first amendment short essay

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Freedom of Speech

By: History.com Editors

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

Freedom of speech—the right to express opinions without government restraint—is a democratic ideal that dates back to ancient Greece. In the United States, the First Amendment guarantees free speech, though the United States, like all modern democracies, places limits on this freedom. In a series of landmark cases, the U.S. Supreme Court over the years has helped to define what types of speech are—and aren’t—protected under U.S. law.

The ancient Greeks pioneered free speech as a democratic principle. The ancient Greek word “parrhesia” means “free speech,” or “to speak candidly.” The term first appeared in Greek literature around the end of the fifth century B.C.

During the classical period, parrhesia became a fundamental part of the democracy of Athens. Leaders, philosophers, playwrights and everyday Athenians were free to openly discuss politics and religion and to criticize the government in some settings.

First Amendment

In the United States, the First Amendment protects freedom of speech.

The First Amendment was adopted on December 15, 1791 as part of the Bill of Rights—the first ten amendments to the United States Constitution . The Bill of Rights provides constitutional protection for certain individual liberties, including freedoms of speech, assembly and worship.

The First Amendment doesn’t specify what exactly is meant by freedom of speech. Defining what types of speech should and shouldn’t be protected by law has fallen largely to the courts.

In general, the First Amendment guarantees the right to express ideas and information. On a basic level, it means that people can express an opinion (even an unpopular or unsavory one) without fear of government censorship.

It protects all forms of communication, from speeches to art and other media.

Flag Burning

While freedom of speech pertains mostly to the spoken or written word, it also protects some forms of symbolic speech. Symbolic speech is an action that expresses an idea.

Flag burning is an example of symbolic speech that is protected under the First Amendment. Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the Reagan administration.

The U.S. Supreme Court , in 1990, reversed a Texas court’s conviction that Johnson broke the law by desecrating the flag. Texas v. Johnson invalidated statutes in Texas and 47 other states prohibiting flag burning.

When Isn’t Speech Protected?

Not all speech is protected under the First Amendment.

Forms of speech that aren’t protected include:

• Obscene material such as child pornography
• Plagiarism of copyrighted material
• Defamation (libel and slander)
• True threats

Speech inciting illegal actions or soliciting others to commit crimes aren’t protected under the First Amendment, either.

The Supreme Court decided a series of cases in 1919 that helped to define the limitations of free speech. Congress passed the Espionage Act of 1917, shortly after the United States entered into World War I . The law prohibited interference in military operations or recruitment.

Socialist Party activist Charles Schenck was arrested under the Espionage Act after he distributed fliers urging young men to dodge the draft. The Supreme Court upheld his conviction by creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, they viewed draft resistant as dangerous to national security.

American labor leader and Socialist Party activist Eugene Debs also was arrested under the Espionage Act after giving a speech in 1918 encouraging others not to join the military. Debs argued that he was exercising his right to free speech and that the Espionage Act of 1917 was unconstitutional. In Debs v. United States the U.S. Supreme Court upheld the constitutionality of the Espionage Act.

Freedom of Expression

The Supreme Court has interpreted artistic freedom broadly as a form of free speech.

In most cases, freedom of expression may be restricted only if it will cause direct and imminent harm. Shouting “fire!” in a crowded theater and causing a stampede would be an example of direct and imminent harm.

In deciding cases involving artistic freedom of expression the Supreme Court leans on a principle called “content neutrality.” Content neutrality means the government can’t censor or restrict expression just because some segment of the population finds the content offensive.

Free Speech in Schools

In 1965, students at a public high school in Des Moines, Iowa , organized a silent protest against the Vietnam War by wearing black armbands to protest the fighting. The students were suspended from school. The principal argued that the armbands were a distraction and could possibly lead to danger for the students.

The Supreme Court didn’t bite—they ruled in favor of the students’ right to wear the armbands as a form of free speech in Tinker v. Des Moines Independent School District . The case set the standard for free speech in schools. However, First Amendment rights typically don’t apply in private schools.

What does free speech mean?; United States Courts . Tinker v. Des Moines; United States Courts . Freedom of expression in the arts and entertainment; ACLU .

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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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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

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.

US Government

First amendment.

• It is sometimes called Amendment I.
• Although it is not specifically mentioned, the Supreme Court ruled that the First Amendment also protects the freedom of association.
• The rights of petition and assembly are often combined together as one right called the "right to petition and assembly."
• Different types of speech have different amounts of freedom. For example, political speech is considered different from commercial speech (like advertisements).
• Take a quiz about this page.
• Listen to a recorded reading of this page:

Home — Essay Samples — Law, Crime & Punishment — American Law — First Amendment

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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4th and 5th Grade Students Debate the First Amendment: Which Freedom Is Most Important?

Posted on February 7, 2024

The First Amendment to the U.S. Constitution protects five freedoms: freedom of religion, freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government for redress of grievances.

Of these, which freedom do students think is the most important and why?

That is the question that was asked of 4 th and 5 th grade students across Pennsylvania for the 10 th annual Citizenship Challenge , an essay-and-presentation competition sponsored by the Rendell Center for Civics and Civic Engagement in partnership with the Annenberg Public Policy Center .

The 2023-24 contest drew over 250 essay submissions from students. In some cases, a class sent in a single submission, while in other cases, a class might submit a package of essays from students working individually or in teams. The 11 finalists were invited to the National Constitution Center on Jan. 18, 2024, where they brought their ideas to life in short skits and songs performed before parents, teachers, and a panel of judges.

The full question asked of the students read:

“The First Amendment in the Bill of Rights in the American Constitution guarantees individual rights and is a foundation for life in the United States.  In your own words, explain the amendment, its importance to Americans, and indicate which freedom you think is most important and why.”

“Just think of what the founders did: They gave us the freedoms – to speak, freedom of the press, assembly, religion, all these great things you’re going to be speaking about,” said Marjorie Rendell, a senior judge on the U.S. Third Circuit Court of Appeals and cofounder of the Rendell Center with former Pennsylvania governor Ed Rendell, in her introduction.

The three-judge panel comprised former U.S. Treasurer Rosie Rios, now chair of the U.S. Semiquincentennial Commission; the Hon. Theodore McKee, a senior judge on the U.S. Third Circuit Court of Appeals; and former Pennsylvania secretary of education Gerald Zahorchak.

This year’s four winning entries all selected freedom of speech as the most critical. As the first-place team, Buckingham Elementary School’s 5th grade class, wrote: “Our class had lengthy debates over the merits of each part of the amendment. We were not willing to give up any of these rights and we talked a lot about how our lives would be different if any of these rights were taken away. The more we discussed, we realized that the freedom of speech was a necessary part for the other four freedoms. Freedom of Speech was like a foundation or starting point.”

The class essay continued: “If you don’t have free speech, then you won’t have a free press that isn’t controlled by the government. If you don’t have free speech, you can’t express your religious beliefs or protest the government. While the right to gather doesn’t 100% depend on free speech, we felt that the government would try to control gatherings if free speech doesn’t exist to make sure there was no anti-government talk. As a result, we feel that the Freedom of Speech part of the First Amendment to the Constitution is the most important right upon which many other rights build their foundation.”

The winners were:

1 st place: Buckingham Elementary School, Linda Monkoski’s 5 th grade class

2 nd place (tie): Glenwood Elementary School, Rachael Pinsley’s 5 th grade class; William Penn Charter School, Ms. Davenport-Mrs. Durso’s 5 th grade class

3 rd place: Upper Moreland Intermediate School, Amanda Gilman’s 5 th grade class

See the student performances on Pennsylvania Cable Network’s website. At the PCN link below, scroll down to Elections and select the video for Citizenship Challenge, 01/18/24.

https://pcntv.com/pennsylvania-politics-and-policy/civics101/civics-101-vod/

The first-place team won $1,000 to be used toward a program that promotes civics learning and engagement across the student body, while each of the runners-up won $500 to be used toward a program that promotes civics learning and engagement.

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Stories of the First Amendment in Action

Why during a global pandemic, in a time of profound civil unrest, when tens of millions of Americans are facing economic hardship, and public trust in journalists is eroding precipitously, are we talking about the First Amendment?

Because URI aspires to be a place where civil discourse creates change and students feel safe, supported, and free to express their views in classroom debates or campus protests. So we asked faculty, students, alumni, and staff to share how they are guided by the First Amendment in their work and their lives.

Stories of the First Amendment in Action Part 1

Speaking truth.

The freedoms protected by the First Amendment are essential to democracy and to the mission and values of higher education. Without the freedom to express and explore new, different, and sometimes controversial ideas, how would society evolve?

The stories that follow are profiles in courage, integrity, and citizenship. They illustrate the importance of our freedom — and responsibility — to exercise our First Amendment rights.

We begin with accounts of award-winning journalists — Christiane Amanpour ’83, Hon. ’95, Vladimir Duthiers ’91, Hon. ’17, Thomas Farragher ’77, Hon. ’17, Betty J. Cotter , and the late Jim Taricani Hon. ’18 — who’ve stood nose-to-nose with formidable institutions to hold the powerful accountable and put vital information in the public view.

“Be truthful, not neutral.”

Christiane amanpour ’83, hon. ’95.

Bosnia was a different war.

“It was a different animal,” CNN chief international anchor and host of PBS’s Amanpour & Company Christiane Amanpour told a packed Edwards Auditorium last September at the annual lecture series bearing her name. An animal hell-bent on annihilation.

Six months after the first Gulf War, Amanpour was covering the dissolution of the former Yugoslavia. “This was a civil war that was building to a genocide,” Amanpour said. “This was something that affected me personally.”

Journalists are taught that objectivity is fairness and that their reporting should reflect all viewpoints. But, in the case of the Bosnian genocide, practicing objectivity wasn’t necessarily getting to the truth, Amanpour discovered. “Be truthful, not neutral: I learned that in Sarajevo,” she said. It’s become her tagline.

“And it came about because we were telling the truth: stories of civilians — men, women, and children — being brutalized, besieged by the Bosnian Serbs, and their patrons, the Serbs, who had the armor, the personnel, the agenda — and who wanted to ethnically cleanse parts of Bosnia to create a white, nationalist, Serb entity to carve off and attach as a greater Serbia. They thought this was their opportunity.”

World leaders did nothing, Amanpour said.

“Not the president of the United States, not the prime minister of Great Britain, nor the president of France. None of our democratic leaders wanted to follow their international duty under the Geneva Convention, which says when you see ethnic cleansing, genocide, deep violations of the most important international laws, you actually have to respond,” Amanpour said.

But because the war happened in the era of 24/7 news, the world watched. “We didn’t just do one story. We did all the important stories for years,” Amanpour said. “Bosnia was the leading story around the world — in the United States, in Europe, and in Muslim countries — because it was Muslim civilians, European Muslims, who were being slaughtered like animals.”

CNN and Amanpour were accused of bias. “I was upset, and I had to re-examine our golden rule, objectivity,” Amanpour told the audience. “It made me examine what I was doing and what we had to do as journalists. What I had done was tell the truth. When you get all sides of the story, you’re being objective. But when you then mistakenly believe that objectivity is neutrality, you create a false factual and false moral equivalence.

“In these situations, if you do that, you are an accomplice.”

Such situations underscore the value of the fourth estate, and, by association, the First Amendment, Amanpour said. “We like to call ourselves the fourth estate. That’s not just a throwaway title. That means we are fundamental pillars of what creates and maintains a strong and robust democracy,” Amanpour said. “In countries where there is a strong journalistic profession, the countries are healthier.

“And in this world where information is one of the most important and valuable commodities, those who are the purveyors of the information, i.e., the journalists, have to continue to do that in an environment that is safe and free.”

“They would not be forgotten.”

Vladimir duthiers ’91, hon. ’17.

On a spring evening in Nigeria in April 2014, 276 Chibok schoolgirls were kidnapped by the terrorist group Boko Haram. The world wanted the girls returned; the Nigerian government felt the pressure. At a Nigerian Ministry of Defence press briefing on the kidnappings, a government official threw a crumpled piece of paper at then-CNN correspondent Vladimir Duthiers. In Nigeria, reporting the government unfavorably was tantamount to sedition.

“The official said, ‘Vlad, stop being disrespectful. Stop propagandizing Nigeria,'” Duthiers recalls. “They believed the reporting we were doing was making them out to be bad guys. It was the first time I heard charges of unreal or fake news.”

In that moment, Duthiers, now a CBS News correspondent and CBSN anchor, realized that wadded paper lobbed in your direction could be a threat. It wasn’t the first time Duthiers risked retribution for his reporting. It wasn’t even the first time that year. In January of 2014, CNN reported on the first gay Nigerian to come out on television.

That year Nigeria signed the Same-Sex Marriage Prohibition Act into law. Duthiers’ job put him at great risk. “I could be thrown in jail for 10 years under this new law,” Duthiers said in a television interview with Christiane Amanpour. The law made it illegal for anyone to associate with a person perceived to be homosexual.

But Duthiers was of the Amanpour school of journalism. “Nigeria has freedom of the press. Its journalists can be outspoken and critical, but they face harassment and violence. As an American journalist, what was horrific to see in Nigeria was people being rounded up on suspicion of LGBTQ activity,” Duthiers says. “People with no access to lawyers. It was very clear to the American journalists that this was not America.

“The First Amendment was something we dealt with every single day,” Duthiers says. “You had to be very careful with what you wrote and what you said on the air. Governments monitor CNN and BBC. They were watching what we said and did.”

Duthiers’ reminiscing called to mind another anecdote: When covering former president of Liberia and convicted war criminal Charles Taylor’s trial, a government official said to Duthiers and his producer, “Journalists: Your AK-47 is your pen.”

It underscored the responsibility Duthiers carries and the risk he bears.

“Your life could be in danger whether you’re in the United States or abroad,” Duthiers says. “I tell young people that the role journalism plays in society places you under constant threat. You need to be aware that your life is at risk.

“The crowd could turn against you, and the next thing you know, you’re running for your life. You need to take responsibility and strive mightily.”

The walls of Duthiers’ office are covered with photos of people he’s reported on. The photos bear witness to the subjects’ suffering and tragedy — and joy. “I am honored that they allowed me to share their stories with others,” Duthiers says. In some cases, speaking their truth is a thing his subjects can’t do for themselves.

In 2016, in Haiti, in the aftermath of Hurricane Matthew, Duthiers was in a village totally flattened. He and his crew had finished filming and were packing up. A woman approached asking if Duthiers would write her name in his notebook. Others followed suit. “In writing their names down, I think they knew I would take their stories with me. They would not be forgotten,” Duthiers says. “I still take that notebook out from time to time and read their names.

“It’s a small thing I can do.”

“The First Amendment is on my side.”

Thomas farragher ’73, hon. ’17.

“I grew up in the stereotypical Catholic family: nine kids, all altar boys, in a house with a crucifix on the wall. A lightning storm would find my mother sprinkling the house with holy water,” Tom Farragher says. So to be part of The Boston Globe Spotlight Team, which successfully sued the Catholic Church for sealed court records and broke the story about the protracted and systemic sexual abuse of children by serial pedophile priests in the Archdiocese of Boston, placed Farragher at odds with his spiritual teachers.

“January 1, 2002, a Sunday, the story was on page one of The Globe. I’m walking into 7 a.m. Mass and Monsignor Eugene McNamara says, ‘What are you doing to us?'”

The fourth estate, freedom of the press, had done battle with the Catholic Church in one of the most Catholic cities in the country. And won.

“Judge Constance M. Sweeney, who ruled that the records should come out, is the hero of this story. You saw two worlds clashing in that moment,” Farragher says. “Rome answers to nobody. I covered the court hearings where the church was arguing against the release. That ruling was game, set, and match. And those records were complete, lengthy, and damning.”

It was a win for freedom of the press and for the victims — and a sea change for Boston. Cardinal Bernard Law resigned in December 2002. Two-hundred-and-forty-nine archdiocesan priests and brothers were publicly accused of sexual abuse.

In the wake of The Globe’s revelations, the Catholic Church reported that more than 4,000 priests across the country had been accused of sexual abuse in the last 50 years.

The Spotlight Team won the 2003 Pulitzer Prize for Public Service. The real winner in a story like this, though, is the public.

“The First Amendment is the backbone of what we do,” Farragher says. “There are public officials who are very careful about what they do, because they know there are people out there, like Spotlight, looking. When a mayor or police chief would tell me, ‘No, no, that’s not how it works,’ I would say, ‘The First Amendment is on my side.'”

In the 17 years since that Pulitzer Prize-winning Spotlight series, American newspapers have seen a precipitous drop in readership concurrent with exponential growth in internet media outlets. Competition for readers is fierce.

“Obviously it’s a splintered journalistic world now, but you look at the journalism The Globe is doing, and there’s no question hard, vigorous journalism is being committed all the time,” Farragher says. “We have protected the nuclear core of what we do, and it is resonating. More people are reading The Globe online than ever in my 42 years of doing this.

I am hopeful about what we do, but the journalism world I walked into just doesn’t exist anymore. There’s great journalism being produced every day,” Farragher continues. “People have to be more discerning about who they go to and who they trust.”

“The First Amendment allows the media to bring us an awareness of the world. What we do with that is up to us.”

Betty j. cotter.

Betty J. Cotter, a journalist and part-time faculty member in the Harrington School’s Department of Writing and Rhetoric, brings 30 years of reporting and editing experience to her journalism classes. “The First Amendment allows the media to bring us an awareness of the world. What we do with that is up to us,” Cotter says. “We can’t have the media acting as a check on government, which is what it does as the Fourth Estate, without the First Amendment. And when the public undermines or trivializes the media, or doesn’t believe the media, that whole relationship of checks and balances gets disrupted.”

Cotter knows firsthand the power of the First Amendment. When a student journalist at Keene State College in the late 1970s and early ’80s, she sued the college demanding the release of the college’s security logs when rumors of sexual assault on campus surfaced. Using advertising funds, the student newspaper then hired a First Amendment expert, a lawyer, to represent Cotter at the hearing. The presiding judge ruled there was enough evidence to move forward with a trial. A compromise was reached, and the student newspaper gained access to police logs.

Cotter encourages her students to apply the lessons of her classroom to real-world problems by writing letters to the editors of local newspapers on issues of importance to them. If a student in her argumentation class gets a letter to the editor published, it’s a 100 on their midterm. 

“It’s incentive to use the rhetorical devices they’ve studied. I want my students to have real-world skills with which to express themselves and to apply what they’ve learned to think about an issue and make an argument,” Cotter says. “Getting published is empowering. You can see the students change over the course of the semester.

“Students begin to see themselves differently: as writers who can make a difference. It’s the First Amendment in action.”

“We are facing a real existential threat.”

Laurie white ’81.

It was 1984 on a hot July afternoon in Providence, when, at the wake of legendary New England mafia crime boss Raymond Loreda Salvatore Patriarca Sr., two men exchanged a greeting and a rose. The gesture conveyed a profound respect that stunned the law enforcement officers observing. It’s not every day that you see mob bosses treating journalists with deference.

What witnesses saw was an exchange between new New England crime boss Raymond Patriarca Jr. and investigative broadcast journalist Jim Taricani, Hon. ’18. “Junior,” as Patriarca Jr. was known, had invited Taricani to his father’s wake and presented him with the rose.

It was a mark of his father’s respect, Patriarca Jr. said.

“People understood Jim had a job to do, and they knew if he were covering the story, they would be treated fairly,” says his widow Laurie White, who is president of the Greater Providence Chamber of Commerce. “But to have the mob boss’s son actually invite him to the wake! The FBI and the State Police and other law enforcement were watching the funeral home to see who went in, and when they saw him go in there, they said, ‘How the hell did you get in? Tell us who was in there.'”

Taricani declined. His ethics wouldn’t allow it. Twenty years later, Taricani would deny law enforcement a second time, refusing to reveal a source who leaked him an FBI surveillance tape. For this, Taricani was held in civil contempt of court by a federal judge and sentenced to six months’ home confinement. The case turned Taricani, already a legend among journalists, into the face of the free press. He traveled the country lecturing on the First Amendment, the federal shield law, and the Free Flow of Information Act, even testifying for the bill before Congress in 2007. The Edward R. Murrow Award-winner for investigative journalism, Taricani received the prestigious Yankee Quill Award from the New England Newspaper and Press Association in 2007.

This year, URI will launch the Taricani Lecture Series on First Amendment Rights, a series established by Laurie White, which has received support from alumni and friends who are interested in First Amendment issues and in sustaining Taricani’s legacy.

“After Jim’s passing, this concept of how to keep his work as a professional journalist alive revolved around the notion of how do we, during this particularly troubling time in our history, understand and appreciate the importance of the First Amendment and the freedoms afforded under it, particularly the rights of the press,” White says. “We want to keep that alive and inspire the next generation of ethical and responsible journalists — to continue to do that in a way that reflects our belief in our institutions and our democracy and our belief that journalists serve an essential role in our society.

“We are facing a real existential threat — the threat of powerful institutions to suppress the news,” White says. “The role of the journalist is to speak the truth and perform a watchdog function for the public.

“There is a need for the professional journalist to be protected.”

Stories of the First Amendment in Action Part 2

Bearing witness.

The First Amendment illustrates how the absence of a thing leaves a mark. For those who don’t have its protections, that mark might be borne on the body, for others, the mind.

The stories of Omar Bah ’10 and Lorén Spears ’89, Hon ’17, highlight what life without the First Amendment can look like.

“I thought I was going to die.”

Omar bah ’10.

The Gambia. 2001. Beaten, bloody, and drifting in and out of consciousness, 21-year-old journalist Omar Bah lay curled in the fetal position, awaiting death in a cell so small he couldn’t stretch his legs. He had been writing articles criticizing the country’s dictator, Yahya Jammeh, when he was taken into custody by soldiers. Over the course of a day, Bah had been stabbed in the back with bayonets and his head bludgeoned with the butt of an AK-47. “They made a game of lifting me and throwing me in the air, and as I came down they kicked me and hit me with their gun butts,” Bah recalls.

The cell was dark, fetid, and so hot that Bah couldn’t tell if he was soaked in sweat or blood. Rats, geckos, and other lizards skittered across his body while mosquitoes fed on him.

“My bayonet wounds were deep and swelling,” Bah recalls. “Soldiers would look in and see if I was still alive, start kicking and hitting me, then leave and lock the door.

“I thought I was going to die.”

But people had witnessed the torture. “The soldiers did not care to hide what they were doing, because it was condoned,” Bah says.

After being held for the day, Bah was released because of public outcry — but that’s where the support ended in Jammeh’s Gambia. “You couldn’t say anything; you couldn’t do anything. No hospital would treat me; I was on my own.

“I get very angry when I speak about it.”

Still, Bah returned to reporting. “I could not be quiet,” he says. In 2006, though, he received a tip that Jammeh’s men were coming for him again. Within hours Bah had fled his homeland for Senegal but was detained at the border by a soldier. Arms raised in surrender, Bah was horrified to see that the soldier was a childhood friend. His friend’s face registered a similar surprise and horror. Then, a moment of grace. The friend let him go and likely saved Bah’s life. Bah arrived in Rhode Island a year later and became a United States citizen in 2012.

“Now I can say whatever I want without having to look over my shoulder,” says Bah. “I think about it every day.”

In 2010, Bah earned his bachelor’s in communication studies from URI and in 2015 opened the Refugee Dream Center in Providence. It serves about 300 people a year and is “meant to empower and lift them to have a voice,” Bah says. Refugees are offered help finding housing, jobs, trauma counseling, and health care. “The second part of the mission is advocacy. It’s a lot of work but very rewarding,” Bah says.

Bah now lives in South Providence with his wife and two young sons. He will earn his Ph.D. in August. Having grown up in a mud hut in a village where women carried water in jars on their heads and the village ambulance was a donkey cart, Bah is intent on teaching his children that opportunity is possible in his adopted country. “They know they are lucky to live in a country where they are not afraid to speak up and enjoy freedoms of every kind,” he says.

“I want to live a life of example to them­ — one in which education is highly valued.” Bah’s younger boy is interested in social justice. “When we’re in the car, my son makes me stop when he sees a homeless person. He gives all of his money to the homeless,” Bah says. “Those actions make me cherish freedom even more. It is a gift and an opportunity to make a difference.”

Bah is quiet for a moment. It’s not easy to put into words such a turnabout of fortune. “That first day I set foot in the United States, I could look forward to what I would do in my life,” Bah says. “America permitted me freedom, opportunity, and a chance for a second life.

“People should use their rights as a catalyst for upward movement. They should exercise those rights in a civil society,” he says. “And agree to disagree. It’s OK. It’s good.”

“There are still attacks on our sovereignty.”

Lorén spears ’89, hon ’17.

Lorén Spears, executive director of the Tomaquag Museum and member of the Narragansett Indian Tribe, possesses a graciousness and patience 400 years in the cultivation when explaining that authors of the First Amendment ignored Indigenous people. First, she must dispel misconceptions about Indigenous people. Second, augment American history to include Indigenous people. Third, explain what it is to be Indigenous in modern society.

The country’s formation depended upon the appropriation of indigenous land, a.k.a. theft, which required the vilification, dehumanization, and victimization of Indigenous people, Spears says. “This notion of believing you have the right to do such a thing, to subjugate and dehumanize and victimize other human beings for your own goals.” Spears shakes her head. “The First Amendment was not written for those being displaced, dispossessed, or violently (attacked) through genocide, war, and enslavement.”

Resistance took many forms. Wars were waged — on battlefields, in classrooms, churches, and courtrooms. The federal government sought to deracinate Indigenous people through conversion to Christianity, a European model of education, even detribalization. “Education was used against us as an act of war,” Spears says. “To strip us of everything we knew, to take away our language, our religion, our cultures, to disrupt our families and communities, and to break apart our political structures in order to force us to adopt or assimilate into Eurocentric concepts of community.”

Full access to the Bill of Rights for Indigenous people is relatively new. The Indian Civil Rights Act was passed just 52 years ago. Religious freedom came 10 years later with the passage of the American Indian Religious Freedom Act in 1978.

“When you think about historical trauma, this is ongoing,” Spears says. “There are still attacks on our sovereignty.”

Spears and the Tomaquag Museum continue the fight through educational programming, activism, strategic partnerships with the Indigenous Empowerment Network, and other efforts to “create opportunity, uplift native voices, and honor native cultural knowledge,” Spears says.

“There is no Rhode Island history without Narragansett, Niantic, and other Indigenous people’s history,” Spears says. “And there is no such thing as United States history without Indigenous people’s history.”

“We’re still reclaiming our rights,” Spears adds. “We still don’t often feel we’re heard. We’re not always at the table with the people that have the wealth, the power, and the control. So we’re still pursuing these rights and these freedoms that are guaranteed under the Constitution.”

Stories of the First Amendment in Action Part 3

Compelling creativity.

“I learned early on that I could stand up for myself.” — Afua Ansong (left)

“My goal is to speak truth to power.” — Jerriod Avant

How does the First Amendment inspire musicians and poets? Dissent and protest compel creativity.

Historically, in times of turbulence, artists encoded their work, injecting double meaning into poems, paintings, songs, even quilts. Contemporary artists at URI Afua Ansong , Emmett Goods , and Jerriod Avant honor the influence of their predecessors and create work that speaks to social justice. 

“I learned early on that I could stand up for myself.”

Afua ansong.

Afua Ansong came to poetry with anger.

As a 12-year-old immigrant from Ghana, Ansong felt betrayed. In her home country, parents do not involve their children in decision-making, so she arrived in America, unaware that she would be staying for good. “Poetry became the medium through which I could express myself,” says Ansong, now a Ph.D. student. “I had lost my friends, my language, most of my family, and I had to make a new life. Poetry was a space to begin again.

“Moving to the United States helped me to think deeply about who I am and who I want to be. I learned early on that I could stand up for myself, and to do that in a creative way was amazing to me.”

Ansong’s 2019 poetry collection American Mercy explores ideas of identity, immigration, and ownership.

“My book is thinking about ways in which we own things,” Ansong says. “The ways in which America owns its people, or its people own America — and the ways in which we create borders. I’m thinking about the immigrant and the American and how we can come together peacefully.”

Ansong is currently working on a project called Postcards to Phyllis Wheatley. Wheatley also came to America from West Africa as a child but on a slave ship in 1761. Remarkably, she received a formal education, learning Greek and Latin in addition to English. Wheatley, too, turned to poetry, publishing while still in her teens. Her most famous poem, “On Being Brought From Africa to America,” takes aim at the hypocrisy of being a Christian and a slave owner and uses veiled language to do so.

“I think of myself as a kind of a Phyllis Wheatley. I think of her creating a voice for herself in the United States as an enslaved black woman,” Ansong says. “Being an immigrant coming from Ghana, West Africa, and relocating to the United States, I see the First Amendment as giving me the opportunity to represent myself, my people, and my changing identity.”

“You can say something in a song.”

Emmett goods.

Look to art and see what genius emerges in turbulent times, says Emmett Goods, lecturer in jazz studies, who teaches applied jazz and trombone as well as a number of music history classes at URI including Music as a Form of Social Protest, and the History of Hip-Hop and Black American Culture.

Art affords cover. “You can say something in a song that you wouldn’t necessarily say with your regular voice in a crowd,” Goods says. “If you can put your deepest, most heartfelt feelings to some chords and apply a melody to it, now you’ve provided this palette by which you can express what it is that you really feel — and give people an opportunity to kind of step back and know that this is art and this is artistic expression.”

Art transcends human beings’ general unwillingness to listen to ideas they find abrasive, Goods says. “We need texture to soften the blow of the reality of hearing every person’s truth. When you put your protest into music, or you apply your deepest thoughts to music, you’ve taken a lot of the pressure off of somebody who is receiving your truth.”

In this way, music preserves and propels the message of Wheatley, Billie Holiday, Cab Calloway, and others, Goods says. He pays his respects to his influences in the work he does as a historian, musician, and educator.

“The First Amendment means that I live in a country where I have the freedom to say what I think in my deepest heart of hearts,” Goods says, “but I have the responsibility to take care with how I say it and to whom I say it so that I can live in peace and harmony with those Americans who may not think and feel the way I do.”

“My goal is to speak truth to power.”

Jerriod avant.

When asked about influences on his poetry, Ph.D. student Jerriod Avant looks to his father.

“I have to start at home with my father. He was a local politician. We did a lot of campaigning, door to door, talking with people in the community, watching him give speeches at churches. During Black History Month, he would deliver portions of Doctor King’s ‘I Have a Dream Speech.’ I was encouraged to speak in church, to speak in school, and I became used to being in front of an audience and to make good use of that opportunity. 

“I think about Martin Luther King Jr.’s speeches and how artful and intentional he was with his language to tear down these systems of oppression that plagued black people for decades, for centuries. And I’m influenced by Jimmy Hendrix’s 1969 edition of ‘The Star Spangled Banner’ at Woodstock,'” Avant says. “How transgressive it was and Hendrix’s relationship to that anthem. So when I go to the page, or when I’m thinking about poems, I’m always trying to tear something down, or I’m punching up from a place of grievance, from a place of oppression, from some subjugated position that wants better.

“When I’m writing a poem, it doesn’t always sound like what you would hear or expect to hear from the canon,” Avant says. “A lot of times, I employ ways of speaking that don’t always obey rules of grammar or adhere to standard American diction. There’s a lot of dialect, a lot of misspeak, intentionally, to make a point to subvert the language in whatever way I can find to do it.

“My primary goal is to speak truth to power, to tear something down that’s not working.”

Stories of the First Amendment in Action Part 4

Taking responsibility.

Why are URI faculty talking about the First Amendment? Because tenure is about academic freedom and servant leadership—not job security for life. Because students should be encouraged to be free thinkers. Because a state university has a responsibility to the taxpayers who support it.

Here faculty members Nasser Zawia , Jeremiah Dyehouse , James Haile III , Brendan Skip Mark , Christopher Parker , Carolyn Betensky , and John Pantalone weigh in on the First Amendment in action in their work and their classrooms.

“We should be the ones the public trusts.”

Nasser Zawia

Tenure carries responsibility, says Nasser Zawia, scientist and dean of the Graduate School.

“The First Amendment is very special to an academician because of tenure. Tenure was not designed to assure permanent job security but to protect academic freedom for faculty who want to speak truth to power and not fear for their jobs,” Zawia says. “We have faculty here who are tenured and secure but will not speak truth to power. People rely on academics to be unbiased, neutral judges who do the due diligence and scholarly work.

“What we seek to impart is that individuals have a duty to construct reasonable, truthful arguments.”

Jeremiah dyehouse.

Students are quite aware of the speech-protected traditions, says Jeremiah Dyehouse, chair of the Harrington School’s Department of Writing and Rhetoric . “They know they have a right to their own voices and ideas.

“And what we seek to impart is that individuals have a duty to construct reasonable, truthful arguments. The difference between opinion and argument is a big one,” Dyehouse says. “I say to students, you can have any politics you like. We’re going to have different political opinions. Students are resilient once they understand that this is not about indoctrination.”  

Learning argumentation is also an exercise in discernment, Dyehouse says. In his writing and rhetoric classes, he is looking to see gains made in cultural competency, pattern recognition, building a theoretical framework, and recognizing fallacious arguments.

“We are now in an era of participatory propaganda,” Dyehouse says. “We see ignorance perpetuating itself. We want our students to know about the information they’re consuming, to think with a scholarly, engaged, civic mind.”

“It is a revolutionary act to place a book in a student’s hands.”

James haile iii.

Curiosity can be killer. Look to Socrates. Death by hemlock on charges of heresy and corrupting Athens’ youth.

Socrates was executed for speaking against the state, and speech critical of the government can be perceived as unpatriotic, putting the speaker at risk, notes James Haile, assistant professor in the Department of Philosophy . And yet the right to question authority defines and delineates Americans. These are the types of observations that propel Haile’s philosophy classes and prompt students to investigate competing — and controversial — ideas. What if, for instance, your rights are not acknowledged or recognized by the government? Do you have a right if nobody recognizes it?

“What does freedom of speech mean then?” Haile asks. “We have to have that conversation first.”

And how do you account for the disengaged or those who hold opinions not based in fact? Haile works to get students to own their views often by arguing from an unpopular viewpoint. “The younger generation doesn’t know, necessarily, what good information looks like,” he explains.

In an era in which anything can be published and passed off as fact, Haile employs the Socratic Method, challenging students’ assumptions by asking the big, difficult questions.

“Our role is to create a revolutionary space of engaging ideas,” Haile says. “There’s no freedom of speech if people are ignorant. Giving anybody any information is the role of an activist.

“It is a revolutionary act to place a book in a student’s hands.” 

“It’s OK to be wrong.”

Brendan Skip Mark

Brendan Skip Mark, assistant professor in the Department of Political Science , throws a lot at his students; they talk of human rights, political economies, collective dissent and uprising, migration, immigration. And his students, he says, are increasingly aware of the polarization in this country around many of those issues. His response: “I encourage students to make arguments they themselves disagree with. I don’t think you understand an issue until you understand the other side.

“A large part of free speech is about listening,” Mark continues. “People must be allowed to say things you yourself fundamentally disagree with. “You have to get as many points of view as you can to be truly informed.

“And I tell them they have to be skeptical about what I say as well.” 

Mark’s lessons pair scholarly journal articles with poetry, YouTube videos, and podcasts. He employs different teaching strategies: lectures, simulations, and games. He invites students to imagine what it would be like to be a leader, a legislator, or a rebel in a time of upheaval. Suddenly, theory and practice become meaningful exercises, and lessons carry weight.

“I want students to have modesty about what they know and not blindly accept information. We see in history that most of the time we can all reach some sort of agreement that doesn’t involve violence or discrimination,” Mark says. “I tell students, be willing to recognize you could be wrong about a lot of things you believe.

“The Founding Fathers themselves disagreed on what the Constitution meant.”

Christopher parker.

Christopher Parker, assistant professor and pre-law advisor in the Department of Political Science, teaches courses on Constitutional law and civil liberties. Through the study of case law, Parker seeks to illustrate to students the difference between ethics and the law, encouraging students to express their opinions and to recognize the consequences of trying to restrict speech they don’t like. “The antidote to bad speech is more speech,” Parker says, paraphrasing Supreme Court Justice Louis Brandeis.

What’s problematic is that censorship curtails everyone’s rights in restricting the speech of a few or many, Parker says. “I want students to recognize that the Founding Fathers themselves disagreed on what the Constitution meant; flawed people created this document out of compromise.

“And that compromise led to a lot of vague language that creates a large number of the debates we have now.”

History free of romanticism allows a student to approach the Constitution with a critical eye, Parker says. He invokes James Madison: ‘If men were angels, no government would be necessary.’ And certainly, if we didn’t have the protections provided by the First Amendment, we’d have to be extremely trusting of the government.”  

Any argument, any stance a student wishes to take is welcome in Parker’s classes. “I play devil’s advocate and make whatever argument the class is moving against,” Parker adds. “I hope my classes change students’ perspectives and get them thinking of new ways to approach problems.”

“Poems, songs, plays, and fiction have a long, proud history of speaking truth to power.”

Carolyn betensky.

Hope holds across disciplines. English professor Carolyn Betensky teaches “OUTRAGE! Literature of Protest and Dissent,” a course featuring such texts as Margaret Atwood’s The Handmaid’s Tale, Larry Kramer’s The Normal Heart, and Angie Thomas’ The Hate U Give. Betensky’s course examines literature that engages oppression and, through the texts, Betensky introduces students to civic engagement in its various forms. “Poems, songs, plays, and fiction have a long, proud history of speaking truth to power,” she says. “My job is to get students to look at texts, to look at facts, and to evaluate them — maybe even to argue against them if they like.

“Preparing graduates for their public lives as citizens, as members of communities, and as professionals is a responsibility of institutions of higher education.”

John Pantalone

Arguably, there is not enough education happening around the First Amendment these days. A 2017 survey conducted by the Annenberg Public Policy Center of the University of Pennsylvania highlights the need for a nationwide civics lesson:

• 37% of American adults surveyed could not name one right guaranteed to them under the First Amendment.
• 53% surveyed thought immigrants here illegally have no rights under the U.S. Constitution.
• Only about 25% could name all three branches of government.

John Pantalone, associate professor and chair of the Department of Journalism , is not surprised by these statistics. Whole classes in the journalism department are built around the First Amendment, he says. “When students finish the program, they have a very healthy understanding of the rights it protects.”

And if this knowledge of the First Amendment is applied in pursuit of a career in journalism or more serves to inform students’ civic lives, it is an essential education, Pantalone says.

“Part of the goal for any student in our department is that they understand what it is to be a good citizen in a democracy. And without First Amendment rights, there would be no democracy,” says Pantalone. “People should use their First Amendment rights responsibly out of an obligation to contribute to civil conversation.”

We are being tested as a country, Nasser Zawia says. Faculty should engage their students, openly discuss with them what’s going on. “We’re being tested about our tolerance, our diversity, our core values,” he adds. “Even about scientific beliefs.”

The university community, Zawia says, should be able to converse, debate, and learn from one another. “It’s a unique opportunity for students to come to a university and interact with so many different and diverse people,” Zawia continues. “This is the time for them to learn how to work with the world. Our role as teachers is to steer this ship and make sure everybody gets a chance to speak their mind.

“Everybody deserves a chance.”

Stories of the First Amendment in Action Part 5

Challenging convention.

History teaches us that speaking truth to power or participating in the marketplace of ideas carries real risk: the loss of a job, assault, arrest, incarceration, even death. Very recent history, though, tells us that this generation of students is all-in and head-on when it comes to exercising First Amendment rights.

In April of 2019, The Washington Post declared, “Young people actually rocked the vote in 2018.” According to The Post, the U.S. Census Bureau claimed that 36 percent of citizens ages 18 to 29 reported voting in midterm elections, up 16 percentage points from 2014. And in June, media outlets Forbes and The New York Times noted that students, many still in their teens, had made significant contributions to the Black Lives Matter movement, organizing protests, raising awareness on social media, and donating money to activist organizations.

Today’s youth is informed, engaged, and ready to act, says Carnell Jones, Jr. , URI director of enrollment services and creator of the course Black Lives Matter. And certainly, URI students Theresa Brown ’21, Sam Foer ’20, and Ian Weiner ’20 are proof of Jones’ assertion.

“This generation questions everything.”

Carnell jones, jr..

URI director of enrollment services Carnell Jones, Jr. has taught his Black Lives Matter course since 2015. If you’re thinking right now that you’d like to take it, plan for the spring of 2021 — at the earliest. The fall class is already full. “People are always trying to get in,” Jones says with a grin. “My classes are always full.”

The readings change each semester to address current events and include other groups’ trials in the battle for civil rights. The fall, for instance, will now include readings and discussion about the Supreme Court’s recent ruling that the 1964 Civil Rights Act protects LGBTQ employees from discrimination based on sex as well as the court’s decision to block the revocation of the Deferred Action for Childhood Arrivals program, popularly known as DACA, which has protected from deportation some 700,000 individuals brought to this country as children.

Another teaching tool: Carnell Jones, Jr.’s own painful personal history with racism and violence.

In 1986, a then-14-year-old Jones attended the funeral of his 18-year-old uncle, Kelvin Thompson, murdered by two white men, who shot him while he was riding a bicycle. “To go to that funeral, to see my uncle in a casket, was life-changing for me because that was the first time I saw real pain,” Jones recalls. “I had never seen my grandmother cry. I’d never seen my 17 uncles and aunts cry. I’m talking about wailing crying.

“My mother was traumatized. She felt she had to do everything in her power to protect her three sons,” Jones says. “Everything” meant home confinement for Jones and his brothers when they weren’t at school or engaged in sports. “My mom would tell me that when interacting with the police or just folks outside of my comfort zone, to just swallow my pride.”

“‘I just want you to come back home,’ she would say.”

A generation later, Jones sees the intersection of two historic events, the Black Lives Matter movement and COVID-19, spurring society to rail against racial injustice in numbers not seen since the civil rights movement. “The pandemic has forced the world to be on pause, and people are seeing events happening, and saying, ‘This is wrong,'” Jones says. “This is why you see people flooding the streets.”

And some faces are familiar.

“I’m seeing my students out there exercising their First Amendment rights, actively protesting, passionately speaking, taking up the movement, and carrying it forward,” Jones says. “They feel knowledgeable and informed enough to take a leadership role on a societal issue.”

It’s confirmation that what he’s teaching is resonating, Jones says.

“During the civil rights movement, if you were to participate, you would sacrifice something. You could lose a job, a scholarship. You pretty much had to participate in silence,” Jones says. “This generation questions everything. They push back. They’re not concerned about sacrifice.

“They’ll take the risk.”

“You’re there to tell people the truth, to be a monitor of power, a voice for the voiceless.”

Theresa brown ’21.

Journalism major Theresa Brown wrote four-to-five stories a week as a reporter for The Good Five Cent Cigar and a member of the paper’s investigative arm: The Cigarlight Team, a name coined from The Boston Globe’s Pulitzer Prize-winning Spotlight Team. Brown savored the chance to investigate stories and usher them into print. She also learned some valuable truths: “You’re not there to make people happy,” she says. “Being part of an investigative team opens your eyes to the fact that not everything is sunshine and rainbows.”

People would refuse to talk to the student journalists, Brown says. It was disconcerting. At first. With time, Brown, now editor-in-cheif of the Cigar, came to understand that as a journalist and citizen, she had the right to ask questions other students and administrators didn’t necessarily want to answer.

“I take journalistic integrity seriously,” Brown says. “I am balanced and fair and I’m going to get all sides of the story. And I recognize that when you’re reporting on a university you are a part of, there is a huge conflict of interest.”

Familiarity with the First Amendment is a must if students want to get into this type of work on campus or as a career choice, Brown says. “For me, freedom of speech is the freedom to write about and report on information that people have the right to know.

“As a journalist, you’re there to tell people the truth, to be a monitor of power and a voice for the voiceless.”

“We leave ourselves uneducable if we dismiss people based on viewpoint.”

Sam foer ’20.

Sam Foer is looking to mix it up. With faculty, administration, students. You. “Good-faith constructive discourse and thoughtful argument are where you see the First Amendment in action,” Foer says. “Lively discussion concerning controversial topics is absolutely imperative for a functioning democratic society. We students should feel immense pressure from our professors to challenge each others’ viewpoints, without being pressured to give them up or change them.

“In a university setting, students should feel an obligation to improve their intellectual faculties, and this means having professors who make us feel somewhat uncomfortable with what we think without making us feel bad about thinking it.” 

Foer, a philosophy major and a founder and former president of the URI branch of the American Civil Liberties Union, argues that it is a student’s responsibility to know their First Amendment rights and to exercise them — and to defend the First Amendment rights of people whose views they abhor.

“Yes, the First Amendment guarantees the rights of people to say nasty things, as it is necessary for speech that is predicated on opinion to be protected; otherwise, we can censor anyone whose opinion we dislike,” Foer says. “But if we can keep dialogue civil, even when someone is saying nasty or disagreeable things, perhaps we can open them up to changing their minds.

“We need to find problems with what the person is speaking and press them on those problems,” he adds. “We leave ourselves uneducable if we dismiss people based on viewpoint; we leave the world uneducable if we strip someone of the right to speak on that basis,” Foer says. “We can’t have freedom from speech. If we don’t protect everyone’s right to speak their mind, the First Amendment is null and void.”

“It’s the journalist’s job to interpret the First Amendment in a responsible way.”

Ian weiner ’20.

One of Ian Weiner’s proudest moments as a student journalist was the day a reporter from Rhode Island’s daily newspaper, The Providence Journal, called him because she’d seen a story he’d written and published in The Good Five Cent Cigar. She wanted to use it as the basis for a story of her own. This was more than an ego-stroking moment, Weiner says, it was evidence that The Good Five Cent Cigar was doing important work. 

“We were struggling in the fall of 2018,” says Weiner, journalism and communication studies major and past editor of the Cigar. Staff numbers had declined and morale was low. Weiner started reading up on the First Amendment. “I wanted to know how far I could push my staff,” he says. “The First Amendment taught me about responsibility. My whole thing was to get student reporters through the door and have them working, teaching them things like long-form journalism.”

And teaching them what it meant to be a responsible journalist.

“Anybody can put something online. Spotting fake news is really hard. And you are in the public eye,” Weiner says. “What you do matters.

“One thing about the First Amendment as the baseline for journalistic freedom is that it can be interpreted in many ways, but it’s the journalist’s job to interpret it in a responsible way.”

Journalist Christiane Amanpour, ’83, Hon. ’95, CNN chief international anchor and host of PBS’s Amanpour & Company, poses this challenge to students: Speak. Argue. Battlefront or classroom: Each offers the opportunity to take a stand.

“The idea that you have to be safe from ideas that conflict with yours is wildly wrong. If not at university, where are you going to have the freedom to explore ideas that you don’t like, even people that you might not naturally gravitate toward?” Amanpour says.

“It’s here in this safe space that you can actually operate in areas that you are in conflict with or don’t understand or that you think are offensive — that’s how you grow, and that’s how you grow resilience,” Amanpour says.

“And that’s how you grow intellectually and find your way in the world.” 

Handout A: First Amendment, U.S. Constitution, 1791

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.

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The Supreme Court effectively abolishes the right to mass protest in three US states

It is no longer safe to organize a protest in Louisiana, Mississippi, or Texas.

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The Supreme Court announced on Monday that it will not hear Mckesson v. Doe . The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas.

Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South.

For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson , a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016.

The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling . During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, suffered “ injuries to his teeth, jaw, brain, and head .”

Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case — such as if Mckesson had “authorized, directed, or ratified” the decision to throw the rock.

Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Court’s decision not to hear Mckesson , the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment “precludes punishment” for inciting violent action “unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”

The reason Claiborne protects protest organizers should be obvious. No one who organizes a mass event attended by thousands of people can possibly control the actions of all those attendees, regardless of whether the event is a political protest, a music concert, or the Super Bowl . So, if protest organizers can be sanctioned for the illegal action of any protest attendee, no one in their right mind would ever organize a political protest again.

Indeed, as Fifth Circuit Judge Don Willett, who dissented from his court’s Mckesson decision, warned in one of his dissents, his court’s decision would make protest organizers liable for “ the unlawful acts of counter-protesters and agitators .” So, under the Fifth Circuit’s rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.

The Fifth Circuit’s Mckesson decision is obviously wrong

Like Mckesson , Claiborne involved a racial justice protest that included some violent participants. In the mid-1960s, the NAACP launched a boycott of white merchants in Claiborne County, Mississippi. At least according to the state supreme court, some participants in this boycott “engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers” of these white businesses.

Indeed, one of the organizers of this boycott did far more to encourage violence than Mckesson is accused of in his case. Charles Evers, a local NAACP leader, allegedly said in a speech to boycott supporters that “ if we catch any of you going in any of them racist stores, we’re gonna break your damn neck .”

But the Supreme Court held that this “emotionally charged rhetoric ... did not transcend the bounds of protected speech.” It ruled that courts must use “extreme care” before imposing liability on a political figure of any kind. And it held that a protest leader may only be held liable for a protest participant’s actions in very limited circumstances :

There are three separate theories that might justify holding Evers liable for the unlawful conduct of others. First, a finding that he authorized, directed, or ratified specific tortious activity would justify holding him responsible for the consequences of that activity. Second, a finding that his public speeches were likely to incite lawless action could justify holding him liable for unlawful conduct that in fact followed within a reasonable period. Third, the speeches might be taken as evidence that Evers gave other specific instructions to carry out violent acts or threats.

The Fifth Circuit conceded, in a 2019 opinion , that Officer Doe “has not pled facts that would allow a jury to conclude that Mckesson colluded with the unknown assailant to attack Officer Doe, knew of the attack and ratified it, or agreed with other named persons that attacking the police was one of the goals of the demonstration.” So that should have been the end of the case.

Instead, in its most recent opinion in this case, the Fifth Circuit concluded that Claiborne ’s “three separate theories that might justify” holding a protest leader liable are a non-exhaustive list, and that the MAGA-infused court is allowed to create new exceptions to the First Amendment. It then ruled that the First Amendment does not apply “where a defendant creates unreasonably dangerous conditions, and where his creation of those conditions causes a plaintiff to sustain injuries.”

And what, exactly, were the “unreasonably dangerous conditions” created by the Mckesson-led protest in Baton Rouge? The Fifth Circuit faulted Mckesson for organizing “the protest to begin in front of the police station, obstructing access to the building,” for failing to “dissuade” protesters who allegedly stole water bottles from a grocery store, and for leading “the assembled protest onto a public highway, in violation of Louisiana criminal law.”

Needless to say, the idea that the First Amendment recedes the moment a mass protest violates a traffic law is quite novel. And it is impossible to reconcile with pretty much the entire history of mass civil rights protests in the United States.

In fairness, the Court’s decision to leave the Fifth Circuit’s attack on the First Amendment in place could be temporary. As Sotomayor writes in her Mckesson opinion, when the Court announces that it will not hear a particular case it “expresses no view about the merits.” The Court could still restore the First Amendment right to protest in Louisiana, Mississippi, and Texas in a future case.

For the time being, however, the Fifth Circuit’s Mckesson decision remains good law in those three states. And that means that anyone who organizes a political protest within the Fifth Circuit risks catastrophic financial liability.

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