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First Amendment

By: History.com Editors

Updated: July 27, 2023 | Original: December 4, 2017

The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the right to peaceful protest and to petition the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rights—a written document protecting civil liberties under U.S. law. The meaning of the First Amendment has been the subject of continuing interpretation and dispute over the years. Landmark Supreme Court cases have dealt with the right of citizens to protest U.S. involvement in foreign wars, flag burning and the publication of classified government documents.

Bill of Rights

During the summer of 1787, a group of politicians, including James Madison and Alexander Hamilton , gathered in Philadelphia to draft a new U.S. Constitution .

Antifederalists, led by the first governor of Virginia , Patrick Henry , opposed the ratification of the Constitution. They felt the new constitution gave the federal government too much power at the expense of the states. They further argued that the Constitution lacked protections for people’s individual rights.

The debate over whether to ratify the Constitution in several states hinged on the adoption of a Bill of Rights that would safeguard basic civil rights under the law. Fearing defeat, pro-constitution politicians, called Federalists , promised a concession to the antifederalists—a Bill of Rights.

James Madison drafted most of the Bill of Rights. Madison was a Virginia representative who would later become the fourth president of the United States. He created the Bill of Rights during the 1st United States Congress, which met from 1789 to 1791 – the first two years that President George Washington was in office.

The Bill of Rights, which was introduced to Congress in 1789 and adopted on December 15, 1791, includes the first ten amendments to the U.S. Constitution.

First Amendment Text

The First Amendment text reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

While the First Amendment protected freedoms of speech, religion, press, assembly and petition, subsequent amendments under the Bill of Rights dealt with the protection of other American values including the Second Amendment right to bear arms and the Sixth Amendment right to a trial by jury.

Freedom of Speech

The First Amendment guarantees freedom of speech . Freedom of speech gives Americans the right to express themselves without having to worry about government interference. It’s the most basic component of freedom of expression.

The U.S. Supreme Court often has struggled to determine what types of speech is protected. Legally, material labeled as obscene has historically been excluded from First Amendment protection, for example, but deciding what qualifies as obscene has been problematic. Speech provoking actions that would harm others—true incitement and/or threats—is also not protected, but again determining what words have qualified as true incitement has been decided on a case-by-case basis.

Freedom of the Press

This freedom is similar to freedom of speech, in that it allows people to express themselves through publication.

There are certain limits to freedom of the press . False or defamatory statements—called libel—aren’t protected under the First Amendment.

Freedom of Religion

The First Amendment, in guaranteeing freedom of religion , prohibits the government from establishing a “state” religion and from favoring one religion over any other.

While not explicitly stated, this amendment establishes the long-established separation of church and state.

Right to Assemble, Right to Petition

The First Amendment protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes. It also protects the right to protest the government.

The right to petition can mean signing a petition or even filing a lawsuit against the government.

First Amendment Court Cases

Here are landmark Supreme Court decisions related to the First Amendment.

Free Speech &  Freedom of the Press :

Schenck v. United States , 1919: In this case, the Supreme Court upheld the conviction of Socialist Party activist Charles Schenck after he distributed fliers urging young men to dodge the draft during World War I .

The Schenck decision helped define limits of freedom of speech, creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, the Supreme Court viewed draft resistance as dangerous to national security.

New York Times Co. v. United States , 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman , Dwight D. Eisenhower , John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Texas v. Johnson , 1990: Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the administration of President Ronald Reagan .

The Supreme Court reversed a Texas court’s decision that Johnson broke the law by desecrating the flag. This Supreme Court Case invalidated statutes in Texas and 47 other states prohibiting flag-burning.

Freedom of Religion:

Reynolds v. United States (1878): This Supreme Court case upheld a federal law banning polygamy, testing the limits of religious liberty in America. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.

Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the “Lemon Test” for determining when a state or federal law violates the Establishment Clause—that’s the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.

Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry , the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU , the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.

Right to Assemble & Right to Petition:

NAACP v. Alabama (1958): When Alabama Circuit Court ordered the NAACP to stop doing business in the state and subpoenaed the NAACP for records including their membership list, the NAACP brought the matter to the Supreme Court. The Court ruled in favor of the NAACP, which Justice John Marshall Harlan II writing: “This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.”

Edwards v. South Carolina (1962): On March 2, 1961, 187 Black students marched from Zion Baptist Church to the South Carolina State House, where they were arrested and convicted of breaching the peace. The Supreme Court ruled in an 8-1 decision to reverse the convictions, arguing that the state infringed on the free speech, free assembly and freedom to petition of the students.

The Bill of Rights; White House . History of the First Amendment; The University of Tennessee, Knoxville. Schenck v. United States ; C-Span .

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Constitution of the United States

First amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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Which government actions are subject to the First Amendment?

Freedoms of speech, of the press, of assembly, and to petition.

• Speech on government property and in government-run institutions
• Related rights
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First Amendment

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First Amendment , amendment (1791) to the Constitution of the United States that is part of the Bill of Rights and reads,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech , or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The clauses of the amendment are often called the establishment clause , the free exercise clause, the free speech clause, the free press clause, the assembly clause, and the petition clause.

The First Amendment, like the rest of the Bill of Rights, originally restricted only what the federal government may do and did not bind the states. Most state constitutions had their own bills of rights, and those generally included provisions similar to those found in the First Amendment. But the state provisions could be enforced only by state courts.

In 1868, however, the Fourteenth Amendment was added to the U.S. Constitution, and it prohibited states from denying people “liberty” without “ due process .” Since then the U.S. Supreme Court has gradually used the due process clause to apply most of the Bill of Rights to state governments. In particular, from the 1920s to the ’40s the Supreme Court applied all the clauses of the First Amendment to the states. Thus, the First Amendment now covers actions by federal, state, and local governments. The First Amendment also applies to all branches of government, including legislatures, courts, juries, and executive officials and agencies. This includes public employers, public university systems, and public school systems.

The First Amendment, however, applies only to restrictions imposed by the government, since the First and Fourteenth amendments refer only to government action. As a result, if a private employer fires an employee because of the employee’s speech, there is no First Amendment violation. There is likewise no violation if a private university expels a student for what the student said, if a commercial landlord restricts what bumper stickers are sold on the property it owns, or if an Internet service provider refuses to host certain Web sites.

Legislatures sometimes enact laws that protect speakers or religious observers from retaliation by private organizations. For example, Title VII of the federal Civil Rights Act of 1964 bans religious discrimination even by private employers. Similarly, laws in some states prohibit employers from firing employees for off-duty political activity. But such prohibitions are imposed by legislative choice rather than by the First Amendment.

The freedoms of speech , of the press , of assembly, and to petition—discussed here together as “ freedom of expression ”—broadly protect expression from governmental restrictions. Thus, for instance, the government may not outlaw antiwar speech, speech praising violence , racist speech, pro- communist speech, and the like. Nor may the government impose special taxes on speech on certain topics or limit demonstrations that express certain views. The government also may not authorize civil lawsuits based on people’s speech, unless the speech falls within a traditionally recognized First Amendment exception. This is why, for example, people may not sue for emotional distress inflicted by offensive magazine articles about them, unless the articles are not just offensive but include false statements that fall within the defamation exception ( see below Permissible restrictions on expression ).

The free expression guarantees are not limited to political speech. They also cover speech about science, religion, morality , and social issues as well as art and even personal gossip.

Freedom of the press confirms that the government may not restrict mass communication . It does not, however, give media businesses any additional constitutional rights beyond what nonprofessional speakers have.

Freedom of petition protects the right to communicate with government officials. This includes lobbying government officials and petitioning the courts by filing lawsuits, unless the court concludes that the lawsuit clearly lacks any legal basis.

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Student Opinion

Why Is Freedom of Speech an Important Right? When, if Ever, Can It Be Limited?

By Michael Gonchar

• Sept. 12, 2018

This extended Student Opinion question and a related lesson plan were created in partnership with the National Constitution Center in advance of Constitution Day on Sept. 17. For information about a cross-classroom “Constitutional Exchange,” see The Lauder Project .

One of the founding principles of the United States that Americans cherish is the right to freedom of speech. Enshrined in the First Amendment to the Constitution, freedom of speech grants all Americans the liberty to criticize the government and speak their minds without fear of being censored or persecuted.

Even though the concept of freedom of speech on its face seems quite simple, in reality there are complex lines that can be drawn around what kinds of speech are protected and in what setting.

The Supreme Court declared in the case Schenck v. United States in 1919 that individuals are not entitled to speech that presents a “clear and present danger” to society. For example, a person cannot falsely yell “fire” in a crowded theater because that speech doesn’t contribute to the range of ideas being discussed in society, yet the risk of someone getting injured is high. On the other hand, in Brandenburg v. Ohio in 1969, the court declared that even inflammatory speech, such as racist language by a leader of the Ku Klux Klan, should generally be protected unless it is likely to cause imminent violence.

While the text and principle of the First Amendment have stayed the same, the court’s interpretation has indeed changed over time . Judges, lawmakers and scholars continue to struggle with balancing strong speech protections with the necessity of maintaining a peaceful society.

What do you think? Why is the freedom of speech an important right? Why might it be important to protect even unpopular or hurtful speech? And yet, when might the government draw reasonable limits on speech, and why?

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The first amendment, interpretation & debate, freedom of speech and the press, matters of debate, common interpretation, fixing free speech, frontiers for free speech.

by Geoffrey R. Stone

Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School

by Eugene Volokh

Gary T. Schwartz Distinguished Professor of Law; Founder and Co-Author of "The Volokh Conspiracy" at Reason Magazine

“Congress shall make no law . . .  abridging the freedom of speech, or of the press.” What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.

Although the First Amendment says “Congress,” the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.

The Supreme Court has interpreted “speech” and “press” broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like.

The Supreme Court has held that restrictions on speech because of its content —that is, when the government targets the speaker’s message—generally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information “the people” should be allowed to hear.

There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.

1. In some circumstances, the Supreme Court has held that certain types of speech are of only “low” First Amendment value, such as:

a. Defamation: False statements that damage a person’s reputations can lead to civil liability (and even to criminal punishment), especially when the speaker deliberately lied or said things they knew were likely false. New York Times v. Sullivan (1964).

b. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished. Watts v. United States (1969).

c. “Fighting words”: Face-to-face personal insults that are likely to lead to an immediate fight are punishable. Chaplinsky v. New Hampshire (1942). But this does not include political statements that offend others and provoke them to violence.  For example, civil rights or anti-abortion protesters cannot be silenced merely because passersby respond violently to their speech. Cox v. Louisiana (1965).

d. Obscenity: Hard-core, highly sexually explicit pornography is not protected by the First Amendment. Miller v. California (1973). In practice, however, the government rarely prosecutes online distributors of such material.

e. Child pornography: Photographs or videos involving actual children engaging in sexual conduct are punishable, because allowing such materials would create an incentive to sexually abuse children in order to produce such material. New York v. Ferber (1982).

f. Commercial advertising: Speech advertising a product or service is constitutionally protected, but not as much as other speech. For instance, the government may ban misleading commercial advertising, but it generally can’t ban misleading political speech. Virginia Pharmacy v. Virginia Citizens Council (1976).

Outside these narrow categories of “low” value speech, most other content-based restrictions on speech are presumptively unconstitutional. Even entertainment, vulgarity, “hate speech” (bigoted speech about particular races, religions, sexual orientations, and the like), blasphemy (speech that offends people’s religious sensibilities), and violent video games are protected by the First Amendment. The Supreme Court has generally been very reluctant to expand the list of “low” value categories of speech.

2. The government can restrict speech under a less demanding standard when the speaker is in a special relationship to the government. For example, the speech of government employees and of students in public schools can be restricted, even based on content, when their speech is incompatible with their status as public officials or students. A teacher in a public school, for example, can be punished for encouraging students to experiment with illegal drugs, and a government employee who has access to classified information generally can be prohibited from disclosing that information. Pickering v. Board of Education (1968).

3. The government can also restrict speech under a less demanding standard when it does so without regard to the content or message of the speech. Content-neutral restrictions, such as restrictions on noise, blocking traffic, and large signs (which can distract drivers and clutter the landscape), are generally constitutional as long as they are “reasonable.” Because such laws apply neutrally to all speakers without regard to their message, they are less threatening to the core First Amendment concern that government should not be permitted to favor some ideas over others. Turner Broadcasting System, Inc. v. FCC (1994). But not all content-neutral restrictions are viewed as reasonable; for example, a law prohibiting all demonstrations in public parks or all leafleting on public streets would violate the First Amendment. Schneider v. State (1939).

Courts have not always been this protective of free expression. In the nineteenth century, for example, courts allowed punishment of blasphemy, and during and shortly after World War I the Supreme Court held that speech tending to promote crime—such as speech condemning the military draft or praising anarchism—could be punished. Schenck v. United States (1919). Moreover, it was not until 1925 that the Supreme Court held that the First Amendment limited state and local governments, as well as the federal government. Gitlow v. New York (1925).

But starting in the 1920s, the Supreme Court began to read the First Amendment more broadly, and this trend accelerated in the 1960s. Today, the legal protection offered by the First Amendment is stronger than ever before in our history.

Three issues involving the freedom of speech are most pressing for the future.

Money, Politics, and the First Amendment

The first pressing issue concerns the regulation of money in the political process. Put simply, the question is this: To what extent, and in what circumstances, can the government constitutionally restrict political expenditures and contributions in order to “improve” the democratic process?

In its initial encounters with this question, the Supreme Court held that political expenditures and contributions are “speech” within the meaning of the First Amendment because they are intended to facilitate political expression by political candidates and others. The Court also recognized, however, that political expenditures and contributions could be regulated consistent with the First Amendment if the government could demonstrate a sufficiently important justification. In Buckley v. Valeo (1976), for example, the Court held that the government could constitutionally limit the amount that individuals could contribute to political candidates in order to reduce the risk of undue influence, and in McConnell v. Federal Election Commission (2003), the Court held that the government could constitutionally limit the amount that corporations could spend in the political process in order to influence electoral outcomes.

In more recent cases, though, in a series of five-to-four decisions, the Supreme Court has overruled McConnell and held unconstitutional most governmental efforts to regulate political expenditures and contributions. Citizens United v. Federal Election Commission (2010); McCutcheon v. Federal Election Commission (2014). As a result of these more recent decisions, almost all government efforts to limit the impact of money in the political process have been held unconstitutional, with the consequence that corporations and wealthy individuals now have an enormous impact on American politics.

Those who object to these decisions maintain that regulations of political expenditures and contributions are content-neutral restrictions of speech that should be upheld as long as the government has a sufficiently important justification. They argue that the need to prevent what they see as the corruption and distortion of American politics caused by the excessive influence of a handful of very wealthy individuals and corporations is a sufficiently important government interest to justify limits on the amount that those individuals and corporations should be permitted to spend in the electoral process.

Because these recent cases have all been five-to-four decisions, it remains to be seen whether a differently constituted set of justices in the future will adhere to the current approach, or whether they will ultimately overrule or at least narrowly construe those decisions. In many ways, this is the most fundamental First Amendment question that will confront the Supreme Court and the nation in the years to come.

The Meaning of “Low” Value Speech

The second pressing free speech issue concerns the scope of “low” value speech. In recent years, the Supreme Court has taken a narrow view of the low value concept, suggesting that, in order for a category of speech to fall within that concept, there has to have been a long history of government regulation of the category in question. This is true, for example, of such low value categories as defamation, obscenity, and threats. An important question for the future is whether the Court will adhere to this approach.

The primary justification for the Court’s insistence on a history of regulation is that this limits the discretion of the justices to pick-and-choose which categories of expression should be deemed to have only low First Amendment value. A secondary justification for the Court’s approach is that a history of regulation of a category of expression provides some basis in experience for evaluating the possible effects – and dangers – of declaring a new category of speech to have only low First Amendment value.

Why does this doctrine matter? To cite one illustration, under the Court’s current approach, so-called “hate speech” – speech that expressly denigrates individuals on the basis of such characteristics as race, religion, gender, national origin, and sexual orientation – does not constitute low value speech because it has not historically been subject to regulation. As a result, except in truly extraordinary circumstances, such expression cannot be regulated consistent with the First Amendment. Almost every other nation allows such expression to be regulated and, indeed, prohibited, on the theory that it does not further the values of free expression and is incompatible with other fundamental values of society.

Similarly, under the Court’s approach to low value speech it is unclear whether civil or criminal actions for “invasion of privacy” can be reconciled with the First Amendment. For example, can an individual be punished for distributing on the Internet “private” information about other persons without their consent? Suppose, for example, an individual posts naked photos of a former lover on the Internet. Is that speech protected by the First Amendment, or can it be restricted as a form of “low” value speech? This remains an unresolved question.

Leaks of Classified Information

The Supreme Court has held that the government cannot constitutionally prohibit the publication of classified information unless it can demonstrate that the publication or distribution of that information will cause a clear and present danger of grave harm to the national security. New York Times v. United States (The “Pentagon Papers” case) (1971). At the same time, though, the Court has held that government employees who gain access to such classified information can be restricted in their unauthorized disclosure of that information. Snepp v. United States (1980). It remains an open question, however, whether a government employee who leaks information that discloses an unconstitutional, unlawful, or unwise classified program can be punished for doing so. This issue has been raised by a number of recent incidents, including the case of Edward Snowden. At some point in the future, the Court will have to decide whether and to what extent the actions of government leakers like Edward Snowden are protected by the First Amendment.

I like Professor Stone’s list of important issues. I think speech about elections, including speech that costs money, must remain protected, whether it’s published by individuals, nonprofit corporations, labor unions, media corporations, or nonmedia business corporations. (Direct contributions to candidates, as opposed to independent speech about them, can be restricted, as the Court has held.) And I think restrictions on “hate speech” should remain unconstitutional. But I agree these are likely to be heavily debated issues in the coming years. I’d like to add three more issues as well.

Professional-Client Speech

Many professionals serve their clients by speaking. Psychotherapists try to help their patients by talking with them. Doctors make diagnoses, offer predictions, and recommend treatments. Lawyers give legal advice; financial planners, financial advice. Some of these professionals also do things (such as prescribe drugs, perform surgeries, or file court documents that have legal effect). But much of what they do is speak.

Yet the law heavily regulates such speakers. It bars people from giving any legal, medical, psychiatric, or similar advice unless they first get licenses (which can take years and hundreds of thousands of dollars’ worth of education to get)—though the government couldn’t require a license for people to become journalists or authors. The law lets clients sue professionals for malpractice, arguing that the professionals’ opinions or predictions proved to be “unreasonable” and harmful, though similar lawsuits against newspapers or broadcasters would be unconstitutional.

And the law sometimes forbids or compels particular speech by these professionals. Some states ban psychiatrists from offering counseling aimed at changing young patients’ sexual orientation. Florida has restricted doctors’ questioning their patients about whether the patients own guns. Many states, hoping to persuade women not to get abortions, require doctors to say certain things or show certain things to women who are seeking abortions. The federal government has tried to punish doctors who recommend that their patients use medical marijuana (which is illegal under federal law, but which can be gotten in many states with the doctor’s recommendation).

When are these laws constitutional? Moreover, if there is a First Amendment exception that allows such regulations of professional-client speech, which professions does it cover? What about, for instance, tour guides, fortunetellers, veterinarians, or diet advisors? Courts are only beginning to confront the First Amendment implications of these sorts of restrictions, and the degree to which the government’s interest in protecting clients—and in preventing behavior that the government sees as harmful—can justify restricting professional-client speech.

Crime-Facilitating Speech

Some speech contains information that helps people commit crimes, or get away with committing crimes. Sometimes this is general information, for instance about how bombs are made, how locks can be picked, how deadly viruses can be created, how technological protections for copyrighted works can be easily evaded, or how a contract killer can get away with his crime.

Sometimes this is specific information, such as the names of crime witnesses that criminals might want to silence, the location of police officers whom criminals might want to avoid, or the names of undercover officers or CIA agents. Indeed, sometimes this can be as familiar as people flashing lights to alert drivers that a police officer is watching; people are occasionally prosecuted for this, because they are helping others get away with speeding.

Sometimes this speech is said specifically with the purpose of promoting crime—but sometimes it is said for other purposes: consider chemistry books that talk about explosives; newspaper articles that mention people’s names so the readers don’t feel anything is being concealed; or novels that accurately describe crimes just for entertainment. And sometimes it is said for political purposes, for instance when someone describes how easy it is to evade copyright law or proposed laws prohibiting 3-D printing of guns, in trying to explain why those laws need to be rejected.

Surprisingly, the Supreme Court has never explained when such speech can be restricted. The narrow incitement exception, which deals with speech that aims to persuade people to commit imminent crimes, is not a good fit for speech that, deliberately or not, informs people about how to commit crimes at some point in the future. This too is a field that the Supreme Court will likely have to address in coming decades.

“Hostile Environment Harassment” Rules

Finally, some government agencies, courts, and universities have reasoned that the government may restrict speech that sufficiently offends employees, students, or business patrons based on race, religion, sex, sexual orientation, and the like. Here’s how the theory goes: Laws ban discrimination based on such identity traits in employment, education, and public accommodations. And when speech is “severe or pervasive” enough to create a “hostile or offensive environment” based on those traits, such speech becomes a form of discrimination. Therefore, the argument goes, a wide range of speech—such as display of Confederate flags, unwanted religious proselytizing, speech sharply criticizing veterans, speech suggesting that Muslims are disloyal, display of sexually suggestive materials, sexually-themed humor, sex-based job titles (such as “foreman” or “draftsman”), and more—can lead to lawsuits.

Private employers are paying attention, and restricting such speech by their employees. Universities are enacting speech codes restricting such speech. Even speech in restaurants and other public places, whether put up by the business owner or said by patrons, can lead to liability for the owner. And this isn’t limited to offensive speech said to a particular person who doesn’t want to hear it. Even speech posted on the wall or overheard in the lunchroom can lead to liability, and would thus be suppressed by “hostile environment” law.

To be sure, private employers and business owners aren’t bound by the First Amendment, and are thus generally free to restrict such speech on their property. And even government employers and enterprises generally have broad latitude to control what is said on their property (setting aside public universities, which generally have much less such latitude). But here the government is pressuring all employers, universities, and businesses to impose speech codes, by threatening liability on those who don’t impose such codes. And that government pressure is subject to First Amendment scrutiny.

Some courts have rejected some applications of this “hostile environment” theory on First Amendment grounds; others have upheld other applications. This too is something the Supreme Court will have to consider.

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Chapter 6: The Right to Freedom of Speech

The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.

Free speech is our most fundamental—and our most contested—right. It is an essential freedom because it is how we protect all of our other rights and liberties. If we could not speak openly about the policies and actions of government, then we would have no effective way to participate in the democratic process or protest when we believed governmental behavior threatened our security or our freedom. Although Americans agree that free speech is central to democratic government, we disagree sharply about what we mean by speech and about where the right begins and ends. Speech clearly includes words, but does it also include conduct or symbols? Certainly, we have the right to criticize the government, but can we also advocate its overthrow? Does the right to free speech allow us to incite hate or use foul language in public?

The framers of the Bill of Rights understood the importance of free expression and protected it under the First Amendment: “Congress shall make no law. . . abridging the freedom of speech.” Both English history and their own colonial past had taught them to value this right, but their definition of free speech was much more limited than ours. Less than a decade after the amendment’s ratification, Congress passed the Sedition Act of 1798, making it a crime to criticize the government. Many citizens believed government could forbid speech that threatened public order, as witnessed by numerous early nineteenth-century laws restricting speech against slavery. During the Civil War, thousands of antiwar protestors were arrested on the theory that the First Amendment did not protect disloyal speech. Labor unrest in the 1800s and 1890s brought similar restraints on the right of politically unpopular groups, such as socialists, to criticize government’s failure to protect working people from the ills of industrialization and economic depression.

Freedom of speech did not become a subject of important court cases until the twentieth century when the Supreme Court announced one of the most famous principles in constitutional law, the clear and present danger test. The test was straightforward: government could not restrict speech unless it posed a known, immediate threat to public safety. The standard sought to balance the need for order with the right to speak freely. At its heart was the question of proximity, or closeness, and degree. If speech brought about an action that was dangerous under the immediate circumstances, such as falsely yelling “fire” in a crowded theater, then it did not enjoy First Amendment protection. With this case, Schenck v. United States (1919), the Court began a decades-long process of seeking the right balance between free speech and public safety.

The balance, at first, was almost always on the side of order and security. Another case decided in 1919, Debs v. United States , illustrates how restrictive the test could be. Eugene Debs was a labor leader from Indiana who had run for President four times as the candidate of the Socialist Party of America, once polling more than one million votes. At a June 1918 rally in Chicago, while U.S. troops were fighting in World War I, he told the working-class crowd, “You need to know you are fit for something better than slavery and cannon fodder.”

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic . . . 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. It is a question of proximity and degree.

He was sentenced under an existing federal statute to twenty years in prison for inciting disloyalty and obstruction of military recruitment, which the Supreme Court upheld.

For the next five decades, the Court wrestled with the right balance between speech and order. Much of what defined freedom of speech emerged from challenges to the government’s ability to regulate or punish political protest. Each case brought a new set of circumstances that allowed the justices an opportunity to modify or extend the clear and present danger test. Many decisions recognized the abstract right of individuals to speak freely, but each one hedged this right in important ways. Always in the background were conditions that pointed to disorder, dissension, and danger—the Great Depression, World War II, and the Cold War, among them—so the justices were cautious in expanding a right that would expose America to greater threats. These cases, however, gradually introduced a new perspective on the value of free speech in a democracy, namely, the belief that truth is best reached by the free trade in ideas.

The belief that society is best served by a marketplace of ideas open to all opinions, no matter how radical, ultimately prevailed. In 1927, the Court had endorsed what came to be called the bad tendency test: if officials believed speech was likely to lead to a bad result, such as urging people to commit a violent act, it was not protected under the First Amendment even if no violence occurred. By 1969, however, similar facts produced a different outcome. Ku Klux Klan members in Ohio invited a television station to film their rally. Waving firearms, they shouted racist and anti-Semitic slurs and threatened to march on Congress before their leader was arrested and later convicted under a state law banning speech that had a tendency to incite violence. The Supreme Court overturned his conviction in Brandenburg v. Ohio and established the rule still in effect today: the First Amendment protects the right to advocate the use of force or violence, but it does not safeguard speech likely to incite or produce an immediate unlawful act. The Brandenburg test has allowed Nazis to march, Klan members to hold rallies, and other extremist groups to promote views far outside the mainstream of public opinion. With few exceptions—fighting words and obscenity, for example—government today cannot regulate the content of speech.

Even as society was coming to accept a wide range of political ideas, opposition to an unpopular war raised other questions about the limits and forms of free speech. By the mid- to late 1960s, the Vietnam War divided Americans. Although many citizens supported the use of U.S. troops to stop communism in Asia, a growing minority, including many draft-age young people, took to the streets to oppose the war. The protestors did not limit their efforts to antiwar speeches; they also wore shirts with obscene slogans, burned draft cards, and desecrated American flags. Using these symbols to protest, they argued, was a form of free speech. Soon, the Supreme Court faced the question squarely in a case involving a youthful protestor from the nation’s heartland: is symbolic speech—messages using symbols or signs, not words—protected by the First Amendment?

The first large-scale American demonstration against the Vietnam War occurred in November 1965 when more than 25,000 protestors converged on the nation’s capital. Fifty Iowans made the long bus ride, and on the way home they decided to make their opposition known locally by wearing black armbands to work and school. One member of the peace contingent was Lorena Tinker, the wife of a Des Moines Methodist minister and mother of five children. Mary Beth Tinker, a thirteen-year-old eighth grader, followed her mother’s suggestion and became one of a handful of local public school students who wore this symbol of protest to school. This act placed her in the middle of a national controversy about student rights and freedom of expression.

In many ways, Mary Beth was a normal eighth grader. She was a good student who enjoyed singing, spending time with her friends, and taking part in church activities. What made her different was a commitment to social justice, a passion encouraged by her parents, both of whom were known for their activism. Her parents wanted their children to share their moral and social values, and Mary Beth responded eagerly to their invitation to participate with them. By the time she became a teenager, she already had attended her first protest, accompanying her father to a rally about fair housing.

Mary Beth Tinker, her brother, John, and a handful of Des Moines students planned their demonstration for December 16, 1965. The students’ aim was not to protest the war but to mourn its casualties, Vietnamese and American, and to show support for proposed peace talks. School officials, however, promised to suspend anyone who came to school wearing the armbands, and the school principal suspended Mary Beth and sent her home. She was one of five students suspended that day for wearing the offending cloth. Significantly, the school ban applied only to armbands, in other words, to students who opposed the Vietnam War; a number of students that day wore an array of other symbols, including the Iron Cross, a Nazi medal.

When the school board upheld the suspensions, the Tinkers persuaded the Iowa Civil Liberties Union to take the case to federal court. Two lower federal courts agreed with the school’s action, rebuffing the argument that the policy violated the First Amendment guarantee of free speech. The Supreme Court decided otherwise. In its 7-to-2 decision, announced in February 1969, the justices held that the wearing of armbands is a symbolic act akin to “pure speech” and protected by the right to free expression. The protesting students posed no threat to the order required for effective instruction, nor did the wearing of armbands interfere with the school’s educational mission. In this instance, the balance between order and liberty was weighted on the side of the First Amendment. Students and teachers, the Court concluded, do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Symbolic speech has been the focus of some of our greatest constitutional drama. Words may be powerful and provocative, but symbols are often more inflammatory because they are visual and evoke an emotional response. We live in an age when we use pictures and symbols to convey important messages, whether in politics or the marketplace. For these reasons, the Supreme Court’s recognition of symbolic speech as a right protected by the First Amendment has been a significant development. Twenty-five years after Mary Beth Tinker put on her armband in remembrance of the war dead, Life magazine featured a handful of civil liberties cases to celebrate the bicentennial of the Bill of Rights. Mary Beth’s case was included, even though the rights of students remained, and still are, more limited than those of adult citizens. But her actions as an eighth grader expanded our conception of constitutionally protected speech to include the symbols we use to express our convictions.

Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.

More than most other recent decisions, cases involving symbolic speech have revealed how contentious the right of free speech remains in our society. In 1989, the Supreme Court ruled that the First Amendment protected individuals who burned the American flag in protest. This decision was highly controversial, and it has resulted in numerous attempts to amend the Constitution to protect the flag and, in effect, limit speech in this circumstance. The outcome of this effort is uncertain, but the debate raises important questions: What role does this right play in our democracy? How does it contribute to our liberty as Americans?

The right to speak freely, without restraint, is essential to democratic government because it helps us develop better laws and policies through challenge, rebuttal, and debate. When we all have the ability to speak in the public forum, offensive opinions can be combated with an opposing argument, a more inclusive approach, a more effective idea. We tolerate offensive speech and protect the right to speak even for people who would deny it to us because we believe that exposing their thoughts and opinions to open debate will result in the discovery of truth. This principle is an old one in Western thought. U.S. Supreme Court Justice Oliver Wendell Holmes’s dissent in Abrams v. United States , a 1919 case suppressing free speech, is a classic statement of this view: “The best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which [the public’s] wishes safely can be carried out.”

Governmental actions to deny differing points of view, even distasteful or unpopular opinions, rob us of the range of ideas that might serve the interests of society more effectively. In a case decided almost a decade before Tinker v. Des Moines , the Supreme Court found this rationale especially applicable to the classroom. “The Nation’s future,” the justices wrote, “depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues.” As a nation, we are willing to live with the often bitter conflict over ideas because we believe it will lead to truth and to improved lives for all citizens. We recognize that freedom of speech is the first freedom of democracy, as the English poet John Milton argued during his own seventeenth-century struggle to gain this right: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” The ability to speak freely allows us to pursue truth, to challenge falsehoods, to correct mistakes—all are necessary for a healthy society.

Free speech also reflects a commitment to individual freedom and autonomy, the right to decide for ourselves and to pursue our own destiny. Throughout our history, we have been so committed to individual choice that many foreign observers believe it is our most characteristic trait. We see it reflected daily in everything from advertising slogans—“Have It Your Way”— to fashion statements, but fail to recognize how closely freedom is tied to the right to speak freely. Free speech guarantees us an individual voice, no matter how far removed our opinions and beliefs are from mainstream society. With this voice we are free to contribute as individuals to the marketplace of ideas or a marketplace of goods, as well as to decide how and under what circumstances we will join with others to decide social and governmental policies.

A commitment to free speech, of course, will not resolve all conflict, not if our history is any guide. The debate is most contentious during times of war or other moments when national security is at stake. Even then—perhaps especially then—we will continue to fight over words and symbols because they express our deepest hopes and our most worrisome fears. This contest over what speech is acceptable and what is not has been a constant theme of our past. Rarely do these struggles produce a neat consensus. More often, intemperate rhetoric and bitter division have been their legacy, and this angry clamor is one of the basic noises of our history. What makes the struggle to protect free speech worthwhile is its ability to serve as a lever for change. When we practice our right to speak openly, we are defining the contours of our democracy. It is messy work, but through it, we keep the Constitution alive and, with it, our dreams of a just society.

“Free Trade in Ideas”

Jacob Abrams was a Russian immigrant and anarchist convicted of violating the Sedition Act of 1918, which made it a crime to advocate anything that would impede the war effort during World War I. In 1917 Justice Oliver Wendell Holmes, Jr., had written the Court’s opinion in Schenck v. United States , upholding similar convictions because Congress had a right to regulate speech that posed a “clear and present danger” to public safety. But by the time Abrams’s appeal reached the Court in 1919, Holmes had modified his views. Disturbed by anti-radical hysteria, he dissented from the majority’s decision upholding Abrams’s conviction in Abrams v. United States . His eloquent discussion of the connection between freedom of speech and the search for truth soon became the standard used by the Supreme Court to judge free speech cases until Brandenberg v. Ohio in 1972. The First Amendment, Holmes reasoned, protected the expression of all opinions “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so . . .

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country . . . Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “Congress shall make no law abridging the freedom of speech.” Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

“Malicious Words” versus “Free Communication”

In response to fears about imminent wars with France in 1798, the Federalist-controlled Congress passed a series of four acts known collectively as the Alien and Sedition Acts. Section 2 of the Sedition Act made it a crime to make defamatory statements about the government or President. (Sedition is an action inciting resistance to lawful authority and tending to lead to the overthrow of the government.) The act was designed to suppress political opposition. Its passage by Congress reveals how limited the definition of the right of free speech was for some Americans only a few years after the ratification of the First Amendment.

Sec. 2 . . . That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United Sates, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

James Madison, congressman from Virginia, and Thomas Jefferson, the sitting Vice President, secretly drafted resolutions protesting the Sedition Act as unconstitutional. The Virginia and Kentucky legislatures passed these resolutions in 1798. Both resolutions especially pointed to the act’s violation of First Amendment protections, as seen in the Virginia Resolution here.

Resolved, . . . That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution in the two late cases of the “Alien and Sedition Acts” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution; and the other of which acts, exercises in like manner, a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.

That this state having by its Convention, which ratified the federal Constitution, expressly declared, that among other essential rights, “the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution; it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of one of the Rights, thus declared and secured; and to the establishment of a precedent which may be fatal to the other.

The Sedition Act expired in 1801 but not until a number of the Federalists’ opponents, including Congressman Matthew Lyon of Vermont, had been convicted of violating the law. Today, historians consider the Sedition Act to have been a gross misuse of government power. In 1798, the Kentucky Resolutions focused on the rights of states to determine the limits of free speech.

Resolved, that it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;” and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed.

Related Resources

• Timeline: First Amendment - Freedom of Speech
• Video: A Conversation on the Constitution with Justices Stephen Breyer, Anthony Kennedy and Sandra Day O'Connor: Freedom of Speech

Table of Contents

• ENCYCLOPEDIA
• IN THE CLASSROOM

The First Amendment: 7 things you need to know

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – The First Amendment to the U.S. Constitution

• 1 The five freedoms it protects: speech, religion, press, assembly, and the right to petition the government. Together, these five guaranteed freedoms make the people of the United States of America the freest in the world.
• 2 Before agreeing to accept the Constitution, the Founders of our democratic republic demanded that these freedoms be protected by an amendment to the original document – the First Amendment.
• 3 There’s no “legal age” you have to reach to exercise your First Amendment freedoms. They are guaranteed to you the day you’re born. There’s also no citizenship requirement for First Amendment protection. If you’re in the U.S., you have freedom of speech, religion, press, assembly and petition.
• 4 The First Amendment is neither “left-wing” or “right-wing.” It can be used to push for social and political change, or to oppose change. The First Amendment is for everyone.
• 5 The First Amendment protects us against government limits on our freedom of expression, but it doesn’t prevent a private employer from setting its own rules.
• 6 The First Amendment prevents government from requiring you to say something you don’t want to, or keeping you from hearing or reading the words of others (even if you never speak out yourself, you have the right to receive information).
• 7 Students have the right to pray in America’s public schools, as long as there’s no disruption to school operations and no government employees (teachers, coaches) are involved.

Written by  Ken Paulson , director of the Free Speech Center

Looking for a general overview?  Here it is, from the First Amendment Encyclopedia.

The five freedoms

What does the First Amendment say about freedom of speech? Can speech be restricted, and if so, when? In this overview, a First Amendment scholar explains what sorts of speech are protected, where free expression may be limited, and why “[f]reedom of speech is a core American belief, almost a kind of secular religious tenet, an article of constitutional faith.”

How did freedom of the press come about? Are there restrictions on press freedom? The ways in which this core freedom has developed in law are explained in this overview by a First Amendment scholar. In quotations from one court ruling, “‘[F]reedom of expression upon public questions is secured by the First Amendment’” so that “‘debate on public issues should be uninhibited, robust and wide-open.’”

The First Amendment introduced bold new ideas to the world: that government must not impose a state religion on the public, or place undue restrictions on religious practice, but must recognize the right of the people to believe and worship, or not, as their conscience dictates. This First Amendment scholar’s overview makes clear the many aspects of our religious freedom, saying, “That bold constitutional experiment in granting religious freedom to all remains in place, and in progress, in the United States.”

Our right to gather in peaceful public protest – in marches, rallies and other assemblies – is another core freedom guaranteed by the First Amendment. As a First Amendment scholar says in this overview, “First Amendment freedoms ring hollow if government officials can repress expression that they fear will create a disturbance or offend. Unless there is real danger of imminent harm, assembly rights must be respected.”

This least-known First Amendment freedom is nevertheless crucial to our democratic republic’s form of government. “Petition is the right to ask government at any level to right a wrong or correct a problem,” writes a First Amendment scholar in this overview detailing how the right of petition works in our government, and the forms it takes.

More resources

First amendment encyclopedia.

A searchable encyclopedia with more than 1,700 articles on the First Amendment, ranging from case summaries and topical articles/

First Amendment Timeline

Trace the development of the principles leading to the adoption of the First Amendment, and developments in First Amendment jurisprudence through the years.

First Amendment in the Classroom

A collection of educational resources and lesson plans created by prominent First Amendment organizations throughout the nation.

EXPLORE THE FIRST AMENDMENT ENCYCLOPEDIA

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CONCEPTS & LEGAL TERMS

LAWS & PROPOSED LAWS

Freedom of Expression

FREEDOM OF EXPRESSION

Freedom of speech, of the press, of association, of assembly and petition -- this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. The Supreme Court has written that this freedom is "the matrix, the indispensable condition of nearly every other form of freedom." Without it, other fundamental rights, like the right to vote, would wither and die.

But in spite of its "preferred position" in our constitutional hierarchy, the nation's commitment to freedom of expression has been tested over and over again. Especially during times of national stress, like war abroad or social upheaval at home, people exercising their First Amendment rights have been censored, fined, even jailed. Those with unpopular political ideas have always borne the brunt of government repression. It was during WWI -- hardly ancient history -- that a person could be jailed just for giving out anti-war leaflets. Out of those early cases, modern First Amendment law evolved. Many struggles and many cases later, ours is the most speech-protective country in the world.

The path to freedom was long and arduous. It took nearly 200 years to establish firm constitutional limits on the government's power to punish "seditious" and "subversive" speech. Many people suffered along the way, such as labor leader Eugene V. Debs, who was sentenced to 10 years in prison under the Espionage Act just for telling a rally of peaceful workers to realize they were "fit for something better than slavery and cannon fodder." Or Sidney Street, jailed in 1969 for burning an American flag on a Harlem street corner to protest the shooting of civil rights figure James Meredith. (see box)

THE FIRST AMENDMENT IGNORED

Early Americans enjoyed great freedom compared to citizens of other nations. Nevertheless, once in power, even the Constitution's framers were guilty of overstepping the First Amendment they had so recently adopted. In 1798, during the French-Indian War, Congress passed the Alien and Sedition Act, which made it a crime for anyone to publish "any false, scandalous and malicious writing" against the government. It was used by the then-dominant Federalist Party to prosecute prominent Republican newspaper editors during the late 18th century.

Throughout the 19th century, sedition, criminal anarchy and criminal conspiracy laws were used to suppress the speech of abolitionists, religious minorities, suffragists, labor organizers, and pacifists. In Virginia prior to the Civil War, for example, anyone who "by speaking or writing maintains that owners have no right of property in slaves" was subject to a one-year prison sentence.

The early 20th century was not much better. In 1912, feminist Margaret Sanger was arrested for giving a lecture on birth control. Trade union meetings were banned and courts routinely granted injunctions prohibiting strikes and other labor protests. Violators were sentenced to prison. Peaceful protesters opposing U. S. entry into World War I were jailed for expressing their opinions. In the early 1920s, many states outlawed the display of red or black flags, symbols of communism and anarchism. In 1923, author Upton Sinclair was arrested for trying to read the text of the First Amendment at a union rally. Many people were arrested merely for membership in groups regarded as "radical" by the government. It was in response to the excesses of this period that the ACLU was founded in 1920.

Free speech rights still need constant, vigilant protection. New questions arise and old ones return. Should flag burning be a crime? What about government or private censorship of works of art that touch on sensitive issues like religion or sexuality? Should the Internet be subject to any form of government control? What about punishing college students who espouse racist or sexist opinions? In answering these questions, the history and the core values of the First Amendment should be our guide.

THE SUPREME COURT AND THE FIRST AMENDMENT

During our nation's early era, the courts were almost universally hostile to political minorities' First Amendment rights; free speech issues did not even reach the Supreme Court until 1919 when, in Schenck v. U.S., the Court unanimously upheld the conviction of a Socialist Party member for mailing anti-anti-war leaflets to draft-age men. A turning point occurred a few months later in Abrams v. U.S. Although the defendant's conviction under the Espionage Act for distributing anti-war leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law. Justices Oliver Wendell Holmes and Louis D. Brandeis argued speech could only be punished if it presented "a clear and present danger" of imminent harm. Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the "clear and present danger test."

From then on, the right to freedom of expression grew more secure -- until the 1950s and McCarthyism. The Supreme Court fell prey to the witchhunt mentality of that period, seriously weakening the "clear and present danger" test by holding that speakers could be punished if they advocated overthrowing the government -- even if the danger of such an occurrence were both slight and remote. As a result, many political activists were prosecuted and jailed simply for advocating communist revolution. Loyalty oath requirements for government employees were upheld; thousands of Americans lost their jobs on the basis of flimsy evidence supplied by secret witnesses.

Finally, in 1969, in Brandenberg v. Ohio, the Supreme Court struck down the conviction of a Ku Klux Klan member, and established a new standard: Speech can be suppressed only if it is intended, and likely to produce, "imminent lawless action." Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails today.

WHAT DOES "PROTECTED SPEECH" INCLUDE?

First Amendment protection is not limited to "pure speech" -- books, newspapers, leaflets, and rallies. It also protects "symbolic speech" -- nonverbal expression whose purpose is to communicate ideas. In its 1969 decision in Tinker v. Des Moines, the Court recognized the right of public school students to wear black armbands in protest of the Vietnam War. In 1989 ( Texas v. Johnson) and again in 1990 ( U.S. v. Eichman), the Court struck down government bans on "flag desecration." Other examples of protected symbolic speech include works of art, T-shirt slogans, political buttons, music lyrics and theatrical performances.

Government can limit some protected speech by imposing "time, place and manner" restrictions. This is most commonly done by requiring permits for meetings, rallies and demonstrations. But a permit cannot be unreasonably withheld, nor can it be denied based on content of the speech. That would be what is called viewpoint discrimination -- and that is unconstitutional.

When a protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant and to engage passersby in debate. But they do not have the right to block building entrances or to physically harass people.

FREE SPEECH FOR HATEMONGERS?

The ACLU has often been at the center of controversy for defending the free speech rights of groups that spew hate, such as the Ku Klux Klan and the Nazis. But if only popular ideas were protected, we wouldn't need a First Amendment. History teaches that the first target of government repression is never the last. If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one's liberty will be secure. In that sense, all First Amendment rights are "indivisible."

Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. As one federal judge has put it, tolerating hateful speech is "the best protection we have against any Nazi-type regime in this country."

At the same time, freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. Threatening phone calls, for example, are not constitutionally protected.

SPEECH & NATIONAL SECURITY

The Supreme Court has recognized the government's interest in keeping some information secret, such as wartime troop deployments. But the Court has never actually upheld an injunction against speech on national security grounds. Two lessons can be learned from this historical fact. First, the amount of speech that can be curtailed in the interest of national security is very limited. And second, the government has historically overused the concept of "national security" to shield itself from criticism, and to discourage public discussion of controversial policies or decisions.

In 1971, the publication of the "Pentagon Papers" by the New York Times brought the conflicting claims of free speech and national security to a head. The Pentagon Papers, a voluminous secret history and analysis of the country's involvement in Vietnam, was leaked to the press. When the Times ignored the government's demand that it cease publication, the stage was set for a Supreme Court decision. In the landmark U.S. v. New York Times case, the Court ruled that the government could not, through "prior restraint," block publication of any material unless it could prove that it would "surely" result in "direct, immediate, and irreparable" harm to the nation. This the government failed to prove, and the public was given access to vital information about an issue of enormous importance.

The public's First Amendment "right to know" is essential to its ability to fully participate in democratic decision-making. As the Pentagon Papers case demonstrates, the government's claims of "national security" must always be closely scrutinized to make sure they are valid.

UNPROTECTED EXPRESSION

The Supreme Court has recognized several limited exceptions to First Amendment protection.

• In Chaplinsky v. New Hampshire (1942), the Court held that so-called "fighting words ... which by their very utterance inflict injury or tend to incite an immediate breach of the peace," are not protected. This decision was based on the fact that fighting words are of "slight social value as a step to truth."
• In New York Times Co. v. Sullivan (1964), the Court held that defamatory falsehoods about public officials can be punished -- only if the offended official can prove the falsehoods were published with "actual malice," i.e.: "knowledge that the statement was false or with reckless disregard of whether it was false or not." Other kinds of "libelous statements" are also punishable.
• Legally "obscene" material has historically been excluded from First Amendment protection. Unfortunately, the relatively narrow obscenity exception, described below, has been abused by government authorities and private pressure groups. Sexual expression in art and entertainment is, and has historically been, the most frequent target of censorship crusades, from James Joyce's classic Ulysses to the photographs of Robert Mapplethorpe.

In the 1973 Miller v. California decision, the Court established three conditions that must be present if a work is to be deemed "legally obscene." It must 1) appeal to the average person's prurient (shameful, morbid) interest in sex; 2) depict sexual conduct in a "patently offensive way" as defined by community standards; and 3) taken as a whole, lack serious literary, artistic, political or scientific value. Attempts to apply the "Miller test" have demonstrated the impossibility of formulating a precise definition of obscenity. Justice Potter Stewart once delivered a famous one-liner on the subject: "I know it when I see it." But the fact is, the obscenity exception to the First Amendment is highly subjective and practically invites government abuse.

THREE REASONS WHY FREEDOM OF EXPRESSION IS ESSENTIAL TO A FREE SOCIETY

It's the foundation of self-fulfillment. The right to express one's thoughts and to communicate freely with others affirms the dignity and worth of each and every member of society, and allows each individual to realize his or her full human potential. Thus, freedom of expression is an end in itself -- and as such, deserves society's greatest protection.

It's vital to the attainment and advancement of knowledge, and the search for the truth. The eminent 19th-century writer and civil libertarian, John Stuart Mill, contended that enlightened judgment is possible only if one considers all facts and ideas, from whatever source, and tests one's own conclusions against opposing views. Therefore, all points of view -- even those that are "bad" or socially harmful -- should be represented in society's "marketplace of ideas."

It's necessary to our system of self-government and gives the American people a "checking function" against government excess and corruption. If the American people are to be the masters of their fate and of their elected government, they must be well-informed and have access to all information, ideas and points of view. Mass ignorance is a breeding ground for oppression and tyranny.

THE ACLU: ONGOING CHAMPION OF FREE EXPRESSION

The American Civil Liberties Union has been involved in virtually all of the landmark First Amendment cases to reach the U.S. Supreme Court, and remains absolutely committed to the preservation of each and every individual's freedom of expression. During the 1980s, we defended the right of artists and entertainers to perform and produce works of art free of government and private censorship. During the 1990s, the organization fought to protect free speech in cyberspace when state and federal government attempted to impose content-based regulations on the Internet. In addition, the ACLU offers several books on the subject of freedom of expression:

RESOURCES: Ira Glasser, Visions of Liberty, Arcade, 1991. J. Gora, D. Goldberger, G. Stern, M. Halperin, The Right to Protest: The Basic ACLU Guide to Free Expression, SIU Press, 1991. Franklin Haiman, "Speech Acts" and the First Amendment 1993, SIU Press, 1993. Nadine Strossen, Defending Pornography: Free Speech, Sex and the Fight for Women's Rights, Anchor Press, 1995.

To order call 1-800-775-ACLU

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• Observer & Eccentric

What free speech is, and isn't, protected under the First Amendment

The First Amendment protects freedom of speech, and yet, what that means has been interpreted by the U.S. Supreme Court. 

According to the  Administrative Office of the U.S. Courts , the court "has struggled to determine what exactly constitutes protected speech," but here are some of the things the court has ruled on.

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What the First Amendment protects:

• The right not to speak, such as saluting the flag.
• To wear black armbands to school to protest a war.
• Using offensive words and phrases to convey political messages.
• To contribute money, under certain circumstances, to political campaigns.
• To advertise commercial products and professional services.
• To burning the flag in protest.

What the First Amendment does not protect:

• The right to incite actions that would harm others.
• To make or distribute obscene materials.
• To burn draft cards as an anti-war protest.
• To print school newspaper articles over the administration's objections.
• To make an obscene speech at a school-sponsored event.
• To advocate illegal drug use at a school-sponsored event.

Contact Frank Witsil: 313-222-5022 or [email protected].

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Speech is never totally free

Cass Sunstein suggests universities look to First Amendment as they struggle to craft rules in wake of disruptive protests

Harvard Staff Writer

In the aftermath of student protests that shook campuses last spring, universities across the nation are wrestling with questions about how and when speech should be regulated. Educational institutions could turn to the First Amendment for guidance, said Cass Sunstein, Robert Walmsley University Professor, during a Tuesday talk at Harvard Law School.

Universities should strive to keep a balanced approach to free speech while protecting their educational mission. Cass Sunstein

The First Amendment, adopted in 1791, establishes that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

The Amendment, with its prohibition on “abridging” freedoms, might seem absolute. But, Sunstein notes, that is not the case. The legal doctrine that has developed over the decades provides a set of guiding principles that include permissible restrictions, which can help universities fulfill their educational mission while balancing free speech.

“The First Amendment provides something like a diagnosis of problems,” said Sunstein in a dialogue with Professor of Law Benjamin Eidelson about Sunstein’s new book, “Campus Free Speech.” The book offers a case-study framework for resolving dilemmas about when speech should be more and less free.

First Amendment principles offer clear guidance when it comes to regulating actions that are considered “true threats,” Sunstein said, such as students who threaten to commit violence against their classmates or destroy buildings or are part of a criminal conspiracy.

In addition, some regulation can be appropriate if it’s essential to an institution’s core mission. Such limits have been allowed for religious and military schools, for instance.

He also noted that private universities are not legally bound by the First Amendment the way public universities and public officials are, but free speech is essential to the learning enterprise and universities, as centers of learning, should commit to preserving it.

Allowable restrictions can be based on content of speech, such as when universities ask professors not to discuss certain topics in class. They can be content-neutral, as when they don’t allow loud music in dorms after midnight, or they can be based on viewpoint, such as when professors are hired for their political views for the sake of intellectual diversity.

But universities should strive to keep a balanced approach to free speech while protecting their educational mission, said Sunstein.

“The idea of the educational mission being a permission slip for universities to regulate speech seems to me both essential and rightly evocative of the phrase ‘That way lies madness,’” said Sunstein. “Suppose there is a faculty member who thinks America is rotten to the core, there may be students who think, ‘America is the opposite of rotten to the core’ and ‘How can I learn from someone who despises my nation?’ The idea that leading to discomfort or feeling of something like exclusion as a basis for regulating speech is like the heckler’s veto, and that is not consistent with the kind of pluralism educational institutions prize.”

Besides serving as a manual or diagnostic tool, free-speech principles can also serve as a source of inspiration. Sunstein said that while writing his book he was inspired by the writings of some Supreme Court justices. He said he was particularly moved by the words of Supreme Court Justice Robert H. Jackson, who wrote the landmark ruling in West Virginia State Board of Education v. Barnette . The 1943 decision established that the First Amendment protects students from being compelled to salute the American flag or recite the Pledge of Allegiance in public schools.

“Justice Jackson wrote, ‘Compulsory unification of opinion achieves only the unanimity of the graveyard,’” said Sunstein. “There are lots of graveyards. They’re all quiet. And that’s not what we need at the greatest arsenal for democracy that is America’s educational institutions.”

He said the nation’s colleges and universities could also learn from the words of Oliver Wendell Holmes Jr., who wrote a famous defense of free speech in Abrams v. United States in 1919.

“First Amendment principles as developed over a very long period by judges of very diverse predilections have, broadly speaking, to be celebrated and honored rather than deplored,” said Sunstein. “Justice Oliver Wendell Holmes Jr. said, ‘We protect speech, the speech we hate and that we believe to be fraught with death.’ That’s quite a sentence for a Supreme Court justice to write, and it’s a good sentence.”

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• Freedom of speech

Freedom of speech is the concept of being able to speak freely without censorship . It is often regarded as an integral concept in modern democracies.

• 1.2.1 Cato's Letters, John Trenchard and Thomas Gordon (Letter Number 15, Of Freedom of Speech, That the Same is inseparable from Publick Liberty , February 4, 1720)
• 3 External links

• John Milton , Areopagitica: A Speech for the Liberty of Unlicens'd Printing, to the Parliament of England (published November 23, 1644).
• Benjamin Franklin , "On Freedom of Speech and the Press", Pennsylvania Gazette , 17 November 1737 .
• Samuel Adams , ( Boston Gazette , 1768) — cited in: Emord, Jonathan W. (1991). Freedom, Technology, and the First Amendment . Pacific Research Institute for Public Policy. p. 61.  
• George Washington , address to the officers of the army, Newburgh, New York (March 15, 1783); reported in John C. Fitzpatrick, ed, The Writings of George Washington (1938), vol. 26, p. 225.
• Thomas Jefferson to Edward Carrington, January 16, 1787, The Thomas Jefferson Papers Series 1, General Correspondence, 1651-1827 ( Library of Congress ).
• Declaration of the Rights of Man and of the Citizen (1789), Article XI
• First Amendment to the United States Constitution . December 15, 1791.

• Thomas Jefferson to Archibald Stuart, Philadelphia, December 23, 1791.
• Cited in Thomas Jefferson (2002). "1791" . in Jerry Holmes. Thomas Jefferson: A Chronology of His Thoughts . Rowman & Littlefield. pp. p. 128. ISBN 0742521168 .  
• Samuel Johnson , as quoted in James Boswell's The Life of Samuel Johnson , Vol. 1 (1791), p. 335.
• Eyre, L.C.J., Hardy's Case (1794), 24 How. St. Tr. 206; reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 99.
• Thomas Jefferson , Letter to William Green Mumford (18 June 1799) .

Cato's Letters , John Trenchard and Thomas Gordon (Letter Number 15, Of Freedom of Speech, That the Same is inseparable from Publick Liberty , February 4, 1720)

• Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as public Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or control the Right of another. And this is the only Check it ought to suffer, and the only bounds it ought to know. This sacred Privilege is to essential to free Governments, that the Security of Property , and the Freedom of Speech always go together; and in those wretched Countries where a Man cannot call his Tongue his own, he can scarce call any Thing else his own. Whoever would overthrow the Liberty of a Nation, must begin by subduing the Freedom of Speech; a Thing terrible to Publick Traytors .
• That Men ought to speak well of their Governours is true, while their Governours , deserve to be well spoken of, but to do publick Mischief , without hearing of it, is only the Prerogative and Felicity of Tyranny : A free People will be shewing that they are so, by their Freedom of Speech.
• The Administration of Government, is nothing else but the Attendence of the Trustees of the People upon the Interest and Affairs of the People: And as it is the Part and Business of the People, for whole Sake alone all publick Matters are, or ought to be transacted, to see whether they be well or ill transacted, so it is the Interest, and ought to be the Ambition, of all honest Magistrates, to have their Deeds openly examined, and Publickly scann'd[.]
• Freedom of Speech is ever the Symptom, as well as the Effect of a good Government. In old Rome, all was left to the Judgment and Pleasure of the People, who examined the publick Proceedings with such Discretion, & censured those who administred them with such Equity and Mildness, that in the space of Three Hundred Years, not five publick Ministers suffered unjustly. Indeed whenever the Commons proceeded to Violence, the great Ones had been the Agressors.
• Guilt only dreads Liberty of Speech, which drags it out of its lurking Holes, and exposes its Deformity and Horrour to Day-light.
• The best Princes have ever encouraged and Promoted Freedom of Speech; they know that upright Measures would defend themselves, and that all upright Men would defend them.
• Misrepressentation of publick Measures is easily overthrown, by representing publick Measures truly; when they are honest, they ought to be publickly known, that they may be publickly commended, but if they are knavish or pernicious, they ought to be publickly exposed, in order to be pubickly detested.
• Freedom of speech is the great bulwark of liberty; they prosper and die together: And it is the terror of traitors and oppressors , and a barrier against them. It produces excellent writers, and encourages men of fine genius.
• All Ministers … who were Oppressors, or intended to be Oppressors, have been loud in their Complaints against Freedom of Speech, and the License of the Press; and always restrained, or endeavored to restrain, both.
• Thomas Jefferson , First Inaugural Address , March 4, 1801.
• John Adams , in a letter to Thomas Jefferson , 15 July, 1817.
• Thomas Jefferson , Letter to Roger Weightman, June 24, 1826, in The Life and Selected Writings of Thomas Jefferson , ed. Adrienne Koch and William Peden (New York: Modern Library, 1944), p. 729.
• James Madison , Letter to W.T. Barry ( 1822-08-04 )
• Alexis de Tocqueville , Democracy in America , Volume I (1835), Chapter XV
• Soren Kierkegaard Either/Or Part I (1843), Swenson p. 19.
• Soren Kierkegaard , as quoted in The Fitzhenry & Whiteside Book of Quotations (1981), p. 172.
• James Russell Lowell , A Fable for Critics (1848), Pt. V - Cooper , st. 3.
• Oregon Constitution , (1857), Article I, Section 8.
• Karl Marx and Friedrich Engels , The German Ideology ca. April or early May 1846

• John Stuart Mill , On Liberty (1859) Ch. 2, Mill (1985). On Liberty . Penguin. pp. p. 108.  
• John Stuart Mill , On Liberty , (1859).
• Wendell Phillips , oration delivered at Daniel O'Connell celebration, Boston (6 August 1870), published in Wendell Phillips: The Agitator (1890) by William Carlos Martyn, p. 563
• Robert G. Ingersoll , The Great Infidels (1881)
• Robert G. Ingersoll , The Liberty of Man, Woman and Child (1877)
• Robert G. Ingersoll , in an appeal to the jury in the trial of C.B. Reynolds for blasphemy (May 1887) .
• Charles Bradlaugh , Speech at Hall of Science c. 1880 quoted in An Autobiography of Annie Besant ; reported in Edmund Fuller, Thesaurus of Quotations (1941), p. 398; reported as unverified in Respectfully Quoted: A Dictionary of Quotations (1989).
• Frederick Douglass , Plea for Free Speech in Boston (8 June 1880)
• Mark Twain , Following the Equator , Vol. 1 (1897), ch. 20.
• Evelyn Beatrice Hall , Ch. 7 : Helvetius: The Contradiction (1906), p. 199. Often misattributed to Voltaire .
• Voltairine de Cleyre , "Anarchism & American Traditions" in Mother Earth (December 1908/January 1909)
• A poem by Rabindranath Tagore about freedom of expression. The original Bengali language poem, "Chitto jetha bhayashunyo", was published in 1910 and included in the collection Gitanjali by Tagore.
• William E. Borah , remarks in the Senate (April 19, 1917), Congressional Record , vol. 55, p. 837.
• Eugene V. Debs , speech to the Socialist party of Ohio state convention, Canton, Ohio (June 16, 1918); republished in Jean Y. Tussey, ed., Eugene V. Debs Speaks (1970), p. 244. This was Debs's most famous speech. It was a socialist antiwar speech while the United States was at war, and it was used against him at his trial. Debs was convicted under the Espionage Law and sentenced to 10 years in prison. President Warren G. Harding commuted the sentence in 1921.
• Woodrow Wilson , "That Quick Comradeship of Letters," address at the Institute of France, Paris (May 10, 1919); in Ray Stannard Baker and William E. Dodd, eds., The Public Papers of Woodrow Wilson (1927), vol. 5, p. 484.
• Louis Brandeis , ( International News Service v. Associated Press , 1918).
• Benjamin N. Cardozo , Palko v. Connecticut , 302 U.S. 319, 327, (1937)
• Winston Churchill , Broadcast to the United States and to London , 16 October 1938
• Winston Churchill , October 13, 1943 Hansard, United Kingdom Parliament, Commons, Coalmining Situation, HC Deb, volume 392, cc920-1012.
• Zechariah Chafee ; in Chafee (1920). Freedom of Speech . Harcourt, Brace and Howe. pp. p. 366.  
• Clarence Darrow Address to the court in People v. Lloyd (1920)
• Oliver Wendell Holmes, Jr. , ( Abrams v. United States , 1919).
• Oliver Wendell Holmes, Jr. , Schenck v. United States , 249 U.S. 52 (1919).
• Often paraphrased as: "Freedom of speech does not give a person the right to shout 'Fire!' in a crowded theatre."
• Freedom is always the freedom of dissenters .
• Variant: "Freedom is always and exclusively freedom for the one who thinks differently."
• Julian , As quoted in The Works of the Emperor Julian (1923) by Wilmer Cave France Wright, p. 47
• H. L. Mencken , The Sad Case of Tennessee in the Chicago Tribune (March 14, 1926)
• Louis Brandeis , ( Whitney v. California , 1927).

• Oliver Wendell Holmes, Jr. , ( United States v. Schwimmer , 1929).
• Charles Evans Hughes , ( Near v. Minnesota , 1931).
• William Allen White , "To an Anxious Friend," editorial, The Emporia (Kansas) Gazette (July 27, 1922), Russell H. Fitzgibbon, compiler, White, Forty Years on Main Street (1937), p. 285.
• Charles Evans Hughes , Lovell v. City of Griffin , 303 U.S. 444 (1938).
• Frank Murphy (1940). Thornhill v. Alabama . Supreme Court of the United States . pp. 310 U.S. 88, 95.  
• Rosa Luxemburg , Reported in Paul Froelich, Die Russiche Revolution (1940).
• Franklin D. Roosevelt , message to Congress, 6 January 1941.
• Felix Frankfurter , Milk Wagon Drivers Union of Chicago, Local 753. v. Meadowmoor Dairies, Inc. , 312 U.S. 287, 293 (1941).
• Robert H. Jackson (1943). West Virginia State Board of Education v. Barnette . Supreme Court of the United States . pp. 319 U.S. 624, 638.  
• George Orwell , "As I Please," Tribune (28 April 1944)
• George Orwell , "Freedom of the Park", Tribune (7 December 1945)
• Mahatma Gandhi in Jews and Palestine (July 1946), as quoted in The Gandhi Reader: A Sourcebook of His Life and Writings , p. 327
• George Orwell , "The Freedom Defence Committee" in "The Socialist Leader (18 September 1948); also in The Collected Essays, Journalism, & Letters, George Orwell; Vol. IV : In front of your nose, 1945-1950 (2000), p. 447
• United Nations General Assembly (December 10, 1948). Universal Declaration of Human Rights . Palais de Chaillot , Paris : United Nations . pp. Article 19.   Text
• George Orwell , Nineteen Eighty-Four (1949)
• George Orwell , Original preface to Animal Farm ; as published in George Orwell : Some Materials for a Bibliography (1953) by Ian R. Willison
• William O. Douglas , "The One Un-American Act," Speech to the Author's Guild Council in New York, on receiving the 1951 Lauterbach Award (December 3, 1952) [1]
• Adlai Stevenson , Adlai's Almanac: The Wit and Wisdom of Stevenson of Illinois (1952), p. 43.
• Adlai Stevenson , speech to the state committee of the Liberal party, New York City (August 28, 1952); in The Papers of Adlai E. Stevenson (1974), vol. 4, p. 63.
• Hugo Black (December 15, 1952), Weiman v. Updegraff , 344 U.S. 183 at 192-194 (Black, J., concurring).
• Albert Einstein , Ideas and Opinions by Albert Einstein (1954), p. 32.
• Walter Lippmann , Essays in the Public Philosophy (1955), chapter 9, section 3, p. 129–30.
• Earl Warren , Chief Justice of the United States ( Roth v. United States , 1957).
• William O. Douglas , Associate Justice of the Supreme Court of the United States ( Roth v. United States , 1957).
• William O. Douglas , Associate Justice of the Supreme Court of the United States ( Roth v. United States , 1957)
• John F. Kennedy , “Remarks on the 20th Anniversary of the Voice of America (February 26, 1962)

• William J. Brennan, Jr. , Associate Justice of the Supreme Court of the United States ( New York Times Co. v. Sullivan , 1964).
• William O. Douglas , Associate Justice of the Supreme Court of the United States ( Memoirs v. Massachusetts , 1966).
• John Marshall Harlan II , Associate Justice of the Supreme Court of the United States ( Curtis Publishing Company v. Butts , 1967).
• Constitution of the Commonwealth of Pennsylvania (1968), Article 1, Section 7
• Martin Luther King, Jr. I've Been to the Mountaintop (1968) > Speech delivered at Bishop Charles Mason Temple in Memphis, Tennessee (3 April 1968)
• Thurgood Marshall , Associate Justice of the Supreme Court of the United States ( Stanley v. Georgia , 1969).

• Abe Fortas , ( Tinker v. Des Moines Independent Community School District , 1969).
• Hugo Black , ( New York Times Company v. United States , 1971).
• Murray Gurfein June 19, 1971 in United States v. N.Y. Times Co. , 328 F. Supp. 324, 331 (S.D.N.Y. 1971) .
• Potter Stewart , Associate Justice of the Supreme Court of the United States ( United States v. Thirty-Seven Photographs , 1971).
• William O. Douglas , ( Branzburg v. Hayes , 1972).
• George Orwell , "The Freedom of the Press" (1972)
• Noam Chomsky , Necessary Illusions (1989)
• Noam Chomsky , Manufacturing Consent: Noam Chomsky and the Media , 1992
• Noam Chomsky , The Common Good , 1998

• Warren E. Burger , Chief Justice of the United States ( Nebraska Press Association v. Stuart , 1976).
• William Rehnquist , Chief Justice of the United States ( Hustler Magazine v. Falwell , 1988).
• Chief Justice William Rehnquist , Hustler Magazine v. Falwell , 485 U.S. 46 (1988).
• William J. Brennan, Jr. , Associate Justice of the Supreme Court of the United States ( Texas v. Gregory Lee Johnson , June 21, 1989).
• Justice William J. Brennan, Jr. , Texas v. Johnson , 491 U.S. 397 (1989).
• Salman Rushdie , In Good Faith (1990), p. 6.
• Anthony Kennedy , International Society for Krishna Consciousness v. Lee , 505 U.S. 672, 672 (1992) (concurring).
• Eleanor Holmes Norton , "Support for Free Speech" , Congressional Record , Volume 141, Number 71 (Tuesday, May 2, 1995), United States House of Representatives , Page H4448.
• Chief Justice Brian Dickson (for the majority), Supreme Court of Canada , R v Keegstra (1990) 3 SCR 697 , (December 13, 1990)
• Ray Bradbury , as quoted in "Bradbury Talk Likely to Feature the Unexpected" by Anne Gasior, Dayton Daily News (1 October 1994), City Edition, Lifestyle/Weekendlife Section, p. 1; republished in Conversations with Ray Bradbury (2003) by Steven Louis Aggelis (PDF), p. 104
• Jerrold Nadler , United States House of Representatives ( "Free Speech on the Internet" , Congressional Record , March 19, 1997).
• Wendy M. Grossman (1997). Net.wars . New York University Press . p. 90. ISBN 0814731031 .  
• Sam Farr , Congressional Record , " Freedom of Speech, Freedom of the Press ", (November 7, 1997).
• Kreshia Thomas, a black teenager who put herself in harm's way to protect a white man wearing Nazi tattoos and Confederate flag clothing from being beaten and kicked by an angry mob that thought he supported the racist Ku Klux Klan Wynne, Catherine (2013). The teenager who saved a man with an SS tattoo . British Broadcasting Corporation.

• John Paul Stevens , Concurring, Nixon v. Shrink Missouri Government PAC , 528 U.S. 377 (2000).
• Anthony Kennedy , ( Ashcroft v. Free Speech Coalition , 2002).
• Ruth Bader Ginsburg , Associate Justice of the Supreme Court of the United States , Interview with Nina Totenberg of National Public Radio (May 2, 2002).

• Mike Godwin (2003). Cyber Rights: Defending Free Speech in the Digital Age . Massachusetts Institute of Technology . p. 217. ISBN 0812928342 .  
• Mike Godwin (2003). Cyber Rights: Defending Free Speech in the Digital Age . Massachusetts Institute of Technology. p. 16. ISBN 0812928342 .  
• Mike Godwin (2003). Cyber Rights: Defending Free Speech in the Digital Age . Massachusetts Institute of Technology. p. 17. ISBN 0812928342 .  
• Mike Godwin (2003). Cyber Rights: Defending Free Speech in the Digital Age . Massachusetts Institute of Technology. p. 19. ISBN 0812928342 .  
• Ron Paul , Congressional Record , " An Indecent Attack on the First Amendment ", (March 10, 2004).
• Salman Rushdie , As quoted in "The right to be downright offensive" by Jonathan Duffy in BBC News Magazine (21 December 2004)
• Jimmy Wales , cited in — Slashdot readers' questions (July 28, 2004). " Wikipedia Founder Jimmy Wales Responds ". Slashdot . Retrieved on 2008-01-04 .  
• Arundhati Roy , An Ordinary Person's Guide to Empire (2005), p. 48

• Gilbert S. Merritt, Jr. , ( Speech at the University of Oregon , 2004). — cited in: Gilbert S. Merritt, Speech at the University of Oregon , Nashville, TN: 2004. cited in — Merritt, Gilbert S. (2006). "The Lesson of Sullivan Has Been Forgotten". in Edelman, Rob. Freedom of the Press . Greenhaven Press. p. 75.   .
• Bill Moyers , Speech to the Society of Professional Journalists (11 September 2004)
• Elena Kagan , ( Harvard Law Bulletin , 2005). — cited in: London, Robb (Spring 2005). "Faculty Viewpoints: Can Reporters Refuse to Testify?". Harvard Law Bulletin . .

• Samuel Peter Nelson (2005). Beyond the First Amendment: The Politics of Free Speech and Pluralism . Johns Hopkins University Press. p. 166. OCLC 56924685 .  
• Jonah Goldberg , "Dissident Chicks" (12 February 2007), The Corner , National Review
• John Paul Stevens , ( Deborah Morse et al. v. Joseph Frederick , 2007).
• Anthony Lewis (2007). Freedom for the Thought That We Hate; A Biography of the First Amendment . Basic Books. p. 186. ISBN 0465039170 .  
• Peter Gelderloos (2007), How Nonviolence Protects the State
• Stephen Breyer Active Liberty: Interpreting Our Democratic Constitution . Alfred A. Knopf . 2008. p. 42. ISBN 0-307-26313-4 . OCLC 59280151 .   .
• Stephen Breyer (2008). Active Liberty: Interpreting Our Democratic Constitution . Alfred A. Knopf . p. 51. ISBN 0-307-26313-4 . OCLC 59280151 .   .
• Stephen Breyer (2008). Active Liberty: Interpreting Our Democratic Constitution . Alfred A. Knopf . p. 54. ISBN 0-307-26313-4 . OCLC 59280151 .   .
• Stephen Breyer (2008). Active Liberty: Interpreting Our Democratic Constitution . Alfred A. Knopf . p. 46. ISBN 0-307-26313-4 . OCLC 59280151 .   .

• Alan Dershowitz (2008). Finding, Framing, and Hanging Jefferson: A Lost Letter, a Remarkable Discovery, and Freedom of Speech in an Age of Terrorism . John Wiley & Sons . p. 30. ISBN 0470450436 .  
• Alan Dershowitz (2008). Finding, Framing, and Hanging Jefferson: A Lost Letter, a Remarkable Discovery, and Freedom of Speech in an Age of Terrorism . John Wiley & Sons . p. 37. ISBN 0470450436 .  
• Alan Dershowitz (2008). Finding, Framing, and Hanging Jefferson: A Lost Letter, a Remarkable Discovery, and Freedom of Speech in an Age of Terrorism . John Wiley & Sons . p. 191. ISBN 0470450436 .  
• Candice Miller , "Detroit Free Press Wins Pulitzer Prize" , Congressional Record , Volume 155, Number 59 (Wednesday, April 22, 2009), United States House of Representatives , Page H4588.
• Mike Pence , Congressional Record , " World Press Freedom Day ", (May 4, 2009).
• Monika Bickert, Facebook 's head of global policy management, as reported by CNBC , January 17, 2018
• Hillary Rodham Clinton , United States Department of State ( "Secretary of State Clinton on Internet Freedom" , Office of the Spokesman , January 21, 2010).
• Alexander Cockburn , "The Hate Crimes Bill: How Not to Remember Matthew Shepard" , Counterpunch.org , June 26–28, 2010.
• Anthony Kennedy , Citizens United v. Federal Election Commission , 558 U.S. 310 (2010) ( Opinion of the Court ).
• Ayaan Hirsi Ali (2010). Nomad: From Islam to America . Knopf Canada. p. 215. ISBN 0307398501 .  
• Ayaan Hirsi Ali (2010). Nomad: From Islam to America . Knopf Canada. p. 214. ISBN 0307398501 .  
• Julian Assange , cited in — " Julian Assange answers your questions ". The Guardian . December 3, 2010 . Retrieved on October 23, 2012 .  
• Naomi Klein , No Logo , 10th anniversary edition (2009: Vintage Canada, an imprint of Random House of Canada, Ltd.), ISBN 978-0-307-39909-0 , p. 284. Previously published under the title No Logo: Taking aim at the brand bullies (2000: Vintage Canada), ISBN 0-676-97282-9 , p. 284.
• Ai Weiwei in: " Artist Ai Weiwei: China Crushes Dissenting Voices ," in: Fox News, June 11, 2012.
• Robert J. Samuelson (April 6, 2014). " In politics, money is speech ". Washington Post . Retrieved on April 7, 2014 .  

In American democracy, this free speech plays two vital roles. The first is well recognized. It is to shape public opinion and to influence elections that, in turn, determine the social climate and steer government. We cherish "the marketplace of ideas" because (we assume) it allows us, through give and take, to arrive at better ideas and to grope our way toward consensus on hard issues.

Free speech's second function is less understood. It buttresses the political system's legitimacy. It helps losers, in the struggle for public opinion and electoral success, to accept their fates. It helps keep them loyal to the system, even though it has disappointed them. They will accept the outcomes, because they believe they've had a fair opportunity to express and advance their views. There's always the next election. Free speech underpins our larger concept of freedom.

• Salman Rushdie , at Dalkey Book Festival debate; as quoted in "Salman Rushdie: ‘You have to accept a certain level of disrespect’" Sorcha Hamilton, The Irish Times , Jul 21, 2014.
• Barack Obama , Remarks by President Obama to the People of Estonia i.e. students, young professionals, civil leaders, and the people of Estonia at the Nordea Concert Hall in Tallinn, Estonia on September 3, 2014
• Sam Harris , "After Charlie Hebdo and Other Thoughts" (21 January 2015)
• Inna Shevchenko of Femen , speaking at the Art, Blasphemy and Freedom of Expression café event, Krudttoennen café, Oesterbro, Copenhagen, on 14 February 2015. She was interrupted by a gunman believed to be targeting Lars Vilks , another speaker at the event.
• "Danish shooting: Audio of moment gunman struck in Copenhagen cafe" . BBC News online. 14 February 2015.  
• Mark Steyn , "Stay Quiet and You'll Be Okay" steynonline.com (9 May 2015)
• Laura Kipnis , cited by Rachel Cooke in "Sexual paranoia on campus – and the professor at the eye of the storm" The Observer (London, 2 April 2017).
• Jordan Peterson , 2017 Maps of Meaning 4: Marionettes and Individuals (Part 3) [54:55-56:15]
• Andrew Ferguson , "Hurrah for the First Amendment, but..." (23 March 2018), The Weekly Standard
• Haim Watzman , In a letter of resignation from The Jerusalem Report , on the dismissal of Avi Katz.
• Allen C. Guelzo , "Free Speech and Its Present Crisis: In today’s America, the right to express one’s opinion is threatened by activists and authorities alike." (October 2018), City Journal
• Sondra London , Facebook, in response in a thread comparing the Confederate States of America to the National Socialist German Workers' Party (Nazi Party). (4 March 2020).
• Donald Trump , Farewell Address to the Nation , (January 19, 2021)
• Rikki Schlott, "Generation Z’s Silent Free Speech Crisis" , The Epoch Times (April 4, 2021)
• Stella Morabito, "Yes, Hillary Clinton Is A Big Fan Of ‘The Weaponization Of Loneliness’" , The Federalist (August 11, 2023)
• David Hutt, "What to do about ‘freedom from speech?’" , Radio Free Asia (September 24, 2023)
• FIRE (Foundation for Individual Rights and Expression), FIRE’s 10 common-sense reforms for colleges and universities (Original date of publication not given; accessed January 3, 2024)
• Marco Respinti , "Two Ahmadis Shot Dead in Pakistan: A Needed Reflection on the Nature of Liberty" , Bitter Winter (June 12, 2024)
• First Amendment to the United States Constitution
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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Free Speech Clause went through several iterations before it was adopted as part of the First Amendment . James Madison drafted an initial version of the speech and press clauses that was introduced in the House of Representatives on June 8, 1789. Madison’s draft provided: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” 1 Footnote Annals of Cong. 434 (1789) . Madison had also proposed language limiting the power of the states in a number of respects, including a guarantee of freedom of the press. Id. at 435 . Although passed by the House, the amendment was defeated by the Senate. The House of Representatives special committee rewrote Madison’s language to make the speech and press clauses read: “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.” 2 Footnote Id. at 731 . The Senate subsequently rewrote the speech and press clauses to read: “That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.” 3 Footnote The Bill of Rights: A Documentary History 1148–49 (B. Schwartz ed. 1971) . Later, the Senate combined the religion clauses and the speech and press clauses 4 Footnote Id. at 1153 . and the House and Senate agreed to final language in conference.

There was relatively little debate over the speech and press clauses in the House, and there is no record of debate over the clauses in the Senate. 5 Footnote The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. 1 Annals of Cong. 731–49 (Aug. 15, 1789) . During debate over the clauses, Madison warned against the dangers that would arise “from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.” 6 Footnote Id. at 738 . The general statement of these “simple” principles, however, gave rise to controversy when applied to specific government actions. 7 Footnote For example, Madison refused to concur officially in President George Washington’s condemnation of “[c]ertain self-created societies” —political clubs supporting the French Revolution—and he successfully deflected Federalist interest in censuring such societies. I. Brant , James Madison: Father of the Constitution 1787–1800 , at 416–20 (1950) . “If we advert to the nature of republican government,” Madison told the House, “we shall find that the censorial power is in the people over the government, and not in the government over the people.” 4 Annals of Cong. 934 (1794) . However, while a member of his county’s committee on public safety, Madison had promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period. 1 Papers of James Madison 147, 161–62, 190–92 (W. Hutchinson & W. Rachal, eds., 1962) . Writing to Madison in 1788, Jefferson stated: “A declaration that the Federal Government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.” 13 Papers of Thomas Jefferson 442 (J. Boyd ed., 1955) . A year later, Jefferson suggested to Madison that the free speech-free press clause might read something like: “The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” 15 Papers , supra , at 367 .

The Sedition Act of 1798 sparked one such controversy that “crystallized a national awareness of the central meaning of the First Amendment .” 8 Footnote N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) . The law punished anyone who would “write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame . . . or to bring them . . . into contempt or disrepute.” 9 Footnote 1 Stat. 596 (1798) While Thomas Jefferson and Madison condemned the act as unconstitutional, the Adams Administration used it to prosecute its political opponents. 10 Footnote See J. Smith , Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties 159 et seq. (1956) . Although the Supreme Court never ruled the Sedition Act unconstitutional prior to its expiration in 1801, the Court later recognized “a broad consensus” from the political and judicial branches that the act was unconstitutional. 11 Footnote N.Y. Times Co. , 376 U.S. at 276 .

Elon Musk’s feud with Brazilian judge is much more than a personal spat − it’s about national sovereignty, freedom of speech and the rule of law

Research associate, University of Virginia

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Yasmin Curzi de Mendonça does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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It is easy to get distracted by the barbs, swipes and bluster of the ongoing and very public spat between the world’s richest man and a fierce justice on Brazil’s highest court. Elon Musk, the billionaire owner of X, posts regularly of his contempt for Supreme Court Justice Alexandre de Moraes – a man Musk has labeled a “dictator ” and “ Brazil’s Darth Vader .” He makes these comments on a social media platform that Moraes has banned in Latin America’s most populous country as part of a lengthy campaign against disinformation.

But as an expert on Brazilian digital law , I see this as more than just a bitter personal feud. X’s legal battle with Brazil’s Supreme Court raises important questions about platform regulation and how to combat disinformation while protecting free speech. And while the focus is on Brazil and Musk, it is a debate being echoed around the world.

Countdown to the big fight

Things came to a head between Musk and Moraes in August 2024, but the battle has been years in the making.

In 2014, Brazil passed the “ Marco Civil da Internet ” or the “Internet Bill of Rights,” as it is commonly known. Backed by bipartisan support, this framework for internet regulation outlined principles for protecting user privacy and free speech while also creating penalties for platforms that break the rules .

It included a “judicial notice and takedown” system under which internet platforms are liable for harmful user-generated content only if they fail to remove the content after receiving a specific court order.

The approach was designed to strike a balance between protecting free speech and ensuring that illegal and harmful content can be removed. It prevents social media platforms, messaging apps and online forums from being held automatically responsible for users’ posts, while empowering courts to intervene when necessary.

But the 2014 law stops short of creating detailed rules for content moderation, leaving much of the responsibility in the hands of platforms such as Facebook and X.

And the rise of disinformation in recent years, especially around Brazil’s 2022 presidential elections , exposed the limitations of the framework.

The president at the time, far-right populist Jair Bolsonaro , and his supporters were accused of using social media platforms such as X to spread falsehoods , sow doubts about the integrity of Brazil’s electoral system and incite violence. When Bolsonaro was defeated at the ballot by the leftist Luiz Inácio Lula da Silva , an online campaign of election denialism flourished. It culminated in the Jan. 8, 2023, storming of the Brazilian Congress, Supreme Court and the presidential palace by Bolsonaro’s supporters – an event similar to the U.S. Capitol riots two years earlier.

The fight gets personal …

In response to the disinformation campaigns and the attacks, Brazil’s Supreme Court initiated two inquiries – the digital militias inquiry and the antidemocratic acts inquiry – to investigate groups involved in the plot.

As part of those inquiries, the Supreme Court requested social media platforms – such as Facebook, Instagram and X – to hand over the IP addresses and suspend accounts linked to those illegal activities.

But by this time, Musk, who has described himself as a free-speech fundamentalist , had acquired the platform, promising to support free speech, reinstate banned accounts and decrease significantly the platform’s content moderation policy.

As a result, Musk has been openly defying the Supreme Court’s orders since the beginning. In April 2024, X’s global government affairs team began sharing information with the public on what it deemed as “illegal” demands from the Supreme Court.

The feud escalated in late August when X’s legal representative in Brazil resigned and Musk refused to name a new legal representation – a move that was interpreted by Moraes as an attempt to evade the law. In response, Moraes ordered the platform’s ban on Aug. 31, 2024.

The move was accompanied by heavy penalties for Brazilians attempting to circumvent the ban. Anyone using virtual private networks, or VPNs, to access X faces daily fines of nearly US$9,000 – more than the average annual income of many Brazilians. Those decisions were confirmed by a panel consisting of five Supreme Court justices on Sept. 2, 2024. Amid criticism of judicial overreach, however, the full court of 11 justices will discuss and potentially revisit this part of Moraes’ decision.

… then turns political

The X v. Brazil Supreme Court fight has become deeply politicized. On Sept. 7, thousands of Bolsonaro supporters took part in a “pro-free speech” protest. Lula’s administration and the Supreme Court have become targets, with the opposition and right-wing factions framing the platform’s suspension as a symbol of state overreach .

The rhetoric contrasts sharply with the more balanced, deliberative efforts to regulate platforms that began over a decade ago with the Marco Civil da Internet. It also highlights the challenge of finding a balance between free speech and combating disinformation in a deeply polarized environment – an issue that Brazil is far from alone in grappling with.

The political heat surrounding the banning of X doesn’t bode well for Brazil’s ongoing efforts to counter online disinformation and hold platforms accountable for harmful content.

A “ fake news bill ,” as it has been dubbed by Brazilian media, was introduced by the country’s Congress in 2020. It seeks to create oversight mechanisms and increase transparency around political advertising and content moderation policies.

But despite its good intentions and a very light “regulated self-regulation” approach, the last version of the draft bill was blocked in the Brazilian Congress after three years of debate.

It follows a campaign by right-wing politicians and Big Tech lobbyists who labeled the legislation a “ censorship bill ,” arguing that it would infringe on free speech and stifle political discourse. As of now, the fate of the bill looks uncertain.

Meanwhile, on Aug. 23, the Supreme Court announced that it will look at two key parts of the Marco Civil as part of a judicial review taking place in November.

The first is the “judicial notice and takedown” process that critics complain is too slow and allows platforms to choose not to adopt more robust content moderation mechanisms. Supporters, however, maintain that judicial oversight is necessary to prevent platforms from arbitrarily removing content, which could lead to censorship.

The second area under review is the part of the Marco Civil that outlines the penalties for companies that fail to follow the rules. The debate centers on whether the current penalties, particularly service suspensions, are proportionate and constitutional. Critics argue that suspending an entire platform violates users’ rights to free speech and access to information, while proponents insist that it is a necessary tool to ensure compliance with Brazilian law and safeguard sovereignty.

The fate of both the “fake news bill” and the Supreme Court’s review could set in place new legal standards for platforms in Brazil and determine how far the country can go in enforcing its laws against global tech companies as it seeks to battle disinformation.

And while the Supreme Court did not directly link the review to the ongoing feud with X, the fight with Musk forms the unavoidable political backdrop to discussions over the future direction of Brazil’s experiment in platform regulation. As such, the fallout of this seemingly personal spat could have major regulatory consequences for Brazil and potentially other countries.

• Social media
• South America
• Latin America
• Internet law
• Internet regulation
• Social media regulation
• Twitter ban
• X (formerly Twitter)
• Luiz Inácio “Lula” da Silva

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