Notable Free Speech Cases

Why This Matters

Free speech doctrine is one of the most heavily tested areas on the AP exam—and for good reason. 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 over time, 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.

---

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, which the Court found dangerous given the circumstances
• Justice Holmes's famous analogy: falsely shouting "fire" in a crowded theater illustrated that context determines whether speech is protected

Chaplinsky v. New Hampshire (1942)

• Established the "fighting words" doctrine—words that by their very nature inflict injury or incite immediate violence fall outside First Amendment protection
• Narrow category: a Jehovah's Witness calling a marshal a "damned fascist" was deemed 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

---

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 advocating government overthrow; his conviction was upheld, but the incorporation principle transformed constitutional law
• Selective incorporation began here: this case opened the door for nearly all Bill of Rights protections to eventually apply to states

---

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 KKK leader's racist rally speech was protected because it didn't incite immediate violence
• Two-part test: government must prove speech (1) intended to produce imminent lawless action AND (2) was likely to do so

Cohen v. California (1971)

• Protected offensive but non-inciting speech—wearing a jacket saying "F*** the Draft" in a courthouse was constitutionally protected
• "One man's vulgarity is another's lyric": Justice Harlan's opinion rejected the idea that government can sanitize public discourse
• Emotive expression matters: the Court recognized that how we say something can be as important as what we say

---

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
• Symbolic speech protected: black armbands worn to protest the Vietnam War were pure political expression
• Substantial disruption test: schools can only restrict student speech if it materially and substantially disrupts educational operations

Texas v. Johnson (1989)

• Flag burning is protected symbolic speech—the government cannot prohibit expression simply because society finds it offensive
• Content neutrality principle: Gregory Lee Johnson burned a flag at the 1984 Republican National Convention; his conviction was overturned
• Highly controversial but legally clear: even speech that provokes outrage serves the marketplace of ideas

---

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 reckless disregard for the truth
• Protects robust debate: an advertisement criticizing Alabama officials contained minor errors, but the Court ruled that honest mistakes in political speech must be tolerated
• Chilling effect concern: without this protection, fear of lawsuits would silence legitimate criticism of government

Miller v. California (1973)

• Established the three-part Miller test for obscenity—material is unprotected if it appeals to prurient interests, depicts sexual conduct in a patently offensive way, AND lacks serious literary, artistic, political, or scientific value (SLAPS)
• Community standards apply: what's obscene varies by locality, not a single national standard
• Obscenity remains unprotected, but the test is difficult to meet, so most sexual content receives First Amendment protection

---

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 expenditures by corporations, unions, or associations
• Overturned prior precedent: struck down parts of the Bipartisan Campaign Reform Act (McCain-Feingold) limiting corporate electioneering
• Ongoing controversy: critics argue this equates money with speech and gives wealthy interests outsized influence; supporters say it protects political association

---

Quick Reference Table

---

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.