Free Speech Supreme Court Cases
The First Amendment to the U.S. Constitution provides that the government must not “abridge the freedom of speech, or of the press.” Free speech has long been considered one of the pillars of a democracy. Explaining its importance, Justice Oliver Wendell Holmes, Jr. declared that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” A faith in this marketplace of ideas continues to buttress First Amendment law.
Since the First World War, the Supreme Court has grappled with how far the government can go in restricting speech. This often requires asking a threshold question: what is “speech” for First Amendment purposes? The Supreme Court has found that speech may extend beyond the spoken and written word into the area of expressive conduct, in which actions send a symbolic message. For example, burning a flag or wearing a black arm band has received First Amendment protection. Cases involving campaign financing have shown that sometimes even certain uses of money are considered speech.
The distinction between content-based and content-neutral laws has played a key role in free speech cases. Content-based laws regulate speech based on its substance, while content-neutral laws generally control the time, place, and manner of speech. The government bears a heavy burden in defending content-based restrictions, since they are subject to strict scrutiny. In contrast, content-neutral regulations are reviewed under a form of intermediate scrutiny, which means that they are more likely to survive a challenge.
Below is a selection of Supreme Court cases involving free speech, arranged from newest to oldest.
Author: Neil Gorsuch
The First Amendment prohibits a state from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.
Counterman v. Colorado (2023)
Author: Elena Kagan
Although true threats of violence are outside the bounds of First Amendment protection, the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of their statements. However, the state only needs to prove recklessness, which means that the defendant consciously disregarded a substantial risk that their communications would be viewed as threatening violence.
City of Austin v. Reagan National Advertising of Austin (2022)
Author: Sonia Sotomayor
A distinction between on-premises and off-premises signs was facially content neutral under the First Amendment and thus not subject to strict scrutiny.
Manhattan Community Access Corp. v. Halleck (2019)
Author: Brett Kavanaugh
When a private entity operates public access channels on a cable system, it is not performing a traditional, exclusive public function, and it is not transformed into a state actor by opening its property for speech by others. Thus, it is not subject to First Amendment constraints on its editorial discretion.
Janus v. AFSCME (2018)
Author: Samuel A. Alito, Jr.
The state's extraction of agency fees from non-consenting public-sector employees violates the First Amendment.
Minnesota Voters Alliance v. Mansky (2018)
Author: John Roberts
A ban on voters wearing a political badge, political button, or anything bearing political insignia inside a polling place on Election Day violated the Free Speech Clause.
Heffernan v. City of Paterson (2016)
Author: Stephen Breyer
When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer's actions are based on a factual mistake about the employee's behavior.
Reed v. Town of Gilbert (2015)
Author: Clarence Thomas
Since content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. Speech regulation is content-based if a law applies to particular speech because of the topic discussed or the idea or message expressed.
McCutcheon v. FEC (2014)
Author: John Roberts
Congress may regulate campaign contributions to protect against corruption or the appearance of corruption, but it may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.
Lane v. Franks (2014)
Author: Sonia Sotomayor
A public employee's sworn testimony outside the scope of their ordinary job duties is entitled to First Amendment protection.
U.S. v. Alvarez (2012)
Author: Anthony Kennedy
There is no general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression that the First Amendment seeks to guarantee.
Brown v. Entertainment Merchants Ass'n (2011)
Author: Antonin Scalia
Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium.
Sorrel v. IMS Health, Inc. (2011)
Author: Anthony Kennedy
Speech in aid of pharmaceutical marketing is a form of expression protected by the Free Speech Clause.
Snyder v. Phelps (2011)
Author: John Roberts
The First Amendment can serve as a defense in state tort claims, including claims for intentional infliction of emotional distress. Whether the First Amendment prohibits holding a defendant liable for their speech turns largely on whether the speech is of public or private concern, as determined by all the circumstances of the case.
Citizens United v. FEC (2010)
Author: Anthony Kennedy
The government may not suppress political speech on the basis of the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of non-profit or for-profit corporations.
Pleasant Grove City v. Summum (2009)
Author: Samuel A. Alito, Jr.
The placement of a permanent monument in a public park is a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.
Morse v. Frederick (2007)
Author: John Roberts
A principal may restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use.
Garcetti v. Ceballos (2006)
Author: Anthony Kennedy
When public employees make statements pursuant to their official duties, the Constitution does not insulate their communications from employer discipline.
Ashcroft v. ACLU II (2004)
Author: Anthony Kennedy
When plaintiffs challenge a content-based speech restriction, the government has the burden to prove that the proposed alternatives will not be as effective as the challenged statute.
Virginia v. Black (2003)
Author: Sandra Day O’Connor
While a state may ban cross burning carried out with the intent to intimidate, a provision in a statute treating any cross burning as prima facie evidence of intent to intimidate rendered the statute unconstitutional.
McConnell v. FEC (2003)
Author: William Rehnquist
The governmental interest in preventing the actual or apparent corruption of federal candidates and officeholders constitutes a sufficiently important interest to justify contribution limits.
Republican Party of Minnesota v. White (2002)
Author: Antonin Scalia
A canon of judicial conduct that prohibits a candidate for a judicial office from announcing their views on disputed legal or political issues violates the First Amendment.
Ashcroft v. ACLU I (2002)
Author: Clarence Thomas
A law's reliance on community standards to identify what material is harmful to minors did not by itself render the statute substantially overbroad for First Amendment purposes.
Legal Services Corp. v. Velazquez (2001)
Author: Anthony Kennedy
Viewpoint-based funding decisions may be sustained when the government is the speaker, or when the government uses private speakers to transmit information pertaining to its own program. It does not follow that viewpoint-based restrictions are proper when the government does not speak or subsidize transmittal of a message that it favors but instead expends funds to encourage a diversity of views from private speakers.
National Endowment for the Arts v. Finley (1998)
Author: Sandra Day O’Connor
Although the First Amendment applies in the subsidy context, Congress has wide latitude to set spending priorities. Also, when the government is acting as patron rather than sovereign, the consequences of imprecision in its decision-making criteria are not constitutionally severe.
Reno v. ACLU (1997)
Author: John Paul Stevens
Although the government has an interest in protecting children from potentially harmful materials, a law cannot pursue this interest by suppressing a large amount of speech that adults have a constitutional right to send and receive if less restrictive alternatives would be at least as effective in achieving the law's legitimate purposes.
Rosenberger v. Rector and Visitors of the University of Virginia (1995)
Author: Anthony Kennedy
In determining whether the government is acting to preserve the limits of the forum that it has created so that the exclusion of a class of speech is legitimate, there is a distinction between content discrimination and viewpoint discrimination. Content discrimination may be permissible if it preserves the purposes of the limited forum. Viewpoint discrimination is presumed impermissible when directed against speech that is otherwise within the forum's limitations. Also, the guarantee of neutrality toward religion is respected when the government, following neutral criteria and even-handed policies, extends benefits to recipients whose ideologies and viewpoints, including some that are religious, are broad and diverse.
Forsyth County v. Nationalist Movement (1992)
Author: Harry Blackmun
Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.
R.A.V. v. City of St. Paul (1992)
Author: Antonin Scalia
Areas of speech that can be regulated because of their constitutionally proscribable content still cannot be made vehicles for content discrimination unrelated to their distinctively proscribable content. However, when the basis for the content discrimination consists entirely of the very reason why the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular secondary effects of the speech, so the regulation is justified without reference to the content of the speech.
Barnes v. Glen Theatre, Inc. (1991)
Author: William Rehnquist
Nude dancing at adult entertainment establishments is expressive conduct within the outer perimeters of the First Amendment, but only marginally so. The enforcement of a public indecency law to prevent totally nude dancing does not violate the First Amendment guarantee of freedom of expression.
Rust v. Sullivan (1991)
Author: William Rehnquist
The government may make a value judgment favoring childbirth over abortion and implement that judgment by the allocation of public funds. In so doing, the government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another.
Texas v. Johnson (1989)
Author: William Brennan
The government generally has a freer hand in restricting expressive conduct than in restricting the written or spoken word. However, it may not proscribe particular conduct because it has expressive elements.
Ward v. Rock Against Racism (1989)
Author: Anthony Kennedy
Even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided that the restrictions are justified without reference to the content of the regulated speech, they are narrowly tailored to serve a significant governmental interest, and they leave open ample alternative channels for communication of the information.
Hazelwood School District v. Kuhlmeier (1988)
Author: Byron White
Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns.
Bethel School District v. Fraser (1986)
Author: Warren Burger
The use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a public school.
FCC v. League of Women Voters (1984)
Author: William Brennan
A broad ban on all editorializing by every broadcast station that receives public funds exceeds what is necessary to protect against the risk of government interference or to prevent the public from assuming that editorials by public broadcasting stations represent the official view of the government.
Connick v. Myers (1983)
Author: Byron White
When a public employee speaks as an employee on matters only of personal interest, a federal court is generally not the appropriate forum to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.
New York v. Ferber (1982)
Author: Byron White
States are entitled to greater leeway in the regulation of pornographic depictions of children. The standard of Miller v. California for determining what is legally obscene is not a satisfactory solution to the child pornography problem.
Givhan v. Western Line Consolidated School District (1979)
Author: William Rehnquist
A public employee does not forfeit their First Amendment protection when they arrange to communicate privately with their employer, rather than expressing their views publicly.
Buckley v. Valeo (1976)
Author: Per Curiam
Restrictions on individual contributions to political campaigns and candidates did not violate the First Amendment. However, restrictions on independent expenditures in campaigns, limits on expenditures by candidates from their personal or family resources, and limits on total campaign expenditures violated the First Amendment. Also, any appointee exercising significant authority pursuant to the laws of the United States is an “Officer of the United States” and must be appointed in the manner prescribed by the Appointments Clause.
Gertz v. Robert Welch, Inc. (1974)
Author: Lewis Powell
So long as they do not impose liability without fault, states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood that injures a private individual and whose substance makes substantial danger to reputation apparent.
Paris Adult Theatre I v. Slaton (1973)
Author: Warren Burger
States have a legitimate interest in regulating commerce in obscene material and its exhibition in places of public accommodation, including adult theaters.
Miller v. California (1973)
Author: Warren Burger
The guidelines for the trier of fact in an obscenity case are whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Branzburg v. Hayes (1972)
Author: Byron White
The First Amendment does not relieve a newspaper reporter of the obligation to respond to a grand jury subpoena and answer questions relevant to a criminal investigation. Therefore, the First Amendment does not afford a reporter a constitutional testimonial privilege for an agreement that they make to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of their source or evidence of it.
Cohen v. California (1971)
Author: John Marshall Harlan II
A state could not make the simple public display of a single four-letter expletive a criminal offense.
Red Lion Broadcasting Co., Inc. v. FCC (1969)
Author: Byron White
It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail. The right of the viewers and listeners, rather than the right of the broadcasters, is paramount.
Brandenburg v. Ohio (1969)
Author: Per Curiam
Freedoms of speech and press do not permit a state to forbid advocacy of the use of force or of law violation except when such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Tinker v. Des Moines Independent Community School District (1969)
Author: Abe Fortas
A student may express their opinions, even on controversial subjects, if they do so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school, and without colliding with the rights of others. However, conduct by a student that materially disrupts classwork or involves substantial disorder or invasion of the rights of others is not immunized by the constitutional guarantee of freedom of speech.
Pickering v. Board of Education (1968)
Author: Thurgood Marshall
When a public employee's false statements concerned issues that were currently the subject of public attention and did not interfere with the performance of their duties or the general operation of their employer, they were entitled to the same protection as if the statements had been made by a member of the general public.
U.S. v. O'Brien (1968)
Author: Earl Warren
When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms. A government regulation is sufficiently justified if it is within the constitutional power of the government, it furthers an important or substantial governmental interest, the governmental interest is unrelated to the suppression of free expression, and the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
Curtis Publishing Co. v. Butts (1967)
Author: John Marshall Harlan II
A public figure who is not a public official may recover damages for defamatory falsehood substantially endangering their reputation on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily maintained by responsible publishers. (In a concurrence, Justice Warren advised applying the New York Times standard.)
Cox v. Louisiana (1965)
Author: Arthur Goldberg
Allowing unfettered discretion to local officials in the regulation of the use of the streets for peaceful parades and meetings is an unwarranted abridgment of freedom of speech.
New York Times Co. v. Sullivan (1964)
Author: William Brennan
A state cannot award damages to a public official for defamatory falsehood related to their official conduct unless they prove actual malice, which means that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.
Roth v. U.S. (1957)
Author: William Brennan
Obscenity is not within the area of constitutionally protected freedom of speech or press under the First Amendment.
Joseph Burstyn, Inc. v. Wilson (1952)
Author: Tom C. Clark
Expression by means of motion pictures is included within the free speech and free press guaranty of the First Amendment. A state may not place a prior restraint on the showing of a motion picture on the basis of a censor's conclusion that it is sacrilegious.
Beauharnais v. Illinois (1952)
Author: Felix Frankfurter
In the face of a history of tension and violence and its frequent obligato of extreme racial and religious propaganda, a state legislature was not without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented.
Dennis v. U.S. (1951)
Author: Fred M. Vinson
Courts must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.
Feiner v. New York (1951)
Author: Fred M. Vinson
When a speaker passes the bounds of argument or persuasion and undertakes incitement to riot, the police are not powerless to prevent a breach of the peace.
Terminiello v. Chicago (1949)
Author: William O. Douglas
Freedom of speech, although not absolute, is protected against censorship or punishment unless it is shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.
West Virginia State Board of Education v. Barnette (1943)
Author: Robert H. Jackson
The action of a state in making it compulsory for children in public schools to salute the flag and pledge allegiance violates the First Amendment. The issue does not turn on the possession of particular religious views or the sincerity with which they are held. (This decision overturned Gobitis.)
Chaplinsky v. New Hampshire (1942)
Author: Frank Murphy
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words, which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
Cantwell v. Connecticut (1940)
Author: Owen Josephus Roberts
When a clear and present danger of riot, disorder, interference with traffic on the public streets, or other immediate threat to public safety, peace, or order appears, the power of the state to prevent or punish is obvious.
Near v. Minnesota (1931)
Author: Charles Evans Hughes
In determining the extent of the constitutional protection for the freedom of the press, it has been generally considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication.
Whitney v. California (Brandeis concurrence) (1927)
Author: Louis Brandeis
No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.
Gitlow v. New York (1925)
Author: Edward Terry Sanford
The government cannot reasonably be required to defer taking measures against revolutionary utterances advocating the overthrow of organized government until they lead to actual disturbances of the peace or imminent danger of the government's destruction. (This case is also significant for applying the First Amendment to the states via the Fourteenth Amendment.)
Abrams v. U.S. (Holmes dissent) (1919)
Author: Oliver Wendell Holmes, Jr.
It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion when private rights are not concerned.
Debs v. U.S. (1919)
Author: Oliver Wendell Holmes, Jr.
The delivery of a speech in such word and such circumstances that the probable effect will be to prevent recruiting, and with that intent, is not protected because of the fact that the purpose to oppose the war and obstruct recruiting, and the expressions used in that regard, were but incidental parts of a general propaganda of socialism and expressions of a general and conscientious belief.
Frohwerk v. U.S. (1919)
Author: Oliver Wendell Holmes, Jr.
The First Amendment, while prohibiting legislation against free speech as such, was not intended to give immunity to every possible use of language.
Schenck v. U.S. (1919)
Author: Oliver Wendell Holmes, Jr.
Words that, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
