Notable Free Speech Cases

Why This Matters

Free speech doctrine is one of the most heavily tested areas on the AP exam. These cases don't just tell you what speech is protected; they reveal how the Supreme Court balances individual liberty against government interests like national security, public safety, and social order. You're being tested on your ability to trace how the Court's standards have evolved, from the restrictive "clear and present danger" test of the World War I era to the much more speech-protective "imminent lawless action" standard that governs today.

Understanding these cases means understanding the principles they established: incorporation, symbolic speech, prior restraint, fighting words, and the actual malice standard. Don't just memorize case names and dates. Know what legal test each case created and when that test applies. If an FRQ asks you to explain how the Court has protected unpopular speech, you need to connect specific cases to broader constitutional principles. Master the why behind each ruling, and you'll be ready for anything the exam throws at you.

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Establishing the Limits: Early Speech Restrictions

The Court's earliest free speech cases arose during times of national crisis, when the government argued that certain speech threatened public safety. These cases established that free speech is not absolute, but they also began defining where the boundaries lie.

Schenck v. United States (1919)

• Created the "clear and present danger" test: speech could be restricted if it posed a direct threat to national security or public safety
• Wartime context matters: Charles Schenck distributed anti-draft pamphlets during World War I urging men to resist conscription. The Court unanimously upheld his conviction, finding the pamphlets dangerous given wartime circumstances.
• Justice Holmes's famous analogy: falsely shouting "fire" in a crowded theater illustrated that context determines whether speech is protected. The same words might be legal in peacetime but criminal during war.

Chaplinsky v. New Hampshire (1942)

• Established the "fighting words" doctrine: words that by their very nature inflict injury or tend to incite an immediate breach of the peace fall outside First Amendment protection
• Narrow category: a Jehovah's Witness called a city marshal a "damned fascist" and "damned racketeer" face-to-face. The Court ruled these words were likely to provoke an average person to retaliation.
• Still good law today, though the Court has rarely upheld fighting words convictions since, effectively narrowing this exception over the decades

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Incorporation and State Power

One of the most significant developments in civil liberties was incorporation: the process of applying Bill of Rights protections to state governments through the Fourteenth Amendment's Due Process Clause. Free speech was among the first rights incorporated.

Gitlow v. New York (1925)

• Landmark incorporation case: established that the First Amendment's free speech protections apply to state governments, not just the federal government
• Benjamin Gitlow published a socialist manifesto called "The Left Wing Manifesto" advocating revolutionary mass action to overthrow the government. His conviction was actually upheld, but the incorporation principle the Court announced in the process transformed constitutional law.
• Selective incorporation began here: the Court stated that freedom of speech and press are "among the fundamental personal rights" protected by the Fourteenth Amendment. This opened the door for nearly all Bill of Rights protections to eventually apply to states.

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The Modern Standard: Imminent Lawless Action

By the late 1960s, the Court significantly strengthened free speech protections, establishing the standard that still governs today. Speech can only be restricted if it is directed toward producing imminent lawless action AND is likely to produce such action.

Brandenburg v. Ohio (1969)

• Replaced "clear and present danger" with the stricter "imminent lawless action" test: a major expansion of speech protection
• Even hateful speech is protected: a Ku Klux Klan leader's racist rally speech was protected because it amounted to abstract advocacy of violence, not incitement of immediate illegal conduct
• Two-part test: the government must prove speech (1) was directed at producing imminent lawless action AND (2) was likely to actually produce such action. Both prongs must be met. Abstract advocacy of illegal action, no matter how repugnant, is protected.

Cohen v. California (1971)

• Protected offensive but non-inciting speech: Paul Robert Cohen wore a jacket reading "F*** the Draft" in a Los Angeles courthouse corridor and was arrested for disturbing the peace
• "One man's vulgarity is another's lyric": Justice Harlan's opinion rejected the idea that government can act as a guardian of public morality by cleansing political debate
• Emotive expression matters: the Court recognized that how we say something can be as important as what we say. Stripping away the emotional force of language can alter the message itself.

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Symbolic Speech and Expression

The First Amendment protects more than just spoken or written words. Symbolic conduct that communicates a message receives constitutional protection, even when that message offends the majority.

Tinker v. Des Moines (1969)

• "Students do not shed their constitutional rights at the schoolhouse gate": this quote appears constantly on AP exams, so know it cold
• Symbolic speech protected: Mary Beth Tinker and other students wore black armbands to school to protest the Vietnam War. The school suspended them preemptively, but the Court sided with the students.
• Substantial disruption test: schools can only restrict student speech if it materially and substantially disrupts school operations or invades the rights of others. Mere discomfort or an "undifferentiated fear of disturbance" is not enough.

Texas v. Johnson (1989)

• Flag burning is protected symbolic speech: the government cannot prohibit expression simply because society finds it deeply offensive
• Content neutrality principle: Gregory Lee Johnson burned an American flag outside the 1984 Republican National Convention in Dallas to protest Reagan administration policies. His conviction under a Texas flag desecration statute was overturned in a 5-4 decision.
• Highly controversial but legally clear: Justice Brennan wrote that "if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself disagreeable or offensive."

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Press Freedom and Public Discourse

A free press is essential to democracy, but what happens when reporting is inaccurate or harmful? The Court has balanced press freedom against reputational interests by creating different standards for public and private figures.

New York Times Co. v. Sullivan (1964)

• Created the "actual malice" standard: public officials suing for defamation must prove the statement was made with knowledge of its falsity or with reckless disregard for whether it was true or false
• Protects robust debate: a full-page fundraising advertisement in the New York Times criticizing the treatment of civil rights protesters in Montgomery, Alabama, contained several minor factual errors. L.B. Sullivan, the city commissioner overseeing police, won a $500,000 judgment in Alabama state court. The Supreme Court reversed, ruling that honest mistakes in political speech must be tolerated to avoid chilling public debate.
• Chilling effect concern: without this protection, fear of costly defamation lawsuits would silence legitimate criticism of government officials

Miller v. California (1973)

• Established the three-part Miller test for obscenity: material is unprotected only if it meets all three prongs:
  1. The average person, applying contemporary community standards, would find the work appeals to prurient interest
  2. The work depicts or describes sexual conduct in a patently offensive way
  3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value (remember the acronym SLAPS)
• Community standards apply: what counts as obscene can vary by locality rather than being judged by a single national standard
• Obscenity remains unprotected, but the test is deliberately hard to satisfy, so most sexual content ends up receiving First Amendment protection in practice

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Money as Speech: Campaign Finance

One of the most controversial modern speech questions is whether spending money on political campaigns constitutes protected expression. The Court has largely said yes, treating campaign expenditures as a form of political speech.

Citizens United v. Federal Election Commission (2010)

• Corporate political spending is protected speech: the government cannot restrict independent political expenditures by corporations, unions, or other associations
• Overturned prior precedent: struck down provisions of the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold) that prohibited corporations and unions from funding "electioneering communications" (broadcast ads mentioning a candidate) within 30 days of a primary or 60 days of a general election
• Ongoing controversy: critics argue this decision equates money with speech and gives wealthy interests outsized political influence; supporters say it protects the right of groups to engage in political association and advocacy

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Quick Reference Table

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Self-Check Questions

1. Which two cases both protect symbolic political protest, and what distinguishes the contexts in which they apply?

2. How did Brandenburg v. Ohio change the standard established in Schenck v. United States, and why does this represent an expansion of speech protection?

3. If an FRQ asks you to explain how the Court balances free speech against public safety, which cases would you use to show the evolution of the Court's approach?

4. Compare the "fighting words" doctrine from Chaplinsky with the ruling in Cohen v. California. Why was one speaker's offensive language restricted while the other's was protected?

5. A state passes a law making it illegal to criticize elected officials. Using Gitlow and NYT v. Sullivan, explain why this law would be unconstitutional.