1st amendment essay paper

First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment to the U.S. Constitution, 1 Footnote U.S. Const. amend. I . viewed broadly, protects religious liberty and rights related to freedom of speech. Specifically, the Religion Clauses prevent the government from adopting laws “respecting an establishment of religion” —the Establishment Clause—or “prohibiting the free exercise thereof” —the Free Exercise Clause. The First Amendment also expressly protects the freedoms of speech, press, peaceable assembly, and petition to the Government.

The Constitution Annotated essays discussing the First Amendment begin with the Religion Clauses, reviewing the history of these clauses before explaining, in turn, the Supreme Court’s interpretation of the Establishment and Free Exercise Clauses. The Religion Clause section ends with an essay exploring the relationship between the Religion Clauses and the Free Speech Clause. The Constitution Annotated then turns to this latter clause, discussing interpretations of the Free Speech Clause before describing Supreme Court cases recognizing constitutional protections for freedom of association. Next, the Constitution Annotated explains the Free Press Clause. The First Amendment essays end by discussing the clauses protecting the freedoms of assembly and petition.

Research & Learn

Table of contents, first amendment overview essays.

The essays included in this collection give overviews of some of the most important areas of First Amendment law and scholarship. FIRE hopes that these essays explain the basics of First Amendment case law and jargon in a succinct, yet informative manner. This collection will expand on a regular basis, so please check back for more content.

Chilling Effect

The "chilling effect" refers to a phenomenon where individuals or groups refrain from engaging in expression for fear of running afoul of a law or regulation. Chilling effects generally occur when a law is either too broad or too vague. Individuals steer far clear from the reaches of the law for fear of retaliation, prosecution, or punitive governmental action. Read more about the chilling effect .

COVID-19 Emergency Measures and the First Amendment

The pandemic caused by the pervasive spread of the virus known as COVID-19 has placed significant pressure on government officials to act quickly to try to save lives and slow the spread of the virus. Many officials have responded with significant restrictions in the form of emergency stay-at-home orders, executive orders closing all but “essential” businesses, and bans on public gatherings — often of groups of more than 10 people. . . No matter one’s political beliefs, this time has also placed significant strains on First Amendment freedoms. Read more about COVID-19 emergency measures and the First Amendment .

Defamation refers to false statements of fact that harm another’s reputation. It encompasses both libel and slander. Libel generally refers to written defamation, while slander refers to oral defamation. Read more about defamation .

Fighting Words

The First Amendment may protect profanity directed against another. Then again, such intemperate speech may fall into a narrow, traditionally unprotected category of expression known as “fighting words.” Read more about fighting words .

Freedom of the Press

Collectively, this bundle of rights, largely developed by U.S. Supreme Court decisions, defines the “freedom of the press” guaranteed by the First Amendment. What we mean by the freedom of the press is, in fact, an evolving concept. It is a concept that is informed by the perceptions of those who crafted the press clause in an era of pamphlets, political tracts and periodical newspapers, and by the views of Supreme Court justices who have interpreted that clause over the past two centuries in a world of daily newspapers, books, magazines, motion pictures, radio and television broadcasts, and internet content. Read more about freedom of the press .

K–12 Expression and the First Amendment

Public school students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines (1969). Such rights must, however, be considered in the context of “the special characteristics of the school environment.” This means that while public school students possess free speech rights at school, school officials can regulate speech more as educators than governments can as sovereign. Read more about K–12 expression and the First Amendment .

Nude Dancing

The First Amendment protects much more than the spoken or printed word. It also protects various forms of symbolic speech and expressive conduct. The Supreme Court has ruled that the display of a red flag, the wearing of a black armband, the burning of the American flag and yes, even nude performance dancing are forms of expression that when restricted, require First Amendment review. Read more about nude dancing and the First Amendment.

Overbreadth

Overbreadth is a supremely important concept in First Amendment law and a key tool for constitutional litigators. A law is too broad—or overbroad—when it not only covers speech that ought to be proscribed but also penalizes speech that should be safeguarded. Read more about overbreadth . 

Secondary Effects Doctrine

The secondary effects doctrine allows government officials to treat patently content-based laws as content-neutral. The animating logic is that government officials are not suppressing speech because of its content but because of adverse side effects associated with the speech, such as increased crime or decreased property values. Read more about the secondary effects doctrine . 

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Essays on First Amendment

The First Amendment of the United States Constitution guarantees the freedom of speech, religion, and the press, as well as the right to assemble and petition the government. As such, it is a crucial topic for discussion and exploration in essays. When choosing a topic for a First Amendment essay, it's important to consider the significance of the issue, the relevance to current events, and the potential for in-depth analysis.

The First Amendment is the cornerstone of American democracy, protecting the fundamental rights of individuals and the press. It has been a subject of debate and controversy throughout history, shaping laws, policies, and societal norms. Understanding the complexities of the First Amendment is essential for citizens, policymakers, and legal professionals.

When selecting a topic for a First Amendment essay, it's essential to consider both the wide-ranging impact of the Amendment and its specific applications in different contexts. It's also important to choose a topic that aligns with personal interests and expertise. Researching current events, legal cases, and scholarly articles can help identify compelling and relevant topics for exploration.

Recommended First Amendment Essay Topics

Below is a detailed list of recommended First Amendment essay topics, divided into categories for ease of reference:

Freedom of Speech

• The impact of social media on freedom of speech
• Hate speech and the limits of free expression
• The role of free speech in academic settings
• The First Amendment and government censorship
• Artistic expression and freedom of speech

Freedom of Religion

• Religious freedom and the workplace
• The intersection of religious beliefs and public policy
• Challenges to religious freedom in a diverse society
• The use of religious symbols in public spaces
• Religious exemptions and the First Amendment

Freedom of the Press

• The role of the press in holding government accountable
• Press freedom and national security concerns
• The impact of digital media on press freedom
• Media bias and the First Amendment
• The future of journalism and First Amendment protections

>Right to Assemble and Petition

• The history and impact of protest movements in the United States
• The use of technology in organizing and participating in protests
• The challenges of balancing public safety and the right to assemble
• The role of petitioning in influencing government decision-making
• The global implications of the right to assemble and petition

Choosing a topic for a First Amendment essay requires thoughtful consideration and research. By selecting a topic that aligns with personal interests and addresses current issues, writers can produce compelling and relevant essays that contribute to the ongoing conversation about the First Amendment and its impact on society.

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First Amendment

By: History.com Editors

Updated: July 27, 2023 | Original: December 4, 2017

The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the right to peaceful protest and to petition the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rights—a written document protecting civil liberties under U.S. law. The meaning of the First Amendment has been the subject of continuing interpretation and dispute over the years. Landmark Supreme Court cases have dealt with the right of citizens to protest U.S. involvement in foreign wars, flag burning and the publication of classified government documents.

Bill of Rights

During the summer of 1787, a group of politicians, including James Madison and Alexander Hamilton , gathered in Philadelphia to draft a new U.S. Constitution .

Antifederalists, led by the first governor of Virginia , Patrick Henry , opposed the ratification of the Constitution. They felt the new constitution gave the federal government too much power at the expense of the states. They further argued that the Constitution lacked protections for people’s individual rights.

The debate over whether to ratify the Constitution in several states hinged on the adoption of a Bill of Rights that would safeguard basic civil rights under the law. Fearing defeat, pro-constitution politicians, called Federalists , promised a concession to the antifederalists—a Bill of Rights.

James Madison drafted most of the Bill of Rights. Madison was a Virginia representative who would later become the fourth president of the United States. He created the Bill of Rights during the 1st United States Congress, which met from 1789 to 1791 – the first two years that President George Washington was in office.

The Bill of Rights, which was introduced to Congress in 1789 and adopted on December 15, 1791, includes the first ten amendments to the U.S. Constitution.

First Amendment Text

The First Amendment text reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

While the First Amendment protected freedoms of speech, religion, press, assembly and petition, subsequent amendments under the Bill of Rights dealt with the protection of other American values including the Second Amendment right to bear arms and the Sixth Amendment right to a trial by jury.

Freedom of Speech

The First Amendment guarantees freedom of speech . Freedom of speech gives Americans the right to express themselves without having to worry about government interference. It’s the most basic component of freedom of expression.

The U.S. Supreme Court often has struggled to determine what types of speech is protected. Legally, material labeled as obscene has historically been excluded from First Amendment protection, for example, but deciding what qualifies as obscene has been problematic. Speech provoking actions that would harm others—true incitement and/or threats—is also not protected, but again determining what words have qualified as true incitement has been decided on a case-by-case basis.

Freedom of the Press

This freedom is similar to freedom of speech, in that it allows people to express themselves through publication.

There are certain limits to freedom of the press . False or defamatory statements—called libel—aren’t protected under the First Amendment.

Freedom of Religion

The First Amendment, in guaranteeing freedom of religion , prohibits the government from establishing a “state” religion and from favoring one religion over any other.

While not explicitly stated, this amendment establishes the long-established separation of church and state.

Right to Assemble, Right to Petition

The First Amendment protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes. It also protects the right to protest the government.

The right to petition can mean signing a petition or even filing a lawsuit against the government.

First Amendment Court Cases

Here are landmark Supreme Court decisions related to the First Amendment.

Free Speech &  Freedom of the Press :

Schenck v. United States , 1919: In this case, the Supreme Court upheld the conviction of Socialist Party activist Charles Schenck after he distributed fliers urging young men to dodge the draft during World War I .

The Schenck decision helped define limits of freedom of speech, creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, the Supreme Court viewed draft resistance as dangerous to national security.

New York Times Co. v. United States , 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman , Dwight D. Eisenhower , John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Texas v. Johnson , 1990: Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the administration of President Ronald Reagan .

The Supreme Court reversed a Texas court’s decision that Johnson broke the law by desecrating the flag. This Supreme Court Case invalidated statutes in Texas and 47 other states prohibiting flag-burning.

Freedom of Religion:

Reynolds v. United States (1878): This Supreme Court case upheld a federal law banning polygamy, testing the limits of religious liberty in America. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.

Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the “Lemon Test” for determining when a state or federal law violates the Establishment Clause—that’s the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.

Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry , the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU , the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.

Right to Assemble & Right to Petition:

NAACP v. Alabama (1958): When Alabama Circuit Court ordered the NAACP to stop doing business in the state and subpoenaed the NAACP for records including their membership list, the NAACP brought the matter to the Supreme Court. The Court ruled in favor of the NAACP, which Justice John Marshall Harlan II writing: “This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.”

Edwards v. South Carolina (1962): On March 2, 1961, 187 Black students marched from Zion Baptist Church to the South Carolina State House, where they were arrested and convicted of breaching the peace. The Supreme Court ruled in an 8-1 decision to reverse the convictions, arguing that the state infringed on the free speech, free assembly and freedom to petition of the students.

The Bill of Rights; White House . History of the First Amendment; The University of Tennessee, Knoxville. Schenck v. United States ; C-Span .

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The US Constitution: First Amendment Paper

Introduction, significant cases related to the freedoms, evaluation of rights and responsibilities of the constitution, protection of the right of privacy, why supreme court hears and interprets cases, impacts of supreme court’s decision.

The ancestors ratified the first amendment of the US constitution in 1791, which formed the basis of the Bill of Rights. It is imperative to assert that this amendment contains five provisions, which include a choice of vocalization, press, and religion.

Other provisions include the rights to petition, as well as assembly. The first amendment is critical since it shields some of the significant, fundamental human rights, as well as reflecting on concerns, which the government may ignore (Patterson, 2009). All these rights have limitations, thus prompting the Supreme Court to take primacy in passing the verdicts. Some of these cases relate to the five stipulations of amendment one. The distinguished cases include ‘Edward against South Carolina of 1963’ and ‘Hazelwood School District against Kuhlmeier of 1988’. The former case encompasses the detainment of nonviolent protesters for unlawful conduct. The latter is about the liberty of expression in schools.

The case of Edwards against South Carolina occurred in 1963 when an assemblage of 187 Negros scholars gathered to express peacefully. This owed to the fact that they felt upset by the laws of South Carolina, which purportedly forbidden their privileges. This group of lobbyists assembled at the spot of State administration and conveyed their accusations to the nationals, as well as other lawmaking bodies. It is important to assert that the police gave them an ultimatum to scatter in 15 minutes, and failure to which could lead to their capture (Eastland, 2000). The group failed to comply with the police orders and instead resonated partisan and spiritual songs with their organizer conveying a religious sermonize.

It is remarkable that the group did not present any intimidation or breach of the peace as per the crowd that was watching them. However, the police detained and condemned them of the common decree of violation of tranquility. The Supreme Court, however, declared that South Carolina disregarded the protestors’ civil liberties speech, assemblage, as well as free will to petition for redress of injustices. The Court further asserted that amendment one warrants such rights; consequently, amendment 14 offers fortification from overrunning by the states.

Another case is between the school principal and the student staff about the removal of some pages from the school newspaper containing issues of adolescent pregnancy and marriage annulment. The students lobbied that the principal breached their first amendment privileges. However, the school head safeguarded himself, affirming that he was shielding the confidentiality of the expectant and immature students from improper reference to sexual action and birth management (Eastland, 2000).

The Supreme Court asserted that the principal did not defy students’ freedoms. It avowed that the school should not stomach student vocalizations, which is not consistent with its edifying missions. Nevertheless, the government would not repress a similar case outside an education institution. Furthermore, the Court discovered that the newspaper was a habitual journalism program and was liable to faculty scrutiny. The school, therefore, did not craft a civic medium for the expression of thoughts but instead upheld the newspaper was for the learners. Instructors do not affront the First Amendment by applying editorial directions over the manner and composition of student dialogue in school-supported communicative undertakings, providing their activities to be rationally connected to justifiable pedagogical apprehensions.

In addition, the Supreme Court sturdily proposed that overseen student actions that may reasonably be exemplified as part of the school syllabus, including school-based periodicals and dramatic productions, were liable to the power of educators. The Court warned, nonetheless, that this influence does not validate an educator’s endeavor to shut up a student’s private expression that occurs on the school premises (Eastland, 2000).

The constitution offers several rights, contained in the BOR, which the citizens enjoy; furthermore, they have to be responsible for their own doings. The five freedoms in the first amendment have not been changed since their inception in 1791, yet society is completely dissimilar from the one founding fathers existed. In the current century, the federal has become engrossed in every precinct of expressive action. It is not easy to clearly state where the five liberties apply.

This is factual since there has been infringement arising from court edicts, executive guidelines, legislation, as well as nongovernmental parties (Patterson, 2009). For instance, there are governmental directives on Internet contents, yet this is a solitary mode of communication, thus infringing autonomy of speech. Congress endorsed the communication Decency Act, which presides over the content of communicative materials. The body illegalizes any phrase or speech, which includes obscene, dirty, and offensive content.

Americans deem in freedom of assemblage with no restraints; however, the intensification of Strategic Lawsuits against Public Participation (SLAPP) confines their actions. There have been myriads of SLAPP suits that work against the remonstrations connected to ecological and rent issues. Some states pledged to thwart SLAPP suits bypassing regulations that offer imperviousness for citizens applying their rights of appeal or gratis speech. SLAPP suits, nonetheless, persevere to thrive in other states to freeze dissent and undercut legitimate rights.

It is certain that the US constitution does not specify the right to privacy in its contents. Nonetheless, the Supreme Court has ever instituted that this right is an essential human privilege. Even though the constitution identifies several rights in some amendments, the ninth one includes others not mentioned. It outlines that people possess open and inherent rights entrenched in the BOR, although they are not enlisted. Additionally, the third and fourth amendments guard one’s privacy.

The third amendment corroborates that the federal cannot quarter soldiers in one’s dwelling. While the fourth confirms that people require security in their places against irrational investigations and seizures (Glenn, 2003). However, there are still some loopholes since it is the government and the Supreme Court to determine reasonable searches and arrests. Amendment X outlines other non-inclusive powers, which rests with the people, which grant the right to privacy. The government lacks authority to inform nationals what to do apart from when the constitution outlines.

The hearing and interpretation of the cases depend on their worth. It is imperative to affirm that the Supreme Court has the command above charges involving individuals against federal or states and vice-versa. For instance, the case of protestors against S. Carolina involved the citizens and the state. The Supreme Court felt that the state was infringing on the lawful rights of the protestors. Furthermore, it has the mandate to hear cases of citizens against institutions, among other lawsuits. For the case of students and the principal, the Supreme Court presided over to interpret the rights not contained in the constitution. The Court can as well admit a case for analysis when it deems that the junior or national courts defy the constitutional, civil liberties of citizens. It is notable that the Supreme Court is the eventual stop of every judicial progression on the land. The resolutions and rulings that it passes are last and binding, thus leaving no room for appeal (Eastland, 2000).

The Supreme Court has since examined the five liberties contained in the first amendment. Following the numerous cases that this Court pursues, it has discovered the degree of the rights, together with the errands of the Americans, who must apply them. The free will of expression has gained attention from the Supreme Court, thus clarifying whether freedom is fixed or other sectors have the powers to limit it (Patterson, 2009).

The case of the Hazelwood School District against Kuhlmeier of 1988 was about freedom of expression in the learning institution. It is noted that the Supreme Court outlined that educators have the powers to limit this freedom within the school. Every institution has the right to control its publications, so long as it is within the academic concerns. The Court, therefore, limits the freedom of expression when the content offends other parties as the magazine did to the pregnant students.

On the other hand, the Supreme Court has the power to shield people’s rights. The case of Edward against South Carolina was about the free will of assembly, as well as appeal. The Court’s decision on this case reserved the rights of the petitioners. In this way, the Supreme Court cautioned the state, South Carolina of shear infringement of citizens’ rights. The Court outlined that people are free to assemble and petition if they feel that their freedoms are forbidden.

The assessment of the provisional freedoms by the Supreme Court and the verdicts and benchmarks therein affect US nationals. Every decree that prohibits assembly, expression and the petition is subject to an inquiry, which can resolve whether the law has satisfactory concern amongst the public to supersede what the Supreme Court has identified. This may pertain to rights, which are most fundamental to Americans. As citizens settle on the need and aspiration to confront these decrees, they should be sensible to consider the perimeters placed by the Supreme Court in the application of these liberties.

Eastland, T. (2000). Freedom of expression in the Supreme Court: the defining cases . Maryland, MD: Rowman & Littlefield.

Glenn, R. (2003). The right to privacy: rights and liberties under the law . California, CA: ABC-CLIO.

Patterson, T. E. (2009). The American Democracy , 9 th ed. New York, NY: McGraw-Hill Higher Education.

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The First Amendment and Video Games: Constitutional Implications of Brown V. Entertainment Merchants Association

This essay about the Supreme Court case Brown v. Entertainment Merchants Association explores the constitutional implications of regulating violent video games. It into the clash between free speech rights and concerns over harmful content, emphasizing the Court’s affirmation of video games as protected expression under the First Amendment. The essay highlights the significance of industry self-regulation and parental oversight in addressing content concerns, setting important precedents for the evolving landscape of digital media and free speech rights.

How it works

In the intricate tapestry of constitutional law and contemporary media, few clashes are as riveting as the convergence of the First Amendment and video games. This entanglement reached a defining moment in the watershed case of Brown v.

Entertainment Merchants Association (2011). The Supreme Court’s verdict not only upheld the sanctity of video games as a mode of expression but also delineated the contours within which governmental oversight of video game content can operate within constitutional bounds.

At the core of Brown v. Entertainment Merchants Association lies the perpetual tug-of-war between the sacrosanct principles of free speech and the apprehensions surrounding potentially deleterious content, especially concerning minors. The case sprouted from a California statute aiming to curtail the sale or rental of violent video games to minors, imposing fines on retailers flouting its mandates. However, the Entertainment Merchants Association raised the standard of constitutional scrutiny, contending that the law trampled upon the First Amendment.

In its judicial decree, the Supreme Court dismantled the California statute, affirming that video games, akin to other expressive mediums, bask under the protective umbrella of the First Amendment’s free speech clause. In the majority opinion, Justice Antonin Scalia expounded that the government’s noble pursuit of shielding children from violent content failed to justify encroaching upon the rights of video game creators and consumers. The Court emphatically stated that the First Amendment erects formidable barriers against content-based censorship unless the speech falls within narrowly circumscribed exceptions such as obscenity or incitement to violence.

A cornerstone of the Court’s ruling in Brown was its dismissal of the notion that video games warrant disparate treatment owing to their interactive nature. While acknowledging the participatory nature of video games, the Court asserted that this interactive dimension does not dilute their status as protected speech. Justice Scalia aptly noted that books, plays, and movies also engage their audiences in various capacities but are accorded unabridged First Amendment protection.

Moreover, the Court expressed skepticism regarding the efficacy of governmental regulation in accomplishing the purported goal of shielding minors from objectionable content. Justice Scalia underscored the presence of voluntary rating systems within the video game industry, analogous to those in the film domain, aimed at apprising consumers of game content. The Court maintained that parental supervision and guidance trumped governmental censorship in safeguarding minors’ exposure to potentially harmful media content.

The ruling in Brown v. Entertainment Merchants Association established seminal principles regarding the constitutional status of video games and the limits of governmental intervention in this sphere. Foremost, it validated the categorization of video games as a form of expression entitled to the same constitutional protections as traditional mediums. This validation holds profound implications not only for the video game industry but also for the broader landscape of digital and interactive media, which continues to burgeon exponentially.

Furthermore, the case elucidated that concerns regarding the putative harm of certain content do not warrant censorship absent tangible evidence of imminent danger, as delineated in exceptions such as obscenity or incitement. This principle accentuates the imperative of preserving robust free speech rights even in the face of genuine apprehensions about media’s societal impact, particularly on vulnerable demographics like children.

Nevertheless, while the Court’s pronouncement in Brown signifies a triumph for free speech proponents and the video game industry, it triggers pertinent inquiries regarding the responsibilities of content creators and distributors. Though governmental censorship was rebuffed as unconstitutional, the Court acknowledged the legitimate interests of parents and society in shielding minors from unsuitable content. Thus, it underscored the indispensable role of voluntary rating systems and parental vigilance in fulfilling this objective.

In the aftermath of Brown v. Entertainment Merchants Association, the video game industry grapples incessantly with content regulation quandaries, especially concerning violence, sexuality, and other contentious themes. While the First Amendment furnishes a robust bulwark against governmental intrusion, industry self-regulation and public discourse emerge as indispensable mechanisms for addressing concerns about media’s societal impact.

Moreover, as technological innovations burgeon and novel forms of interactive media emerge, the legal and ethical debates surrounding content regulation are poised to endure. The principles delineated in Brown v. Entertainment Merchants Association – specifically, the safeguarding of free expression and the constraints on governmental censorship – will continue to shape these dialogues and serve as lodestars for harmonizing conflicting interests in an ever-evolving digital milieu.

In summation, Brown v. Entertainment Merchants Association epitomizes a watershed moment in the legal odyssey of video games, affirming their constitutional sanctuary as forms of expression while establishing seminal precedents for content regulation in the digital epoch. While the case resolves the immediate quandary of governmental censorship, it also underscores broader principles of free speech and parental stewardship that are pivotal to the perennial debate concerning media’s societal impact. As technology burgeons and societal norms evolve, these principles will remain indispensable touchstones for navigating the intricate nexus of law, technology, and expression.

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US Constitution Reflections on the First Amendment Paper Essay

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Introduction

The United States of America is ranked top globally in almost all sectors of the economy. It is also believed to be the pace setter in matters pertaining to law. Most of the other countries have been emulating the judiciary and legislative functions of the United States of America.

This is because of the belief that they possess a constitution that is effective and accommodative for each and every person .Despite this constitution being among the oldest constitutions to be written that is in the year 1787, it is applicable to any country in the world.

This is because most nations of the world especially those that do not have their own constitutions use the American constitution. It is for this reason that the constitution of the United States of America is termed as its supreme law. That is, it controls the relationship between the leaders of state and the citizens of the country (Smith, 2010, p.1).

There are three branches of government which make up the constitution. We have the executive, the legislature and finally the judiciary that is manned by the Supreme Court.

The Supreme Court is designated to be the head and governor of the judiciary which is part of the law making committee. All constitutions in the world will usually elaborate on the functions and duties of each branch and the American constitution is no exception.

Provisions of the First Amendment

The Supreme Court is thus responsible for making any amendments on the constitution when it is necessary. The first amendments made on the constitution of the United States of America in the year 1789 concerned the bill of rights.

This entailed the right to peaceful demonstrations, freedom of speech, the press freedom, freedom of expression, the right to dissent and freedom of religion just to mention but a few.

Since the original constitution did not have provisions for these bills of rights, amendment was thus necessary to allow these provisions. These provisions had to be made so as to accommodate all the citizens into one peaceful nation. This was done because of the mere reason that as human beings the American citizens needed to have the freedom and rights they required.

Examples of the Supreme Court cases

The Supreme Court handled so many cases during the first amendment. The cases that the Supreme Court heard and interpreted were categorized into various groups according to the clauses of the bill of rights. Some of the cases include the following;

Case concerning freedom of press

The Supreme Court handled so many cases during and after the first amendment of the original constitution (Stewards, 2010, p.2). One of the cases involved the New York Times Company versus the United States of America concerning the freedom of press. The United States restricted the New York Times Company from publishing information about the war in Vietnam at that time. The Supreme Court applied the doctrine of prior restraint to make a ruling on the case (Owen, 2000, p.1). This could not have been the situation after the first amendments as the bill of rights had a clause on the freedom of press whereby one can publish whatever information.

Case concerning freedom of expression

An example under this category of cases was that of Whitney versus California in the year 1927. In this case Whitney was accused and found guilty of launching a party which the nation had fears that it could overthrow the government. This was one of the greatest cases ever heard as it was ruled by the famous Justice Louis D. Brandeis who wrote the greatest defense of freedom of speech.

In his ruling, he argued that people are bound to be set free to express their own opinions. This was due to the mere reason that the citizens who had struggled hard to achieve the independence of the country were not cowards. They were strong willed and were not afraid of any changes in the political climate.

Case concerning the right to dissent

The citizens of a nation are allowed to protest in a bid to fight their rights. The case of West Virginia State Board of Education versus Barnette falls under this category (Smith, 2010, p.1). This was a very exciting case as it involved school children who had failed to give a flag sauté. Flag salutation in the United States of America was a requirement of the law.

However, the children of the Barnette School could participate in the flag salutation as their religion did not allow such. The ruling was thus made in favor of the school and therefore allowed to dissent and make their issues known publicly without any fears.

Rights that the Constitution provides you as an American citizen

Each and every citizen of a nation has their own rights under the constitution of the same country. That is the same reason that the before any constitution is applicable, it has to be voted and analyzed by the citizens so as to ensure its acceptance.

After the analysis, the constitution can now be put in place since it has been accepted by the majority if not all the citizens of that country. When the American constitution was first put in place, it had omitted the bill of rights and so had o be amended so that the citizens could have their rights and freedom.

The original constitution only had three provisions concerning the rights of the citizens (Lutz, 1994, p.72). Among these was the clause that one had to prove in a court of law before the authority so as to hold and detain someone. After the first amendment, we the American citizens attained so much freedom and rights granted by the law.

Some of these include; the freedom of speech whereby one has the ability to speak out their minds on any issue. This is of great importance especially when one is being oppressed or in detention.

The right to the freedom of religion is also important as there are a variety of denominations and religious sects. This right gives every citizen to join whatever group they wish and worship as well as practice their sect’s practices freely.

The other right is that of the freedom to petition the government, this happens in case where an individual or a group of people think that the government is not taking the right cause of direction. As citizens of America we are allowed to make a petition against the government so as to get full explanation of whatever actions and decisions made.

The other one is the freedom of assemblage whereby the people are allowed to assemble in whatever forums as well as make their own decisions in such meetings without restrictions or interference. All the aforementioned rights greatly changed the situation of America from what is was before the current position. As a matter of fact it greatly improved and changed the living conditions of the American citizens.

Responsibilities that the Constitution provides you as an American citizen

On the other hand, the constitution provides responsibilities to the American citizens (Alley, 2008, p.2). The constitution of a country should be responsible for its citizens. This is the same way the American constitution has a number of responsibilities on its citizens.

Among these is that the American citizens have the responsibility of managing their own matters either civil or local. Through this, the citizens are not to be intruded in whatever they do in their private life.

In the same way, the citizens are bound to pay taxes and duties to the government as a way of providing income to the government. Citizens who are patriotic will openly disclose their income for taxation in the role of responsible for their own country. The citizens also have the responsibility of protecting their own constitution.

This means that they are ready to fight for any process of interfering with the constitution. This is a civic duty as before a new citizen is nationalized he or she recites an oath in which they promise to protect and defend the American Constitution. A civic duty literally means that the citizens obey the laid down rules and laws of the land.

Apart from the mentioned responsibilities, the citizens are bound to be active in the democratic process of the state. Each citizen is therefore entitled to be aware of any campaign processes and the campaigning candidates. The citizens should also be familiar with the set election day of the country.

The knowledge of this information by the citizens encourages most of them to be present during such sessions and functions. By participating in these, the results obtained are usually largely represented hence being able to make decisions that are suitable for the larger part of the population of the country.

Why did each case need to be heard and interpreted by the Supreme Court?

The Supreme Court is a major court that handles only the sensitive and the more serious cases especially those that relate to the government or constitution of the nation. In short, the Supreme Court is an original jurisdiction as well as a court of appeal.

The constitution clearly defines the two classes of cases that can be heard in the Supreme Court (Lutz, 1994, p.74).The classes are the cases concerning ambassadors or other dignitaries in the government and cases affecting the state.

Therefore the cases during the first amendment had to be heard and interpreted by the Supreme Court as they all related to matters relating to the constitution of the United States of America thus the whole state. The hearing and handling of each of the cases was an obligation by law.

How the Supreme Court’s decision in each case continue to affect the rights of American citizens today

The Supreme Court was the only court where cases relating to the matters of the constitution were heard and ruled. So when these cases on the first amendment were presented for hearing in this court the end result was bound to have several effects both in the long run and short run.

In the short run, effects were mostly felt by either the defendant or the accused. The effects have in the long run affected the current citizens of America. Depending on the ruling made, the resulting effects may either be positive or negative. Negative effect may come about when the provisions for the bill of rights are not followed up to date and thus oppressing the citizens of America.

Such ruling on cases meant that the American citizens do not posses any rights as per the constitution which is against the law. On the other hand, ruling on cases where the provisions of the first amendments were followed meant that the law was observed to the last point. This therefore meant that the American citizens were given their rights as per the constitution.

Since the Supreme Court handled an endless list of cases during the first amendment the decision made on each case led to different types of effects on the current citizens of America.

This is because some of the Judges today use some of these cases as examples during their course of study. It is for the same reason that they may at times apply these in their daily practice hence leading to a repeat of the same.

This repetition is what now leads to the effect being felt by the current citizens of the United States of America. A clear justification is from the aforementioned examples of cases whereby justice did not seem to be applied in some of the cases. So in circumstances where a repeat of the same is done, then there has to be some cry from the oppressed party in the case.

From the above discussion, it can be concluded that the Supreme Court is of great importance in any country. This can be seen in the role it played during the first amendment of the constitution of the United States of America. The amendments had to be made so as to fulfill the citizens’ desire and wish to live in a nation of freedom and rights.

The provisions of the first amendments which circled around the bill of rights for example the right to dissent, freedom of speech, expression and the freedom of press were also of great importance (Owen, 2000, p.1). This was because it gave the citizens a sense of belonging in their own country as their issues were attended to.

Another advantage of the first amendments was that of interpretation of the citizens’ rights and responsibilities. The hearing and interpretation of the first amendment cases also had its effects on the lives of the current Americans.

It has always been said that the past is able to predict the future; this statement is practical when it comes to the constitution of the United States of America. This is because it is from the past that they were able to realize their rights and responsibilities as citizens of America as per the constitution.

A reflection of how the United States of America conducted the first amendment is a good lesson to the other nations of the world from which they follow suit. The process was democratic yet peaceful and in the end successful as it gave the country an improved version of the constitution which accommodated all the citizens.

Reference List

Alley, R. (2008). Thomas Jefferson. James Madison and the first amendment to the United States Constitution. Web.

Lutz, D. (1994). Toward a theory of constitutional amendment. Journal pp.67-78.

Owen, D. (2000). The First Amendment, Annotated . Web.

Smith, C. (2010). First Amendment Center. Web.

Stewards, E. (2010). Notable First Amendment cases . Web.

• Brown vs. Plata Case and Supreme Court's Decision
• Censorship on Fahrenheit 451 by Ray Bradbury
• Supreme Court's Decision in Tinker vs. Des Moines
• Examples of Critical Thinking in Law Enforcement
• Lobbying and Bribery: The Fine Line between Legal and Illegal Influence
• Business Law in Tennessee
• A Critical Discussion of the Family Medical Leave Act
• How Judges Think at a Criminal Trial
• Chicago (A-D)
• Chicago (N-B)

IvyPanda. (2018, May 15). US Constitution Reflections on the First Amendment Paper. https://ivypanda.com/essays/us-constitution-reflections-on-the-first-amendment-paper/

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Bibliography

IvyPanda . "US Constitution Reflections on the First Amendment Paper." May 15, 2018. https://ivypanda.com/essays/us-constitution-reflections-on-the-first-amendment-paper/.

First Amendment – Freedom of Speech

The First Amendment allows citizens to express and to be exposed to a wide range of opinions and views. It was intended to ensure a free exchange of ideas even if the ideas are unpopular. Freedom of speech encompasses not only the spoken and written word, but also all kinds of expression (including non-verbal communications, such as sit-ins, art, photographs, films and advertisements).

1735 Truth Is A Defense Against Libel Charge

New York printer John Peter Zenger is tried on charges of seditious libel for publishing criticism of the royal governor. English law – asserting that the greater the truth, the greater the libel – prohibits any published criticism of the government that would incite public dissatisfaction with it. Zenger’s lawyer, Andrew Hamilton, convinces the jury that Zenger should be acquitted because the articles were, in fact, true, and that New York libel law should not be the same as English law. The Zenger case is a landmark in the development of protection of freedom of speech and the press.

1787 Federalist Papers’ Publication Starts

The first of 85 essays written under the pen name Publius by Alexander Hamilton, James Madison and John Jay begin to appear in the New York Independent Journal. The essays, called the Federalist Papers, support ratification of the Constitution approved by the Constitutional Convention on Sept. 17, 1787. In Federalist Paper No. 84, Hamilton discusses “liberty of the press.”

1791 First Amendment Is Ratified

The First Amendment is ratified when Virginia becomes the 11th state to approve the first 10 amendments to the Constitution, known as the Bill of Rights. The amendment, drafted primarily by James Madison, guarantees basic freedoms for citizens: freedom of speech, press, religion, assembly and petition.

1798 Alien And Sedition Acts Signed Into Law

While the nation’s leaders believe an outspoken press was justified during the war for independence, they take a different view when they are in power. The Federalist-controlled Congress passes the Alien and Sedition Acts. Aimed at quashing criticism of Federalists, the Sedition Act makes it illegal for anyone to express “any false, scandalous and malicious writing” against Congress or the president.

The United States is in an undeclared war with France, and Federalists say the law is necessary to protect the nation from attacks and to protect the government from false and malicious words. Republicans argue for a free flow of information and the right to publicly examine officials’ conduct.

1836 Efforts To Stifle Debate About Slavery Unsuccessful

As abolitionists develop the tactic of submitting many antislavery petitions to Congress, proslavery members of the U.S. House of Representatives adopt “gag” rules that bar such petitions from being introduced and debated. In 1844, former President John Quincy Adams, then a representative from Massachusetts, leads the effort to repeal these rules.

1859 ‘On Liberty’ Is Published

British philosopher John Stuart Mill publishes the essay On Liberty , arguing that only through the free exchange of ideas, even offensive ones or ones held by a minority of individuals, can society find “truth.”

1864 Lincoln Orders Two Newspapers Shut

President Abraham Lincoln orders Union Gen. John Dix to stop publication of the New York Journal of Commerce and the New York World after they publish a forged presidential proclamation calling for another military draft. The editors also are arrested. After the authors of the forgery are arrested, the newspapers are allowed to resume publication.

1873 Circulation Of Birth Control Information Outlawed

An “Act of the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use” is passed by Congress. The act, more commonly known as the Comstock Act – after anti-obscenity activist Anthony Comstock – makes it a crime to publish, distribute or possess information about contraception or abortion, or to distribute or possess devices or medications used for those purposes.

Lawmakers were responding to increasing concern about abortion, the institution of marriage, and the changing role of women in society.

1917 Congress Passes Espionage Act Of 1917

With World War I being fought, President Woodrow Wilson proposes the Espionage Act of 1917 to protect the country from internal warfare propaganda. Congress passes the act, which makes it a crime to intentionally interfere with military forces, recruiting or enlistment or “cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States.” Punishment is a maximum fine of $10,000, a maximum jail term of 20 years, or both. The act also bans any mailings urging treason.

1918 Sedition Act Of 1918 Punishes Critics Of WWI

An amendment to the Espionage Act of 1917, the Sedition Act is passed by Congress. It goes much further than its predecessor, imposing severe criminal penalties on all forms of expression that are critical of the government, its symbols, or its mobilization of resources for World War I. Ultimately, about 900 people will be convicted under the law. Hundreds of noncitizens will be deported without a trial; 249 of them, including anarchist Emma Goldman, will be sent to the Soviet Union.

1919 ‘Clear And Present Danger’ Exception Established

In Schenck v. United States , the U.S. Supreme Court, in an opinion by Justice Oliver Wendell Holmes, upholds the conviction of Socialist Charles Schenck for conspiracy to violate the Espionage Act by attempting to distribute thousands of antiwar leaflets to U.S. servicemen. While acknowledging that the First Amendment under normal circumstances might protect Schenck’s activities, the Court holds that in special circumstances, such as wartime, speech that poses a “clear and present danger” can be restricted. The Court likens the ideas expressed in Schenck’s leaflets to “falsely shouting fire in a theatre and causing a panic.”

A few days later, in another opinion by Holmes, the Court will uphold Socialist Eugene V. Debs’ conviction, finding that his speech also poses a “clear and present danger” of undermining war recruitment and is not protected by the First Amendment.

1919 ‘Marketplace Of Ideas’ Concept Defined

In his dissent from the majority opinion in Abrams v. United States (upholding the Espionage Act convictions of a group of antiwar activists), U.S. Supreme Court Justice Oliver Wendell Holmes coins his famous “marketplace of ideas” phrase to explain the value of freedom of speech. He said that “the ultimate good desired is better reached by free trade in ideas … the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Over the years, Holmes’ “marketplace” concept, and the idea that more is better when it comes to competing ideas, has been a consistent theme in First Amendment cases.

1925 Court: First Amendment Applies To States’ Laws

In Gitlow v. New York , the U.S. Supreme Court concludes that the free speech clause of the First Amendment applies not just to laws passed by Congress, but also to those passed by the states.

1926 Mencken Arrested For ‘Indecent Literature’

H.L. Mencken is arrested in Boston for distributing copies of his American Mercury magazine, which contains a story with a prostitute as a central character. Censorship groups in Boston say the magazine is obscene and order Mencken’s arrest for selling “indecent literature.”

1927 Criminal Syndicalism Law Constitutional

In Whitney v. California , the U.S. Supreme Court rules that California’s criminal syndicalism law is constitutional. A member of the state’s Communist Labor Party was prosecuted under the law, which barred advocating, teaching or aiding the commission of a crime, including “terrorism” as a way to achieve change in industrial ownership or political change. The Court says that freedom of speech is not an absolute right.

1931 Court: Symbolic Expression Of Ideas Also Protected

In Stromberg v. California , the U.S. Supreme Court invalidates the state court conviction of a 19-year-old member of the Young Communist League for displaying a red flag as “an emblem of opposition to the United States government.” The Court rules that the woman’s nonverbal, symbolic expression of her antigovernment opinions is protected just as are any words that she might write or speak to express those opinions.

1931 Prior Restraint Ruled Unconstitutional

Near v. Minnesota is the first U.S. Supreme Court decision to invoke the First Amendment’s press clause. A Minnesota law prohibited the publication of “malicious, scandalous, and defamatory” newspapers. It was aimed at the Saturday Press, which had run a series of articles about corrupt practices by local politicians and business leaders. The justices rule that prior restraints against publication violate the First Amendment, meaning that once the press possesses information that it deems newsworthy, the government can seldom prevent its publication. The Court also says the protection is not absolute, suggesting that information during wartime or obscenity or incitement to acts of violence may be restricted.

1937 Court: First Amendment Protects ‘Peaceable Assembly’

In De Jonge v. Oregon , the U.S. Supreme Court overturns the conviction of Dirk De Jonge for participating in a Communist Party political meeting, holding that “peaceable assembly for lawful discussion cannot be made a crime.” That right, the Court finds, is not dependent upon whether one agrees with the ideas being discussed by the people assembled.

1940 Ban On Religious Solicitation Struck Down

In Cantwell v. Connecticut , the U.S. Supreme Court holds that two Jehovah Witnesses’ rights of free speech and free exercise of religion were violated when they were arrested for proselytizing in a Catholic neighborhood. The Court says the solicitation law, which allows a state official to refuse a permit based on religious grounds, is unconstitutional. The Court also overturns a breach of peace conviction, saying the pair’s message was protected religious speech. The case is the first to extend the free exercise of religion clause to the states and to establish the ‘time, manner and place’ rule, which says the state can regulate the free exercise right to ensure it is practiced in a reasonable time, manner and place.

1940 Flag Salute Requirement Is Upheld

In Minersville School District v. Gobitis , the U.S. Supreme Court upholds a Pennsylvania flag-salute law after a challenge by a Jehovah’s Witness family whose two children were expelled for refusing to salute the flag. They believe the salute is forbidden by biblical commands. The Court says the flag is a symbol of national unity, which is the “basis of national security.”

1942 ‘Fighting Words’ Exception Established

In Chaplinsky v. New Hampshire , the U.S. Supreme Court upholds the conviction of a Jehovah’s Witness who had called a police officer a “damned fascist.” The Court rules that there are certain words that “by their very utterance inflict injury” and are of “such slight social value” that they are not welcome in the marketplace of ideas. This category of speech, named “fighting words” by the Court, is not protected by the First Amendment. Consequently, the speaker may be prosecuted.

1943 Court: Required Flag Salute Violates First Amendment

In West Virginia State Board of Education v. Barnette , the U.S. Supreme Court overrules its decision in Minersville School District v. Gobitis and decides that a West Virginia law requiring students to salute the American flag violates the free speech clause of the First Amendment. “Compulsory unification of opinion,” the Court says, is “antithetical to First Amendment values.”

1947 Hatch Act Upheld; Dissent Says It Violates 17th Amendment

In United Public Workers v. Mitchell , the U.S. Supreme Court finds that the Hatch Act, a federal law that prohibits federal employees from participating in many electoral activities does not violate the First Amendment. In a strong dissent, Justice Hugo Black argues that the law muzzles several million citizens and threatens popular government, because it deprives citizens of the right to participate in the political process.

Such limitations, he argues, would be inconsistent with the First Amendment’s guarantee of freedom of speech, press, assembly and petition. Moreover, Black finds that the Hatch Act would violate, or come dangerously close to violating, Article I and the 17th Amendment, which protect the right of the people to vote for their representatives in the House and Senate and to have their votes counted.

1949 Scope Of ‘Fighting Words’ Doctrine Limited

In Terminiello v. Chicago , the U.S. Supreme Court overturns the conviction of Father Arthur Terminiello for disturbing the peace. He was convicted after giving a controversial speech that criticized various racial and political groups. Several disturbances by protesters occurred after the speech. The Court says “fighting words” can be restricted only when they are “likely to produce a clear and present danger.” Justice William O. Douglas writes that free speech may “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.”

1952 Justices Uphold Group Libel Law

In Beauharnais v. Illinois , the U.S. Supreme Court upholds the conviction of a white supremacist for passing out leaflets that characterized African Americans as dangerous criminals. The “group libel” law under which Joseph Beauharnais was prosecuted makes it a crime to make false statements about people of a particular “race, color, creed or religion” for no other reason than to harm that group. The Court rules that libel against groups, like libel against individuals, has no place in the marketplace of ideas.

1957 Obscenity Exception To First Amendment Established

In Roth v. United States , the U.S. Supreme Court decides that it is not a violation of the First Amendment for the government to regulate, or even criminalize, speech that is “obscene,” because, just like libel and “fighting words,” obscene speech is “utterly without redeeming social importance.” The Court says that in defining obscenity, the government must consider “contemporary community standards.” What was “obscene” 50 years ago may not be in today’s society.

1958 Court Protects ‘Free Association’ In NAACP Case

In NAACP v. Alabama , the U.S. Supreme Court holds that when Alabama state officials demanded that the NAACP hand over its membership list, the members’ right of “free association” was violated. Although no such right is specifically included in the First Amendment, the Court says it is a necessary extension of the rights to free speech and free assembly: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the due process clause of the 14th Amendment, which embraces freedom of speech.”

1959 No Protection From Congressional Inquiry

The U.S. Supreme Court finds professor Lloyd Barenblatt’s First Amendment rights were not violated when he was convicted of contempt of Congress for refusing to answer questions about his religious and political beliefs before the House Un-American Activities Committee. In Barenblatt v. United States , the Court says that such questions are legitimate when the investigation’s goal is to “aid the legislative process” and to protect important government interests.

1961 Symbolic Speech Of Civil Rights Protesters Protected

In Garner v. Louisiana , the U.S. Supreme Court overturns the convictions of 16 African American demonstrators for disturbing the peace in three lunch counter sit-ins at all-white restaurants in Baton Rouge, La., to protest segregation. The cases were consolidated under Garner v. Louisiana. Referring to earlier court opinions protecting symbolic speech, Justice John Harlan explains that a sit-in demonstration “is as much a part of the free trade of ideas as is verbal expression.”

1964 Court Establishes ‘Actual Malice’ Standard

In New York Times Co. v. Sullivan , the U.S. Supreme Court establishes the “actual malice” standard when it reverses a civil libel judgment against the New York Times. The newspaper was sued for libel by Montgomery, Ala.’s police commissioner after it published a full-page ad that criticized anti-civil rights activities in Montgomery. The court rules that debate about public issues and officials is central to the First Amendment. Consequently, public officials cannot sue for libel unless they prove that a statement was made with “actual malice,” meaning it was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

1966 Loyalty Oath Is Struck Down

In Elfbrandt v. Russell , the U.S. Supreme Court invalidates an Arizona law requiring state employees to take a loyalty oath. Anyone who took the oath and then became a member of the Communist Party or any other group that advocated the violent overthrow of the government could be prosecuted for perjury and fired. The Court says the law violates the due process clause by infringing on the right of free association. The Court holds that the law is too broad by punishing a person who joins a group that has both legal and illegal purposes but does not subscribe to the illegal purpose.

1966 Smith Act Is Found Constitutional

In Dennis v. United States , the U.S. Supreme Court upholds the convictions of 12 Communist Party leaders who were convicted under the Smith Act of 1940, formally known as the Alien Registration Act. The law makes it illegal to teach or advocate the overthrow or destruction of the U.S. government, or publish any materials or organize a group that endorses such action. The majority writes that the “existence of the conspiracy” creates “a clear and present danger.”

1968 Limits Placed On Symbolic Speech Right

In United States v. O’Brien , the U.S. Supreme Court lets stand the conviction of an activist who burned his draft card to protest the Vietnam War. Although the Court admits that the law against destroying a draft card does limit speech, it rules that the limit is acceptable because it serves an important government interest (i.e., the smooth operation of the draft during wartime) and is “content-neutral,” meaning that it is not meant to punish any particular point of view or opinion.

1968 Teacher’s Free Speech Right Upheld

The U.S. Supreme Court decides that a public school teacher’s free speech right was violated when he was fired for writing a letter to the newspaper criticizing how money was divided between athletics and academics. The justices say in Pickering v. Board of Education that public school teachers are entitled to some First Amendment protection and that the teacher was speaking out more as a citizen than as a public employee when he wrote the letter.

1969 Students’ Right To Symbolic Speech Upheld

In Tinker v. Des Moines Independent Community School District , the U.S. Supreme Court rules that the school board was wrong to suspend three students who wore black armbands to school to protest the Vietnam War. The Court finds that the students’ passive protest posed no risk of disrupting school activities. “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the Court’s opinion says.

1969 Private Ownership Of Obscene Material Protected

In Stanley v. Georgia , the U.S. Supreme Court finds unconstitutional a Georgia obscenity law that prohibits the possession of such material. The Court rules that the 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 and control of one’s thoughts.”

1969 Advocacy Of Violence Is Protected Speech Except In Rare Circumstances

In Brandenburg v. Ohio , the U.S. Supreme Court reverses the conviction of a Ku Klux Klan leader under an Ohio law prohibiting speech that calls for crime or violence as a way of winning political change. The Court holds that unless the speaker incites his listeners to “imminent lawless action,” the speech is protected by the First Amendment.

1971 Antiwar Expression Is Ruled Protected Speech

In Cohen v. California , the U.S. Supreme Court overturns the conviction of a man convicted of disturbing the peace for wearing a jacket bearing a vulgarism about the draft. The Court concludes that the expression, however crude, did not pose enough of a risk of inciting disobedience to override his First Amendment right to express his opposition to the Vietnam War.

1971 Newspapers Win Pentagon Papers Case

The New York Times and the Washington Post obtain secret Defense Department documents that detail U.S. involvement in Vietnam in the years leading up to the Vietnam War. Citing national security, the U.S. government gets temporary restraining orders to halt publication of the documents, known as the Pentagon Papers. But, acting with unusual haste, the U.S. Supreme Court finds in New York Times v. United States that prior restraint on the documents’ publication violates the First Amendment. National security concerns are too speculative to overcome the “heavy presumption” in favor of the First Amendment’s guarantee of freedom of the press, the Court says.

1972 Court: No Reporter’s Privilege Before Grand Juries

Branzburg v. Hayes is a landmark decision in which the U.S. Supreme Court rejects First Amendment protection for reporters called before a grand jury to reveal confidential information or sources. Reporters argued that if they were forced to identify their sources, their informants would be reluctant to provide information in the future. The Court decides reporters are obliged to cooperate with grand juries just as average citizens are. The justices do allow a small exception for grand jury investigations that are not conducted or initiated in good faith.

1973 Court: States Can Regulate Obscene Exhibits

In Paris Adult Theatre I v. Slaton , the U.S. Supreme Court upholds a Georgia injunction against the showing of allegedly obscene films at an adult movie theater that allowed only patrons at least 21 years old. The Court finds that “legitimate state interests,” such as preserving quality of life and public safety, are at stake in regulating commercialized obscenity even if the exhibits are limited to consenting adults.

1973 Definition Of Obscenity Is Clarified

In Miller v. California , the U.S. Supreme Court establishes a new definition of obscenity, setting out a three-part test for judging whether material is obscene: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest (b) whether the work depicts or describes, in a patently offensive way, sexual conduct; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

1976 Money Spent In Political Campaigns Considered Speech

When Congress tries to limit expenditures in political campaigns, the U.S. Supreme Court, in Buckley v. Valeo , invalidates provisions that restrict candidates’ ability to spend their own money on a campaign, limit campaign expenditures by an outside group, and limit total campaign spending. The Court compares spending restrictions with restrictions on “political speech.” The majority reasons that discussion of public issues and political candidates are integral to the U.S. political system under the Constitution. The Court says government-imposed limits on the amount of money a person or group can spend on political communication reduces “the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”

1976 Justices Protect Commercial Speech

In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , the U.S. Supreme Court strikes down a state law that forbids pharmacists from including the prices of prescription drugs in their ads because it is unprofessional conduct. Although such information does not convey an idea other than proposing that a purchase be made, the Court finds that commercial speech enjoys the same First Amendment protection as noncommercial speech.

1977 Court Allows Publication Of Juvenile’s Identity

In Oklahoma Publishing Company v. District Court , the U.S. Supreme Court finds that when a newspaper obtains the name and photograph of a juvenile involved in a juvenile court proceeding, it is unconstitutional to prevent publication of the information, even though the juvenile has a right to confidentiality in such proceedings. A similar ruling will be made by the court two years later, in Smith v. Daily Mail Publishing Company , when the Court finds that a newspaper’s First Amendment right takes precedence over a juvenile’s right to anonymity.

1978 Nazis Permitted To March In Skokie, Ill.

The 7th U.S. Circuit Court of Appeals invalidates a city law passed in Skokie, Ill., home to 5,000 Holocaust survivors, to prevent a neo-Nazi group from holding a march there. The Court rules in Collin v. Smith that the group should be permitted to march in their uniforms, distribute anti-Semitic leaflets and display swastikas. The court does not deny the group’s symbols are offensive to many observers, but concludes that “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” The U.S. Supreme Court will refuse to review the case.

1978 FCC Can Regulate Indecent Speech

The U.S. Supreme Court, in FCC v. Pacifica Foundation , allows the Federal Communications Commission to regulate indecent speech broadcast over the air. The Court says the FCC can channel broadcasts that contain indecent language to late-night hours, when children are less likely to be listening.

1980 Court Establishes Commercial Speech Test

In Central Hudson Gas & Electric Corp. v. Public Service Commission , the U.S. Supreme Court decides that a state ban on promotional advertising by the electric utility is unconstitutional. The ruling sets up a four-part test to decide when commercial speech can or cannot be regulated: (1) It must not be misleading or involve illegal activity (2) The government interest advanced by the regulation must be significant (3) The regulation must directly advance the government interest (4) The regulation must be limited to serving the asserted government interest.

1982 School Board Cannot Ban Library Books

In Board of Education v. Pico , the U.S. Supreme Court rules that a school board’s decision to remove books from the school library based simply on their content violates the First Amendment’s free speech right. The Court says the First Amendment protects the right to receive information and ideas. The justices allow that books that are “pervasively vulgar” or educationally unsuitable can be removed.

1982 Justices Rule Child Porn Not Protected

In New York v. Ferber , the U.S. Supreme Court holds that the First Amendment does not protect child pornography. Child pornography joins certain categories of speech – libel, “fighting words,” words that present a “clear and present danger” of violence, and obscene material – that are considered to have such negative consequences that it is acceptable for the government to restrict them.

1983 Public Employees’ Free Speech Right Defined

In Connick v. Myers , a landmark free-speech ruling for public employees, the U.S. Supreme Court says that an assistant district attorney’s free speech right was not violated when she was fired for distributing a questionnaire about internal office practices to fellow prosecutors. At least one of Myers’ questions related to a matter of public concern: whether assistant prosecutors felt pressured to work in political campaigns. But, relying on its 1968 Pickering ruling, the Court decides that the employer’s interest in a disruption-free workplace outweighs the employee’s right to comment on an issue of public concern.

1985 Anti-Pornography Law Is Struck Down

In American Booksellers Association v. Hudnut , the 7th U.S. Circuit Court of Appeals strikes down an Indianapolis anti-pornography law. The law had not used the court’s guidelines for deciding what is “obscene” material. The court finds that the law unconstitutionally targeted a certain viewpoint and allowed the government to decide which ideas are good or bad.

1986 Court: Student’s Lewd Speech Not Protected

In Bethel School District v. Fraser , the U.S. Supreme Court decides that a high school senior’s free speech right was not violated when he was disciplined for making a lewd speech at an assembly. Previously, in Tinker v. Des Moines Independent Community School District , the justices had said students do not “shed their constitutional rights” at the schoolhouse door. Chief Justice Warren E. Burger writes that schools can prohibit lewd speech because it is inconsistent with the “fundamental values of public school education.”

1988 Court Allows Censorship Of School Publications

In Hazelwood School District v. Kuhlmeier , the U.S. Supreme Court rules that public school administrators can censor speech by students in publications (or activities) that are funded by the school – such as a yearbook, newspaper, play, or art exhibit – if they have a valid educational reason for doing so.

1989 Court: Flag Burning Is Protected Symbolic Speech

In Texas v. Johnson , the U.S. Supreme Court rules that burning an American flag is protected symbolic speech. Gregory Lee Johnson burned the flag outside Dallas City Hall to protest Reagan administration policies. The justices find that his actions fall into the category of expressive conduct and have a political nature. Speech cannot be prohibited simply because an audience takes offense to certain ideas, the Court says.

1990 Flag Protection Act Ruled Unconstitutional

In U.S. v. Eichman , the U.S. Supreme Court decides that the 1989 Flag Protection Act is unconstitutional. The law provided penalties of up to one year in jail and a $1,000 fine for anyone who “knowingly mutilates, physically defiles, burns, maintains on the floor or ground, or tramples upon” any U.S. flag. The justices rule that the right to free expression supersedes protection of the flag as a national symbol. Justice William J. Brennan writes: “Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.”

1991 Media Coverage Limited In Gulf War

The Pentagon imposes rules for media coverage of the war in the Persian Gulf, citing the possibility that some news – including information on downed aircrafts, specific troop numbers, and names of operations – may endanger lives or jeopardize U.S. military strategy. Nine news organizations file a lawsuit questioning the constitutionality of limiting media access to the battleground. But a court rules the question moot when the war ends before the case is decided.

1991 Son Of Sam Law Is Struck Down

The U.S. Supreme Court strikes down New York’s Son of Sam law aimed at preventing convicted criminals or those accused of crimes from profiting from the sale of any work discussing their crimes. In Simon & Schuster Inc. v. New York State Crime Victims Board , the Court says the law violates the First Amendment because it singles out earnings from speech or writing.

1992 Court Strikes Down Hate Crime Law

In R.A.V. v. The City of St. Paul , the U.S. Supreme Court reverses the juvenile conviction of a 14-year-old white boy who burned a cross on the lawn of an African American family. The boy was prosecuted under a law prohibiting the placement of certain symbols that were “likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender.” The Court finds that because the law punishes certain conduct only because of the ideas behind it – however offensive those ideas may be – it violates the First Amendment’s free speech clause.

1993 Justices Allow Tougher Hate Crime Penalties

In Wisconsin v. Mitchell , the U.S. Supreme Court upholds a Wisconsin law that increases the penalty for assault if the offender purposely picks his victim “because of the race, religion, color, disability, sexual orientation or national origin or ancestry of that person.” The Court rules that the increased penalty does not violate the offender’s free speech rights because the Wisconsin law is aimed at the offender’s actions.

1994 Justices Uphold Buffer Zones At Abortion Clinics

In Madsen v. Women’s Health Center , the U.S. Supreme Court affirms a Florida court’s ruling that abortion protesters could not demonstrate within 36 feet of an abortion clinic, make loud noises within earshot of the clinic, or make loud noises within 300 feet of a clinic employee’s home. (These distance requirements are known as buffer zones.) Although the Court acknowledges that the ruling restricts the protesters’ speech, it finds the restrictions “necessary to serve a significant government interest” of providing needed health care.

1995 Communications Decency Act Passed

As part of the Telecommunications Act of 1996, Congress enacts the Communications Decency Act. The law is intended primarily to protect minors using the internet by criminalizing the placement of “obscene” and “patently offensive” material on the Web. The Communications Decency Act is almost immediately challenged by a diverse coalition of health-care providers, sex educators and pornographers on the grounds that the law violates the right to free speech.

1996 Child Pornography Prevention Act Passed

The Child Pornography Prevention Act expands the definition of child pornography – which, unlike most pornography involving adult subjects, does not enjoy First Amendment protection and can be criminalized – to include computer-generated depictions of children engaging in sexual activity. The act is challenged on First Amendment grounds by a variety of civil liberties and artistic groups.

1997 ‘Floating’ Buffer Zones At Clinics Struck Down

In Schenck v. Pro-Choice Network of Western New York , the U.S. Supreme Court upholds a 15-foot buffer zone around an abortion clinic’s entrances and driveways, but strikes down a “floating” buffer zone that requires protesters to stay 15 feet away from all cars and patients as they enter and exit the clinic. The Court finds that, in contrast to the “fixed” buffer zone around the clinic, the “floating” zone risks silencing protesters: “Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.”

1997 Equal Access For Military Recruiters Is Upheld

The Solomon Amendment requires institutions of higher education to provide military recruiters with the same access to students as other potential employers. If the school does not, it loses certain federal funds. Members of an association of law schools and law faculties wanted to restrict military recruiting because they objected to the military’s policy on LGBT+ recruits. The U.S. Supreme Court unanimously says that the Solomon Amendment does not place an unconstitutional condition on the receipt of federal funds. The Court says the First Amendment does not prevent Congress from directly imposing the equal access requirement because the Solomon Amendment limits conduct, not speech.

1997 Court Ruling Backs Free Speech On Internet

In Reno v. American Civil Liberties Union , the U.S. Supreme Court gives broad support to free speech on the Internet. The justices rule that the Communications Decency Act violates the First Amendment by criminalizing many kinds of material on the internet that are not obscene or offensive, such as medical information or artistic depictions of the human body.

1998 Court: Public TV Can Exclude Candidates

The U.S. Supreme Court decides that public television stations can exclude minor-party candidates from their debates as long as the decision is not based on the candidates’ views and the debates are not designed as public forums. The decision, in Arkansas Educational Television Commission v. Forbes , strikes down an appeals court ruling that a state-owned TV network is obliged under the First Amendment to allow any candidate who has qualified for the ballot access to a debate.

1998 Decency Test On Arts Grants Is Upheld

In National Endowment for the Arts v. Finley , the U.S. Supreme Court rules that the NEA, the government’s art-funding agency, can include “decency” standards among its criteria for awarding government grants for artists’ work without violating the First Amendment.

1999 Giuliani Targets Publicly Funded Art

Infuriated by a planned exhibit at the Brooklyn Museum of Art that features an image of the Virgin Mary decorated with elephant dung, New York City Mayor Rudy Giuliani threatens to cut all city funding to the museum, evict the museum from its building, and remove the Board of Directors. A subsequent First Amendment lawsuit between the museum and the city will be settled the following year, with the city agreeing to pay an additional $5.8 million in repairs to the museum over the next two years.

2000 Boy Scouts Can Bar LGBT+ Leaders

In Boy Scouts of America v. Dale , the U.S. Supreme Court says the Boy Scouts organization has the right to bar gay people from serving as troop leaders. Assistant scoutmaster James Dale contended that the Boy Scouts had violated a New Jersey statute banning discrimination on the basis of sexual orientation in places of public accommodation. The justices said the law violated the Boy Scouts’ First Amendment right to expressive association.

2000 Court Revisits ‘Floating’ Buffer Zones At Clinics

In Hill v. Colorado , the U.S. Supreme Court upholds a Colorado law that prohibits abortion protesters from “knowingly approaching” within eight feet of a person entering or exiting an abortion clinic. The Court says that, unlike the “floating” 15-foot buffer zone that it struck down in Schenck , the buffer zone in the Colorado law is small, so protesters are still able to exercise their free speech right.

2000 Children’s Internet Protection Act Passed

Congress passes the Children’s Internet Protection Act. The law requires public libraries that receive certain federal funds to use a portion of those funds to buy internet programs for their computer terminals to filter out material that is “harmful to minors.” The American Library Association and the ACLU both bring lawsuits challenging the law on First Amendment grounds.

2002 Ban On ‘Virtual’ Child Porn Struck Down

In Ashcroft v. Free Speech Coalition , the U.S. Supreme Court rules that the Child Pornography Prevention Act’s criminalization of computer-generated depictions of children engaging in sexual activity violates the First Amendment. The Court finds that the law goes further than existing child pornography laws (which ban material involving actual children) to potentially cover many kinds of images that are not pornographic.

2003 Law To Protect Children Passed

The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act, or the PROTECT Act, includes numerous provisions intended to protect children from exploitation, kidnapping, and other crimes. It increases penalties for creating child pornography and strengthens penalties for “virtual” child pornography. Modern technology makes it easier for individuals to produce child pornography without involving “real” children. This law takes steps to prevent that practice. The law also encourages increased cooperation of internet service providers to report suspected child pornography.

2003 Court Rules On Cross-Burning Law

In Virginia v. Black , the U.S. Supreme Court rules that a law prohibiting cross burning could, in theory, be allowed under the First Amendment if it targets only cross burnings that are specifically “intended to intimidate.” Nevertheless, the Court strikes down the Virginia law because it outlaws all cross burnings, including those intended to express a political view.

2003 Law On Library Internet Filters Upheld

In United States v. American Library Association , the U.S. Supreme Court rules that the Children’s Internet Protection Act (CIPA) of 2000, requiring public libraries that receive certain federal funds to buy internet filters for their computers to weed out material that is “harmful to minors,” does not violate the First Amendment. The Court says that Congress has broad authority to attach restrictions to its funding, and that the CIPA restrictions are consistent with library rules that limit children’s access to only age-appropriate materials. The Court says that libraries are allowed to disable the “blocking” software for adults.

2003 Justices Uphold Campaign Finance Law

The Bipartisan Campaign Finance Reform Act of 2002, known as the McCain-Feingold Bill, is an effort to change the way money is raised and spent by political campaigns. Key parts are a ban on unrestricted (“soft money”) donations to political parties (often by corporations and unions) and restrictions on TV ads sponsored by unions, corporations and nonprofit groups up to 60 days before elections. The plaintiffs, including unlikely allies such as the National Rifle Association and the ACLU, say these provisions violate their rights to free speech and association. The U.S. Supreme Court upholds the provisions, finding that they are justified by the government’s interest in preventing corruption or the appearance of corruption that might result.

2004 Child Online Protection Act Struck Down

After the Child Online Protection Act became law, the ACLU sued to stop its enforcement, saying the law violated the right to free speech. The U.S. District Court and the Third U.S. Circuit Court of Appeals both agree with the ACLU. In 2002, however, the U.S. Supreme Court orders the Third Circuit to reevaluate the case, saying the decision was based on insufficient reasoning.

In 2003, the appeals court again finds the law unconstitutional, based on different grounds from the first ruling. The justices agree to rehear the case and, in Ashcroft v. American Civil Liberties Union , strike down the law. Justice Anthony Kennedy writes that children can be protected from inappropriate material by other, less restrictive ways and that the law could prevent adults from accessing information they have a right to view.

2004 Patriot Act Provision Ruled Unconstitutional

A federal judge for the Southern District of New York rules unconstitutional a Patriot Act provision that allows the FBI to demand information about internet users but does not hold the FBI subject to public review or judicial oversight for its actions. The provision also forbids internet service providers from revealing that such information has been requested. Judge Victor Marrero rules that this provision violates the free speech right by prohibiting internet service providers from ever speaking about such FBI requests.

2006 Court Rejects Vermont Campaign Finance Law

Vermont’s Act 64 stringently limits the amounts that candidates for state office may spend on their campaigns and the amounts that individuals, organizations, and political parties may contribute. In Randall v. Sorrell , the U.S. Supreme Court reaffirms its 1976 ruling in Buckley v. Valeo that rejected limits on how much candidates could spend on their own campaigns. Regarding Vermont’s contribution limits, the Court says they are so low that they pose a constitutional risk to the electoral process. Challengers may be unable to mount an effective challenge to better-financed incumbents.

2007 Court Strikes Down Ad Limits In Campaign Law

The U.S. Supreme Court creates an exemption to advertisement restrictions set out in the 2002 McCain-Feingold campaign finance law. In Federal Election Commission v. Wisconsin Right to Life , Chief Justice John G. Roberts Jr. writes that only ads that make specific appeals to vote for or against a candidate can be prohibited in the period covered by the law – 30 days before a primary election and 60 days before a general election. The Court says limits on TV ads sponsored by corporations or unions in that period amount to censorship of political speech, which is protected under the First Amendment.

2007 Justices Restrict Students’ Free Speech Right

In Morse v. Frederick , the U.S. Supreme Court affirms that free speech rights for public school students are not as extensive as those for adults. In this case, a student held up a banner with the message “Bong Hits 4 Jesus,” a slang reference to marijuana use, at a school-supervised event across from the campus. The principal removed the banner and suspended the student for 10 days. The majority opinion says that although students have some right to political speech, it does not include pro-drug messages that may undermine the school’s mission to educate against illegal drug use.

2009 City’s Refusal Of Religious Monument Upheld

The U.S. Supreme Court decides unanimously in Pleasant Grove City v. Summum that a Utah city did not violate the Summum church’s free speech right by refusing a donation of a monument reflecting its beliefs. The church argued that the park, which had a Ten Commandments monument, was a public forum and that the city could not discriminate among speakers. The Court said permanent monuments were government speech and did not have the same free speech protection as speakers or leaflets in a public forum.

2010 Court Lifts Limits On Corporate Election Spending

In Citizens United v. FEC , the U.S. Supreme Court rules, 5-4, to remove limits on corporate spending on elections. Corporations and unions still cannot directly give money to federal candidates or national party committees. The majority opinion says the First Amendment right of free speech extended to corporations. The landmark decision overturns decades of rules that governed the campaign finance and sparked fears that a flood of money into politics would dramatically alter campaigns.

2010 Corporate Spending Limit Rejected

The U.S. Supreme Court decides, 5-4, in Citizens United v. Federal Election Commission , that the government cannot regulate political speech — political spending — by corporations in elections. “If the First Amendment has any force,” Justice Anthony M. Kennedy writes for the majority, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” The dissenters warn of the consequences if a flood of corporate money is unleashed in elections. Justice John Paul Stevens says corporate speech should not be treated the same as that of people. The ruling overturns two precedents about the free speech rights of corporations: Austin v. Michigan Chamber of Commerce , a 1990 ruling that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission , a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.

2011 First Amendment Protects Funeral Protests

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.” Those are Chief Justice John G. Roberts Jr.’s words when the Supreme Court rules in Snyder v. Phelps that the First Amendment’s right to free speech protects hateful protests at military funerals. Members of the Westboro Baptist Church — which believes God is punishing the U.S. for its tolerance of homosexuality — had appeared at the funeral of a Marine who died in Iraq. Albert Snyder, the Marine’s father, sued the protesters for, among other things, intentional infliction of emotional distress. Roberts suggests that laws creating buffer zones around funerals would be a better response than punishing unpopular speech. He says that the nation’s commitment to free speech demands protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”

2012 Person’s Right To Lie Is Protected

The U.S. Supreme Court strikes down the Stolen Valor Act, a federal law that made it illegal for individuals to claim to have won or to wear military medals or ribbons that they didn’t earn. The Court, in a 6-3 ruling, says that the First Amendment protects the right to lie about medals and military service. Justice Anthony M. Kennedy says freedom of speech “protects the speech we detest as well as the speech we embrace.” The government had argued that such lies “inhibit the government’s efforts to ensure that the armed services and the public perceive awards as going only to the most deserving few.”

2012 U.S. Can’t Require Graphic Warnings On Cigarette Packs

The U.S. Court of Appeals for the District of Columbia Circuit rules that the federal Food and Drug Administration cannot require tobacco companies to place large graphic health warnings on cigarette packages to show the effects of smoking. The appeals court upholds a lower court’s decision that the requirement violates the First Amendment’s free speech right. Some of the largest tobacco companies sued the government, arguing that the warnings were not just factual information but advocated against smoking.

2015 States May Limit Judicial Candidates’ Fund-Raising Requests

The U.S. Supreme Court rules, 5-4, in Williams-Yulee v. Florida Bar , No. 13-1499 that states may ban judicial candidates from personally asking their supporters for money. Twenty-nine other states also prohibit personal solicitations, which they say threaten the integrity of the judicial branch and public confidence in the system.

2015 Intent Cited in Online Threats Case

In a social media case, Elonis v. United States , the U.S. Supreme Court reverses the conviction of a Pennsylvania man who had used violent language against his wife on Facebook. The majority opinion says prosecutors failed to prove the defendant’s intent when he published threatening lyrics about his wife on Facebook. The decision makes it harder to prosecute people for threats made on social media.

2015 Court Says Texas May Reject License Plate Design

The U.S. Supreme Court decides in Walker v. Texas Division, Sons of Confederate Veterans, Inc. , 5-4, that Texas may refuse to make a specialty license plate with the Confederate flag. The Sons of Confederate Veterans sued the state when it refused to make such a plate. The group said its First Amendment right to free speech had been violated. The majority opinion says that because license plates “constitute government speech,” Texas could choose which designs to produce.

2015 Town Ordinance On Signs Struck Down

In Reed v. Town of Gilbert, Ariz., the U.S. Supreme Court unanimously strikes down a town law that treated a church’s signs differently from other signs, such as political ads. Unlike other signs, the church signs were limited in size and allowed to be in place for only a certain number of house. The majority opinion says that the town ordinance was based on the content of the sign’s message, which violates the First Amendment’s free speech right.

2019 Federal Ban on ‘Immoral,’ ‘Scandalous’ Trademarks Struck Down

The U.S. Supreme Court rules, 6-3, that the federal government’s ban on registering “immoral” and “scandalous” trademarks violates the First Amendment of the Constitution. The dissenters express concern that the majority opinion goes too far and that the trademark office would be forced to register trademarks containing “the most vulgar, profane, or obscene words and images imaginable.” In the case, Iancu v. Brunetti, a Los Angeles artist, Erik Brunetti, sued the government for refusing to register the trademark for his “subversive” clothing line.

2021 Court Backs Catholic Agency Over Refusal To Work With Same-Sex Couples

The U.S. Supreme Court sides with a Catholic foster care agency that was cut off by the City of Philadelphia from receiving foster care referrals because it refused to work with same-sex couples. The agency believes marriage is between a man and a woman. The Court unanimously rules in Fulton v. City of Philadelphia that the city was wrong to end its foster care contract with Catholic Social Services. Chief Justice John G. Roberts Jr., writing for six of the justices, said the city’s refusal to contract with the foster care agency unless it agreed to certify same-sex couples as foster parents violated the First Amendment.

2021 Court Sides With Cheerleader In Off-Campus Speech

The U.S. Supreme Court rules 8-1 in Mahony Area School District v. B.L. in favor of a Pennsylvania cheerleader who lost her place on the squad because of a profane off-campus rant posted on social media. Although the Court said the punishment violated her First Amendment right of free speech, it declined to say schools never have a role in disciplining students for off-campus speech.

2022 Censure of Politician Is Constitutional, High Court Says

The U.S. Supreme Court unanimously decides in House Community College System v. Wilson that elected bodies do not violate the First Amendment’s free speech clause when they censure a member. Justice Neil M. Gorsuch wrote: “In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers — and to continue exercising their free speech rights when the criticism comes.”

2022 High Court Rules Against Boston On Christian Flag

The U.S. Supreme Court unanimously rules in Shurtleff v. City of Boston that the City of Boston violated the First Amendment when it refused to let a private group raise a Christian flag in front of its City Hall. One of three flagpoles is occasionally made available to groups seeking to celebrate their backgrounds or to promote causes like gay pride. In a 12-year period, the city approved 284 requests to raise flags and rejected only one, from Camp Constitution, which says it seeks “to enhance understanding of our Judeo-Christian moral heritage.” The city’s refusal to let the group fly its flag based on its religious viewpoint violated the free speech clause of the First Amendment, the majority opinion said.

Related Resources

• Book: First Amendment (1791)
• Handout: Freedom of Speech: Finding the Limits
• Book: Chapter 6: The Right to Freedom of Speech
• Video: A Conversation on the Constitution with Justices Stephen Breyer, Anthony Kennedy and Sandra Day O'Connor: Freedom of Speech
• Book: Chapter 8: The Latitude and Limits of Free Speech
• Book: Chapter 10: The Flag-Salute Cases
• Book: Chapter 18: Freedom of Speech in Public Schools

U.S. Constitution.net

First Amendment Significance

Historical context and framers' intent.

The framers of the Constitution sought to avoid the religious conflicts that had plagued Europe by separating religion and state power. They aimed to foster a society where no single religious sect could dominate and to maintain both peace and individual liberty.

The framers also wanted to ensure broader freedoms beyond religious liberty, such as freedoms of speech, press, assembly, and the right to petition the government. They believed that these freedoms were essential for a democratic society to allow its citizens to debate, criticize, and demand accountability from their government.

The path to the First Amendment involved significant debate over the necessity of a Bill of Rights. Some framers believed that specific protections were redundant, while others argued passionately for explicit guarantees. James Madison , one of the foremost framers, likened liberty to air for fire—essential but potentially dangerous without proper safeguards. 1 He and his colleagues designed the First Amendment as a critical check on government power.

The inclusion of the First Amendment reflected the framers' commitment to enlightened self-governance. They believed that for the new republic to thrive, its citizens needed to be free to express dissenting views, advocate for change, and criticize the state without fear of retribution.

Balancing the rights of individuals with the needs of the state required careful consideration and compromise. The framers aimed to provide enough freedom to empower citizens while setting necessary boundaries to maintain order. The First Amendment protects free speech but doesn't shield harmful or deceitful speech that could cause real harm.

The framers' intent was to design a system that protected citizens' rights while fostering a stable and just society. Their foresight has had a lasting impact, ensuring that the First Amendment remains a cornerstone of American democracy.

Core Freedoms Protected by the First Amendment

The First Amendment enshrines five core freedoms essential to a flourishing republic:

• Freedom of speech
• Freedom of religion
• Freedom of the press
• Freedom of assembly
• Freedom to petition the government

Freedom of speech empowers individuals to express their thoughts and ideas without fear of government retaliation. It protects popular speech as well as dissenting and controversial opinions, recognizing that a healthy democracy thrives on a multiplicity of voices.

Freedom of religion protects individual beliefs from government interference and prohibits the establishment of a state religion. This separation has allowed for a richly diverse religious landscape where various faiths coexist without state preference or prejudice.

The freedom of the press serves as a watchdog against government overreach and a pillar of transparency. It allows journalists to investigate, report, and criticize government actions without fear of censorship, supporting an informed electorate.

The right to assemble peaceably allows citizens to gather for protests, rallies, and other collective actions to express common interests and advocate for change. This right has been exercised in pivotal moments throughout American history.

Finally, the right to petition the government for a redress of grievances empowers citizens to seek remedies for injustices directly from their representatives. It embodies the democratic principle that the government is answerable to its citizens.

These freedoms collectively safeguard the ability of citizens to participate actively in governance, ensuring that power remains with the people. The robust framework established by the framers endures, guiding and protecting individual rights in the constantly changing landscape of modern America.

Supreme Court Interpretations and Landmark Cases

The Supreme Court has played a pivotal role in interpreting the First Amendment and defining the boundaries of its protections. Through landmark cases, the Court has clarified what constitutes protected speech and the limits that can be imposed on it.

In Tinker v. Des Moines Independent Community School District (1969), the Court held that students wearing black armbands to protest the Vietnam War retained their First Amendment rights as long as their actions did not cause substantial disruption. 2 This decision underscored that the First Amendment protects spoken and written words as well as conduct intended to convey a particular message.

Texas v. Johnson (1989) ruled that burning the American flag as a form of political protest is protected speech under the First Amendment. 3 The Court stated that the government could not prohibit the expression of an idea simply because it is offensive or disagreeable.

Cohen v. California (1971) involved a man who wore a jacket bearing an expletive in a courthouse, protesting the draft during the Vietnam War. The Court ruled in favor of Cohen, emphasizing that the government cannot punish speech simply because it is coarse or unpleasant. 4

The Court has also addressed the limits of free speech in public schools:

• In Morse v. Frederick (2007), the Court ruled that the First Amendment does not protect student speech that promotes illegal drug use at a school-sponsored event. 5
• In Bethel School District v. Fraser (1986), the Court upheld the suspension of a student who delivered a sexually suggestive speech at a school assembly. 6

The "Pentagon Papers" case, New York Times Co. v. United States (1971), involved the government's attempt to prevent newspapers from publishing classified documents about the Vietnam War. The Court ruled that the government had not met the heavy burden of proof required for prior restraint, reinforcing the press's role as a check on government power. 7

Citizens United v. Federal Election Commission (2010) struck down restrictions on independent political expenditures by corporations and unions, holding that such spending is a form of protected speech under the First Amendment. 8

These landmark cases illustrate how the Supreme Court has navigated the complex arena of free speech, drawing lines that balance individual liberties with societal interests. The Court's decisions have reinforced the foundational principles of the First Amendment while addressing the evolving challenges of modern governance.

Modern Challenges and Controversies

In contemporary society, the First Amendment faces numerous challenges and controversies that test its boundaries and interpretation. One prominent area of debate is the regulation of social media platforms. With the rapid advancement of technology and the proliferation of digital communication, these platforms have become the new public squares where ideas are exchanged. However, as private companies, social media platforms have the authority to moderate content, which raises concerns about free speech.

Recent legal battles exemplify these tensions. For instance, various state laws have attempted to restrict the ability of social media companies to moderate content, arguing that such moderation infringes upon free speech rights. In Florida, a law aimed at penalizing platforms that deplatform political candidates faced judicial scrutiny. The U.S. District Court temporarily blocked its enforcement, underscoring that such state interventions could conflict with First Amendment protections.

Texas followed suit with a controversial law, HB 20, designed to prohibit content moderation on social media. Critics argue that these regulations unjustly compel private companies to host speech they otherwise would not, contravening their own First Amendment rights. The legal landscape remains fluid as courts weigh the balance between state interests in preserving free expression and the platforms' rights to enforce community standards.

Another contemporary issue is hate speech. Unlike many other democracies, the United States does not have explicit prohibitions against hate speech, adhering instead to a broader interpretation of free speech. The Supreme Court has consistently held that offensive speech, even that which incites hatred, is protected under the First Amendment. This stance was notably reaffirmed in the case of R.A.V. v. City of St. Paul (1992), where the Court struck down a local ordinance banning hate speech, emphasizing that the government cannot regulate speech based on its content. 1

The rise of political extremism has further complicated First Amendment jurisprudence. Extremist rhetoric has increasingly moved online, where digital anonymity and the vast reach of the internet amplify its spread. The Murthy v. Missouri case currently before the Supreme Court addresses whether the federal government overstepped by encouraging social media platforms to monitor and remove specific content. This case could set a significant precedent for how governmental influence over private digital forums is viewed under the First Amendment.

The Court is also grappling with the scope of retaliatory actions by government officials. In cases like National Rifle Association v. Vullo , the ambiguity between coercion and persuasion by state actors presents a challenging legal question. The balance between protecting free speech and addressing harmful consequences remains a pivotal concern.

Additionally, modern debates around digital communication, particularly misinformation, test the First Amendment's adaptability. The question arises: should platforms or governments bear responsibility for the veracity of the information circulating online? While the Court's rulings consistently favor broad protections for speech, the context of a digitally interconnected world calls for nuanced legal interpretations.

The ongoing discourse indicates a need for civic education to bridge gaps in understanding constitutional rights. With nearly 1 in 5 Americans unable to name a single freedom protected by the First Amendment, as revealed by surveys, educating the public on these foundational liberties becomes essential. 2 Understanding the distinction between government and private restrictions on speech is crucial, as shown by widespread misapprehension about social media responsibilities.

The Supreme Court's forthcoming decisions will undoubtedly shape the future landscape of free speech in America, reaffirming the framers' vision while adapting to contemporary realities. The enduring importance of the First Amendment lies in its role as a protector of open dialogue and diverse viewpoints within the robust framework of the United States' constitutional republic.

The Role of Civic Education

In the complex landscape of First Amendment rights, civic education is paramount. The framers of the Constitution envisaged an informed citizenry capable of understanding and exercising these liberties responsibly. However, current indicators suggest that this foundational knowledge is waning among the American public, necessitating robust efforts to revitalize civic education.

A recent survey reveals a concerning ignorance among Americans regarding their First Amendment rights:

• Nearly one in five cannot name a single freedom protected under the amendment.
• This gap in basic constitutional knowledge underscores the pressing need to strengthen civic education across the nation.

Improving civic understanding begins in schools. Integrating comprehensive civics curricula from an early age can lay a strong foundation. Courses should cover:

• The historical context
• The specific protections afforded by the First Amendment
• The significance of these freedoms in a functioning republic

Emphasizing real-world applications and encouraging active participation in civic life can further solidify this knowledge.

Public awareness campaigns can play a crucial role. Utilizing various media platforms can help disseminate information effectively. Initiatives like public service announcements, educational podcasts, and engaging online content can reach a wider audience, making the complexities of the First Amendment more accessible and relatable.

Community programs aimed at adults can fill the knowledge gaps that formal education may have missed. Workshops, town hall meetings, and public lectures by constitutional scholars and legal experts can facilitate a deeper understanding of civic rights and responsibilities.

The role of educators and policymakers in this endeavor cannot be overstated. By prioritizing civic education and allocating resources for its development, they can ensure that future generations are well-versed in their constitutional rights. Policymakers should also consider mandates that require civics as part of the standard curriculum, complemented by teacher training programs that equip educators with the necessary tools to effectively impart this critical knowledge.

In today's digital age, leveraging technology can enhance civic education. Interactive online platforms and educational apps can provide engaging and user-friendly ways to learn about the First Amendment. Virtual reality experiences, for instance, can immerse users in historical contexts, offering a dynamic way to understand the framers' intent and the evolution of First Amendment protections over time.

A well-informed citizenry is the bedrock of a resilient and vibrant constitutional republic. Ensuring that Americans comprehend the scope and importance of their First Amendment rights is not just an educational imperative but a civic duty. Through sustained and comprehensive efforts, we can uphold the enduring legacy of the First Amendment and fortify the principles that sustain the United States as a beacon of liberty and justice.

• ENCYCLOPEDIA
• IN THE CLASSROOM

Home » Articles » Case » New York Times Co. v. United States (1971)

New York Times Co. v. United States (1971)

Written by Stephen Robertson, published on August 4, 2023 , last updated on February 18, 2024

New York Times Co. v. United States (1971), also called the "Pentagon Papers" case, defended the First Amendment right of free press against prior restraint by the government. In this photo, (from left) Reporter Neil Sheehan, Managing Editor A.M. Rosenthal and Foreign News Editor James L. Greenfield are shown in an office of the New York Times in New York, May 1, 1972, after it was announced the team won the Pulitzer Prize for public service for its publication of the Pentagon Papers. Sheehan, who obtained and wrote most of the stories about the papers for the Times, was not cited in the award. (AP Photo/John Lent, republished with permission from The Associated Press)

Often referred to as the “Pentagon Papers” case, the landmark Supreme Court decision in  New York Times Co. v. United States, 403 U.S. 713 (1971) , defended the First Amendment right of free press against  prior restraint  by the government.

McNamara commissioned a secret Vietnam War study

In 1967 then Secretary of Defense Robert McNamara commissioned a secret government study on American involvement in  Vietnam . When completed in 1968, the project comprised 47 volumes containing more than 7,000 pages. The work was labeled  classified , and only 15 copies were made.

In early 1971  Daniel Ellsberg , a RAND Corporation employee who had worked on the project, secretly made copies of the documents and passed them to reporters for the New York Times. On June 13, 1971, after several months of review, the Times began to publish these so-called “ Pentagon Papers .”

After the first three installments were published, the  Nixon administration , citing national security concerns, obtained a restraining order barring further publication of the Papers. When the Second Circuit Court of Appeals affirmed the order, the Times made an emergency appeal to the Supreme Court, which agreed to hear the case the next day (June 26). The Court issued its opinions on June 30; in all, the entire legal process had taken only 15 days.

Dr. Daniel Ellsberg, source of published reports based on Pentagon Papers, places his hand on his wife’s shoulder as he talks to newsmen at the Boston federal building on June 28, 1971. Ellsberg, charged in federal warrants with unauthorized possession of top secret documents and failure to return them, arrived to surrender himself to the U.S. Attorney. Ellsberg had passed the documents to reporters at the New York Times, resulting in the case New York Times v. United States (1971). The Court decided 6-3 to allow the Times to publish the papers. (AP Photo, used with permission from the Associated Press)

Supreme Court allowed Times to continue publication

In a 6-3 decision, the Court dissolved the restraining order and allowed the Times to continue with publication. Citing  Bantam Books v. Sullivan (1963) ,  Near v. Minnesota (1931) , and  Organization for a Better Austin v. Keefe (1971) , the three-paragraph per curiam lead opinion noted that “any system of prior restraints comes to this Court bearing a heavy presumption against its constitutional validity” and “the Government thus carries a heavy burden of showing justification for the imposition of such a restraint.” In this case, the government had failed to carry that burden.

Justices differed on reasoning behind opinion

When addressing the question of why the government had failed to carry its burden, however, the Court’s majority splintered into six concurring opinions:

• On one extreme,  Justice Hugo L. Black  argued that “only a free and unrestrained press can effectively expose deception in government” and rejected any prior restraints on the press.
• Justice Byron R. White , although specifically rejecting the idea that “in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations,” refused to grant  censorship  authority to the executive branch without the authorization of Congress.
• Justice William J. Brennan Jr. , referring to  Justice Oliver Wendell Holmes’s   clear and present danger test , concluded that prior censorship would be permissible in certain circumstances, but the vague, nonspecific claims of harm to national security made in this case were insufficient to justify prior restraint.
• Justice William O. Douglas  generally agreed with Justice Black and also argued that the legislation the government used to support its case, the  Espionage Act of 1917 , did not support the government’s case.
• Justices Potter Stewart  and  Thurgood Marshall argued separately that in the absence of specific guidance by Congress, the Court should not grant the executive broad censorship power.

The New York Times resumed publication of its series of articles based on the secret Pentagon papers in its July 1, 1971 edition, after it was given the green light by the U.S. Supreme Court in New York Times v. United States. (AP Photo/Jim Wells)

Dissenters thought case had moved too quickly

The dissenters —  Chief Justice Warren E. Burger  and  Justices Harry A. Blackmun  and  John Marshall Harlan II  — each filed separate opinions. They contended (in greater or lesser detail) that the case had been resolved far too quickly to consider and resolve fully the critically important legal issues at stake, especially the needs and prerogatives of the executive.

Case is regarded as a victory for the free press, although an ambiguous one

New York Times Co. v United States generally is regarded as a seminal victory for the free press in the United States. The per curiam opinion clearly states that in any situation in which the government wishes to resort to censorship, it faces a difficult task in convincing the courts to issue the necessary legal orders.

Despite this, many First Amendment advocates have criticized the decision. Although this case supports the right to publish, its impact is diluted by the failure of the Court to produce a clearly reasoned majority opinion. The Court’s fractured majority fails to say prior restraint may never be imposed; may be imposed only if the threat to national security can be proven to be real, serious, and immediate; or may be imposed if Congress provides sufficiently clear authorization and guidelines. Thus, far from being an unambiguous declaration of support for a free press, the decision leaves open the possibility of government censorship without specifying the conditions under which the First Amendment might permit it.

This article was originally published in 2009. Stephen Robertson is a lecturer at Middle Tennessee State University. He has always had a deep interest in constitutional law and the First Amendment and explores these topics in his courses on American government and women’s rights under American law.

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The Pentagon Papers

A First Amendment Case That Made an ‘Incoherent State of the Law’

The Pentagon Papers decision, hailed as a flat-out free-speech victory, in reality had a more complicated effect.

Credit... Photo Illustration by Joan Wong. Photo: Bettmann Archive, via Getty Images.

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By Adam Liptak

• Published June 9, 2021 Updated June 14, 2021

This article is part of a special report on the 50th anniversary of the Pentagon Papers.

The Pentagon Papers case was a triumph for press freedom. Or was it?

The Supreme Court’s unsigned opinion rejecting the Nixon administration’s attempt to censor publication of a secret history of the Vietnam War was just three paragraphs long and declared only that the government had not overcome a “heavy presumption” against prior restraints — on that occasion.

The vote was, moreover, fairly close — 6 to 3. Every justice contributed a concurring or dissenting opinion, none of which got more than two votes. You need a spreadsheet to make sense of who voted for what, but the bottom line is at odds with the conventional view that the case was a flat-out First Amendment victory.

“A majority of the Supreme Court not only left open the possibility of prior restraints in other cases but of criminal sanctions being imposed on the press following publication of the Pentagon Papers themselves,” Floyd Abrams , who represented The New York Times in the case, wrote in his 2014 book, “Friend of the Court.”

There are, it turns out, two ways to understand the Pentagon Papers decision. One is that it was a potent vindication of press freedom establishing a bedrock principle: The government cannot stop the news media from providing information to citizens in a democracy.

Another view takes account of the letter and limits of the decision. Even as to prior restraints, the Supreme Court left the door slightly ajar. As to the possibility of punishing the press after publication, two justices in the majority wrote that they had no doubt that news organizations could be prosecuted under the espionage laws.

To be sure, the decision has taken on a symbolic weight that has swamped its technical holding, said Geoffrey R. Stone , a law professor at the University of Chicago and an editor of a volume of essays commemorating the 50th anniversary of the decision, “National Security, Leaks and Freedom of the Press.”

“The case created a largely overwhelming sense that the press cannot be either enjoined from or prosecuted for publishing national secrets,” he said. “That’s become the expectation as a result of Pentagon Papers.”

But even if the decision seems to have created near-absolute protection for the press, he went on, it addressed only one piece of the relationship between citizens and their government.

An intermediary — the press — was protected. But neither its sources nor its readers gained rights.

“What Pentagon Papers and its successor decisions created,” Professor Stone said, “was an incoherent state of the law.”

The decision did not live up to its promise, Anthony Lewis, a Supreme Court reporter and columnist for The Times and an authority on the First Amendment, wrote in his 1991 book, “Make No Law.”

“The Pentagon Papers case was a famous victory for the press, and for the Madisonian principle that the public must know what its government is doing,” wrote Mr. Lewis, who died in 2013. “Or so it seemed at the time. Later decisions showed that it was not much of a victory.”

Prior restraints against the press may have been effectively barred, Mr. Lewis wrote, but the Supreme Court did not hesitate to block books by former government officials who sought to write about national security secrets they had learned in the course of their employment.

In those later decisions, Professor Stone said, “the court took the view that there is no right to leak and no public right to information.”

The decision had another, darker side, wrote Alexander Bickel, the Yale law professor who argued the case for The Times in the Supreme Court.

“The American press was freer before it won its battle with the government,” he wrote in his classic 1975 book, “The Morality of Consent.”

“Through one civil and two world wars and other wars, there had never been an effort by the federal government to censor a newspaper by attempting to impose a prior restraint,” he wrote. “That spell was broken, and in a sense, freedom was thus diminished.”

Justice William O. Douglas, who was in the majority in 1971, wrote two years later that the vote had been too close and had followed two weeks of successful government-imposed censorship.

“We have allowed ominous inroads to be made on the historic freedom of the newspapers,” he wrote. “The effort to suppress the publication of the Pentagon Papers failed only by a narrow margin and actually succeeded for a brief spell in imposing prior restraint on our press for the first time in our history.”

It was unimaginable, though, that the Supreme Court would rule out prior restraints entirely, and that posed a litigation-strategy puzzle for Professor Bickel when he argued before the justices.

He conceded, at least in the abstract, that courts could stop a publication if it would “lead directly and unavoidably to a disastrous event.”

Justice Potter Stewart explored the point. What if, he asked, a disclosure of sensitive information in wartime “would result in the sentencing to death of 100 young men whose only offense had been that they were 19 years old and had low draft numbers?”

Professor Bickel tried to duck the question, but the justice pressed him: “You would say that the Constitution requires that it be published and that these men die?”

Professor Bickel yielded, to the consternation of some of The Times’s allies. “I’m afraid,” he said, “that my inclinations of humanity overcome the somewhat more abstract devotion to the First Amendment.”

As a matter of litigation tactics, it was a necessary answer, said David Rudenstine , a professor at the Benjamin N. Cardozo School of Law and the author of “The Day the Presses Stopped,” a history of the case.

“I don’t think an advocate could say anything else,” Professor Rudenstine said, “unless you really wanted to lose the case.”

Still, Professor Bickel’s response outraged the American Civil Liberties Union, which filed an unusual brief that same day disavowing Mr. Bickel’s answer. It said Justice Stewart’s question “must be answered in a totally different manner” and that “the answer is, painfully but simply, that the right of a free people to determine its destiny has been, and should continue to be, paramount to any attempt by the government to impinge upon, erode or ultimately destroy the right of the people to know.”

Professor Bickel had made another concession when he argued the case in the federal appeals court in New York. Asked for an example of a government secret that would justify a prior restraint, he posited, presciently as it turned out, one in which “the hydrogen bomb turns up.”

Eight years later, on the only other occasion on which the federal government has sought a prior restraint on national security grounds, a federal judge in Wisconsin barred The Progressive magazine from publishing an article called “The H-bomb Secret,” which included detailed instructions for making a hydrogen bomb.

While the appeal was pending, others published similar information and the government dropped its case.

As that case suggests, prior restraints that actually keep information already in the hands of the press from the public are hard to accomplish. By the time the Supreme Court ruled in the Pentagon Papers case, more than a dozen newspapers had published parts of them. These days, a whistle-blower like Daniel Ellsberg could skip the intermediaries entirely and post documents directly on the internet.

“In a contemporary context, the prohibition on prior restraints is almost irrelevant,” Professor Rudenstine said.

The more significant constraint is the possibility of criminal prosecution after the fact, one left open by some of the justices in the majority in the 1971 decision.

According to a 1975 memoir by Whitney North Seymour Jr., who was the U.S. attorney in Manhattan in the early 1970s, Richard G. Kleindienst, a deputy attorney general, suggested convening a grand jury in New York to consider criminal charges against The Times. Mr. Seymour said he refused. A grand jury was then convened in Boston, but it did not issue an indictment.

So far, there have been no prosecutions of journalists in the United States for seeking or publishing classified information, but the espionage laws on their face may well be read to forbid possession and publication of classified information by the press.

One, enacted in 1917, prohibits anyone with unauthorized access to documents or information concerning the national defense from telling others. In the Pentagon Papers case, Justice Byron R. White, joined by Justice Stewart, said “it seems undeniable that a newspaper” can be “vulnerable to prosecution” under the 1917 law.

But the law, as Harold Edgar and Benno C. Schmidt Jr. described it in a comprehensive 1973 article in the Columbia Law Review, is “in many respects incomprehensible” and “so sweeping as to be absurd.”

“If these statutes mean what they seem to say and are constitutional,” they wrote, “public speech in this country since World War II has been rife with criminality.”

At the same time, there is an almost universal consensus that the government classifies far too much information. Erwin Griswold, a former dean of Harvard Law School who argued the case for the Nixon administration as U.S. solicitor general, agreed that the classification system was broken.

“It quickly becomes apparent to any person who has considerable experience with classified material,” he wrote in a 1989 essay in The Washington Post, “that there is massive over-classification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another.”

That applied, he wrote, to the Pentagon Papers themselves. “I have never seen any trace of a threat to the national security from the publication,” he wrote. “Indeed, I have never seen it even suggested that there was such an actual threat.”

The press’s victory in the Pentagon Papers case may have been incomplete. But a loss would have been devastating.

“What would be the law today if the case had come out differently?” Professor Rudenstine asked. “It’s very possible that there could have been a prosecution of The Times. That would have changed American law quite a lot.”

“The general thought,” he said, “was that if you lost the prior restraint case that there was no chance of winning the criminal prosecution.” The opposite happened, said Lee C. Bollinger , the president of Columbia University and the other editor of “National Security, Leaks and Freedom of the Press.” “As a practical matter, the press and the government have arrived at the state of mind that there will not be prior restraints or subsequent prosecutions — that that would violate the spirit of the First Amendment,” he said. “Apart from the Progressive case, the government has not gone after the press in either form.”

But he added that this was in large part a product of mature accommodation among responsible institutions, one that was at risk during the Donald Trump administration.

“The continuing viability of a fulsome Pentagon Papers doctrine does not apply in the context of a near-authoritarian government like the one we had,” he said. “It’s those kinds of ambiguities about Pentagon Papers that makes the whole system much more vulnerable when you have a true threat to democracy.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. More about Adam Liptak

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