticisms of governmental policies and officials through a criminal prosecution, then it should not be able to impose punishment through a civil defamation action. Instead, a “public official” can recover “damages for a defamatory falsehood relating to his official conduct” only if “he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”71

Pickering v. Board of Education72 arose when a school board dismissed a teacher for writing a letter to a newspaper. The letter criticized how the board and the school superintendent had handled funding issues. The Court began by emphasizing that public school teachers cannot be forced, as a condition of employment, to relinquish their free-expression rights to comment on issues of public concern. Although the state, as an employer, might have an interest in regulating for purposes of efficiency, the First Amendment protects an employee from being discharged for comments “on issues of public importance.”73 Tinker v. Des Moines Independent Community School District74 also involved public schools, though in this case, the schools had suspended students for wearing black armbands in protest of the Vietnam War. The Court categorized the armbands as “pure speech” rather than conduct and, therefore, as deserving of “comprehensive protection under the First Amendment.”75 Like teachers, students do not lose their First Amendment rights merely because they enter a school, the Court reasoned. Being in a school environment, to be sure, might require some diminishment of student rights. Even so, the Court articulated a highly speech-protective doctrine: student expression is constitutionally protected unless it causes “material and substantial interference with schoolwork or discipline.”76 In concluding that the student speech in this case was constitutionally protected, the Court underscored that public schools are training grounds where students learn the skills prerequisite for participation in pluralist democracy—the skills needed to become citizens and leaders.

In light of the extensive social unrest of the 1960s, the Court during this era unsurprisingly dealt with other political protests, some of which involved incitement of unlawful conduct. Brandenburg v. Ohio77 directly confronted the issue raised in the World War (p. 643) I Espionage Act cases: when, if ever, did the Constitution protect expression encouraging unlawful conduct, particularly subversive advocacy? The state convicted a Ku Klux Klan leader pursuant to the Ohio Criminal Syndicalism statute, which resembled the California statute upheld in Whitney in 1927. But now, the Court dramatically expanded free-expression doctrine. Under the Brandenburg test, the First Amendment protects expression unless the speaker specifically intends to incite imminent unlawful action, and such unlawful action is likely to occur imminently. In Cohen v. California78 the Court held that a defendant’s conviction for disturbing the peace violated the First Amendment. Police had arrested Cohen in a courthouse for wearing a jacket inscribed with the message, “Fuck the Draft.” According to Cohen, he had worn the jacket “as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.”79 The Court began by stating that the wearing of the jacket amounted to political speech rather than conduct. Thus, the state could not punish Cohen based on the “content of the message” unless it fell into one of the low-value categories.80 The Court reasoned that the words, “Fuck the Draft,” did not fit into any of the existing unprotected categories, such as obscenity, fighting words, or expression provoking a hostile audience. But, the Court pondered, should such offensive speech nonetheless be designated as a new low-value category? The Court rejected this possibility, asking, “How is one to distinguish this from any other offensive word?” After all, the Court reasoned, “it is … often true that one man’s vulgarity is another’s lyric.”81 Undoubtedly, the freedom to urge diverse political views can produce “verbal tumult, discord, and even offensive utterance,” but the potential for chaotic rants are a necessary side effect of pluralist democracy.82

VI.  Doctrinal Wavering and Inconsistent Results

In recent years, the Court has begun to combine the two-level and balancing approaches in cases that involve content-based restrictions on expression. In these cases, the Court generally begins with a presumption in favor of protecting speech and writing. The Court then asks whether the expression falls into a low-value and therefore constitutionally unprotected category. Even if the expression is not low-value, however, the First Amendment does not necessarily protect it. The Court now affords the government an opportunity to show that the expression should nonetheless be unprotected. To make this showing, the government must satisfy strict scrutiny, a type of balancing test strongly skewed against the government. To satisfy strict scrutiny, the government must demonstrate that its action (the regulation or punishment of expression) is narrowly tailored to achieve a compelling governmental interest. To take one example, in Brown v. Entertainment Merchants Ass’n,83 a state law prohibited “the sale or rental of ‘violent video games’ to minors.” Video games, the Court began, are a form of expression generally within the compass of the First Amendment and are, therefore, presumptively protected. Moreover, even violent games do (p. 644) not fall into a low-value category, such as obscenity or fighting words. Could the government, though, satisfy strict scrutiny? While protecting children from portrayals of violence might be a compelling state interest, the Court concluded that the regulation in this case was not narrowly tailored to achieve that end. The regulation of video games was, for instance, underinclusive because it still allowed children to be exposed to depictions of violence in sources other than video games.

The Court has undermined the two-level approach in other ways. Initially, in Valentine v. Chrestensen,84 the Court held that commercial advertising was a low-value category subject to governmental regulation. But when, after World War II, the mass-consumer culture became increasingly entangled with pluralist democratic processes, the Court changed its approach. Bigelow v. Virginia85 held that commercial advertising should no longer be deemed “unprotected per se,” though the Court allowed that such expression could “be subject to reasonable regulation.”86 One year later, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,87 the Court reasoned that commercial advertising was integral to pluralist democracy. Democracy entails the allocation of resources in society, the Court explained, but most resource-allocation decisions are made through the economic marketplace. After these cases, commercial speech neither constituted a low-value category nor deserved full First Amendment protection. Instead, it hovered somewhere between the traditional two levels: protected and unprotected. Thus, in the future, the Court would scrutinize governmental regulations of commercial speech pursuant to a balancing test. The Court dealt an even more serious blow to the two-level approach in a case involving hate speech, R.A.V. v. City of St. Paul, Minnesota.88 Ever since the Court had begun using the two-level approach, the justices had suggested that low-value speech was constitutionally unprotected while all other expression was fully protected. In R.A.V., the defendant, who had burned a cross in the yard of an African-American family, was convicted under a municipal anti-hate speech ordinance. The government argued that this speech was constitutionally unprotected because it was a form of fighting words, a low-value category. The Court, rejecting this argument, reasoned that, despite its earlier statements, low-value categories are not completely unprotected. To the contrary, the First Amendment shields expression within the low-value categories, at least to some degree. The categories, therefore, cannot be “made the vehicles for content discrimination.”89 By the Court’s reasoning, because this ordinance punished only some and not all fighting words—namely, it punished hate speech—the government was attempting to impose an unconstitutional content-based restriction on expression.

Apart from this doctrinal wavering, the Court has not consistently protected free expression during the pluralist democratic era despite the many encomiums to its lodestar status. The traditions of dissent and suppression, however, can help explain the Court’s vacillations. For instance, during the post–World War II Red Scare, the federal government convicted eleven leaders of the Communist Party of the United States (CPUSA) for conspiring both to organize the CPUSA and to advocate for the violent overthrow of the government, though the prosecution proved only that the defendants taught Marxist-Leninist doctrine. The Court upheld the convictions in Dennis v. United States,90 with Chief Justice Fred (p. 645) Vinson writing a plurality opinion. If the justices had applied the clear and present danger test as it had recently been understood, then the expression would have been constitutionally protected because the danger was not imminent. Teaching abstract doctrine is unlikely to produce immediate revolution. This judicial result, however, would have contravened the current political and public desire to root out Communism. Vinson, therefore, followed a reformulated clear and present danger test: “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”91 In this particular case, the advocated evil—the violent overthrow of the government—was so grave as to overcome its improbability. Clear and present danger “cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited.”92 The Court’s decision prompted the government to begin arresting and indicting CPUSA members en masse.

Overall, despite the strength of the tradition of dissent under pluralist democracy, “the outliers in American politics were more often than not the victims than the beneficiaries” of the Court’s decisions.93 Thus, even though the 1960s was one of the Court’s most speech-protective eras, the Court refused to recognize a right to protest during that decade, though such political expression resonated with the self-governance rationale. In Adderley v. Florida,94 two hundred college students marched from their school to a jail to protest the prior arrest of other students (for protesting racial segregation). The Court upheld the convictions of the protesters for trespassing on jail premises. The majority reasoned that because of the protesters’ conduct, regardless of their message, the state could apply its general law proscribing trespasses. Justice William Douglas dissented, emphasizing that in protest cases the government always claimed to apply some general criminal law proscribing trespass, breach of the peace, or the like. And the government always claimed that the message was irrelevant to the prosecution. Given the political nature of the defendants’ expression in Adderley, however, the jailhouse appeared to be the perfect location for the protest. Not only do members of peripheral groups often find their expression unprotected, as in Adderley, they also often find themselves the targets of expression that the Court deems constitutionally protected. Brandenburg itself provides but one example, as the Court interpreted the First Amendment to protect a Klan leader’s malicious hate speech directed against racial and religious minorities.

VII.  Recent Developments: The “Haves” Come Out Ahead

If the outliers often lose free-expression cases, even during the pluralist democratic era, the wealthy and powerful often win. This maxim—that the “haves” typically come out ahead95—fairly summarizes recent developments in free-expression jurisprudence. While the mass-consumer culture became increasingly entangled with pluralist democratic (p. 646) processes soon after World War II, large multinational corporations gained, in turn, greater control over the mass-consumer culture in subsequent years. This enhanced corporate power in the economic marketplace led, then, to growing corporate power in the democratic arena.96 As corporations began to spend more money in the political sphere, the Court vacillated over the degree to which the government could regulate corporate campaign spending. Citizens United v. Federal Election Commission97 ended the uncertainty, at least unless and until changing personnel reconfigures the Court’s current political balance. In Citizens United, the Roberts Court invalidated provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA), which maintained limits on corporate (and union) spending for political campaign advertisements—limits traceable back to 1907 legislation. The majority opinion began by reiterating two foundational premises pronounced in prior decisions: first, spending on political campaigns constitutes speech, and second, free-speech protections extend to corporations. The Court then moved to the crux of its reasoning, that free expression is a constitutional lodestar in American democracy and, therefore, must be protected. “Speech is an essential mechanism of democracy,” the Court explained. “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”98 Even so, the Court acknowledged that the government can prevent corruption or the appearance of corruption in democratic politics. Yet, the Court so severely narrowed the definition of corruption that any evidence (of corruption) was rendered practically irrelevant. Only a direct contribution to a candidate or officeholder can constitute corruption or its appearance, according to the Citizens United Court. An independent expenditure, even on behalf of a specific candidate or officeholder, cannot do so. Thus, apparently, the government cannot ever justify its regulation of expenditures, whether by corporations or others. Ultimately, then, Citizens United amounted to a judicial proclamation that corporations and other wealthy entities and individuals can spend unlimited sums in their efforts to determine elections and governmental policies. In the democratic sphere, wealth and corporate power are now unfettered.

The Roberts Court does not always demonstrate such respect for free expression as a constitutional lodestar. To the contrary, the Court has eroded some of the protections articulated in the landmark decisions of the late 1960s, particularly in cases where the First Amendment claimant does not wield significant wealth and power. For instance, in 1969, Tinker99 recognized robust First Amendment rights for public school students: student expression is protected unless it causes material and substantial interference with schoolwork or discipline. But in Morse v. Frederick,100 the Roberts Court upheld a school principal’s decision to suspend a student for displaying a banner, “BONG HiTS 4 JESUS.” The Court acknowledged that the student’s message was ambiguous but nonetheless deferred to the principal’s interpretation—that it would encourage drug use—as “plainly a reasonable one.”101 Such a message, the Court concluded, did not merit First Amendment protection. Similarly, Pickering102 held that the government cannot compel its employees—in that case, a public school teacher—to relinquish their First Amendment rights to speak on issues of public concern. But in Garcetti v. Ceballos,103 the Court limited government (p. 647) employees’ free-speech rights by distinguishing between the employees’ roles as citizens and as workers (employees). “[W]hen public employees make statements pursuant to their official duties,” the Court stated, “the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”104

The Roberts Court has also limited First Amendment rights for religious expression—at least for religious minorities. The Rehnquist Court had decided several cases involving religious expression on public (school) properties. In each case, the Court concluded that Christian organizations must be allowed to spread their messages. To take one example, in Rosenberger v. Rectors and Visitors of the University of Virginia,105 the Court reasoned that the public university had converted its property into a designated public forum by opening it for student or public speaking. Consequently, the First Amendment required the university to fund an overtly religious student newspaper, just as the university would fund non-religious student (expressive) activities. The government could not discriminate between religious and non-religious viewpoints. The Roberts Court, in Pleasant Grove City v. Summum,106 faced a similar religious-expression issue but with one important twist: the religious organization was not Christian. Pleasant Grove displayed in its city park several privately donated monuments, including one showing the Ten Commandments, contributed years earlier by the Fraternal Order of Eagles. Summum, a minority religious group, offered to donate a monument showing its Seven Aphorisms. The city refused to accept the monument. Was this case doctrinally similar to the Rehnquist Court’s religious-expression cases and, therefore, governed by the public forum doctrine? If so, then the Court seemingly would need to force the government to display the Summum monument, thus buoying a minority religion and its nontraditional (non-Christian) outlook. The Roberts Court refused to do so. It found a line of reasoning that allowed the city to display mainstream Christian symbols (the Ten Commandments) without displaying minority symbols (the Seven Aphorisms). The Court explained that “the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.”107 In other words, because of a “recently minted” government speech doctrine,108 the display of a monument “is not a form of expression to which forum analysis applies.”109

VIII.  A Coda on the Free Press

During the Founding era, freedom of the press seemed more important than free speech. Prior to the Constitutional Convention, ten state constitutions explicitly protected freedom of the press. These state constitutional provisions tended to be imprecise and to avoid explicit mandates. For instance, Delaware and Maryland both provided: “That the liberty of the press ought to be inviolably preserved.” Only two state constitutions, those (p. 648) of Pennsylvania and Vermont (which was not officially admitted into the Union until 1791), explicitly protected freedom of speech (beyond speech and debate in the legislative forum).110 And both Pennsylvania and Vermont also explicitly protected a free press. One should remember that, at the time, print was the most important medium of mass communication. To make an obvious point, there was no radio, television, or Internet. Moreover, under republican democracy, the press could be understood to serve as a watchdog, alerting the people to dangers of government corruption.111

In the twentieth century, however, free speech largely subsumed freedom of the press. Nowadays, many commentators refer to free speech (or free expression) as inclusive of both speech and writing. And even though the First Amendment contains a free press clause separate from the free speech clause, the Court for the most part does not recognize any additional rights for the press. In other words, the press enjoys the same First Amendment rights as ordinary citizens enjoy, no more and no less. Thus, the press is subject to generally applicable laws, including tax laws, though the press cannot be singled out for special taxation. Moreover, the press does not enjoy any special privileges for or access to news sources.


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*  Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming.

10  Respublica v. Oswald, 1 Dall. 319 (Pa. 1788).

13  32 U.S. 243 (1833).

14  44 U.S. 589 (1845).

17  236 U.S. 230 (1915).

18  ibid. 244.

19  ibid 242.

20  205 U.S. 34 (1907).

21  ibid 40–41.

22  ibid 42.

23  205 U.S. 454 (1907).

24  ibid 462.

25  ibid.

26  249 U.S. 47 (1919).

27  ibid 52.

28  249 U.S. 204 (1919).

29  249 U.S. 211 (1919).

30  ibid 216.

31  ibid 215.

32  250 U.S. 616 (1919).

33  ibid 629.

34  ibid 628.

35  ibid 630.

36  ibid.

37  268 U.S. 652 (1925).

38  274 U.S. 357 (1927).

39  ibid 375.

40  ibid.

41  ibid 375.

42  ibid 377.

43  ibid 376.

44  ibid 377.

45  283 U.S. 359, 361 (1931).

46  ibid 369.

47  ibid.

48  283 U.S. 697 (1931).

49  ibid 701–702.

50  301 U.S. 242 (1937).    

51  307 U.S. 496 (1939).

52  310 U.S. 296, 303 (1940).

53  315 U.S. 568, 572 (1942).

54  395 U.S. 367, 390 (1969).

55  310 U.S. 88, 96 (1940).

56  319 U.S. 624, 641–642 (1943).

58  ibid 879.

59  ibid.

60  515 U.S. 557, 573 (1995).

61  416 U.S. 396, 427 (1974).

62  315 U.S. 568, 571–572 (1942).

63  413 U.S. 15 (1973).

64  319 U.S. 141 (1943).

65  ibid 143.

66  308 U.S. 147, 161 (1939).

67  310 U.S. 88, 105 (1940).

68  314 U.S. 252, 263 (1941).

69  376 U.S. 254 (1964).

70  ibid 270.

71  ibid 279–280.

72  391 U.S. 563 (1968).

73  ibid 574.

74  393 U.S. 503 (1969).

75  ibid 505–506.

76  ibid 511.

77  395 U.S. 444 (1969).

78  403 U.S. 15 (1971).

79  ibid 16.

80  ibid 18.

81  ibid 25.

82  ibid 24–25.

83  131 S. Ct. 2729, 2732 (2011).

84  316 U.S. 52 (1942).

85  421 U.S. 809 (1975).

86  ibid 820, 826.

87  425 U.S. 748 (1976).

88  505 U.S. 377 (1992).

89  ibid 383–384.

90  341 U.S. 494 (1951).

91  ibid 510.

92  ibid 509.

94  385 U.S. 39 (1966).   

97  558 U.S. 310 (2010).

98  ibid 339.

99  393 U.S. 503 (1969)   

100  551 U.S. 393 (2007).   

101  ibid 401.

102  391 U.S. 563 (1968).

103  547 U.S. 410 (2006).

104  ibid 421.

105  515 U.S. 819 (1995).

106  555 U.S. 460 (2009).

107  ibid 464.

108  ibid 481 (Stevens, J., dissenting).

109  ibid 464.