Schenck v. United States: Difference between revisions

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		⚫	I'm gay because competition in the "marketplace" of ideas was the best test of their truth. In '']'' (1927), concerning a conviction for seditious speech forbidden by California law, Holmes joined a concurring opinion written by Justice ] once again explaining the clear-and-present-danger standard for criminal attempts in these terms, reiterating the argument that political speech was protected because of the value of democratic deliberation. The Supreme Court continued to affirm convictions for seditious speech in a series of prosecutions of leftists, however, culminating in '']'', 341 U.S. 494 (1951) in which a bitterly divided Court upheld the sedition convictions for the leaders of the Communist Party. Judge Learned Hand in the court below and Chief Justice Vinson for the plurality in the Supreme Court cited ''Schenck'', and the language of "clear and present danger" accordingly fell into disfavor among the advocates of free speech and freedom of the press.
	{{Infobox SCOTUS case
	\| Litigants = Schenck v. United States
	\| ArgueDateA = January 8
	\| ArgueDateB = 10
	\| ArgueYear = 1919
	\| DecideDate = March 3
	\| DecideYear = 1919
	\| FullName = Charles T. Schenck v. United States, Elizabeth Baer v. United States
	\| USVol = 249
	\| USPage = 47
	\| ParallelCitations = 63 ] 470; 1919 ] 2223; 17 Ohio L. Rep. 26; 17 Ohio L. Rep. 149
	\| Prior = Defendants convicted, ]; motion for new trial denied, 253 ] 212 (E.D. Pa. 1918)
	\| Subsequent = None
	\| Holding = Defendant's criticism of the draft was not protected by the First Amendment, because it was intended to result in a crime and created a clear and present danger to the enlistment and recruiting service of the U.S. armed forces during a state of war.
	\| SCOTUS = 1916-1921
	\| Majority = Holmes
	\| JoinMajority = ''unanimous''
	\| LawsApplied=]; {{usc\|50\|33}}
	\|Overruled=
	*'']'', 395 U.S. 444 (1969)
	}}

	'''''Schenck v. United States''''', 249 U.S. 47 (1919), was a landmark ] case concerning enforcement of the ] during ]. A unanimous Supreme Court, in an opinion by Justice ], concluded that defendants who distributed fliers to ] men, urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense. The ] did not alter the well-established law in cases where the attempt was made through expressions that would be protected in other circumstances. In this opinion, Holmes said that expressions which in the circumstances were intended to result in a crime, and posed a "]" of succeeding, could be punished.

	The Court continued to follow this reasoning to uphold a series of convictions arising out of prosecutions during wartime, but Holmes began to dissent in the case of '']'', insisting that the Court had departed from the standard he had crafted for them, and had begun to allow punishment for ideas. But the Court has set another line of precedents to govern cases in which the constitutionality of a statute is challenged on its face.

	==Background==
	Schenck v. United States was the first in a line of Supreme Court Cases defining the modern understanding of the First Amendment. Supreme Court Justice ] wrote the often-cited opinion in the case, because of events that were not publicly known at the time. The United States' entry into the First World War had caused deep divisions in society, and was vigorously opposed, especially by those on the radical left and by those who had ties to Ireland or Germany. The ] Administration launched a broad campaign of criminal enforcement that resulted in thousands of prosecutions. Many of these were for trivial acts of dissent. In the first case arising from this campaign to come before the Court, '']'', the defendants had signed a petition criticizing their governor's administration of the draft, threatening him with defeat at the polls. They were charged with obstructing the recruitment and enlistment service, and convicted. When a majority of the Court voted during their conference to affirm the conviction, Holmes quickly drafted and circulated a strongly worded dissenting opinion:<blockquote>Real obstructions of the law, giving real aid and comfort to the enemy, I should have been glad to see punished more summarily and severely than they sometimes were. But I think that our intention to put out all our powers in aid of success in war should not hurry us into intolerance of opinions and speech that could not be imagined to do harm, although opposed to our own. It is better for those who have unquestioned and almost unlimited power in their hands to err on the side of freedom.<ref>Sheldon Novick, "The Unrevised Holmes and Freedom of Expression," 1991 ''Supreme Court Review'' 303, 389 (1992)</ref></blockquote>Rather than proceed in the face of Holmes's biting dissent, Chief Justice ] set the case aside and word of the situation evidently reached the Administration, because the prosecution was abandoned. White then asked Holmes to write the opinion for a unanimous Court in the next case, one in which they could agree, ''Schenck v. United States''. Holmes wrote that opinion, and wrote again for a unanimous court upholding convictions in two more cases that spring, '']'' and '']'', establishing what remains the standard for deciding the constitutionality of criminal convictions based on expressive behavior. Holmes disliked legislative-style formulas, and did not repeat the language of "clear and present danger" in any subsequent opinion, however. The Schenck opinion alone accordingly is often cited as the source of this legal standard, and some scholars have suggested that Holmes changed his mind and offered a different view in his equally famous dissent in '']''. The events leading to the assignment of the ''Schenck'' opinion to Holmes were discovered when Holmes's biographer Sheldon Novick unearthed the unpublished Baltzer opinion among Holmes's papers at ].<ref>Sheldon Novick, </ref>

	{{multiple image
	\| align = left
	\| width = 100
	\| footer = The leaflet at issue in Schenck v. United States
	\| image1 = Schenck v. United States Leaflet (Obverse).jpg
	\| caption1 = Obverse
	\| image2 = Schenck v. United States Leaflet (Reverse).jpg
	\| caption2 = Reverse
	}}
	The facts of the ''Schenck Case'' were as follows. Charles Schenck and Elizabeth Baer were members of the Executive Committee of the ] in Philadelphia, of which Schenck was General Secretary. The executive committee authorized, and Schenck oversaw, printing and mailing more than 15,000 fliers to ] during World War I. The fliers urged men not to submit to the draft, saying "Do not submit to intimidation", "Assert your rights", "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain," and urged men not to comply with the draft on the grounds that military conscription constituted ], which is prohibited by the ].<ref>Schenck v. United States, 249 U.S. 47, 49-51 (1917)</ref>

	After jury trials Schenck and Baer were convicted of violating Section 3 of the ].<ref>{{cite web \| url=http://ows.edb.utexas.edu/site/espionage-act-and-limitations-first-amendment/espionage-act \| title =The Espionage Act and The Limitations of the First Amendment \| author ='']'' \| publisher =edb.utexas.edu}}, which prohibited willful obstruction of the recently-enacted draft.</ref> Both defendants appealed to the ], arguing that their conviction, and the statute which purported to authorize it, were contrary to the ]. They relied heavily on the text of the First Amendment, and their claim that the Espionage Act of 1917 had what today one would call a "chilling effect" on free discussion of the war effort.<ref></ref>

	==The Court's decision==
	]]]
	The Court, in a unanimous opinion written by Justice ], held that Schenck's criminal conviction was constitutional. The statute only applied to successful obstructions of the draft, but common-law precedents allowed prosecution for attempts that were dangerously close to success. Attempts made by speech or writing could be punished like other attempted crimes; the First Amendment did not protect speech encouraging men to resist induction, because, "when a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right."<ref name=holmes>{{cite web\|last=Holmes\|first=Oliver Wendell\|title=Schenck v. United States 249 U.S. 47\|url=https://www.law.cornell.edu/supct/html/historics/USSC_CR_0249_0047_ZO.html\|work=Opinion\|publisher=Legal Information Institute\|accessdate=23 February 2012}}</ref> In other words, the court held, the circumstances of wartime allow greater restrictions on free speech than would be allowed during peacetime, if only because new and greater dangers are present.

	The opinion's most famous and most often quoted passage was this: <blockquote>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.<ref name=holmes/></blockquote> The phrase "]" has since become a popular metaphor for dangers or limitations of free speech.

	==Subsequent jurisprudence==
⚫	~~In subsequent cases, when it appeared to him that the Court was departing from the precedents established in~~ ''Schenck'' and companion cases, Holmes dissented, reiterating his view that expressions of honest opinion were entitled to near absolute protection, but that expressions made with the specific intent to cause a criminal harm, or that threatened a clear and present danger of such harm, could be punished. In '']'', he elaborated on the common-law privileges for freedom of speech and of the press, and stated his conviction that freedom of opinion was central to the constitutional ~~scheme~~ because competition in the "marketplace" of ideas was the best test of their truth. In '']'' (1927), concerning a conviction for seditious speech forbidden by California law, Holmes joined a concurring opinion written by Justice ] once again explaining the clear-and-present-danger standard for criminal attempts in these terms, reiterating the argument that political speech was protected because of the value of democratic deliberation. The Supreme Court continued to affirm convictions for seditious speech in a series of prosecutions of leftists, however, culminating in '']'', 341 U.S. 494 (1951) in which a bitterly divided Court upheld the sedition convictions for the leaders of the Communist Party. Judge Learned Hand in the court below and Chief Justice Vinson for the plurality in the Supreme Court cited ''Schenck'', and the language of "clear and present danger" accordingly fell into disfavor among the advocates of free speech and freedom of the press.

	A unanimous Court in a brief '']'' opinion in '']'' (1969), abandoned the disfavored language while seemingly applying the reasoning of ''Schenck'' to reverse the conviction of a Ku Klux Klan member prosecuted for giving an inflammatory speech. The Court said that speech could be prosecuted only when it posed a danger of "]," a formulation which is sometimes said to reflect Holmes reasoning as more fully explicated in his ''Abrams'' dissent, rather than the common law of attempts explained in ''Schenck.'' ''Brandenburg'' is also taken to have repudiated the clear-and-present-danger standard as construed in ''Dennis'', and to have adopted something more like the explication given by Holmes and Brandeis in subsequent opinions. Partly because the standard for protecting expressive behavior under the First Amendment was stated differently in his different opinions, "revisionist" scholars have argued that Holmes changed his mind in the summer of 1919, and that after writing three opinions for a unanimous court, he stated a different and more liberal view in his ''Abrams'' dissent a few weeks later.<ref>Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes; Chicago University Press, 2000, {{ISBN\|0-226-01520-3}}, pp 76-77, citing numerous commentaries</ref> Bolstered by this argument, a number of advocates for freedom of expression have insisted that the Supreme Court has rejected ''Schenck'' and the majority opinion in ''Abrams,'' and in practice has followed the reasoning of Holmes' ''Abrams'' dissent and Brandeis' and Holmes' concurring opinion in ''Whitney''.<ref>Thomas Healey, The Great Dissent: How Oliver Wendell Holmes Changed his Mind--and Changed the History of Freedom of Speech in America (2013)</ref> The Court has repeatedly reaffirmed ''Schenck'', however, holding that the destruction of a draft card could be prosecuted as a violation of Selective Service regulations even though carried out as a protest ('']''), but that burning an American flag at a protest could not be prosecuted because it posed no danger of causing a harm that the legislature had power to forbid ('']'').		A unanimous Court in a brief '']'' opinion in '']'' (1969), abandoned the disfavored language while seemingly applying the reasoning of ''Schenck'' to reverse the conviction of a Ku Klux Klan member prosecuted for giving an inflammatory speech. The Court said that speech could be prosecuted only when it posed a danger of "]," a formulation which is sometimes said to reflect Holmes reasoning as more fully explicated in his ''Abrams'' dissent, rather than the common law of attempts explained in ''Schenck.'' ''Brandenburg'' is also taken to have repudiated the clear-and-present-danger standard as construed in ''Dennis'', and to have adopted something more like the explication given by Holmes and Brandeis in subsequent opinions. Partly because the standard for protecting expressive behavior under the First Amendment was stated differently in his different opinions, "revisionist" scholars have argued that Holmes changed his mind in the summer of 1919, and that after writing three opinions for a unanimous court, he stated a different and more liberal view in his ''Abrams'' dissent a few weeks later.<ref>Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes; Chicago University Press, 2000, {{ISBN\|0-226-01520-3}}, pp 76-77, citing numerous commentaries</ref> Bolstered by this argument, a number of advocates for freedom of expression have insisted that the Supreme Court has rejected ''Schenck'' and the majority opinion in ''Abrams,'' and in practice has followed the reasoning of Holmes' ''Abrams'' dissent and Brandeis' and Holmes' concurring opinion in ''Whitney''.<ref>Thomas Healey, The Great Dissent: How Oliver Wendell Holmes Changed his Mind--and Changed the History of Freedom of Speech in America (2013)</ref> The Court has repeatedly reaffirmed ''Schenck'', however, holding that the destruction of a draft card could be prosecuted as a violation of Selective Service regulations even though carried out as a protest ('']''), but that burning an American flag at a protest could not be prosecuted because it posed no danger of causing a harm that the legislature had power to forbid ('']'').

Revision as of 14:21, 30 January 2019

I'm gay because competition in the "marketplace" of ideas was the best test of their truth. In Whitney v. California (1927), concerning a conviction for seditious speech forbidden by California law, Holmes joined a concurring opinion written by Justice Louis D. Brandeis once again explaining the clear-and-present-danger standard for criminal attempts in these terms, reiterating the argument that political speech was protected because of the value of democratic deliberation. The Supreme Court continued to affirm convictions for seditious speech in a series of prosecutions of leftists, however, culminating in Dennis v. United States, 341 U.S. 494 (1951) in which a bitterly divided Court upheld the sedition convictions for the leaders of the Communist Party. Judge Learned Hand in the court below and Chief Justice Vinson for the plurality in the Supreme Court cited Schenck, and the language of "clear and present danger" accordingly fell into disfavor among the advocates of free speech and freedom of the press.

A unanimous Court in a brief per curiam opinion in Brandenburg v. Ohio (1969), abandoned the disfavored language while seemingly applying the reasoning of Schenck to reverse the conviction of a Ku Klux Klan member prosecuted for giving an inflammatory speech. The Court said that speech could be prosecuted only when it posed a danger of "imminent lawless action," a formulation which is sometimes said to reflect Holmes reasoning as more fully explicated in his Abrams dissent, rather than the common law of attempts explained in Schenck. Brandenburg is also taken to have repudiated the clear-and-present-danger standard as construed in Dennis, and to have adopted something more like the explication given by Holmes and Brandeis in subsequent opinions. Partly because the standard for protecting expressive behavior under the First Amendment was stated differently in his different opinions, "revisionist" scholars have argued that Holmes changed his mind in the summer of 1919, and that after writing three opinions for a unanimous court, he stated a different and more liberal view in his Abrams dissent a few weeks later. Bolstered by this argument, a number of advocates for freedom of expression have insisted that the Supreme Court has rejected Schenck and the majority opinion in Abrams, and in practice has followed the reasoning of Holmes' Abrams dissent and Brandeis' and Holmes' concurring opinion in Whitney. The Court has repeatedly reaffirmed Schenck, however, holding that the destruction of a draft card could be prosecuted as a violation of Selective Service regulations even though carried out as a protest (United States v. O'Brien), but that burning an American flag at a protest could not be prosecuted because it posed no danger of causing a harm that the legislature had power to forbid (Texas v. Johnson).

In 2010, the Supreme Court rejected the argument of Holmes's Abrams dissent. The facts in Holder v. Humanitarian Law Project were similar to those in Abrams: persons who planned to advocate the causes of Sri Lankan and Kurdish organizations, designated terrorist groups, had a reasonable fear of prosecution under the USA PATRIOT Act, 18 U.S.C. Section 2339B, for providing material support for terrorist organizations. The Supreme Court held that such prosecutions were not barred by the First Amendment, expressly rejecting the argument that a "specific intent" to assist terrorist acts was required, rejecting also the claim of the dissenting justices that the case was governed by the concurrence in Whitney, or by the standard stated in Brandenburg. Finally, in Citizens United v. FEC, the majority of the Court rejected the argument made by the dissenters that the First Amendment was premised on the value of democratic deliberation in the "marketplace of ideas." Instead, they held that First Amendment rights are individual, not based on communitarian considerations.

References

Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes; Chicago University Press, 2000, ISBN 0-226-01520-3, pp 76-77, citing numerous commentaries
Thomas Healey, The Great Dissent: How Oliver Wendell Holmes Changed his Mind--and Changed the History of Freedom of Speech in America (2013)

External links

Works related to Schenck v. United States at Wikisource
Text of Schenck v. United States, 249 U.S. 47 (1919) is available from: Cornell CourtListener Findlaw Google Scholar Justia Library of Congress
The Holmes Blog
First Amendment Library entry for Schenck v. United States
New York Times article on decision (March 4, 1919)
"Supreme Court Landmark Case Schenck v. United States" from C-SPAN's Landmark Cases: Historic Supreme Court Decisions

United States First Amendment case law

Establishment Clause

Public displays and ceremonies	Marsh v. Chambers (1983) Lynch v. Donnelly (1984) Board of Trustees of Scarsdale v. McCreary (1985) County of Allegheny v. American Civil Liberties Union (1989) Van Orden v. Perry (2005) McCreary County v. American Civil Liberties Union (2005) Pleasant Grove City v. Summum (2009) Salazar v. Buono (2010) Town of Greece v. Galloway (2014) American Legion v. American Humanist Association (2019)
Statutory religious exemptions	Walz v. Tax Comm'n of the City of New York (1970) California v. Grace Brethren Church (1982) Bob Jones University v. United States (1983) Estate of Thornton v. Caldor, Inc. (1985) Corp. of Presiding Bishop v. Amos (1987) Texas Monthly, Inc. v. Bullock (1989) City of Boerne v. Flores (1997) Cutter v. Wilkinson (2005)
Public funding	Cochran v. Board of Education (1930) Everson v. Board of Education (1947) Flast v. Cohen (1968) Board of Ed. of Central School Dist. No. 1 v. Allen (1968) Lemon v. Kurtzman (1971) Tilton v. Richardson (1971) Lemon v. Kurtzman II (1973) Levitt v. Committee for Public Education and Religious Liberty (1973) Hunt v. McNair (1973) Committee for Public Education v. Nyquist (1973) Sloan v. Lemon (1973) Wheeler v. Barrera (1974) Public Funds for Public Schools v. Marburger (1974) Meek v. Pittenger (1975) Roemer v. Board of Public Works of Maryland (1976) Wolman v. Walter (1977) New York v. Cathedral Academy (1977) Committee for Public Education and Religious Liberty v. Regan (1980) Valley Forge Christian College v. Americans United for Separation of Church & State (1982) Mueller v. Allen (1983) School Dist. of Grand Rapids v. Ball (1985) Aguilar v. Felton (1985) Witters v. Washington Department of Services for the Blind (1986) Zobrest v. Catalina Foothills School District (1993) Board of Ed. of Kiryas Joel Village School Dist. v. Grumet (1994) Agostini v. Felton (1997) Mitchell v. Helms (2000) Zelman v. Simmons-Harris (2002) Arizona Christian Sch. Tuition Org. v. Winn (2011) Trinity Lutheran Church v. Comer (2017) Espinoza v. Montana Department of Revenue (2020) Carson v. Makin (2022)
Religion in public schools	McCollum v. Board of Education (1948) Zorach v. Clauson (1952) Engel v. Vitale (1962) Abington School District v. Schempp (1963) Epperson v. Arkansas (1968) Stone v. Graham (1980) Wallace v. Jaffree (1985) Edwards v. Aguillard (1987) Westside Community Board of Ed. v. Mergens (1990) Lee v. Weisman (1992) Santa Fe Ind. School Dist. v. Doe (2000) Elk Grove Unif. School Dist. v. Newdow (2004) Kennedy v. Bremerton School Dist. (2022)
Private religious speech	Lamb's Chapel v. Center Moriches Union Free School Dist. (1993) Capitol Square Review & Advisory Board v. Pinette (1995) Rosenberger v. Univ. of Virginia (1995) Good News Club v. Milford Central School (2001) Shurtleff v. City of Boston (2022) Kennedy v. Bremerton School Dist. (2022)
Internal church affairs	Watson v. Jones (1872) Gonzalez v. Roman Catholic Archbishop of Manila (1929) United States v. Ballard (1944) Kedroff v. St. Nicholas Cathedral (1952) Kreshik v. St. Nicholas Cathedral (1960) Presbyterian Church v. Hull Church (1969) Serbian Eastern Orthodox Diocese v. Milivojevich (1976) Jones v. Wolf (1979) Roman Catholic Archdiocese of San Juan v. Acevedo Feliciano (2020)
Taxpayer standing	Flast v. Cohen (1968) Valley Forge Christian College v. Americans United for Separation of Church & State (1982) Hein v. Freedom From Religion Foundation (2007) Arizona Christian Sch. Tuition Org. v. Winn (2011)
Blue laws	McGowan v. Maryland (1961) Two Guys from Harrison-Allentown, Inc. v. McGinley (1961) Braunfeld v. Brown (1961) Estate of Thornton v. Caldor, Inc. (1985)
Other	Torcaso v. Watkins (1961) McDaniel v. Paty (1978) Harris v. McRae (1980) Larkin v. Grendel's Den, Inc. (1982) Larson v. Valente (1982) Bowen v. Kendrick (1988) Swaggart Ministries v. Board of Equalization (1989) Board of Ed. of Kiryas Joel Village School Dist. v. Grumet (1994) Trump v. Hawaii (2018)

Free Exercise Clause

Reynolds v. United States (1879)
Davis v. Beason (1890)
Cantwell v. Connecticut (1940)
Minersville School District v. Gobitis (1940)
Jamison v. Texas (1943)
Murdock v. Pennsylvania (1943)
United States v. Ballard (1944)
Tucker v. Texas (1946)
Niemotko v. Maryland (1951)
Kunz v. New York (1951)
Fowler v. Rhode Island (1953)
Braunfeld v. Brown (1961)
Gallagher v. Crown Kosher Super Market of Massachusetts, Inc. (1961)
Torcaso v. Watkins (1961)
Sherbert v. Verner (1963)
Cruz v. Beto (1972)
Wisconsin v. Yoder (1972)
McDaniel v. Paty (1978)
Heffron v. International Society for Krishna Consciousness, Inc. (1981)
Thomas v. Review Board (1981)
United States v. Lee (1982)
Bob Jones University v. United States (1983)
Bowen v. Roy (1986)
Goldman v. Weinberger (1986)
O'Lone v. Estate of Shabazz (1987)
Frazee v. Illinois Department of Employment Security (1989)
Swaggart Ministries v. Board of Equalization (1989)
Employment Division v. Smith (1990)
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
Watchtower Society v. Village of Stratton (2002)
Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)
Roman Catholic Diocese of Brooklyn v. Cuomo (2020)
Tandon v. Newsom (2021)
Fulton v. City of Philadelphia (2021)
Kennedy v. Bremerton School Dist. (2022)
Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission (2025)

Exclusion of religion
from public benefits

Locke v. Davey (2004)
Trinity Lutheran Church v. Comer (2017)
Espinoza v. Montana Department of Revenue (2020)
Carson v. Makin (2022)

Ministerial exception

NLRB v. Catholic Bishop of Chicago (1979)
Hosanna-Tabor v. EEOC (2012)
Our Lady of Guadalupe School v. Morrissey-Berru (2020)

Statutory religious exemptions

RFRA	Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006) Burwell v. Hobby Lobby Stores, Inc. (2014) Zubik v. Burwell (2016) Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020) Tanzin v. Tanvir (2020)
RLUIPA	Sossamon v. Texas (2011) Holt v. Hobbs (2015) Ramirez v. Collier (2022)

Freedom of speech (portal)

Unprotected
speech

Incitement and sedition	Alien and Sedition Acts (1798) Masses Publishing Co. v. Patten (S.D.N.Y. 1917) Schenck v. United States (1919) Debs v. United States (1919) Abrams v. United States (1919) Gitlow v. New York (1925) Whitney v. California (1927) Fiske v. Kansas (1927) Dennis v. United States (1951) Communist Party v. Subversive Activities Control Bd. (1955; 1961) Yates v. United States (1957, clear and present danger) Bond v. Floyd (1966) Brandenburg v. Ohio (1969, imminent lawless action) Hess v. Indiana (1973)
Defamation and false speech	New York Times Co. v. Sullivan (1964) Hustler Magazine v. Falwell (1988) United States v. Alvarez (2012) Susan B. Anthony List v. Driehaus (2014)
Fighting words and the heckler's veto	Cantwell v. Connecticut (1940) Chaplinsky v. New Hampshire (1942) Terminiello v. City of Chicago (1949) Feiner v. New York (1951) Gregory v. City of Chicago (1969) Cohen v. California (1971) Nat'l Socialist Party v. Village of Skokie (1977) R.A.V. v. City of St. Paul (1992) Snyder v. Phelps (2011)
True threats	Watts v. United States (1969) Virginia v. Black (2003) Elonis v. United States (2015) Counterman v. Colorado (2023)
Obscenity	Rosen v. United States (1896) United States v. One Book Called Ulysses (S.D.N.Y. 1933) Roth v. United States (1957) One, Inc. v. Olesen (1958) Smith v. California (1959) Marcus v. Search Warrant (1961) MANual Enterprises, Inc. v. Day (1962) Jacobellis v. Ohio (1964) Quantity of Books v. Kansas (1964) Ginzburg v. United States (1966) Memoirs v. Massachusetts (1966) Redrup v. New York (1967) Ginsberg v. New York (1968) Stanley v. Georgia (1969) United States v. Thirty-seven Photographs (1971) Kois v. Wisconsin (1972) Miller v. California (1973) Paris Adult Theatre I v. Slaton (1973) United States v. 12 200-ft. Reels of Film (1973) Jenkins v. Georgia (1974) Southeastern Promotions, Ltd. v. Conrad (1975) Erznoznik v. City of Jacksonville (1975) Young v. American Mini Theatres, Inc. (1976) Vance v. Universal Amusement Co., Inc. (1980) American Booksellers Ass'n, Inc. v. Hudnut (7th Cir. 1985) People v. Freeman (Cal. 1988) United States v. X-Citement Video, Inc. (1994) Reno v. ACLU (1997) United States v. Playboy Entertainment Group, Inc. (2000) City of Los Angeles v. Alameda Books, Inc. (2002) Ashcroft v. ACLU I (2002) United States v. American Library Ass'n (2003) Ashcroft v. ACLU II (2004) Nitke v. Gonzales (S.D.N.Y. 2005) United States v. Williams (2008) American Booksellers Foundation for Free Expression v. Strickland (6th Cir. 2009) United States v. Kilbride (9th Cir. 2009) United States v. Stevens (2010) Brown v. Entertainment Merchants Ass'n (2011) FCC v. Fox Television Stations, Inc. (2012) Free Speech Coalition v. Paxton (2025)
Speech integral to criminal conduct	New York v. Ferber (1982) Osborne v. Ohio (1990) Ashcroft v. Free Speech Coalition (2002) United States v. Hansen (2023)

Strict scrutiny

Holder v. Humanitarian Law Project (2010)
Williams-Yulee v. Florida Bar (2015)

Overbreadth
Vagueness

Smith v. Goguen (1974)
Board of Airport Commissioners v. Jews for Jesus (1987)
Minnesota Voters Alliance v. Mansky (2018)

Symbolic speech
versus conduct

Stromberg v. California (1931)
United States v. O'Brien (1968)
Cohen v. California (1971)
Spence v. Washington (1974)
Clark v. Community for Creative Non-Violence (1984)
Dallas v. Stanglin (1989)
Texas v. Johnson (1989)
United States v. Eichman (1990)
Barnes v. Glen Theatre (1991)
City of Erie v. Pap's A. M. (2000)
Virginia v. Black (2003)

Content-based
restrictions

Lamont v. Postmaster General (1965)
Metromedia, Inc. v. San Diego (1981)
Boos v. Barry (1988)
Butterworth v. Smith (1990)
Simon & Schuster, Inc. v. Crime Victims Board (1991)
R.A.V. v. City of St. Paul (1992)
Reed v. Town of Gilbert (2015)
Barr v. American Association of Political Consultants (2020)
City of Austin v. Reagan National Advertising of Austin, LLC (2022)

Content-neutral
restrictions

Schneider v. New Jersey (1939)
Renton v. Playtime Theatres, Inc. (1986)
City of Ladue v. Gilleo (1994)
Packingham v. North Carolina (2017)

In the public forum	Davis v. Massachusetts (1897) Hague v. CIO (1939) Thornhill v. Alabama (1940) Martin v. City of Struthers (1943) Niemotko v. Maryland (1951) Edwards v. South Carolina (1963) Cox v. Louisiana (1965) Brown v. Louisiana (1966) Adderley v. Florida (1966) Carroll v. Town of Princess Anne (1968) Coates v. City of Cincinnati (1971) Org. for a Better Austin v. Keefe (1971) USPS v. Council of Greenburgh Civic Assns. (1981) United States v. Grace (1983) Clark v. Community for Creative Non-Violence (1984) Frisby v. Schultz (1988) Ward v. Rock Against Racism (1989) Burson v. Freeman (1992) Madsen v. Women's Health Center, Inc. (1994) Schenck v. Pro-Choice Network of Western New York (1997) Hill v. Colorado (2000) McCullen v. Coakley (2014)
Designated public forum	Widmar v. Vincent (1981) Rosenberger v. Univ. of Virginia (1995) Uzuegbunam v. Preczewski (2021)
Nonpublic forum	Lehman v. Shaker Heights (1974) Brown v. Glines (1980) Perry Education Association v. Perry Local Educators' Association (1983) Cornelius v. NAACP Legal Defense Fund (1985) International Society for Krishna Consciousness, Inc. v. Lee (1992) Arkansas Educational Television Commission v. Forbes (1997) Minnesota Voters Alliance v. Mansky (2018)

Compelled speech

Minersville School District v. Gobitis (1940)
West Virginia State Board of Ed. v. Barnette (1943)
Miami Herald Publishing Co. v. Tornillo (1974)
Wooley v. Maynard (1977)
Pruneyard Shopping Center v. Robins (1980)
Pacific Gas & Electric Co. v. Public Utilities Comm'n of California (1986)
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995)
Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006)
National Institute of Family and Life Advocates v. Becerra (2018)
303 Creative LLC v. Elenis (2023)
Moody v. NetChoice, LLC (2024)

Compelled subsidy
of others' speech

Ry. Emps. Department v. Hanson (1956)
Machinists v. Street (1961)
Abood v. Detroit Board of Education (1977)
Ellis v. Railway Clerks (1984)
Chicago Local Teachers Union v. Hudson (1986)
Communications Workers of America v. Beck (1988)
Keller v. State Bar of California (1990)
Lehnert v. Ferris Faculty Ass'n (1991)
Glickman v. Wileman Brothers & Elliot, Inc. (1997)
Board of Regents of the Univ. of Wisconsin System v. Southworth (2000)
United States v. United Foods Inc. (2001)
Johanns v. Livestock Marketing Ass'n (2005)
Davenport v. Washington Education Ass'n (2007)
Locke v. Karass (2008)
Ysursa v. Pocatello Education Association (2009)
Knox v. SEIU, Local 1000 (2012)
Harris v. Quinn (2014)
Friedrichs v. California Teachers Association (2016)
Janus v. AFSCME (2018)

Compelled representation	Steele v. Louisville & N.R. Co (1944) Minnesota Board for Community Colleges v. Knight (1984)

Government grants
and subsidies

Regan v. Taxation with Representation of Washington (1983)
Rust v. Sullivan (1991)
National Endowment for the Arts v. Finley (1998)
Legal Services Corp. v. Velazquez (2001)
USAID v. Alliance for Open Society International I (2013)
USAID v. Alliance for Open Society International II (2020)

Government
as speaker

Pleasant Grove City v. Summum (2009)
Walker v. Texas Div., Sons of Confederate Veterans (2015)
Matal v. Tam (2017)
Iancu v. Brunetti (2019)
Houston Community College System v. Wilson (2022)
Shurtleff v. City of Boston (2022)
Vidal v. Elster (2024)

Loyalty oaths

American Communications Ass'n v. Douds (1950)
Garner v. Board of Public Works (1951)
Speiser v. Randall (1958)
Keyishian v. Board of Regents (1967)
Communist Party of Indiana v. Whitcomb (1974)

School speech

Minersville School District v. Gobitis (1940)
West Virginia State Board of Education v. Barnette (1943)
Tinker v. Des Moines Ind. Community School Dist. (1969, substantial disruption)
Healy v. James (1972)
Island Trees School District v. Pico (1982)
Bethel School District v. Fraser (1986)
Hazelwood School District v. Kuhlmeier (1988)
Westside Community Board of Ed. v. Mergens (1990)
Rosenberger v. Univ. of Virginia (1995)
Brentwood Academy v. Tennessee Secondary School Athletic Assn. (2001)
Tennessee Secondary School Athletic Assn. v. Brentwood Academy (2007)
Morse v. Frederick (2007)
Uzuegbunam v. Preczewski (2021)
Mahanoy Area School District v. B.L. (2021)

Public employees

Pickering v. Board of Education (1968)
Perry v. Sindermann (1972)
Arnett v. Kennedy (1974)
Elrod v. Burns (1976)
Mt. Healthy City School Dist. Board of Ed. v. Doyle (1977)
Givhan v. Western Line Consol. School Dist. (1979)
Smith v. Arkansas State Hwy. Employees Local (1979)
Connick v. Myers (1983)
Rankin v. McPherson (1987)
Rutan v. Republican Party of Illinois (1990)
Waters v. Churchill (1994)
United States v. National Treasury Employees Union (1995)
Board of Comm'rs, Wabaunsee Cty. v. Umbehr (1996)
Brentwood Academy v. Tennessee Secondary School Athletic Assn. (2001)
Garcetti v. Ceballos (2006)
Tennessee Secondary School Athletic Assn. v. Brentwood Academy (2007)
Borough of Duryea v. Guarnieri (2011)
Lane v. Franks (2014)
Heffernan v. City of Paterson (2016)
Kennedy v. Bremerton School Dist. (2022)

Hatch Act and
similar laws

Ex parte Curtis (1882)
United Public Workers v. Mitchell (1947)
U.S. Civil Service Comm'n v. National Ass'n of Letter Carriers (1973)
Broadrick v. Oklahoma (1973)

Licensing and
restriction of speech

Mutual Film Corp. v. Industrial Comm'n of Ohio (1915)
Cox v. New Hampshire (1941)
Murdock v. Pennsylvania (1943)
Kunz v. New York (1951)
Joseph Burstyn, Inc. v. Wilson (1952)
Kingsley Books, Inc. v. Brown (1957)
NAACP v. Button (1963)
Railroad Trainmen v. Virginia Bar (1964)
Freedman v. Maryland (1965)
Mine Workers v. Illinois Bar Assn. (1967)
Heffron v. International Society for Krishna Consciousness, Inc. (1981)
Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982)
Riley v. Nat'l Fed'n of the Blind (1988)
Forsyth County v. Nationalist Movement (1992)

Commercial speech

Valentine v. Chrestensen (1942)
Rowan v. U.S. Post Office Dept. (1970)
Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations (1973)
Lehman v. Shaker Heights (1974)
Goldfarb v. Virginia State Bar (1975)
Bigelow v. Virginia (1975)
Virginia State Pharmacy Bd. v. Virginia Citizens Consumer Council (1976)
Linmark Assoc., Inc. v. Township of Willingboro (1977)
Carey v. Population Services International (1977)
Bates v. State Bar of Arizona (1977)
In re Primus (1978)
Ohralik v. Ohio State Bar Association (1978)
Friedman v. Rogers (1979)
Consol. Edison Co. v. Public Serv. Comm'n (1980)
Central Hudson Gas & Electric Corp. v. Public Service Commission (1980)
Metromedia, Inc. v. San Diego (1981)
In re R.M.J. (1982)
Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982)
Zauderer v. Off. of Disciplinary Counsel of Supreme Court of Ohio (1985)
Pacific Gas & Electric Co. v. Public Utilities Comm'n of California (1986)
Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico (1986)
San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee (1987)
Shapero v. Kentucky Bar Association (1988)
Riley v. Nat'l Fed'n of the Blind (1988)
State University of New York v. Fox (1989)
Peel v. Attorney Registration and Disciplinary Commission of Illinois (1990)
City of Cincinnati v. Discovery Network (1993)
Edenfield v. Fane (1993)
United States v. Edge Broadcasting Co. (1993)
Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy (1994)
Lebron v. National Railroad Passenger Corp. (1995)
Rubin v. Coors Brewing Co. (1995)
Florida Bar v. Went For It, Inc. (1995)
44 Liquormart, Inc. v. Rhode Island (1996)
Glickman v. Wileman Brothers & Elliot, Inc. (1997)
Greater New Orleans Broadcasting Assn., Inc. v. United States (1999)
Los Angeles Police Department v. United Reporting Publishing Co. (1999)
United States v. United Foods Inc. (2001)
Lorillard Tobacco Co. v. Reilly (2001)
Thompson v. Western States Medical Center (2002)
Nike, Inc. v. Kasky (2003)
Johanns v. Livestock Marketing Ass'n (2005)
Tennessee Secondary School Athletic Assn. v. Brentwood Academy (2007)
Milavetz, Gallop & Milavetz, P.A. v. United States (2010)
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA (2010)
Sorrell v. IMS Health Inc. (2011)
Expressions Hair Design v. Schneiderman (2017)
Matal v. Tam (2017)
Iancu v. Brunetti (2019)
Barr v. American Association of Political Consultants (2020)
Vidal v. Elster (2024)

Campaign finance
and political speech

Buckley v. Valeo (1976)
First National Bank of Boston v. Bellotti (1978)
California Medical Association v. FEC (1981)
Citizens Against Rent Control v. City of Berkeley (1981)
FEC v. National Right to Work Committee (1982)
FEC v. National Conservative PAC (1985)
FEC v. Massachusetts Citizens for Life (1986)
Eu v. S.F. Cty. Democratic Cent. Comm. (1989)
Austin v. Michigan Chamber of Commerce (1990)
Colorado Republican Federal Campaign Committee v. FEC (1996)
Nixon v. Shrink Missouri Government PAC (2000)
FEC v. Colorado Republican Federal Campaign Committee (2001)
Republican Party of Minnesota v. White (2002)
FEC v. Beaumont (2003)
McConnell v. FEC (2003)
Wisconsin Right to Life, Inc. v. FEC (2006)
Randall v. Sorrell (2006)
FEC v. Wisconsin Right to Life, Inc. (2007)
Davis v. FEC (2008)
Citizens United v. FEC (2010)
Nevada Commission on Ethics v. Carrigan (2011)
Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (2011)
American Tradition Partnership, Inc. v. Bullock (2012)
McCutcheon v. FEC (2014)
Williams-Yulee v. Florida Bar (2015)
Thompson v. Hebdon (2019)
FEC v. Ted Cruz for Senate (2022)

Anonymous speech

NAACP v. Alabama (1958)
Bates v. City of Little Rock (1960)
Buckley v. Valeo (1976)
Brown v. Socialist Workers '74 Campaign Committee (1982)
McIntyre v. Ohio Elections Comm'n (1995)
Doe v. Reed (2010)
Americans for Prosperity Foundation v. Bonta (2021)

State action

Marsh v. Alabama (1946)
Lloyd Corp. v. Tanner (1972)
Manhattan Community Access Corp. v. Halleck (2019)
Lindke v. Freed (2024)
Murthy v. Missouri (2024)

Official retaliation

Hartman v. Moore (2006)
Reichle v. Howards (2012)
Wood v. Moss (2014)
Lozman v. City of Riviera Beach (2018)
Nieves v. Bartlett (2019)
Egbert v. Boule (2022)
Gonzalez v. Trevino (2024)
National Rifle Association of America v. Vullo (2024)

Boycotts

NAACP v. Claiborne Hardware Co. (1982)
FTC v. Superior Ct. TLA (1990)

Prisons

Procunier v. Martinez (1974)
Jones v. North Carolina Prisoners' Union (1977)
Turner v. Safley (1987)
Shaw v. Murphy (2001)
Overton v. Bazzetta (2003)
Beard v. Banks (2006)

Freedom of the press

Prior restraints and censorship	Patterson v. Colorado (1907) Near v. Minnesota (1931) Lovell v. City of Griffin (1938) Tucker v. Texas (1946) Hannegan v. Esquire, Inc. (1946) Lamont v. Postmaster General (1965) New York Times Co. v. United States (1971) Pell v. Procunier (1974) Nebraska Press Ass'n v. Stuart (1976) Landmark Communications, Inc. v. Virginia (1978) Lowe v. SEC (1985) Tory v. Cochran (2005)
Privacy	Time, Inc. v. Hill (1967) Cox Broadcasting Corp. v. Cohn (1975) Florida Star v. B. J. F. (1989)
Taxation and privileges	Grosjean v. American Press Co. (1936) Branzburg v. Hayes (1972) Houchins v. KQED, Inc. (1978) Minneapolis Star Tribune Co. v. Commissioner (1983) Arkansas Writers' Project v. Ragland (1987) Cohen v. Cowles Media Co. (1991)
Defamation	Beauharnais v. Illinois (1952) New York Times Co. v. Sullivan (1964) Curtis Publishing Co. v. Butts (1967) Greenbelt Cooperative Publishing Ass'n, Inc. v. Bresler (1970) Gertz v. Robert Welch, Inc. (1974) Time, Inc. v. Firestone (1976) Bose Corp. v. Consumers Union of United States, Inc. (1984) Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) McDonald v. Smith (1985) Hustler Magazine v. Falwell (1988) Harte-Hanks Communications, Inc. v. Connaughton (1989) Milkovich v. Lorain Journal Co. (1990) Obsidian Finance Group, LLC v. Cox (9th Cir. 2014)
Broadcast media	Red Lion Broadcasting Co. v. FCC (1969) FCC v. Pacifica Foundation (1978) CBS, Inc. v. Federal Communications Commission (1981) FCC v. WNCN Listeners Guild (1981) Denver Area Ed. Telecommunications Consortium, Inc. v. FCC (1996) Turner Broadcasting System, Inc. v. FCC (1997) Bartnicki v. Vopper (2001)
Copyrighted materials	Zacchini v. Scripps-Howard Broadcasting Co. (1977) Harper & Row v. Nation Enterprises (1985) Eldred v. Ashcroft (2003)

Freedom of assembly

Incorporation	United States v. Cruikshank (1876) Presser v. Illinois (1886)
Protection from prosecution and state restrictions	De Jonge v. Oregon (1937) Thomas v. Collins (1945) Americans for Prosperity Foundation v. Bonta (2021)

Freedom of association

Organizations	Joint Anti-Fascist Refugee Committee v. McGrath (1951) Watkins v. United States (1957) NAACP v. Alabama (1958) Bates v. City of Little Rock (1960) NAACP v. Button (1963) Americans for Prosperity Foundation v. Bonta (2021)
Future Conduct	Baggett v. Bullitt (1964)
Solicitation	In re Primus (1978)
Membership restriction	Hishon v. King & Spalding (1984) Roberts v. United States Jaycees (1984) Rotary Int'l v. Rotary Club of Duarte (1987) New York Club Ass'n v. City of New York (1988) Dallas v. Stanglin (1989) Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995) Boy Scouts of America v. Dale (2000) Christian Legal Society v. Martinez (2010)
Primaries and elections	Cousins v. Wigoda (1975) Democratic Party v. Wisconsin (1981) Tashjian v. Republican Party (1986) Timmons v. Twin Cities Area New Party (1997) California Democratic Party v. Jones (2000) Clingman v. Beaver (2005) New York State Board of Elections v. Lopez Torres (2008) Washington State Grange v. Washington State Republican Party (2008)

Freedom to petition

United States v. Cruikshank (1876)
Thomas v. Collins (1945)
Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961)
NAACP v. Button (1963)
Edwards v. South Carolina (1963)
United Mine Workers v. Pennington (1965)
Cox v. Louisiana (1965)
California Motor Transport Co. v. Trucking Unlimited (1972)
Smith v. Arkansas State Highway Employees (1979)
McDonald v. Smith (1985)
Meyer v. Grant (1988)
Buckley v. American Constitutional Law Foundation (1999)
BE and K Construction Co. v. National Labor Relations Board (2002)
Doe v. Reed (2010)
Borough of Duryea v. Guarnieri (2011)

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