Supreme Court Case Research
Melanie Rosen
PROTECTED SPEECH

Freedom of speech in the United States is protected
by the First Amendment of the United States
Constitution and by many state constitutions and
state and federal laws. The freedom is not absolute;
the Supreme Court of the United States has
recognized several categories of speech that are
excluded from the freedom of speech, and it has
recognized that governments may enact reasonable
time, place, or manner restrictions on speech.
PROTECTED SPEECH CONT.

There are three types of speech:
–
–
Core Political Speech: This is the most highly
guarded form of speech because of its purely
expressive in nature and important to a functional
republic.
Commercial Speech: Not outside the protection of
the First Amendment is speech motivated by
profit. Such speech still has expressive value
although it is being uttered in a marketplace
ordinarily regulated by the state.
PROTECTED SPEECH CONT.
–
Expressive Conduct: While freedom of expression by nonspeech means is commonly thought to be protected under
the First Amendment, the Supreme Court has only recently
taken this view. As late as 1968, the Supreme Court stated
that regulating non-speech can justify limitations on speech.
The Court carried this distinction between speech and
expression through the early part of the 1980s. It was not
until the flag-burning cases of 1989 (Texas v. Johnson) and
1990 (United States v. Eichman), that the Supreme Court
accepted that non-speech means applied to freedom of
expression and freedom of speech.
SCHENK V. US, 1919
BACKGROUND

During World War I, Schenck mailed circulars to
draftees. The circulars suggested that the draft was
a monstrous wrong motivated by the capitalist
system. The circulars urged "Do not submit to
intimidation" but advised only peaceful action such
as petitioning to repeal the Conscription Act.
Schenck was charged with conspiracy to violate the
Espionage Act by attempting to cause
insubordination in the military and to obstruct
recruitment.
DECISION

9 votes for United States, 0 votes against
CONSEQUENCES OF DECISION
 Holmes,
speaking for a unanimous
Court, concluded that Schenck is
not protected in this situation. The
character of every act depends on
the circumstances.
CONSEQUENCES OF DECISION CONT.

"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." During wartime,
utterances tolerable in peacetime can
be punished.
BRANDENBURG V. OHIO, 1969
BACKGROUND

Brandenburg, a leader in the Ku Klux Klan, made a
speech at a Klan rally and was later convicted under
an Ohio criminal syndicalism law. The law made
illegal advocating "crime, sabotage, violence, or
unlawful methods of terrorism as a means of
accomplishing industrial or political reform," as well
as assembling "with any society, group, or
assemblage of persons formed to teach or advocate
the doctrines of criminal syndicalism."
DECISION

8 votes for Brandenburg, 0 votes against
CONSEQUENCES OF DECISION
 The
Court's Per Curiam opinion
held that the Ohio law violated
Brandenburg's right to free speech.
The Court used a two-pronged test
to evaluate speech acts: (1)
speech can be prohibited if it is
"directed at inciting or producing
imminent lawless action" and
CONSEQUENCES OF DECISION CONT.

(2) it is "likely to incite or produce such
action." The criminal syndicalism act
made illegal the advocacy and teaching
of doctrines while ignoring whether or
not that advocacy and teaching would
actually incite imminent lawless action.
The failure to make this distinction
rendered the law overly broad and in
violation of the Constitution.
CITATION PAGE

"American Civil Liberties Union." American Civil Liberties Union.
ACLU, n.d. Web. 25 Mar. 2013. <http://www.aclu.org/free-speech>.

BRANDENBURG v. OHIO. The Oyez Project at IIT Chicago-Kent
College of Law. 25 March 2013. <http://www.oyez.org/cases/19601969/1968/1968_492>.

SCHENCK v. UNITED STATES. The Oyez Project at IIT Chicago-Kent
College of Law. 25 March 2013. <http://www.oyez.org/cases/19011939/1918/1918_437>.