Freedom of Speech Case Studies

Schenck v. United States (1919)

Shortly after the United States entered World War I, Congress enacted the Espionage Act of 1917. Among other things, the act outlawed speech that obstructed the military draft. During the war, Charles Schenck distributed pamphlets that encouraged men who had been drafted to resist and refuse to fight. The pamphlet argued the draft violated the Constitution in various ways, including the Thirteenth Amendment, because it constituted involuntary servitude. The federal government
prosecuted Schenck for obstructing the draft. Schenck argued the Espionage Act violated his First Amendment freedom of speech rights.

In a unanimous 9-0 ruling, the Court ruled in favor of the United States. Justice Oliver Wendell Holmes, Jr., authored the opinion, writing, “Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done.” This ruling established what became known as the “clear and present danger” test. For most of the twentieth century, the Court used this test to help determine when the government might legitimately limit freedom of speech under the First Amendment.

 

Tinker v. Des Moines (1969)

In 1965, a few elementary, middle, and high school students in Des Moines, Iowa, decided to wear black armbands to school to show opposition to the Vietnam War even though their school district had banned students from wearing armbands out of a concern they would be disruptive. The district suspended some of the students for wearing the armbands. The students then filed a lawsuit alleging the district’s policy violated their freedom of speech rights under the First Amendment.

In a 7-2 decision, the Court ruled in favor of the students. In the majority opinion, Justice Abe Fortas wrote, “First Amendment rights, applied in light of the special characteristics of the school
environment, are available to teachers and students. It can hardly be argued that either students
or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse
gate.” Fortas concluded that the armbands did not disrupt education at the school enough to justify
the ban, writing, “They neither interrupted school activities nor sought to intrude in the school
affairs or the lives of others. They caused discussion outside of the classrooms, but no interference
with work and no disorder. In the circumstances, our Constitution does not permit officials of the
State to deny their form of expression.”

Justice Hugo Black, a noted defender of free speech, dissented, arguing that the Court should give schools significant discretion in creating disciplinary procedures around symbolic, potentially
disruptive speech. He wrote, “Here, the Court should accord Iowa educational institutions the same right to determine for themselves to what extent free expression should be allowed in its schools…Of course, students, like other people, cannot concentrate on lesser issues when black armbands are being ostentatiously displayed in their presence to call attention to the wounded and dead of the war…It was, of course, to distract the attention of other students that some students insisted up to the very point of their own suspension from school that they were determined to sit in school with their symbolic armbands.”

While the ruling in Tinker clearly established that students possess freedom of speech rights at school, subsequent cases articulated limits on free speech rights in the context of public schools given the unique educational environment with minors.

 

Brandenburg v. Ohio (1969)

Clarence Brandenburg was a Ku Klux Klan leader. In 1964, he staged a rally in Ohio that featured KKK members wearing hoods and burning a cross. At the rally, Brandenburg gave a speech that included racially charged language against Blacks and Jews and accused the U.S. government of suppressing the “Caucasian race.” At the time, Ohio had a criminal syndicalism law that made it illegal to advocate “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” The police arrested Brandenburg after determining that his charged language violated the law. Brandenburg argued the law violated his First Amendment right to freedom of speech.

The Supreme Court heard the case in 1969 and decided in favor of Brandenburg. In a per curiam opinion (one that is written by the Court as a whole rather than a specific Justice), the Court ruled that speech could be prohibited only if it is “directed at inciting or producing imminent lawless action” and it is “likely to incite or produce such action.” The Justices decided that Brandenberg’s speech did not produce the threat of imminent danger and was therefore protected. This new test replaced the “clear and present danger” test established in Schenck v. United States (1919) and continued the trend of increased protections of freedom of speech in the twentieth century.