Freedom of speech
Main article: Freedom of speech in the United States
The Supreme Court never ruled on the constitutionality of any federal law regarding the Free Speech Clause until the 20th century. The Supreme Court never ruled on the Alien and Sedition Acts of 1798, whose speech provisions expired in 1801. The leading critics of the law, Thomas Jefferson and James Madison, argued for the Acts' unconstitutionality based on the First Amendment, among other Constitutional provisions (e.g. Tenth Amendment). In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court said, "[a]lthough the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history."
After World War I, several cases involving laws limiting speech came before the Supreme Court. The Espionage Act of 1917 imposed a maximum sentence of twenty years for anyone who caused or attempted to cause "insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States." Under the Act, there were over two thousand prosecutions. For instance, one filmmaker was sentenced to ten years imprisonment because his portrayal of British soldiers in a movie about the American Revolution impugned the good faith of an American ally, the United Kingdom. The Sedition Act of 1918 went even further, criminalizing "disloyal," "scurrilous" or "abusive" language against the government.
In Schenck v. United States, 249 U.S. 47 (1919), the Supreme Court was first requested to strike down a law violating the Free Speech Clause. The case involved Charles Schenck, who had, during the war, published leaflets challenging the conscription system then in effect. The Supreme Court unanimously upheld Schenck's conviction for violating the Espionage Act. Justice Oliver Wendell Holmes, Jr., writing for the Court, suggested that "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."
The "clear and present danger" test of Schenck was extended in Debs v. United States, 249 U.S. 211 (1919), again by Justice Oliver Wendell Holmes. The case involved a speech made by Eugene V. Debs, a political activist. Debs had not spoken any words that posed a "clear and present danger" to the conscription system, but a speech in which he denounced militarism was nonetheless found to be sufficient grounds for his conviction. Justice Holmes suggested that the speech had a "natural tendency" to occlude the draft.
Thus, the Supreme Court effectively shaped the First Amendment in such a manner as to permit a multitude of restrictions on speech. Further restrictions on speech were accepted by the Supreme Court when it decided Gitlow v. New York, 268 U.S. 652 (1925). Writing for the majority, Justice Edward Sanford suggested that states could punish words that "by their very nature, involve danger to the public peace and to the security of the state." Lawmakers were given the freedom to decide which speech would constitute a danger.
Freedom of speech was influenced by anti-communism during the Cold War. In 1940, the Congress enacted the Smith Act. The Smith Act made punishable the advocacy of "the propriety of overthrowing or destroying any government in the United States by force and violence." The law was mainly used as a weapon against Communist leaders. The constitutionality of the Act was questioned in Dennis v. United States 341 U.S. 494 (1951). The Court upheld the law in 1951 by a 6-2 vote (Justice Tom C. Clark did not participate because he had previously ordered the prosecutions when he was Attorney General). Chief Justice Fred M. Vinson relied on Oliver Wendell Holmes' "clear and present danger" test when he wrote for the majority. Vinson suggested that the doctrine did not require the government to "wait until the putsch is about to be executed, the plans have been laid and the signal is awaited", thereby broadly defining the words "clear and present danger." Thus, even though there was no immediate danger posed by the Communist Party's ideas, the Court allowed the Congress to restrict the Communist Party's speech.
Dennis v. United States has never been explicitly overruled by the Court, but subsequent decisions have greatly narrowed its place within First Amendment jurisprudence. In 1957, the Court changed its interpretation of the Smith Act in deciding Yates v. United States, 354 U.S. 298 (1957). The Supreme Court ruled that the Act was aimed at "the advocacy of action, not ideas". Thus, the advocacy of abstract doctrine remains protected under the First Amendment. Only speech explicitly inciting the forcible overthrow of the government remains punishable under the Smith Act.
 War protests
The Warren Court expanded free speech protections in the 1960s, though there were exceptions. In United States v. O'Brien, 391 U.S. 367 (1968), the Court upheld a law prohibiting the mutilation of draft cards, because the Court felt that burning draft cards would interfere with the "smooth and efficient functioning" of the draft system. In contrast, in Cohen v. California, 403 U.S. 15 (1971), the court found that a person could not be punished for wearing, in the corridors of the Los Angeles County courthouse, a jacket reading "**** the Draft".
In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court ruled that free speech rights extended to students in school. The case involved several students who were punished for wearing black armbands to protest the Vietnam War. The Supreme Court ruled that the school could not restrict symbolic speech that did not cause undue interruptions of school activities. Justice Abe Fortas wrote,
[S]chools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students...are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.
However, in Bethel School District v. Fraser, 478 U.S. 675 (1986), the Court held a student could be punished for his speech before a public assembly. In the landmark decision of Brandenburg v. Ohio, 395 U.S. 444 (1969), which expressly overruled Whitney v. California, 274 U.S. 357 (1927) (a case in which a woman was imprisoned for aiding the Communist Party), the Supreme Court referred to the right to speak freely of violent action and revolution in broad terms:
[Our] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
 Anonymous speech
In Talley v. California, 362 U.S. 60 (1960), the Court struck down a Los Angeles city ordinance that made it a crime to distribute anonymous pamphlets.
 Flag desecration
The divisive issue of flag desecration as a form of protest came before the Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989). The Supreme Court reversed the conviction of Gregory Lee Johnson for burning the flag by a 5-4 vote. Justice William J. Brennan, Jr. asserted that "if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable." Many members of Congress criticized the decision of the Court and the House of Representatives unanimously passed a resolution denouncing the Court. Congress passed a federal law barring flag burning, but the Supreme Court struck it down as well in United States v. Eichman, 496 U.S. 310 (1990). Many attempts have been made to amend the Constitution to allow Congress to prohibit the desecration of the flag. Since 1995, the Flag Desecration Amendment has consistently mustered sufficient votes to pass in the House of Representatives, but not in the Senate. In 2000, the Senate voted 63–37 in favor of the amendment, which fell four votes short of the requisite two-thirds majority. In 2006, another attempt fell one vote short.
The federal government and the states have long been permitted to restrict obscenity or pornography. While The Supreme Court has usually refused to give obscenity any protection under the First Amendment, pornography is subject to little regulation. However, the exact definition of obscenity and pornography has changed over time.
When it decided Rosen v. United States in 1896, the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin. The Hicklin standard defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." The Court ruled in Roth v. United States, 354 U.S. 476 (1957) that the Hicklin test was inappropriate. Instead, the Roth test for obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest."
Justice Potter Stewart, in Jacobellis v. Ohio, 378 U.S. 184 (1964), famously stated that, although he could not precisely define pornography, "I know it when I see it."
The Roth test was expanded when the Court decided Miller v. California, 413 U.S. 15 (1973). Under the Miller test, a work is obscene if it would be found appealing to the prurient interest by an average person applying contemporary community standards, depicts sexual conduct in a patently offensive way and has no serious literary, artistic, political or scientific value. Note that "community" standards—not national standards—are applied whether the material appeals to the prurient interest; thus, material may be deemed obscene in one locality but not in another. National standards, however, are applied whether the material is of value. Child pornography is not subject to the Miller test, as the Supreme Court decided in New York v. Ferber, 458 U.S. 747 (1982). The Court thought that the government's interest in protecting children from abuse was paramount.
Personal possession of obscene material in the home may not be prohibited by law. In writing for the Court in the case of Stanley v. Georgia, 394 U.S. 557 (1969), Justice Thurgood Marshall wrote, "If the First Amendment means anything, it means that a State has no business telling a man, sitting in his own house, what books he may read or what films he may watch." However, it is not unconstitutional for the government to prevent the mailing or sale of obscene items, though they may be viewed only in private. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), further upheld these rights by invalidating the Child Pornography Prevention Act of 1996, holding that, because the act "[p]rohibit[ed] child pornography that does not depict an actual child..." it was overly broad and unconstitutional under the First Amendment. Justice Anthony M. Kennedy wrote: "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."
In United States v. Williams, 553 U.S. ___ (2008), by a vote of 7–2, the Supreme Court upheld the PROTECT Act of 2003. The Court ruled that prohibiting offers to provide and requests to obtain child pornography did not violate the First Amendment, even if a person charged under the Act did not possess child pornography.
 Libel, slander, and private action
American tort liability for defamatory speech or publications—slander and libel—traces its origins to English law. The nature of American defamation law was vitally changed by the Supreme Court in 1964, in deciding New York Times Co. v. Sullivan 376 U.S. 254 (1964). The New York Times had published an advertisement indicating that officials in Montgomery, Alabama had acted violently in suppressing the protests of African-Americans during the civil rights movement. The Montgomery Police Commissioner, L. B. Sullivan, sued the Times for libel claiming the advertisement damaged his reputation. The Supreme Court unanimously overruled the $500,000 judgment against the Times. Justice Brennan suggested that public officials may sue for libel only if the publisher published the statements in question with "actual malice."
The actual malice standard applies to both public officials and public figures, including celebrities. Though the details vary from state to state, private individuals normally need only to prove the negligence of the defendant.
In Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6 (1970), the Supreme Court ruled that a Greenbelt News Review article, which quoted a visitor to a city council meeting who characterized Bresler's aggressive stance in negotiating with the city as "blackmail", was not libelous since nobody could believe anyone was claiming that Bresler had committed the crime of blackmail and that the statement was essentially hyperbole (i.e., obviously an opinion).
The Supreme Court ruled in Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974), opinions could not be considered defamatory. It is thus permissible to suggest, for instance, that someone is a bad lawyer, but not permissible to falsely declare that the lawyer is ignorant of the law: the former constitutes a statement of values, but the latter is a statement alleging a fact.
More recently, in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the Supreme Court backed off from the protection from "opinion" announced in Gertz. The court in Milkovich specifically held that there is no wholesale exemption to defamation law for statements labeled "opinion," but instead that a statement must be provably false (falsifiable) before it can be the subject of a libel suit.
Hustler Magazine v. Falwell, 485 U.S. 46 (1988), extended the "actual malice" standard to intentional infliction of emotional distress in a ruling which protected a parody. In the ruling, "actual malice" was described as "knowledge that the statement was false or with reckless disregard whether or not it was true."
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