Eight Supreme Court Cases That Explain What the First Amendment Protects

Nobody needs a constitutional amendment to protect the speech everyone likes. A town meeting, a Sunday sermon, a flattering editorial about the home team would all do fine without a guarantee. The First Amendment earns its keep when somebody in authority wants to shut up someone the crowd finds annoying, offensive, unpatriotic or just plain wrong. That is why the greatest free speech cases in American law were brought by people you might not invite to dinner: a scandal-sheet publisher, a Klansman, a flag burner, a funeral picketer.

If that sounds like a bad deal for decent people, hold on. It is the best deal decent people ever got. The rules these cases set are the same rules that protect a pastor, a Tea Party rally, a school board gadfly and a Christian student with a Bible verse on her shirt. Eight cases follow, in order of date. For each one you get the date, the facts and the rule it left behind.

June 1, 1931: Near v. Minnesota

Minnesota had passed a law in 1925 that let a court shut down any newspaper or magazine found to be a "malicious, scandalous and defamatory" publication. It was called a public nuisance law. In Minneapolis, a paper called the Saturday Press, put out by Jay Near and a partner, published harsh articles accusing city officials of cooperating with gangsters. Historians describe the paper as crude and bigoted. A court barred its publication.

The Supreme Court, in a 5 to 4 decision written by Chief Justice Charles Evans Hughes, struck down the law. The rule: the government may not stop a newspaper from publishing in advance. That is called a prior restraint, and the court treated it as the classic evil the press clause was meant to prevent. A person who publishes something false or defamatory can be held responsible afterward, in a libel suit, for example. But the government cannot gag the press before the presses roll.

The case also did something technical but huge. It applied the First Amendment's guarantee of a free press against the states, through the Fourteenth Amendment. Before that, the First Amendment mainly restrained Congress. After it, a state could not do what Congress could not.

The rule left behind: prior restraints are presumed unconstitutional. The government who wants one has a very heavy burden.

June 14, 1943: West Virginia State Board of Education v. Barnette

Three years earlier, the court had upheld a school flag salute requirement in Minersville School District v. Gobitis. Then West Virginia required all public school students to salute the flag and recite the Pledge of Allegiance, with expulsion for refusal. Walter Barnette and other Jehovah's Witnesses objected on religious grounds, since they believed the salute violated the commandment against bowing to graven images. Their children were expelled.

In a 6 to 3 decision on Flag Day 1943, with the nation at war, the court reversed itself and overruled Gobitis. Justice Robert Jackson wrote that no official, high or petty, can prescribe what is orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith in it. The government may teach patriotism. It may not compel the child to say what he does not believe.

Notice who won: religious minority children, in the middle of a war, against a patriotic government measure. Conservatives who love the flag should love this case, because it says the way to teach love of country is to persuade, not to coerce. For the parental side of the story, see West Virginia v. Barnette and the Flag Case That Protects Every Parent.

The rule left behind: the government cannot compel a citizen to speak a belief. Compelled speech is as suspect as censored speech.

March 9, 1964: New York Times Co. v. Sullivan

In March 1960, supporters of Dr. Martin Luther King Jr. ran a full-page advertisement in the New York Times titled "Heed Their Rising Voices," describing the treatment of civil rights demonstrators in the South. It contained some errors, for example about details of events in Montgomery, Alabama. L. B. Sullivan, the Montgomery city commissioner who supervised the police, claimed the ad defamed him, though it did not name him. An Alabama jury awarded him $500,000, and the Alabama Supreme Court upheld it.

The Supreme Court unanimously reversed. Justice William Brennan wrote that the First Amendment reflects a profound national commitment to debate on public issues that is "uninhibited, robust, and wide-open." A public official could not recover damages for a defamatory falsehood about his official conduct unless he proved "actual malice": that the statement was made with knowledge that it was false or with reckless disregard of whether it was false.

This is the case that today's right loves to hate, and the better arguments about it are in Should New York Times v. Sullivan Be Revisited? The Case For and Against. For this timeline, notice the setting. An Alabama official was using a libel suit to punish out-of-state newspapers for covering the civil rights movement. The rule that came out of it protects every critic of every public official, left or right.

The rule left behind: to win a libel suit over statements about official conduct, a public official must prove actual malice.

June 9, 1969: Brandenburg v. Ohio

Clarence Brandenburg was a Ku Klux Klan leader in Ohio. At a rally filmed by a television crew in 1964, he and others made threatening and offensive remarks, including about the government. He was convicted under Ohio's criminal syndicalism law, a statute from World War I days that made it a crime to advocate violence as a means of political reform.

The Supreme Court reversed in a short, unsigned opinion. It held that the government may not forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. That three-part test, intent, imminence and likelihood, is the standard still used today. The ruling overruled Whitney v. California (1927), a case that had allowed punishment of mere advocacy.

Pause on the facts. The speaker was a repellent man saying repellent things. The court protected him anyway, because the test it announced protects the labor organizer, the war protester, the pro-life activist and the angry citizen at the county commission meeting as well. I'll add a note of honesty: this is a tough rule on purpose. It leaves the government able to punish genuine incitement but not mere talk, even ugly talk.

The rule left behind: speech can be punished as incitement only if it is directed to producing imminent lawless action and likely to do so.

February 24, 1969: Tinker v. Des Moines Independent Community School District

In December 1965, a group of students in Des Moines, Iowa, including John Tinker, fifteen, his sister Mary Beth, thirteen, and Christopher Eckhardt, sixteen, wore black armbands to school to mourn the dead in Vietnam and support a Christmas truce. School officials had adopted a ban on armbands two days earlier. The students were suspended.

In a 7 to 2 decision written by Justice Abe Fortas, the court held that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. The school could restrict student speech only if it would materially and substantially disrupt the work of the school or invade the rights of others. A fear of disturbance was not enough. Justice Hugo Black dissented in sharp terms, arguing that the court was undermining school discipline.

Why should a conservative care? Because Tinker also protects the student who wears a pro-life shirt, a flag, a Bible verse or a "Make America Great Again" hat. Courts have applied the case in both directions for decades, and the line, as later decisions show, is not unlimited. But the starting presumption is that a student has speech rights. For the campus version of this story, see Campus Free Speech From Berkeley in 1964 to the Chicago Principles.

The rule left behind: student speech may be limited by schools only when it substantially disrupts school operations or invades others' rights.

June 30, 1971: New York Times Co. v. United States, the Pentagon Papers

On June 13, 1971, the New York Times began publishing excerpts from a secret Defense Department history of the Vietnam War, a study commissioned in 1967 and leaked by Daniel Ellsberg, a former analyst who had worked on it. The Nixon administration went to court to stop the publication, arguing that it threatened national security. A federal judge in New York ordered a halt after the first installments. The Washington Post began publishing its own excerpts, and the fight went to the Supreme Court within weeks.

On June 30, the court ruled 6 to 3, in a short unsigned opinion followed by separate opinions from each justice, that the government had not met the heavy burden required to justify a prior restraint. The papers could publish. The case did not decide that the press can never be punished for publishing classified information. It decided that an injunction in advance, on that record, was unconstitutional.

Conservatives should read this one with open eyes. Respect for national security is a bedrock conservative value, and the government's concern here was not frivolous. But the case teaches that the answer to a leak is to find the leaker, not to hand the executive branch the power to stop the presses.

The rule left behind: the government carries a heavy burden to justify any prior restraint, even in the name of national security.

June 21, 1989: Texas v. Johnson

At the 1984 Republican National Convention in Dallas, Gregory Lee Johnson joined a protest march and burned an American flag outside city hall while others chanted. He was convicted under a Texas law against desecrating a venerated object and sentenced to a year in prison and a fine.

The Supreme Court, in a 5 to 4 decision by Justice William Brennan, held that burning a flag as political protest is expressive conduct protected by the First Amendment. The state could not punish the act because of the message it sent. Justice Antonin Scalia joined the majority, as did Justice Anthony Kennedy, who wrote that sometimes we must make decisions we do not like. Chief Justice William Rehnquist dissented, as did Justices White, O'Connor and Stevens. Congress responded with the Flag Protection Act of 1989, and in United States v. Eichman (1990) the court struck that down too, again 5 to 4.

If you love the flag, you may hate the result. Many Americans did, and many conservatives still do. I understand that. But understand why a constitutional conservative like Scalia voted that way: the text of the First Amendment does not carve out an exception for symbols we revere, and the government cannot punish the message while claiming to punish the act. Antonin Scalia Sided With Flag Burners and Defendants, and That Is the Point explains his reasoning in more detail.

The rule left behind: the government may not punish expressive conduct because of the idea it conveys, even if the idea is offensive.

March 2, 2011: Snyder v. Phelps

Marine Lance Corporal Matthew Snyder was killed in Iraq in 2006. At his funeral in Maryland, members of the Westboro Baptist Church held a protest on public land about a thousand feet away, carrying signs with cruel messages about the military and the country. The church had a long record of picketing military funerals. Snyder's father sued, and a jury awarded millions in damages. The Fourth Circuit reversed.

The Supreme Court ruled 8 to 1 for the church. Chief Justice John Roberts wrote that the picketers' speech addressed matters of public concern, was on public land, complied with local rules and did not interfere with the funeral. Because it was a matter of public concern, it was protected even though it caused enormous pain. Justice Samuel Alito was the lone dissenter, writing with force that the church had inflicted emotional injury on a private family in its hour of grief.

This is the hardest case on the list, and I say that without a trace of irony. The speech was vile. The family was grieving. And yet the opinion says if we punish speech because it is outrageous, we punish public debate itself. The court called its holding narrow, and many states passed laws regulating funeral protests.

The rule left behind: speech on a matter of public concern, in a public place, in compliance with the rules, cannot be the basis for damages because it is offensive or hurtful.

What the eight have in common

Line the cases up and the pattern jumps out. Near was a scandal sheet. Barnette was a religious minority. Sullivan was a civil rights ad. Brandenburg was a Klansman. Tinker was a middle-school armband. The Pentagon Papers was a leaked government study. Johnson was a flag burner. Snyder was a hate group at a funeral. At least four of the eight were protecting people most readers of this site would find objectionable, and several involved the left's causes. But the rules that came out of them, no prior restraint, no compelled speech, a high bar for official libel claims, incitement only when imminent, student speech unless disruptive, a heavy burden on the government, no punishing symbols, and no punishing outrage on public issues, form a shield that has been used by every movement in American life, including ours.

The conservative case for free speech is not a case for sentimentality. It is a case about power. The government that can punish the speech you hate can punish the speech you love as soon as the other party wins an election. For more on how people get this wrong, see Seven Free Speech Myths, From Hate Speech to Shouting Fire in a Theater and Seven Things Americans Get Wrong About the First Amendment. For how to read the opinions yourself, try How to Read a Supreme Court Opinion Without a Law Degree.

The bottom line

• You cannot defend free speech without knowing these eight cases. Each one gives you a rule you can use in an argument at the dinner table or at a school board meeting.
• Most of the cases protected someone the majority disliked. That is not a flaw. A right that covers only the speech everyone likes is no right at all.
• The rules cut both ways. The same Tinker that protects an antiwar armband protects a pro-life shirt, and the same Brandenburg that protects a repellent speaker protects a protest leader on our side.
• Read the original opinions. They are public, and you will understand more from an hour with Barnette than from a week of cable commentary. Find them on the Supreme Court's website or in any law library.
• When someone says "there ought to be a law" against speech he hates, ask whether he would trust the other party to enforce it.