Significant historical events, court cases, and ideas that have shaped our current system of constitutional First Amendment jurisprudence
Edited by Matthew A. McIntosh / 12.29.2016
Magna Carta (British Library Cotton MS Augustus II.106) / Wikimedia Commons
Influences and Writing
Abuses by England’s King John cause a revolt by nobles, who compel him to recognize rights for both noblemen and ordinary Englishmen. This document, known as the Magna Carta, establishes the principle that no one, including the king or a lawmaker, is above the law, and establishes a framework for future documents such as the Declaration of Independence and the Bill of Rights.
The Petition of Right is a statement of the objectives of the 1628 English legal-reform movement that leads to civil war and the deposing of King Charles I in 1649. This important document sets out the rights and liberties of the common man as opposed to the prerogatives of the crown and expresses many of the ideals that later led to the American Revolution.
The Massachusetts General Court formally adopts the first broad statement of American liberties, the Massachusetts Body of Liberties. The document includes a right to petition and a statement about due process.
The new Charter of Rhode Island grants religious freedom.
John Locke’s Letter Concerning Toleration is published. It provides the philosophical basis for George Mason’s proposed Article Sixteen of the Virginia Declaration of Rights of 1776, which deals with religion. Mason’s proposal provides that “all Men should enjoy the fullest toleration in the exercise of religion.”
Connecticut passes the first dissenter statute and allows “full liberty of worship” to Anglicans and Baptists.
New York publisher John Peter Zenger is tried for libel after publishing criticism of the Royal Governor of New York. Zenger is defended by Andrew Hamilton and acquitted. His trial establishes the principle that truth is a defense to libel and that a jury may determine whether a publication is defamatory or seditious.
The State of Virginia jails 50 Baptist worshipers for preaching the Gospel contrary to the Anglican Book of Common Prayer.
Eighteen Baptists are jailed in Massachusetts for refusing to pay taxes that support the Congregational church.
Virginia’s House of Burgesses passes the Virginia Declaration of Rights. The Virginia Declaration is the first bill of rights to be included in a state constitution in America.
Thomas Jefferson / Wikimedia Commons
Thomas Jefferson completes his first draft of a Virginia state bill for religious freedom, which states: “No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” The bill later becomes the famous Virginia Ordinance for Religious Freedom.
The Continental Congress adopts the final draft of the Declaration of Independence on July 4.
The Virginia legislature adopts the Ordinance of Religious Freedom, which effectively disestablished the Anglican Church as the official church and prohibited harassment based on religious differences.
Originally published in New York newspapers as The Federalist and widely reprinted in newspapers throughout the U.S., The Federalist Papers are a unique collection of 85 essays written by Alexander Hamilton, James Madison and John Jay urging ratification of the Constitution. In Federalist No. 84, Alexander Hamilton writes on the subject of the liberty of the press, declaring that “the liberty of the press shall be inviolably preserved.”
Congress passes the Northwest Ordinance. Though primarily a law establishing government guidelines for colonization of new territory, it also provides that “religion, morality and knowledge being necessary also to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” The U.S. Constitution is adopted into law on Sept. 17 by the Federal Constitutional Convention and later ratified by the states on June 21, 1788. The U.S. Constitution is the oldest written constitution still in use.
On Dec. 15, Virginia becomes the 11th state to approve the first 10 amendments to the Constitution, thereby ratifying the Bill of Rights.
During Tennessee’s constitutional convention, Andrew Jackson opposes, and plays a prominent role in defeating, a proposal requiring a profession of faith by all officeholders.
President John Adams oversees the passage of the Alien and Sedition Acts. In response, Thomas Jefferson introduces the “Kentucky Resolution” and James Madison issues the “Virginia Resolution” to give states the power to determine the constitutionality of the Alien and Sedition Acts. On Sept. 12, newspaper editor Benjamin Franklin Bache, the grandson of Benjamin Franklin, is arrested under the Sedition Act for libeling President John Adams.
The 19th century witnesses a Supreme Court hostile to many claims of freedom of speech and assembly. Fewer than 12 First Amendment cases come before the court between 1791 and 1889, according to First Amendment scholar Michael Gibson. This is due to the prevailing view among federal judges that the Bill of Rights does not apply to the states.
Congress lets the Sedition Act of 1798 expire, and President Thomas Jefferson pardons all person convicted under the Act. The act had punished those who uttered or published “false, scandalous, and malicious” writings against the government.
The U.S. House of Representatives adopts gag rules preventing discussion of antislavery proposals. The House repeals the rules in 1844.
John Stuart Mill publishes the essay “On Liberty.” The essay expands John Milton’s argument that if speech is free and the search for knowledge unfettered, then eventually the truth will rise to the surface.
Gen. Ambrose Burnside of the Union Army orders the suspension of the publication of the Chicago Times on account of repeated expression of disloyal and incendiary sentiments. President Lincoln rescinds Burnside’s order three days later.
By order of President Lincoln, Gen. John A. Dix, a Union commander, suppresses the New York Journal of Commerce and the New York World and arrests the newspapers’ editors after both papers publish a forged presidential proclamation purporting to order another draft of 400,000 men. Lincoln withdraws the order to arrest the editors and the papers resume publication two days later.
The 14th Amendment to the Constitution is ratified. The amendment, in part, requires that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Anti-obscenity reformer Anthony Comstock successfully lobbies Congress to pass the Comstock Law. This is the first comprehensive anti-obscenity statute enacted at the federal level. The law targets the “Trade in and Circulation of, obscene literature and Articles for immoral use” and makes it illegal to send any “obscene, lewd or lascivious” materials or any information or “any article or thing” related to contraception or abortion through the mail.
Free-speech claims form a substantive and integral part of the early 20th century First Amendment cases before the U.S. Supreme Court. This may well be due to the extraordinary social upheavals of the era: massive late-19th century immigration movements, World War I and the spread of socialism in the United States.
Thomas MacDonald Patterson
In Patterson v. Colorado — its first free-press case — the U.S. Supreme Court determines it does not have jurisdiction to review the “contempt” conviction of U.S. senator and Denver newspaper publisher Thomas Patterson for articles and a cartoon that criticized the state supreme court. The Court writes that “what constitutes contempt, as well as the time during which it may be committed, is a matter of local law.” Leaving undecided the question of whether First Amendment guarantees are applicable to the states via the 14th Amendment, the Court holds that the free-speech and press guarantees only guard against prior restraint and do not prevent “subsequent punishment.”
Congress passes the Espionage Act, making it a crime “to willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States,” or to “willfully obstruct the recruiting or enlistment service of the United States.”
The Civil Liberties Bureau, a forerunner of the American Civil Liberties Union (ACLU), is formed in response to passage of the Espionage Act.
Congress passes the Sedition Act, which forbids spoken or printed criticism of the U.S. government, the Constitution or the flag.
In Schenck v. U.S., U.S. Supreme Court Justice Holmes sets forth his clear-and-present-danger test: “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 the right to prevent.” Schenck and others had been accused of urging draftees to oppose the draft and “not submit to intimidation.” Justice Holmes also writes that not all speech is protected by the First Amendment, citing the now-famous example of falsely crying “fire” in a crowded theater.
In Debs v. U.S., the U.S. Supreme Court upholds the conviction of socialist and presidential candidate Eugene V. Debs under the Espionage Act for making speeches opposing World War I. Justice Holmes claims to apply the “clear and present danger” test; however, he phrases it as requiring that Debs’ words have a “natural tendency and reasonably probable effect” of obstructing recruitment.
The U.S. Supreme Court upholds the convictions of five individuals charged with violating the Espionage Act in Abrams v. United States. The individuals had circulated pamphlets critical of the U.S. government and its involvement in World War I. In a dissenting opinion, Justice Oliver Wendell Holmes writes 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.” This passage forms the foundation of the “marketplace of ideas” theory of the First Amendment.
Roger Baldwin and others start up a new organization dedicated to preserving civil liberties called the American Civil Liberties Union (ACLU).
Congress repeals the Sedition Acts.
In Gitlow v. New York, the U.S. Supreme Court upholds under the New York criminal anarchy statute Benjamin Gitlow’s conviction for writing and distributing “The Left Wing Manifesto.” The Court concludes, however, that the free-speech clause of the First Amendment applies to the states through the due-process clause of the Fourteenth Amendment.
The “Scopes Monkey Trial” occurs in Dayton, Tenn. School-teacher John Thomas Scopes is found guilty of violating a Tennessee law which prohibits teaching the theory of evolution in public schools. The case pits famed orator William Jennings Bryan against defense attorney Clarence Darrow.
H.L. Mencken is arrested for distributing copies of American Mercury. Censorship groups in Boston contend the periodical is obscene.
The U.S. Supreme Court upholds California’s criminal-syndicalism law in Whitney v. California. The case involves Charlotte Anita Whitney, a member of the Socialist Party and former member of the Communist Labor Party. Justice Louis Brandeis writes in his concurring opinion a passage that becomes a fundamental First Amendment principle: “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.”
In People of State of New York ex rel. Bryant v. Zimmerman, the U.S. Supreme Court upholds a New York law which mandates that organizations requiring their members to take oaths file certain organizational documents with the secretary of state. The Court writes: “There can be no doubt that under that power the state may prescribe and apply to associations having an oath-bound membership any reasonable regulation calculated to confine their purposes and activities within limits which are consistent with the rights of others and the public welfare.”
Yetta Stromberg in 1931 (left) and at the age of 90 in the year 2000 (right)
In Stromberg v. California, the U.S. Supreme Court reverses the state court conviction of Yetta Stromberg, 19-year-old female member of the Young Communist League, who violated a state law prohibiting the display of a red flag as “an emblem of opposition to the United States government.” Legal commentators cite this case as the first in which the Court recognizes that protected speech may be nonverbal, or a form of symbolic expression.
In Near v. Minnesota, the U.S. Supreme Court invalidates a permanent injunction against the publisher of The Saturday Press. The Court rules that the Minnesota statute granting state judges the power to enjoin as a nuisance any “malicious, scandalous and defamatory newspaper, magazine or other periodical” is “the essence of censorship.” The Court concluded that the primary aim of the First Amendment was to prevent prior restraints of the press.
President Franklin D. Roosevelt pardons those convicted under the Espionage and Sedition Acts.
California repeals its Red Flag Law, ruled unconstitutional in Stromberg.
In Grosjean v. American Press Co., the U.S. Supreme Court invalidates a state tax on newspaper advertising applied to papers with a circulation exceeding 20,000 copies per week as a violation of the First Amendment. The Court finds the tax unconstitutional because “it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties.”
In DeJonge v. Oregon, the U.S. Supreme Court reverses the conviction of an individual under a state criminal syndicalism law for participation in a Communist party political meeting. The Court writes that “peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed.”
Life magazine is banned in the U.S. for publishing pictures from the public health film “The Birth of a Baby.”
Georgia, Massachusetts and Connecticut finally ratify the Bill of Rights.
Congress passes the Smith Act, Title I of the Alien Registration Act of 1940, which makes it a crime to advocate the violent overthrow of the government.
In Thornhill v. Alabama, the U.S. Supreme Court strikes down an Alabama law prohibiting loitering and picketing “without a just cause or legal excuse” near businesses. The Court writes: “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.”
Jehovah’s Witnesses taking their case to court
In Cantwell v. Connecticut, the U.S. Supreme Court holds for the first time that the due-process clause of the Fourteenth Amendment makes the free-exercise clause of the First Amendment applicable to states.
The Court upholds a Pennsylvania flag-salute law in Minersville School District v. Gobitis by a vote of 8-1. A Jehovah’s Witness family that had two children in the public schools challenged their expulsion on First Amendment grounds. “National unity is the basis of national security,” Justice Felix Frankfurter wrote for the majority. Only Chief Justice Harlan F. Stone dissented from the Court’s ruling, which would be overruled three years later in West Virginia State Board of Education v. Barnette.
Congress authorizes President Franklin D. Roosevelt to create the Office of Censorship.
The U.S. Supreme Court determines “fighting words” are not protected by the First Amendment. In Chaplinsky v. New Hampshire, the Court defines “fighting words” as “those which by their very utterance inflict injury or tend to incite an immediate breach of peace.” The Court states that such words are “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
In West Virginia State Board of Education v. Barnette, the U.S. Supreme Court rules that a West Virginia requirement to salute the flag violates the free-speech clause of the First Amendment.
In National Broadcasting Co. v. United States, the U.S. Supreme Court states that no one has a First Amendment right to a radio license or to monopolize a radio frequency.
In Everson v. Board of Education, the U.S. Supreme Court upholds a New Jersey program that reimburses parents for money spent transporting their children to parochial schools. Justice Hugo Black writes: “In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’”
In Terminiello v. Chicago, the U.S. Supreme Court limits the scope of the “fighting words” doctrine. Writing for the majority, Justice William O. Douglas says that the “function of free speech … is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”
In Dennis v. United States, the U.S. Supreme Court upholds the convictions of 12 Communist Party members convicted under the Smith Act of 1940. The Court finds that the Smith Act, a measure banning speech which advocates the violent overthrow of the federal government, does not violate the First Amendment.
In Burstyn v. Wilson, the U.S. Supreme Court, for the first time, finds that motion pictures are included within the free-speech and free-press guaranty of the First Amendment. The Court finds a New York statute that permits the banning of motion pictures on the ground that they are “sacrilegious” to be unconstitutional after the New York State Board of Regents rescinds the license of the distributor of the film “The Miracle” to show the film in the state.
The U.S. Supreme Court determines that “obscenity is not within the area of constitutionally protected speech or press.” In Roth v. United States, the U.S. Supreme Court determines that obscenity is a category of speech not protected by the First Amendment. In his opinion, Justice William Brennan writes: “Obscene material is material which deals with sex in a manner appealing to prurient interest.” He explains that the determination of whether material is obscene should be judged by “contemporary community standards.”
The U.S. Supreme Court allows the NAACP of Alabama to withhold its membership list from Alabama lawmakers. In NAACP v. Alabama, the Court states that the demand by Alabama officials for the NAACP to provide them a membership list violates members’ associational rights.
The U.S. Supreme Court upholds the conviction of a college professor who refuses, on First Amendment grounds, to answer questions before the House Un-American Activities Committee. In Barenblatt v. United States, the Court states that, “where First Amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.” The Court concludes that the investigation is for a valid legislative purpose and that “investigatory power in this domain is not to be denied Congress solely because the field of education is involved.”
The U.S. Supreme Court rules that a state-composed, non-denominational prayer violates the the Establishment Clause of the First Amendment. In Engel v. Vitale, the Court states that such a prayer represents government sponsorship of religion.
The U.S. Supreme Court strikes down the practices of requiring daily Bible readings in public schools in the companion cases Abington School District v. Schempp and Murray v. Curlett. “They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion,” Justice Tom Clark writes for the Court.
In Sherbert v. Verner, the U.S. Supreme Court rules that South Carolina officials violated the free-exercise rights of Seventh-day Adventist Adele Sherbert when they denied her unemployment-compensation benefits because she refused to work on Saturday, her Sabbath day.
In New York Times Co. v. Sullivan, the U.S. Supreme Court overturns a libel judgment against The New York Times. The Court rules that public officials may not recover damages for a defamatory falsehood relating to their conduct unless they prove the statement was made with actual malice. The Court defines actual malice as “with knowledge that it was false or with reckless disregard of whether it was false or not.”
The U.S. Supreme Court invalidates a Massachusetts court decision that found the 1750 book Memoirs of a Woman of Pleasure (commonly known as Fanny Hill) obscene. In Memoirs v. Massachusetts, Justice William Brennan writes that a book cannot be declared obscene unless it is found to be “utterly without redeeming social value.”
In Elfbrandt v. Russell, the U.S. Supreme Court invalidates an Arizona statute requiring the dismissal of any state employee who knowingly becomes a member of the Communist Party or any party whose intentions include overthrowing the government.
In Sheppard v. Maxwell, the U.S. Supreme Court reverses the murder conviction of Dr. Sam Sheppard because the trial judge failed to quell publicity surrounding the trial. In its opinion, the Court recognizes gag orders as a legitimate means of controlling pretrial and trial publicity.
The U.S. Supreme Court invalidates a New York law prohibiting the employment of public school and university teachers who belonged or had belonged to “subversive” groups such as the Communist Party. The Court in Keyishian v. Board of Regents emphasizes the importance of academic freedom, writing: “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.”
The U.S. Supreme Court rules that school board officials violated the First Amendment rights of Illinois public school teacher Marvin Pickering, who was fired for writing a letter critical of the school administration to a local newspaper. The Court writes in Pickering v. Board of Education that the “problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
In United States v. O’Brien, the U.S. Supreme Court upholds the conviction of David Paul O’Brien, an anti-war protester accused of violating a federal statute prohibiting the public destruction of draft cards. O’Brien claims that the burning of draft cards is “symbolic speech” protected by the First Amendment. The Court concludes that conduct combining “speech” and “non-speech” elements can be regulated if the following four requirements are met: (1) the regulation is within the constitutional power of the government; (2) it furthers an “important or substantial” government interest; (3) the interest is “unrelated to suppression of free expression;” and (4) “incidental restriction” on First Amendment freedoms is “no greater than is essential to the furtherance” of the government interest. The Court concludes that all requirements were satisfied in this case.
In Epperson v. Arkansas, the U.S. Supreme Court invalidates an Arkansas statute prohibiting public school teachers from teaching evolution. The Court finds that the statute violates the establishment clause because it bans the teaching of evolution for religious reasons.
The U.S. Supreme Court rules in Tinker v. Des Moines Independent School District that Iowa public school officials violated the FirstAmendment rights of several students by suspending them for wearing black armbands to protest U.S. involvement in Vietnam. The Court determines that school officials may not censor student expression unless they can reasonably forecast that the expression will cause a substantial disruption of school activities.
In Brandenburg v. Ohio, a leader of a Ku Klux Klan group is convicted under Ohio law and sentenced to prison primarily on the basis of a speech he made at a Klan rally. The U.S. Supreme Court unanimously rules that speech advocating the use of force or crime is not protected if (1) the advocacy is “directed to inciting or producing imminent lawless action” and (2) the advocacy is also “likely to incite or produce such action.”
In Stanley v. Georgia, the U.S. Supreme Court rules that the First and 14th Amendments protect a person’s “private possession of obscene matter” from criminal prosecution. The Court notes that the state, although possessing broad authority to regulate obscene material, cannot punish private possession of such in an individual’s own home.
In Red Lion Broadcasting Co. v. Federal Communication Commission, the U.S. Supreme Court finds that Congress and the FCC did not violate the First Amendment when they required a radio or television station to allow response time to persons subjected to personal attacks and political editorializing on air.
In Walz v. Tax Commission, the U.S. Supreme Court finds that a state law exempting the property or income of religious organizations from taxation does not violate the establishment clause. The Court states that history has revealed no danger that such exemptions will give rise to either a religious effect or an entanglement of government and religion.
In New York Times v. United States, the U.S. Supreme Court allows continued publication of the Pentagon Papers. The Court holds that the central purpose of the First Amendment is to “prohibit the widespread practice of governmental suppression of embarrassing information.” This case establishes that the press has almost absolute immunity from pre-publication restraints.
In Cohen v. California, the U.S. Supreme Court reverses the breach-of-peace conviction of an individual who wore a jacket with the words “F— the Draft” into a courthouse. The Court concludes that offensive and profane speech are protected by the First Amendment.
Alton J. Lemon
In Lemon v. Kurtzman, Alton Lemon challenges a 1968 Pennsylvania law that provides state aid to many religious schools. In response, the U.S. Supreme Court establishes a three-part test to determine whether a government action violates the establishment clause. The test specifies that (1) the action must have a secular purpose; (2) its primary effect must neither advance nor inhibit religion; and (3) there must be no excessive government entanglement.
The U.S. Supreme Court rules in Branzburg v. Hayes that the First Amendment does not exempt reporters from “performing the citizen’s normal duty of appearing and furnishing information relevant to the grand jury’s task.” The Court rejects a reporter’s claim that the flow of information available to the press will be seriously curtailed if reporters are forced to release the names of confidential sources for use in a government investigation.
In Wisconsin v. Yoder, the U.S. Supreme Court rules that Wisconsin cannot require Amish children to attend school beyond the eighth grade on the grounds that doing so would violate the free exercise of religion. The Court holds that “[o]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”
In Lloyd Corp. v. Tanner, the U.S. Supreme Court rules that owners of a shopping center may bar anti-war activists from distributing leaflets at the center. The Court finds that citizens do not have a First Amendment right to express themselves on privately owned property.
The U.S. Supreme Court in Miller v. California defines the test for determining if speech is obscene: (1) whether the “average person applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
The U.S. Supreme Court rules in Paris Adult Theatre I v. Slaton that a state may constitutionally prohibit exhibitions or displays of obscenity, even if access to the exhibitions is limited to consenting adults.
In Miami Herald Publishing Co. v. Tornillo, the U.S. Supreme Court invalidates a state law requiring newspapers to give free reply space to political candidates the newspapers criticize. The Court rules that the right of newspaper editors to choose what they wish to print or not to print cannot be infringed to allow public access to the print media.
In Buckley v. Valeo, the U.S. Supreme Court rules that certain provisions of the Federal Election Campaign Act of 1976, which limits expenditures to political campaigns, violate the First Amendment.
The U.S. Supreme Court rules that the First Amendment does not apply to privately owned shopping centers. In Hudgens v. National Labor Relations Board, the Court holds that as long as the state does not encourage, aid or command the suppression of free speech, the First Amendment is not subverted by the actions of shopping-center owners.
The U.S. Supreme Court finds that an appropriately defined zoning ordinance, barring the location of an “adult movie theatre” within 100 feet of any two other “regulated uses,” does not violate the First Amendment — even if the theater is not showing obscene material. In Young v. American Mini Theatres, the Court concludes that the ordinance is not a prior restraint and is a proper use of the city’s zoning authority.
The U.S. Supreme Court rules that the public has a First Amendment right to the free flow of truthful information about lawful commercial activities. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, the Court invalidates a Virginia law prohibiting the advertisement of prescription drug prices.
The U.S. Supreme Court invalidates a gag order imposed on the press in Nebraska Press Association v. Stuart. The Court writes that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”
In Abood v. Detroit Board of Education, the U.S. Supreme Court declares that a state may require a public employee to pay dues to organizations such as unions and state bars, as long as the money is used for purposes such as collective bargaining and contract and grievance hearings. The Court notes that, pursuant to the First Amendment, state workers may not be forced to give to political candidates or to fund political messages unrelated to their employee organization’s bargaining function.
The Illinois Supreme Court rules in NSPA v. Skokie that the National Socialist Party of America (NSPA), a neo-Nazi group, can march through Skokie, Ill., a community inhabited by a number of Holocaust survivors.
The U.S. Supreme Court upholds the power of the FCC to regulate indecent speech broadcast over the air. In FCC v. Pacifica, the Court allows FCC regulation because the broadcast media are a “uniquely pervasive presence” and easily accessible to children. The Court, however, does make clear that, although the government can constitutionally regulate indecent speech in the broadcast media, it does not have power to enforce a total ban on such speech.
In Central Hudson Gas & Electric Corporation v. Public Service Commission, the U.S. Supreme Court sets forth a four-part test for determining when commercial speech may or may not be regulated by states. The test states that: (1) the commercial speech must not be misleading or involve illegal activity; (2) the government interest advanced by the regulation must be substantial; (3) the regulation must directly advance the asserted government interest; and (4) the government regulation must not be more extensive than is necessary to serve the government interest at stake.
The U.S. Supreme Court rules in New York v. Ferber that child pornography is not protected by the First Amendment.
The U.S. Supreme Court rules in Board of Education v. Pico that school officials may not remove books from school libraries because they disagree with the ideas contained in the books. The Court states that “the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom,” and makes clear that “students too are beneficiaries of this principle.”
The U.S. Supreme Court rules in Connick v. Myers that the First Amendment rights of a former assistant district attorney were not violated when she was dismissed for distributing a questionnaire criticizing workplace practices. The case, along with the Court’s 1968 Pickering decision, forms the basis of much public-employee First Amendment law.
Congress passes the Equal Access Act. The federal law prohibits secondary schools that are receiving federal financial assistance from denying equal access to student groups on the basis of religious, political or philosophical beliefs or because of the content of their speech.
In Wallace v. Jaffree, the U.S. Supreme Court invalidates an Alabama law authorizing a one-minute silent period at the start of each school day “for meditation or voluntary prayer.” The Court finds that the law was enacted to endorse religion, thus violating the establishment clause.
The U.S. Supreme Court upholds a zoning law regulating the location of adult businesses. The Court determines in City of Renton v. Playtime Theatres, Inc. that the law does not discriminate on the basis of the expression of the adult businesses because it focuses on the harmful secondary effects allegedly associated with such businesses.
The U.S. Supreme Court rules in Witters v. Washington Dept. of Services for the Blind that a vocational rehabilitation-assistance program which awards grants and scholarships to students does not violate the establishment clause, even if some recipients use the funds to attend religious schools.
The U.S. Supreme Court case Bethel School District v. Fraser curtailed the protections established in the Tinker case. Bethel School District in Spanaway, Wash., suspended 17-year-old Matthew Fraser, an honors student, for two days after what was considered a lewd spring election campaign speech at a school assembly with 600 students present. His candidate won. However, the courts held that the manner of speech, delivered before a captive audience, rather than the content, was disruptive and contrary to the values the school intended to promote.
The U.S. Supreme Court upholds a Missouri regulation limiting inmates’ mail correspondence, while striking down a regulation prohibiting inmates from marrying. The Court in Turner v. Safley establishes the following standard in inmate cases: “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is ‘reasonably related’ to legitimate penological interests.”
In Edwards v. Aguillard, the U.S. Supreme Court invalidates a Louisiana statute that bars the teaching of evolution in public schools unless the teaching is accompanied by instruction about creationism.
In Hazelwood School District v. Kuhlmeier, the U.S. Supreme Court rules that school officials may exercise editorial control over content of school-sponsored student publications if they do so in a way that is reasonably related to legitimate pedagogical concerns.
In Hustler Magazine, Inc. v. Falwell, Hustler Magazine publishes a parody of a liquor advertisement in which Rev. Jerry Falwell is depicted in a lewd manner. A unanimous U.S. Supreme Court rules that a public figure must show that actual malice was committed by a publication in order to recover money for intentional infliction of emotional distress. The Court rules that political cartoons and satire “have played a prominent role in public and political debate.”
Congress passes the Flag Protection Act. The act punishes anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any U.S. flag …”
In Texas v. Johnson, the U.S. Supreme Court rules that burning the American flag is a constitutionally protected form of free speech.
The U.S. Supreme Court in U.S. v. Eichman invalidates the Flag Protection Act of 1989. The Court finds that the statute violates free speech.
The U.S. Supreme Court determines in Milkovich v. Lorain Journal that there is no wholesale exemption from libel for all statements alleged to be opinions. The Court writes: “We are not persuaded that, in addition to these protections, an additional separate constitutional privilege for ‘opinion’ is required to ensure the freedom of expression guaranteed by the First Amendment.”
The Equal Access Act is found constitutional by the U.S. Supreme Court in Board of Education of the Westside Community Schools v. Mergens.
In Employment Division v. Smith, the U.S. Supreme Court finds that the free-exercise clause of the First Amendment is not violated when two employees are fired after it was discovered that they ingested peyote as part of a religious ceremony. The Court rules that “an individual’s religious beliefs” do not “excuse him from compliance with an otherwise valid law prohibiting conduct the State is free to regulate.”
In Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, the U.S. Supreme Court invalidates the New York “Son of Sam” law that requires accused or convicted persons to turn over to the state proceeds from any work describing their crimes. Justice Sandra Day O’Connor finds that the law is overbroad and that it regulates speech based on content.
The U.S. Supreme Court in Rust v. Sullivan upholds a federal program that prevents those receiving federal funding for reproductive health services from discussing abortion as a method of family planning. The Court explains: “The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way.”
The U.S. Supreme Court determines in Lee v. Weisman that an administrative policy allowing religious invocations at public middle and high school graduation ceremonies violates the establishment clause.
In R.A.V. v. City of St. Paul, the U.S. Supreme Court invalidates a St. Paul, Minn., hate-speech ordinance, saying it violates the First Amendment.
In Zobrest v. Catalina Foothills School District, the U.S. Supreme Court finds that the establishment clause is not subverted when a public school district provides a sign-language interpreter to a deaf student attending a parochial school within the district’s boundaries. The Court states that it has “consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit.”
Congress passes the Religious Freedom Restoration Act (RFRA).
U.S. Supreme Court rules in Board of Educ. of Kiryas Joel Village School District v. Grumet that a 1989 New York law creating a separate school district for a small religious village violates the establishment clause.
In Rosenberger v. Rector and Visitors of the University of Virginia, the U.S. Supreme Court invalidates a policy denying funds to a Christian student newspaper on free-speech grounds. The Court finds that the university committed viewpoint discrimination by denying funding on the basis of the religious ideas expressed in the publication.
President Clinton orders the Department of Education to send guidelines on religious expression to every public school district in the United States.
The U.S. Supreme Court in 44 Liquormart, Inc. v. Rhode Island invalidates a state law forbidding advertising of liquor prices.
Congress passes the Communications Decency Act. The act is immediately challenged on First Amendment grounds.
The U.S. Supreme Court in Reno v. ACLU rules that some provisions in the federal Communications Decency Act of 1996 are unconstitutional. The Court concludes that the act, which makes it a crime to display indecent or patently offensive material on the Internet where a child may find it, is too vague and tramples on the free-speech rights of adults.
The U.S. Supreme Court finds in City of Boerne v. Flores that the Religious Freedom Restoration Act is unconstitutional as applied to the states.
The Child Online Protection Act (COPA), which attaches federal criminal liability to the online transmission for commercial purposes of material considered harmful to minors, is enacted by Congress.
The U.S. Supreme Court rules in National Endowment for the Arts v. Finley that a federal statute requiring the NEA to consider general standards of decency before awarding grant monies to artists does not infringe on First Amendment rights.
In Arkansas Educational Television Commission v. Forbes, the U.S. Supreme Court rules that a public television station’s exclusion of a political candidate from its televised debate does not violate the First Amendment. The Court declares the station-sponsored debate to be a non-public forum, ruling that exclusion of the candidate for reasonable and viewpoint-neutral reasons is allowed.
In Boy Scouts of America v. Dale, the U.S. Supreme Court rules that application of a public-accommodation law to force the Boy Scouts to accept a gay scoutmaster is a violation of the private organization’s freedom of association guaranteed by the First Amendment.
The U.S. Supreme Court in Mitchell v. Helms finds that a federal program allowing states to lend educational material and equipment to both public and private schools does not violate the establishment clause.
In Santa Fe Independent School District v. Doe, the U.S. Supreme Court rules that a school district’s policy permitting student-led, student-initiated prayer at football games violates the establishment clause of the First Amendment.
The U.S. Supreme rules in Bartnicki v. Vopper that a federal law prohibiting the publication of illegally intercepted wire communications violates the First Amendment rights of those who published the communications, though they were not the ones who intercepted them. The Court reasoned that application of the law to the defendants in this case “implicates the core provision of the First Amendment because it imposes sanctions on the publication of truthful information of public concern.”
The U.S. Supreme Court rules in Republican Party of Minnesota v. White that a provision prohibiting judicial candidates from announcing their views on disputed legal or political issues violates the First Amendment.
The U.S. Supreme Court upholds a Cleveland school-voucher program in Zelman v. Simmons-Harris. Challengers to the program asserted that it amounted to government support of parochial schools, and thus violated the establishment clause. The Court majority emphasized that the program was neutral and gave direct aid to parents, not schools.
The U.S. Supreme Court rejects constitutional challenges (including one based on the First Amendment) to the Copyright Term Extension Act, which extended the copyright protection term by 20 years. The Court reasoned in Eldred v. Ashcroft that copyright law already has built-in First Amendment protections in the fair-use doctrine and the expression-idea dichotomy principle (providing that copyright protects expressions, not ideas).
The U.S. Supreme rules in Virginia v. Black that a state law banning cross-burning largely passes constitutional muster. The Court reasons that many cross-burnings are so intimidating that they constitute true threats. The Court invalidates a part of the Virginia law that presumed that all cross-burnings were done with an intent to intimidate.
The U.S. Supreme Court upholds the Children’s Internet Protection Act in United States v. American Library Association, Inc. The law requires public libraries and public schools to install filtering software on computers to receive federal funding.
The U.S. Supreme Court upholds the vast majority of the federal campaign-finance law, the Bipartisan Campaign Reform Act, against First Amendment challenge in McConnell v. Federal Election Commission.
The U.S. Supreme Court upholds a lower court’s preliminary injunction preventing enforcement of the Child Online Protection Act. The Court reasons in Ashcroft v. ACLU II that “filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children’s access to materials harmful to them.”
The U.S. Supreme Court rejects a First Amendment-based challenge to a government program that called for mandatory assessments from beef producers to fund generic advertising. The Court in Johanns v. Livestock Marketing Association said the program constituted government speech and, thus, was immune from First Amendment scrutiny.
The U.S. Supreme Court rules in Cutter v. Wilkinson that the Religious Land Use and Institutionalized Persons Act does not violate the establishment clause in the prison context.
The U.S. Supreme Court decides two Ten Commandments cases, Van Orden v. Perry and McCreary County, Ky. v. ACLU of Kentucky. The Court upholds the placement of a monument in a Texas park in Van Orden but rejects the placement of a Ten Commandments plaque in a Kentucky courthouse. Justice Stephen Breyer is the key swing vote in both 5-4 decisions.
In Morse v. Frederick, the U.S. Supreme Court rules that principal Deborah Morse did not violate the First Amendment rights of high school student Joseph Frederick when she punished him for displaying a “Bong Hits 4 Jesus” banner on a public street directly across from his school while the Winter Olympic Torch Relay passed through Juneau, Alaska. The Court creates a “drug speech” exception to the Court’s landmark student-speech case, Tinker v. Des Moines Independent Community School District.
In Citizens United v. FEC, the U.S. Supreme Court decides that limitations on corporate spending in elections, including political ads or so-called “electioneering communications,” violate First Amendment political free-speech rights. Corporations may spend unlimited amounts to support a candidate although direct contributions to candidates by corporations are still prohibited.
In Snyder v. Phelps, the U.S. Supreme Court rules that the Westboro Baptist Church’s protest at the funeral of slain Marine Matthew Snyder was protected by the First Amendment. The Court holds that the protesters were on public property and engaged in peaceful speech on matters of public concern.
In Brown v. Entertainment Merchants Association, the U.S. Supreme Court rules that video games are a form of speech protected by the First Amendment. The Court holds California’s law restricting the sale or rental of violent video games to minors is unconstitutional.