First Amendment Trials That Shaped U.S. Free Speech

Around the world, citizens receive various rights set forth by their government’s constitution. However, not all government’s allow the same amount freedoms. One freedom that is particularly enjoyed throughout the world, but not by all people of the world equally is freedom of speech. The First Amendment of the United States is one of the strongest freedom of speeches that any government grants. While other nations like the United Kingdom and France provide freedom of speech, it doesn’t protect types of speech like hate speech that the Fist Amendment does.

However, the power of the First Amendment didn’t just give U.S. citizens the freedoms on their own. It took a number of major court cases to strengthen the power of the First Amendment. Here are five cases in chronological order that made free speech into what it is today.


Gitlow v. New York, 1925

One of the founding cases that shaped the current state of the First Amendment, Gitlow v. New York took the First Amendment and extended its reach from just the federal level into state enforcement.

Before Gitlow v. New York, the First Amendment only gave citizens protection from the federal government and state governments could impose restrictions on free speech as they pleased. One such state that tried to restrict speech was New York, which passed a law making it a crime to promote overthrowing a government by force or violence.

At the time of the law, socialist politician Benjamin Gitlow published a communist manifesto that told citizens to adopt communism into America’s political structure. As a result, Gitlow was arrested for plotting to overthrow the government.

Being a man who had spent plenty of time in jail for his political beliefs, Gitlow decided to challenge the law, stating it persecuted his First Amendment right of freedom of speech. To bring the First Amendment’s rights to a state level, Gitlow used the Fourteenth Amendment, which had a due process clause stating states could not deprive citizens of life, liberty or property without certain steps being taken to ensure fairness.

The Supreme Court sided with Gitlow and as a result the Bill of Rights now applied to all levels of government.


Near v. Minnesota, 1931

One of the great things about freedom of speech is the right to publish whatever you want without prior restraints. Countries like North Korea, Iran and Saudi Arabia apply restrictions on what newspapers and citizens can publish, especially anything concerning the government. If someone publishes something that is restricted, they are thrown in jail. In the U.S., this is not the case all thanks to Near v. Minnesota.

Jay Near started his own newspaper in Minneapolis called The Saturday Press in which he criticized local officials. One person who took offense to Near’s newspaper was future Minnesota governor Floyd Olson who sued Near using a Minnesota gag law to prevent him from publishing criticisms of the Minneapolis government.

In its decision, the Supreme Court dubbed prior restraints was against the First Amendment and using the Fourteenth Amendment, said prior restraint laws such as the Minnesota gag law are unconstitutional. As a result, this decision became a core constitutional precedent that protects the press from unwarranted government interference in the newsroom.

Additionally, the case helped define freedom of the press and allowed editors and publishers the freedom to print their stories about public officials without fear of retribution through state censorship.


Miller v. California, 1973

However, not everything is protected under the First Amendment. Miller v. California helped establish what could and could not be protected under the First Amendment in regard to obscenity.

Marvin Miller operated one of the largest mail-order businesses on the West Coast for adult material. To generate more money, Miller sent out a massive mailing campaign illustrating adult books. Unsolicited people received the mailing and many found the material offensive, causing the California government to convict Miller for distributing obscene material.

In previous cases regarding obscenity, the Supreme Court struggled to define what exactly was obscene. Therefore, the Supreme Court had to create a test in order to see if in fact Miller was guilty of distributing obscene material. The test, known as the Miller test, states that in order for something to be deemed obscene and thus not protected by the First Amendment it must be:

1. Something the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest;
2. Something the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and
3. Something the work, taken as a whole, lacks serious literary, artistic, political or scientific value

Ultimately, Miller lost the case and the decision reiterated that the First Amendment did not protect obscenity. This court case was very important in shaping free speech because it finally defined what the First Amendment doesn’t protect.


Gertz v. Robert Welch, Inc., 1974

One interesting freedom about the First Amendment is a person can say anything they want about a particular group as long as it doesn’t defame an individual person. In New York Times Co. v. Sullivan, the Supreme Court found public officials had to prove actual malice and what was written about them was indeed not factual for something to be defamation. It’s a pretty tough thing to prove, as it’s the one who is defamed who has to prove libel and public officials generally don’t receive much protection from the First Amendment since their actions are public.

However, public officials are used to being criticized by press and citizens and rarely sue for libel. In Gertz v. Robert Welch, Inc., the Supreme Court established the standard of First Amendment protection against defamation claims brought by private individuals.

Elmer Gertz was a Chicago lawyer who represented a family of a young man killed by a police officer. A year after the trial, the John Birch Society’s American Opinion published an article containing misstatements about Gertz’s involvement with the trial and the article even contained an image of Gertz. Gertz sued for defamation and he argued that because he was a private person, not a public figure, he only needed to show negligence or fault.

In its decision, the Supreme Court distinguished the difference between public and private persons for purposes of defamation law. According to the Court, private persons “are more vulnerable to injury, and the state interest in protecting them is correspondingly greater.” The court reasoned that public officials and public figures had greater access to get their message out to the press and “have a more realistic opportunity to counteract false statements than private individuals normally enjoy.”

For these reasons, the court set up a different standard for private persons, which is important because it is very difficult for a public figure to define defamation. Additionally, the case established one couldn’t use free speech without repercussions. Although, someone won’t receive jail time, they will have to pay monetary reparations for any libelous statements.


Texas v. Johnson, 1989

During the 1984 Republican National Convention in Dallas, Texas, Gregory Lee Johnson participated in a protest against the Reagan Adminstration and local Dallas companies. Once the protest reached city hall Johnson burned the U.S. flag and soon after was arrested for breaking a Texas law that made it illegal to desecrate respected objects. As a result, Johnson was sentenced to prison for one year and forced to pay a fine of $2,000.

In this decision, the Supreme Court had to decide if the First Amendment reached non-speech acts, since Johnson was arrested for flag desecration and not spoken or written words. What they decided was his actions were expressive behavior and thus protected under the First Amendment. Additionally, the court found that just because someone takes offense to an idea or expression, doesn’t justify prohibiting speech.

This is an important decision because it allows free speech to be anything someone can express, whether through words, art or actions. While other first-world countries may protect free speech, they don’t necessarily protect expressive acts like burning a flag. For instance, it is forbidden in Italy to burn the Italian flag.

At this time there are no Internet cases about free speech. The only law that relates is citizens cannot show indecent materials to minors. It will be interesting to see what cases will come in the future about what can and cannot be said online and whether or not a borderless entity like the Internet will have universal laws. Ultimately, the U.S. allows great freedoms of speech and most likely these freedoms will be translated into future distribution channels like the Internet and smartphones.



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