This page contains summaries of frequently cited First Amendment cases. Arranged by topic, they cover case law issued by a variety of courts: the Supreme Court of the United States, the Court of Appeals of different Federal circuits, the District Court of several Federal districts, as well as the highest court of several states and particular appellate courts of action.
The standard citation is given to indicate where to find the complete text of a decision. For example, Kreimer v. Bureau of Police for Morristown, 958 F.2d 1241 (3d Cir. 1992), tells the names of the main parties in the case ("Kreimer" who sued the "Bureau of Police for Morristown"), the abbreviated title of the case reporter where the decision is published ("F.2d" for Federal Reporter, Second Series)-which is preceded by the particular volume number ("958") of the reporter and followed by the page number ("242") where the decision begins-and, in parentheses, the name of court that issued the decision ("3d Cir." for Circuit of Appeals for the Third Circuit) and the year ("1992"). Other conventions may apply, depending on which case reporter is involved.
U.S. = United States Reports
S.Ct. = Supreme Court Reporter
L.Ed. = United States Supreme Court Reports Lawyers' Edition
L.Ed.2d. = United States Supreme Court Reports Lawyers' Edition, Second Series
F.2d = Federal Reporter Second Series
F.3d = Federal Reporter Third Series
F.Supp. = Federal Supplement
F.Supp.2d = Federal Supplement Second Series
N.W. = North Western Reporter
N.W. = North Western Reporter, Second Series
N.Y.S. = New York Supplement
N.Y.S. = New York Supplement, Second Series
P. = Pacific Reporter
| Foundations of Free Expression: Historic Cases | The Right to Read Freely | Freedom of Expression in Schools | Minors' First Amendment Rights | Free Press | The Right to Dissent | The Right to Free Association and the Freedom of Religion | Right to Privacy and Anonymity | When Is Speech Unprotected? | The First Amendment and New Technologies | Related Court Cases | U.S. Supreme Court Links | Findlaw First Amendment Annotations Expanded |
Foundations of Free Expression: Historic Cases
Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed.2d. (1919): Justice Oliver Wendell Holmes stated in this case his famous aphorism about "falsely shouting fire in a theatre" and set forth a "clear and present danger test" to judge whether speech is protected by the First Amendment. "The question," he wrote, "is whether the words 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. It is a question of proximity and degree." The Supreme Court affirmed the convictions of the defendants for conspiring to violate certain federal statutes by attempting to incite subordination in the armed forces and interfere with recruitment and enlistment. During wartime, the defendants mailed to new recruits and enlisted men leaflets that compared military conscription to involuntary servitude and urged them to assert constitutional rights.
Whitney v. California, 274 U. S. 357 (1927): Since Anita Whitney did not base her defense on the First Amendment, the Supreme Court, by a 7 to 2 decision, upheld her conviction of being found guilty under the California’s 1919 Criminal Syndicalism Act for allegedly helping to establish the Communist Labor Party, a group the state argued taught the violent overthrow of government.
“The Whitney case is most noted for Justice Louis D. Brandeis’s concurrence, which many scholars have lauded as perhaps the greatest defense of freedom of speech ever written by a member of the high court.”--Basic Readings in U.S. Democracy. Below--all quotes from Justice Brandeis--are a few reasons why.
Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.
Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no 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. 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.
Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931): In this case, the Supreme Court interpreted the First and Fourteenth Amendments to forbid "previous restraints" upon publication of a newspaper. "Previous restraints"--or in current terminology, "prior restraints--suppress the freedom of the press to publish without obstruction, and recognize that lawsuits or prosecutions for libel are "subsequent punishments." The Court invalidated as an infringement of constitutional guarantees a Minnesota statue allowing specified government officials or private citizens to maintain a lawsuit in the name of the State to suppress a public nuisance and enjoin the publication of future issues of a "malicious, scandalous and defamatory newspaper, magazine or other periodical," unless the publisher can prove "the truth was published with good motives and for justifiable ends."
Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d. 430 (1969): The Supreme Court established the modern version of the "clear and present danger" doctrine, holding that states only could restrict speech that "is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action."
The Right to Read Freely
Evans v. Selma Union High School District of Fresno County, 222 P. 801 (Ca. 1924): The California State Supreme Court held that the King James version of the Bible was not a "publication of a sectarian, partisan, or denominational character" that a State statute required a public high school library to exclude from its collections. The "fact that the King James version is commonly used by Protestant Churches and not by Catholics" does not "make its character sectarian," the court stated. "The mere act of purchasing a book to be added to the school library does not carry with it any implication of the adoption of the theory or dogma contained therein, or any approval of the book itself, except as a work of literature fit to be included in a reference library."
Rosenberg v. Board of Education of City of New York, 92 N.Y.S.2d 344 (Sup. Ct. Kings County 1949): After considering the charge that Oliver Twist and the Merchant of Venice are "objectionable because they tend to engender hatred of the Jew as a person and as a race," the Supreme Court, Kings County, New York, decided that these two works cannot be banned from the New York City schools, libraries, or classrooms, declaring that the Board of Education "acted in good faith without malice or prejudice and in the best interests of the school system entrusted to their care and control, and, therefore, that no substantial reason exists which compels the suppression of the two books under consideration."
Todd v. Rochester Community Schools, 200 N.W.2d 90 (Mich. Ct. App. 1972): In deciding that Slaughterhouse-Five could not be banned from the libraries and classrooms of the Michigan schools, the Court of Appeals of Michigan declared: "Vonnegut's literary dwellings on war, religion, death, Christ, God, government, politics, and any other subject should be as welcome in the public schools of this state as those of Machiavelli, Chaucer, Shakespeare, Melville, Lenin, Joseph McCarthy, or Walt Disney. The students of Michigan are free to make of Slaughterhouse-Five what they will."
Minarcini v. Strongsville (Ohio) City School District, 541 F.2d 577 (6th Cir. 1976): The Strongsville City Board of Education rejected faculty recommendations to purchase Joseph Heller's Catch-22 and Kurt Vonnegut's God Bless You, Mr. Rosewater and ordered the removal of Catch-22 and Vonnegut's Cat's Cradle from the library. The U.S. Court of Appeals for the Sixth Circuit ruled against the School Board, upholding the students' First Amendment right to receive information and the librarian's right to disseminate it. "The removal of books from a school library is a much more serious burden upon the freedom of classroom discussion than the action found unconstitutional in Tinker v. Des Moines School District."
Right to Read Defense Committee v. School Committee of the City of Chelsea, 454 F. Supp. 703 (D. Mass. 1978): The Chelsea, Mass. School Committee decided to bar from the high school library a poetry anthology, Male and Female under 18, because of the inclusion of an "offensive" and "damaging" poem, "The City to a Young Girl," written by a fifteen-year-old girl. Challenged in U.S. District Court, Joseph L. Tauro ruled: "The library is 'a mighty resource in the marketplace of ideas.' There a student can literally explore the unknown, and discover areas of interest and thought not covered by the prescribed curriculum. The student who discovers the magic of the library is on the way to a life-long experience of self-education and enrichment. That student learns that a library is a place to test or expand upon ideas presented to him, in or out of the classroom. The most effective antidote to the poison of mindless orthodoxy is ready access to a broad sweep of ideas and philosophies. There is no danger from such exposure. The danger is mind control. The committee's ban of the anthology Male and Female is enjoined."
Salvail v. Nashua Board of Education, 469 F. Supp. 1269 (D. N.H. 1979): MS magazine was removed from a New Hampshire high school library by order of the Nashua School Board. The U.S. District Court decided for the student, teacher, and adult residents who had brought action against the school board, the court concluding: "The court finds and rules that the defendants herein have failed to demonstrate a substantial and legitimate government interest sufficient to warrant the removal of MS magazine from the Nashua High School library. Their action contravenes the plaintiffs' First Amendment rights, and as such it is plainly wrong."
Loewen v. Turnipseed, 488 F. Supp. 1138 (N.D. Miss. 1980): When the Mississippi Textbook Purchasing Board refused to approve Mississippi: Conflict and Change for use in Mississippi public schools, on the grounds that it was too concerned with racial matters and too controversial, the authors filed suit. U.S. District Judge Orma R. Smith ruled that the criteria used were not justifiable grounds for rejecting the book. He held that the controversial racial matter was a factor leading to its rejection, and thus the authors had been denied their constitutionally guaranteed rights of freedom of speech and the press.
Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242 (3d Cir. 1992): In detailed analysis, the court of appeals held that a municipal public library was a limited public forum, meaning open to the public for the specified purposes of exercising their First Amendment rights to read and receive information from library materials. Such exercise could not interfere with or disrupt the library's reasonable rules of operation. The court then upheld three library rules which: 1) required patrons to read, study, or otherwise use library materials while there; 2) prohibited noisy or boisterous activities which might disturb other patrons; and 3) permitted the removal of any patron whose offensive bodily hygiene was a nuisance to other patrons.
Case v. Unified School District No. 233, 908 F. Supp. 864 (D. Kan. 1995): When the Olathe, Kansas, School Board voted to remove the book Annie on My Mind, a novel depicting a lesbian relationship between two teenagers, from the district's junior and senior high school libraries, the federal district court in Kansas found they violated the students' rights under the First Amendment to the United States Constitution and the corresponding provisions of the Kansas State Constitution. Despite the fact that the school board testified that they had removed the book because of "educational unsuitability," which is within their rights under the Pico decision, it became obvious from their testimony that the book was removed because they disapproved of the book's ideology. In addition, it was found that the school board had violated their own materials selection and reconsideration policies, which weighed heavily in the judge's decision.
Campbell v. St. Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995): Public school district removed the book Voodoo and Hoodoo, a discussion of the origins, history, and practices of the voodoo and hoodoo religions that included an outline of some specific practices, from all district library shelves. Parents of several students sued and the district court granted summary judgment in their favor. The court of appeals reversed, finding that there was not enough evidence at that stage to determine that board members had an unconstitutional motivation, such as denying students access to ideas with which board members disagreed; the court remanded the case for a full trial at which all board members could be questioned about their reasons for removing the book. The court observed that "in light of the special role of the school library as a place where students may freely and voluntarily explore diverse topics, the school board's non-curricular decision to remove a book well after it had been placed in the public school libraries evokes the question whether that action might not be an attempt to 'strangle the free mind at its source.'" The court focused on some evidence that school board members had removed the book without having read it or having read only excerpts provided by the Christian Coalition. The parties settled the case before trial by returning the book to the libraries on specially designated reserve shelves.
Sund v. City of Wichita Falls, Texas, 121 F. Supp. 2d 530 (N.D. Texas, 2000): City residents who were members of a church sought removal of two books, Heather Has Two Mommies and Daddy's Roommate, because they disapproved of the books' depiction of homosexuality. The City of Wichita Falls City Council voted to restrict access to the books if 300 persons signed a petition asking for the restriction. A separate group of citizens filed suit after the books were removed from the children's section and placed on a locked shelf in the adult area of the library. Following a trial on the merits, the District Court permanently enjoined the city from enforcing the resolution permitting the removal of the two books. It held that the City's resolution constituted impermissible content-based and viewpoint based discrimination; was not narrowly tailored to serve a compelling state interest; provided no standards or review process; and improperly delegated governmental authority over the selection and removal of the library's books to any 300 private citizens who wish to remove a book from the children's area of the Library.
Counts v. Cedarville School District, 295 F.Supp.2d 996 (W.D. Ark. 2003): The school board of the Cedarville, Arkansas school district voted to restrict students' access to the Harry Potter books, on the grounds that the books promoted disobediance and disrespect for authority and dealt with witchcraft and the occult. As a result of the vote, students in the Cedarville school district were required to obtain a signed permission slip from their parents or guardians before they would be allowed to borrow any of the Harry Potter books from school libraries. The District Court overturned the Board's decision and ordered the books returned to unrestricted circulation, on the grounds that the restrictions violated students' First Amendment right to read and receive information. In so doing, the Court noted that while the Board necessarily performed highly discretionary functions related to the operation of the schools, it was still bound by the Bill of Rights and could not abridge students' First Amendment right to read a book on the basis of an undifferentiated fear of disturbance or because the Board disagreed with the ideas contained in the book.
See also: Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982)
Smith v. Board of School Commissioners of Mobile (Ala.) County, 827 F.2d 684 (11th Cir. 1987)
Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987)
Virgil v. School Board of Columbia County, 862 F.2d 1517 (11th Cir. 1989)
American Library Association v. U.S. Department of Justice and Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d. 874 (1997)
Mainstream Loudoun, et al. v. Board of Trustees of the Loudoun County Library, 24 F.Supp.2d 552 (E.D. of Va. 1998)
Freedom of Expression in Schools
Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d. 731 (1969): In this seminal case considering the First Amendment rights of students (John F. Tinker, Christopher Eckhardt, and Mary Beth Tinker) who were expelled after they wore black armbands to school in symbolic protest of the Vietnam War, the Supreme Court held that students "do not shed their constitutional rights at the schoolhouse gate" and that the First Amendment protects public school students' rights to express political and social views.
Zykan v. Warsaw (Indiana) Community School Corporation and Warsaw School Board of Trustees, 631 F.2d 1300 (7th Cir. 1980): A student brought suit seeking to reverse school officials' decision to "limit or prohibit the use of certain textbooks, to remove a certain book from the school library, and to delete certain courses from the curriculum." The district court dismissed the suit. On appeal, the Court of Appeals for the Seventh Circuit ruled that the school board has the right to establish a curriculum on the basis of its own discretion, but it is forbidden to impose a "pall of orthodoxy." The right of students to file complaints was recognized, but the court held that the students' claims "must cross a relatively high threshold before entering upon the field of a constitutional claim suitable for federal court litigation."
Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982): In 1975, three school board members sought the removal of several books determined objectionable by a politically conservative organization. The following February, the board gave an "unofficial direction" that the books be removed from the school libraries, so that board members could read them. When the board action attracted press attention, the board described the books as "anti-American, anti-Christian, anti-Semitic, and just plain filthy." The nine books that were the subject of the lawsuit were Slaughterhouse-Five by Kurt Vonnegut, Jr.; The Naked Ape by Desmond Morris; Down These Mean Streets by Piri Thomas; Best Short Stories of Negro Writers edited by Langston Hughes; Go Ask Alice; Laughing Boy by Oliver LaFarge; Black Boy by Richard Wright; A Hero Ain't Nothin' But a Sandwich by Alice Childress; and Soul on Ice by Eldrige Cleaver.
The board appointed a review committee that recommended that five of the books be returned to the shelves, two be placed on restricted shelves, and two be removed from the library. The full board voted to remove all but one book. After years of appeals, the U.S. Supreme Court upheld (5-4) the students' challenge to the board's action. The Court held that school boards do not have unrestricted authority to select library books and that the First Amendment is implicated when books are removed arbitrarily. Justice Brennan declared in the plurality opinion: "Local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."
Smith v. Board of School Commissioners of Mobile (Ala.) County, 827 F.2d 684 (11th Cir. 1987): Parents and other citizens brought a lawsuit against the school board, alleging that the school system was teaching the tenets of an anti-religious religion called "secular humanism." The complainants asked that forty-four different elementary through high school level textbooks be removed from the curriculum. After an initial ruling in a federal district court in favor of the plaintiffs, the U.S. Court of Appeals for the Eleventh Circuit ruled that as long as the school was motivated by a secular purpose, it didn't matter whether the curriculum and texts shared ideas held by one or more religious groups. The Court found that the texts in question promoted important secular values (tolerance, self-respect, logical decision making) and thus the use of the textbooks neither unconstitutionally advanced a nontheistic religion nor inhibited theistic religions.
Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987): Parents and students brought this action challenging the mandatory use of certain textbooks on the ground that the texts promoted values offensive to their religious beliefs. The U.S. Court of Appeals for the Sixth Circuit rejected the plaintiffs' claim, finding that the Constitution does not require school curricula to be revised substantially in order to accommodate religious beliefs.
Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988): After a school principal removed two pages containing articles, among others, on teenage pregnancy and the impact of divorce on students from a newspaper produced as part of a high school journalism class, the student staff filed suit claiming violation of their First Amendment rights. The principal defended his action on the grounds that he was protecting the privacy of the pregnant students described, protecting younger students from inappropriate references to sexual activity and birth control, and protecting the school from a potential libel action.
The Supreme Court held that the principal acted reasonably and did not violate the students' First Amendment rights. A school need not tolerate student speech, the Court declared, "that is inconsistent with its 'basic educational mission,' even though the government could not censor similar speech outside the school." In addition, the Court found the newspaper was part of the regular journalism curriculum and subject to extensive control by a faculty member. The school, thus, did not create a public forum for the expression of ideas, but instead maintained the newspaper "as supervised learning experience for journalism students." The Court concluded that "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." The Court strongly suggested that supervised student activities that "may fairly be characterized as part of the school curriculum," including school-sponsored publications and theatrical productions, were subject to the authority of educators. The Court cautioned, however, that this authority does not justify an educator's attempt "to silence a student's personal expression that happens to occur on the school premises.
Virgil v. School Board of Columbia County, 862 F.2d 1517 (11th Cir. 1989): This case presented the question of whether the First Amendment prevents a school board from removing a previously approved textbook from an elective high school class because of objections to the material's vulgarity and sexual explicitness. The U.S. Circuit Court of Appeals concluded that a school board may, without contravening constitutional limits, take such action when the removal decision was "reasonably related" to the "legitimate pedagogical concern" of denying students access to "potentially sensitive topics." The written "stipulation concerning Board Reasons" cites explicit sexuality and excessively vulgar language in two selections contained in Volume 1, The Humanities: Cultural Roots and Continuities as the basis for removal of this textbook. The two selections are Chaucer's The Miller's Tale and Aristophanes's Lysistrata.
Romano v. Harrington, 725 F.Supp. 687 (E.D. N.Y. 1989): The U.S. District Court found in favor of a faculty adviser to a high-school newspaper who claimed a violation of the First and Fourteenth Amendments when fired following the newspaper's publication of a student's article opposing the federal holiday for Martin Luther King, Jr. The Court held that educators may exercise greater editorial control over what students write for class than what they voluntarily submit to extracurricular publications.
Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996): Tenured professor of English was disciplined for violating the college's sexual harassment policy against creating a "hostile learning environment" for his in-class use of profanity, and discussions of sex, pornography, obscenity, cannibalism, and other controversial topics in a confrontational, devil's advocate style. The court held the policy unconstitutionally vague as applied to Cohen's in-class speech, calling it a "legalistic ambush." In-class speech did not fall within the policy's core definition of sexual harassment and Cohen, who had used this apparently sound and proper teaching style for year, did not know the policy would be applied to him or his teaching methods.
See also: Evans v. Selma Union High School District of Fresno County, 222 P. 801 (Ca. 1924)
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
Rosenberg v. Board of Education of City of New York, 92 N.Y.S.2d 344 (Sup. Ct. Kings County 1949)
Todd v. Rochester Community Schools, 200 N.W.2d 90 (Mich. Ct. App. 1972)
Minarcini v. Strongsville (Ohio) City School District, 541 F.2d 577 (6th Cir. 1976)
Right to Read Defense Committee v. School Committee of the City of Chelsea, 454 F. Supp. 703 (D. Mass. 1978)
Salvail v. Nashua Board of Education, 469 F. Supp. 1269 (D. N.H. 1979)
Loewen v. Turnipseed, 488 F. Supp. 1138 (N.D. Miss. 1980)
Case v. Unified School District No. 233, 908 F. Supp. 864 (D. Kan. 1995)
Campbell v. St. Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995)
Counts v. Cedarville School District, 295 F.Supp.2d 996 (W.D. Ark. 2003)
Minors' First Amendment Rights
American Amusement Machine Association, et al., v. Teri Kendrick, et al., 244 F.3d 954 (7th Cir. 2001); cert.denied, 534 U.S. 994; 122 S. Ct. 462; 151 L. Ed. 2d 379 (2001): Enacted in July 2001, an Indianapolis, Ind., city ordinance required video game arcade owners to limit access to games that depicted certain activities, including amputation, decapitation, dismemberment, bloodshed, or sexual intercourse. Only with the permission of an accompanying parent or guardian could children seventeen years old and younger play these types of video games. On March 23, 2001, a three-judge panel of the Seventh Circuit Court of Appeals reversed and remanded the trial court's decision stating that "children have First Amendment rights." On Monday, October 29, 2001, the U.S. Supreme Court denied certiorari.
Interactive Digital Software Association, et al. v. St. Louis County, Missouri, et al., 329 F.3d 954(8th Cir. 2003): St. Louis County passed an ordinance banned selling or renting violent video games to minors, or permitting them to play such games, without parental consent, and video game dealers sued to overturn the law. The Court of Appeals found the ordinance unconstitutional, holding that depictions of violence alone cannot fall within the legal definition of obscenity for either minors or adults, and that a government cannot silence protected speech for children by wrapping itself in the cloak of parental authority. The Court ordered the lower court to enter an injunction barring enforcement of the law, citing the Supreme Court's recognition in Erznoznik v. Jacksonville, 422 U.S. 205, 213-14, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975) that "speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. In most circumstances, the values protected by the First Amendment are no less applicable when the government seeks to control the flow of information to minors."
See also: West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
Ginsberg v. New York, 390 U.S. 629 (1968)
Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d. 731 (1969)
Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982)
New York Times Company v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d. 822 (1971): In the "Pentagon Papers" case, the U.S. government attempted to enjoin the New York Times and the Washington Post from publishing classified documents concerning the Vietnam War. Applying the doctrine of prior restraint from Near v. Minnesota, the Court found that the claims that publication of the documents would interfere with foreign policy and prolong the war were too speculative, and could not overcome the strong presumption against prior restraints.
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d. 41 (1988): Hustler Magazine published a parody of a liquor advertisement in which Rev. Jerry Falwell described his "first time" as a drunken encounter with his mother in an outhouse. A unanimous Supreme Court held that a public figure had to show actual malice in order to recover for intentional infliction of emotional distress as a result of a parody in a magazine. The Court held that political cartoons and satire such as this parody "have played a prominent role in public and political debate. And although the outrageous caricature in this case "is at best a distant cousin of political cartoons," the Court could see no standard to distinguish among types of parodies that would not harm public discourse, which would be poorer without such satire.
Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d. 476 (1991): The Supreme Court struck down New York's "Son of Sam Law," which required book publishers to turn over to the state, any proceeds from a book written by any person convicted of a crime, related to or about that crime. The Court said the law impermissibly singled out income only from the prisoner's expressive activity, and then only expressive activity relating to his crime, without necessarily compensating any victims of those crimes. The Court agreed that many important books--including The Autobiography of Malcolm X, Thoreau's Civil Disobedience, and works by Martin Luther King--perhaps might not have been published with such a law in place.
See also: The New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d. 686 (1964)
Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d. 789 (1974)
The Right to Dissent
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943): In 1940, the West Virginia Board of Education issued regulations requiring every schoolchild to participate daily in a salute to the flag of the United States. The Barnette children, all members of the Jehovah's Witnesses, refused to participate in the flag salute, consistent with the tenets of their religious beliefs, and were expelled from school. The Supreme Court struck down the regulation on the grounds that the First Amendment barred any rule compelling an individual to salute the flag or participate in the Pledge of Allegiance. In strong language, the Court affirmed the right to dissent: "But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."
Wooley v. Maynard, 430 U.S. 705 (1977): A Jehovah’s Witness objected to New Hampshire’s state motto—“Live Free or Die”—on his license plate. Because the saying went against his conscience, he did not believe the state had a right to force him to advertise something the state believes in, but he does not. When the state discovered he had covered up the motto on his license plate, they prosecuted him. The Supreme Court agreed with him, saying, “We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” In addition, the Court said, “The fact that most individuals agree with the thrust of New Hampshire’s motto is not the test; most Americans also find the flag salute acceptable. The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.”
Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989): In this case the Supreme Court held that burning the United States flag was a protected form of symbolic political speech, concluding that there is no legitimate government interest in protecting the U.S.flag where the sole act in question is destroying the flag in its symbolic capacity. "A bedrock principle underlying the First Amendment is that Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
U.S. v. Eichman and U.S. v. Haggerty, 496 U.S. 310, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990): The Supreme Court struck down a federal statute designed to allow the government to punish persons who burn United States flags. The Court held that the plain intent of the statute was to punish persons for political expression and that burning the flag inextricably carries with it a political message.
City of Ladue v. Gilleo, 512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed. 2d. 36 (1994): A federal court struck down a local ordinance banning the placement of signs on private property, in a challenge brought by a woman who had posted a sign on her lawn protesting the Persian Gulf War. The Court said lawn signs were a "venerable means of communication that is both unique and important," for which "no adequate substitutes exist."
R.A.V. v. St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d. 305 (1992): St. Paul, Minnesota passed an ordinance that banned "hate speech," any expression, such as a burning cross or swastika, that might arouse anger, alarm, or resentment in others on the basis of race, color, religion, or gender. The Supreme Court struck the ordinance down as unconstitutionally discriminating based on the content of expression: the law banned only fighting words that insult based on race, religion, or gender, while abusive invective aimed at someone on the basis of political affiliation or sexual orientation would be permissible. The law thus reflected only the city's special hostility towards certain biases and not others, which is what the First Amendment forbids.
See also: Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d. 731 (1969)
The Right to Free Association and the Freedom of Religion
Concerned Women for America, Inc. v. Lafayette County, 883 F.2d 32 (5th Cir. 1989): The County library that had permitted various groups to use its auditorium had created a designated public forum and thus could not deny access to groups whose meetings had political or religious content. Such a denial would be based on the content of speech and would be permissible only as the least restrictive means to serve a compelling interest. Preventing disruption or interference with general use of the library could be such an interest; library officials' first step to controlling such disruptions would be to impose reasonable regulations on the time, place, or manner of the auditorium's use, provided the regulations apply regardless of the subject matter of the speech.
Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d. 352 (1993): The Court held that a school district that opened its classrooms after hours to a range of groups for social, civic, and recreational purposes, including films and lectures about a range of issues such as family values and child-rearing, could not deny access to a religious organization to discuss the same, permissible issues from a religious point of view. Whether or not the classrooms were public fora, the school district could not deny use based on the speaker's point of view on an otherwise permissible topic.
Right to Privacy and Anonymity
Stanley v. Georgia, 394 U.S. 55, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969): A man found to possess obscene materials in his home for his private use was convicted of possessing obscene materials in violation of the state laws of Georgia. The Supreme Court overturned the conviction, holding that Constitution protects the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one's privacy on the grounds that the government "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts."
McIntyre v. Ohio Election Commission, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d. 426 (1995): The Supreme Court struck down a state law banning distribution of anonymous campaign literature, emphasizing the long tradition of anonymous and pseudonymous political and literary speech and recognizing the right to exercise First Amendment rights anonymously as an "honorable tradition of advocacy and dissent."
Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. Sup. Ct., 2002): The Colorado Supreme Court reversed a court decision that required Denver's Tattered Cover Book Store to turn over information about books purchased by one of its customers. As part of an investigation, officers of the City of Thornton (Colo.) discovered two books on the manufacture of amphetamines in a suspect's residence and found a Tattered Cover mailer in the garbage. The officers, seeking to tie the books to the suspect directly, served a Drug Enforcement Agency subpoena on the Tattered Cover. The subpoena demanded the title of the books corresponding to the order and invoice numbers of the mailer, as well as information about all other books ever ordered by the suspect. The Tattered Cover then brought suit to litigate the validity of the search warrant. The court began its opinion by stating that both the First Amendment to the U.S. Constitution and Article II, Section 10 of the Colorado Constitution protect an individual's fundamental right to purchase books anonymously, free from governmental interference.
When Is Speech Unprotected?
Obscenity and Indecency
Butler v. Michigan, 352 U.S. 380, 1 L. Ed. 2d 412, 77 S. Ct. 524 (1957): A man convicted of selling "a book containing obscene, immoral, lewd, lascivious language, or descriptions, tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth" to a police officer appealed his conviction to the Supreme Court. The Court overturned the conviction and struck down the law, holding that the state's attempt to quarantine the general reading public against books not too rugged for grown men and women to read in order to shield juvenile innocence "is to burn the house to roast the pig." Famously, the Court ruled that the state of Michigan could not "reduce[s] the adult population of Michigan to reading only what is fit for children."
Ginsberg v. New York, 390 U.S. 62, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (1968): The Supreme Court upheld a New York State statute barring retailers from selling sexually explicit publications to minors under the age of 17. Noting that the statute did not interfere with the right of adults to purchase and read such materials, it found that it was not constitutionally impermissible for New York to restrict minors rights to such publications in light of the state's interest in safeguarding children's welfare and supporting parents' claim to authority in the rearing of their children.
Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d. 419 (1973): In this case, the U.S. Supreme Court mapped out its famous three-part definition of obscenity. First, the average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to prurient interests; second, that it depicts or describes, in a patently offensive way, sexual conduct as defined by state law; and third, that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The Court ruled that community standards and state statutes that describe sexual depictions to be suppressed could be used to prosecute Miller, who operated one of the largest West Coast mail order businesses dealing in sexually explicit materials.
New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982): In July 1982, the U.S. Supreme Court added child pornography as another category of speech excluded from First Amendment protection. The other categories excluded are obscenity, defamation, incitement, and "fighting words." The ruling came in the case when the U.S. Supreme Court affirmed a conviction against Ferber for showing a movie depicting two young boys masturbating. The film itself was not seen as obscene for adults, but the Court made the distinction between what was obscene if children were the participants compared with if adults were the leading actors.
American Booksellers Assoc., Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (Easterbrook, J.), aff'd., 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986): The city of Indianapolis passed a statute outlawing pornography, defined as the graphic, sexually explicit subordination of women, presenting women as sex objects, or as enjoying pain, humiliation, or servility. The court of appeals struck the law down, saying it impermissibly established an "approved" view of women and how they react in sexual encounters. The law therefore allowed sexually explicit words and images that adhered to that approved view, but banned sexually explicit words and images that did not adhere to the approved view. The court called this "thought control," saying the "Constitution forbids the state to declare one perspective right and silence opponents."
National Endowment for the Arts, et al. v. Finley, et al., 524 U.S. 569, 118 S.Ct. 2168, 141 L. Ed. 2d 500 (1998): In 1990, homoerotic photographs by Robert Mapplethorpe and blasphemous ones by Andres Serrano created a furor on Capitol Hill, because both artists had received grants from the National Endowment for the Arts (NEA). As a consequence, the NEA governing statute was amended to require the NEA to consider "decency" and "respect" for American "values" when selecting future grant recipients. Shortly thereafter, performance artists Karen Finley, John Fleck, Holly Hughes, and Tim Miller were denied fellowships, because of the "decency and respect" clause, they alleged. They made this allegation in a federal court lawsuit seeking to have the clause declared unconstitutional; and they were successful at the district court and court of appeals level. The U.S. Supreme Court ruled, however, that the statute is constitutional "on its face." Writing for the court, Justice Sandra Day O'Connor did not "perceive a realistic danger that it will be utilized to preclude or punish the expression of particular views," nor did she think that the statute would "significantly compromise First Amendment values."
John D. Ashcroft, Attorney General, et al. v. Free Speech Coalition, et al., 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403, (2002): The U.S. Supreme Court affirmed the Ninth Circuit's judgment invalidating the Child Pornography Prevention Act of 1996 on the grounds that the act's ban on any depiction of pornographic images of children, including computer-generated images, was overly broad and unconstitutional under the First Amendment. Supreme Court Justice Anthony M. Kennedy wrote: "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."
See also: Stanley v. Georgia, 394 U.S. 55, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969)
The New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d. 686 (1964): To protect "uninhibited, robust, and wide-open" debate on public issues, the Supreme Court held that no public official may recover "damages for a defamatory falsehood relating to his official conduct unless 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." The Court stated that the First and Fourteenth Amendments require that critics of official conduct have the "fair equivalent" to the immunity protection given to a public official when he is sued for defamatory speech uttered in the course of his duties.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d. 789 (1974): The Court applied the rule in the New York Times case to public figures, finding that persons who have special prominence in society by virtue of their fame or notoriety, even if they are not public officials, must prove "actual malice" when alleging libel. Gertz was a prominent lawyer who alleged that a leaflet defamed him.
See also: Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d. 41 (1988)
The First Amendment and New Technologies
Broadcast and Cable Communications
FCC V. Pacifica Foundation, 438 U.S. 726, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978): In a case that considered the First Amendment protections extended to a radio station's daytime broadcast of comedian George Carlin's "Seven Filthy Words" monologue, the Supreme Court held that Section 326 of the Telecommunications Act, which prohibits the FCC from censoring broadcasts over radio or television, does not limit the FCC's authority to sanction radio or television stations broadcasting material that is obscene, indecent, or profane. Though the censorship ban under Section 326 precludes editing proposed broadcasts in advance, the ban does not deny the FCC the power to review the content of completed broadcasts. In its decision, the Court concluded that broadcast materials have limited First Amendment protection because of the uniquely pervasive presence that radio and television occupy in the lives of people, and the unique ability of children to access radio and television broadcasts.
Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 116 S.Ct. 2374, 135 L.Ed.2d. 288 (1996): In a decision that produced six opinions, the Supreme Court upheld a federal law permitting cable system operators to ban "indecent" or "patently offensive" speech on leased access channels. The Court also struck down a similar law for non-leased, public access channels, and struck down a law requiring indecent material to be shown on separate, segregated cable channels. The case is significant in that the Court affirmed that protecting children from some speech is a compelling state interest.
United States, et al. v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000): On May 22, in a 5-4 decision, the U.S. Supreme Court upheld a U.S. District Court decision that Section 505 of the Telecommunications Act of 1996 violated the First Amendment when it sought to restrict certain cable channels with sexually explicit content to late night hours unless they fully scrambled their signal bleed. In an opinion written by Justice Anthony Kennedy, the court ruled that the government may have a legitimate interest in protecting children from exposure to "indecent material." Section 505, however, is a content-based speech restriction and, therefore, must be the least restrictive means for meeting the governmental interest. The court found that Section 505 is not the least restrictive means.
Sable Communications of California, Inc v. FCC, 492 U.S. 115, 106 L. Ed. 2d 93, 109 S. Ct. 2829 (1989): The Supreme Court overturned a Telecommunications Act ban on indecent telephone messages, concluding the law violates the First Amendment because the statute's denial of adult access to such messages far exceeds that which is necessary to serve the compelling interest of preventing minors from being exposed to the messages. Unlike broadcast radio and television, which can intrude on the privacy of the home without prior warning of content and which is uniquely accessible to children, telephone communications require the listener to take affirmative steps to receive the communications. The failure of the Government to show any findings that would justify a conclusion that there are no constitutionally acceptable less restrictive means to achieve the Government's interest in protecting minors, such as scrambling or the use of access codes, demonstrates that a total ban on such communications goes too far in restricting constitutionally protected speech. To allow the ban to stand would have the effect of "limiting the content of adult telephone communications to that which is suitable for children to hear."
American Library Association v. U.S. Department of Justice and Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d. 874 (1997): In a 9-0 decision, the U.S. Supreme Court on June 26, 1997, declared unconstitutional a federal law making it a crime to send or display indecent material on line in a way available to minors. The decision in the consolidated cases completed a successful challenge to the so-called Communications Decency Act by the Citizens Internet Empowerment Coalition, in which the American Library Association and the Freedom to Read Foundation played leading roles. The Court held that speech on the Internet is entitled to the highest level of First Amendment protection, similar to the protection the Court gives to books and newspapers.
Mainstream Loudoun, et al. v. Board of Trustees of the Loudoun County Library, 24 F.Supp.2d 552 (E.D. of Va. 1998): Adopted in 1997, the Loudoun County, Va., Library Board's "Policy on Internet Sexual Harassment" was designed to prevent adult and minor Internet users from accessing illegal pornography and to avoid the creation of a sexually hostile environment. To accomplish these goals, the board contracted with Log-On Data Corporation, a filtering software manufacturer that offers a product called "X-Stop." Though Log-On Data Corp. refused to divulge the method by which X-Stop filters sites, it soon became apparent that the software blocks some sites that are not prohibited by the policy. Shortly after the adoption of the policy, People for the American Way Foundation commenced litigation on behalf of several Loudoun County residents and members of a nonprofit organization, claiming the policy violates the right to free speech under the First Amendment. The suit was predicated on the theory that the policy is unnecessarily restrictive, because it treats adults and children similarly, and precludes access to legitimate as well as pornographic material. On November 23, 1998, Judge Leonie Brinkema declared that the highly restrictive Loudoun County Internet policy was invalid under the free speech provisions of the First Amendment.
United States, et al. v. American Library Association, Inc. et al., 539 U.S. 194, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003): The Supreme Court upheld the Children's Internet Protection Act, which requires libraries receiving federal funds for Internet access to install filters so that both adult and child patrons cannot access materials considered obscene, child pornography, or "harmful to minors." Chief Justice Rehnquist announced the judgment of the court that the law, on its face, is Constitutional. Speaking for a plurality of four justices, Rehnquist held that CIPA was a valid exercise of Congress' spending power and did not impose an unconstitutional condition on public libraries that received federal assistance for Internet access because Congress could reasonably impose limitations on its Internet assistance, and because any concerns over filtering software's alleged tendency to erroneously "overblock" access to constitutionally protected speech were dispelled by the ease with which library patrons could have the filtering software disabled. Justices Kennedy and Breyer concurred with the judgment, holding that CIPA, while raising First Amendment concerns, did not violate the First Amendment as long as adult library users could request that the Internet filter be disabled without delay.
Related Court Cases
Kathleen R. v. City of Livermore is a complaint filed by the mother of a 12-year-old who allegedly used public library Internet access to download and distribute sexually explicit materials. The case was settled in favor of the library. See Kathleen R.
U.S. Supreme Court Links
Findlaw First Amendment Annotations Expanded
Assistance and Consultation
The staff of the Office for Intellectual Freedom is available to answer questions or provide assistance to librarians, trustees, educators and the public about the First Amendment. Inquiries can be directed via email to firstname.lastname@example.org or via phone at (312) 280-4226.