Five Important U.S. Supreme Court Rulings
on the First Amendment
© 2013 by Ball State University
While the First Amendment to the U.S. Constitution has been part of our history for more than
220 years, First Amendment litigation is largely a product of the latter half to two-thirds of the
20th century. One reason—it was not until 1925 that the U.S. Supreme Court ruled that the First
Amendment applies to state and local government action as well as that of the federal
government (see Gitlow v. New York, below).
The five cases summarized here are significant to the history of the First Amendment and an
understanding of the principle of freedom of speech/press in our society; some are considered
landmark decisions.
Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833)
This is really a Fifth Amendment case, but is significant because the Court ruled that the Bill of
Rights (and, thus, the First Amendment) applied only to the actions of the federal government.
John Barron had sued the City of Baltimore after the growth of the city eliminated his profitable
wharf. Chief Justice John Marshall wrote:
“The question thus presented is, we think, of great importance, but not of much difficulty. The
Constitution was ordained and established by the people of the United States for themselves, for
their own government, and not for the government of the individual States. Each State
established a constitution for itself, and in that constitution provided such limitations and
restrictions on the powers of its particular government as its judgment dictated. The people of the
United States framed such a government for the United States as they supposed best adapted to
their situation and best calculated to promote their interests. The powers they conferred on this
government were to be exercised by itself, and the limitations on power, if expressed in general
terms, are naturally, and we think necessarily, applicable to the government created by the
instrument. They are limitations of power granted in the instrument itself, not of distinct
governments framed by different persons and for different purposes.
“If these propositions be correct, the fifth amendment must be understood as restraining the
power of the General Government, not as applicable to the States.”
Schenck v. United States, 249 U.S. 47 (1919)
Justice Oliver Wendell Holmes, Jr. ruled that the First Amendment did not give protection to all
types of speech. Charles Schenck had been charged with violating the Espionage Act of 1917 for
distributing leaflets (circulars) opposing the military draft. Holmes wrote:
“We admit that, in many places and in ordinary times, the defendants, in saying all that was said
in the circular, would have been within their constitutional rights. But the character of every act
depends upon the circumstances in which it is done. The most stringent protection of free speech
would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even
protect a man from an injunction against uttering words that may have all the effect of force. The
question in every case is whether the words used are used in such circumstances and are of such
a nature as to create a clear and present danger that they will bring about the substantive evils
that Congress has a right to prevent.”
Gitlow v. New York, 268 U.S. 652 (1925)
Benjamin Gitlow was an anarchist and a member of the Left Wing Section of the Socialist Party.
He was charged with anarchy for distributing leaflets in New York that called for overthrow of
the government. The Court upheld Gitlow’s conviction, but as part of the ruling, Justice Edward
Sanford addressed the issue of whether the state of New York had the right to limit freedom of
speech or freedom of the press:
“For present purposes, we may and do assume that freedom of speech and of the press which are
protected by the First Amendment from abridgment by Congress are among the fundamental
personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment
from impairment by the States….It is a fundamental principle, long established, that the freedom
of speech and of the press which is secured by the Constitution does not confer an absolute right
to speak or publish, without responsibility, whatever one may choose, or an unrestricted and
unbridled license that gives immunity for every possible use of language and prevents the
punishment of those who abuse this freedom….This freedom is an inestimable privilege in a free
government; without such limitation, it might become the scourge of the republic.”
Near v. Minnesota, 283 U.S. 697 (1931)
This case involved a 1925 Minnesota law that gave the government the right to stop “malicious,
scandalous, and defamatory” newspapers as “a public nuisance.” The county attorney in
Minneapolis tried to stop publication of The Saturday Press, a paper of questionable reputation
that focused on gossip but also charged many state officials with political corruption. Under the
Minnesota law, owner and publisher Jay Near was prohibited from publishing future issues of
the newspaper. Near challenged the constitutionality of the law, but a Minnesota district court
and the state Supreme Court ruled against him. However, the United States Supreme Court ruled
5-4 in Near’s favor. Chief Justice Charles Evans Hughes issued the ruling:
“The fact that, for approximately one hundred and fifty years, there has been almost an entire
absence of attempts to impose previous restraints upon publications relating to the malfeasance
of public officers is significant of the deep-seated conviction that such restraints would violate
constitutional right. Public officers, whose character and conduct remain open to debate and free
discussion in the press, find their remedies for false accusations in actions under libel laws
providing for redress and punishment, and not in proceedings to restrain the publication of
newspapers and periodicals. The general principle that the constitutional guaranty of the liberty
of the press gives immunity from previous restraints has been approved in many decisions under
the provisions of state constitutions.
“The importance of this immunity has not lessened….The fact that the liberty of the press may
be abused by miscreant purveyors of scandal does not make any the less necessary the immunity
of the press from previous restraint in dealing with official misconduct. Subsequent punishment
for such abuses as may exist is the appropriate remedy consistent with constitutional privilege.
“In attempted justification of the statute, it is said that it deals not with publication per se, but
with the ‘business’ of publishing defamation. If, however, the publisher has a constitutional right
to publish, without previous restraint, an edition of his newspaper charging official derelictions,
it cannot be denied that he may publish subsequent editions for the same purpose. He does not
lose his right by exercising it.”
New York Times v. United States, 403 U.S. 713 (1971)
This is the famous Pentagon Papers case, brought by the Nixon administration against The New
York Times and the Washington Post to stop publication of classified documents dealing with
conduct of the Vietnam War. The government argued that prior restraint was permissible because
the documents dealt with a matter of national security. The majority of the Court did not agree,
however, ruling in favor of the two newspapers by a 6-3 vote. Of particular note: The Court
made its ruling only four days after oral arguments and all nine justices wrote opinions, some
writing individually and others writing with one or more colleagues. Justice William Douglas
(joined by fellow Justice Hugo Black) challenged the concept of prior restraint in matters of
national security:
“As we stated only the other day…(a)ny prior restraint on expression comes to this Court with a
‘heavy presumption’ against its constitutional validity. The Government says that it has inherent
powers to go into court and obtain an injunction to protect the national interest, which, in this
case, is alleged to be national security. Near v. Minnesota, 283 U. S. 697, repudiated that
expansive doctrine in no uncertain terms. The dominant purpose of the First Amendment was to
prohibit the widespread practice of governmental suppression of embarrassing information. It is
common knowledge that the First Amendment was adopted against the widespread use of the
common law of seditious libel to punish the dissemination of material that is embarrassing to the
powers-that-be. (Citations omitted.) The present cases will, I think, go down in history as the
most dramatic illustration of that principle. A debate of large proportions goes on in the Nation
over our posture in Vietnam. That debate antedated the disclosure of the contents of the present
documents. The latter are highly relevant to the debate in progress.
“Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors.
Open debate and discussion of public issues are vital to our national health. On public questions,
there should be ‘uninhibited, robust, and wide-open’ debate. (quoting the New York Times Co. v.
Sullivan case.)”