In this section, the readings focus on the jurisprudence of free speech. Two historical themes stand out.

First, freedom of speech has tended to become more protected by jurisprudence over the decades, especially in the United States. Second, though free speech jurisprudence is highly protective—though with important exceptions—it is often embattled by emergent agendas and crusades, what Justice Oliver Wendell Holmes, Jr. called “fighting faiths” in his famous dissent in Abrams v. United States. Just where authorities and society should draw the line between protected and unprotected speech is a matter of constant interest and academic engagement.

A core question in free speech jurisprudence is when the government may punish speech because it poses a threat to the political order or to the law. The early “clear and present danger test” created by Justice Holmes was the first major specific test intended to deal with this question. Before this, courts relied upon a vague “bad tendency” test. But Holmes’ first use of this test in Schenck proved to be less protective than it appeared, so Holmes and Justice Brandeis—in dissent—moved toward more protective tests that protected “advocacy” of illegal action so long as it fell short of “direct incitement.” It was not until Brandenburg v. Ohio (1969) that the Court (unanimously) as a whole adopted a test that remains among the most protective free speech tests in the world in this doctrinal domain. Government may punish the advocacy of lawless action unless the speech constitutes a direct incitement to imminent lawless action that is likely to occur.

The Supreme Court has long ruled that so-called “fighting words” are not protected by the First Amendment. Fighting words are face-to-face words that are so insulting that they cause a direct breach of the peace or inflict severe emotional harm. Though fighting words remain unprotected in theory, beginning with the Cohen case of 1971, the Court has progressively narrowed the meaning of fighting words over time in order to accommodate vibrant discourse in a pluralistic society. Today, fighting words are limited to extreme provocations and direct threats to the safety of persons.

Several Supreme Court decisions extended First Amendment rights to civil rights demonstrators in the 1960s. These decisions helped to open the door to civil rights claims.

The Supreme Court held that civil rights organizations could maintain the privacy of their membership lists, thereby protecting members from retaliation. And it enhanced the right to demonstrate in the public forum, which secured a crucial vehicle for less wealthy groups to persuade and pressure the public. In the 1980s and 1990s the Supreme Court limited public forum rights somewhat, but it still maintain the essence of the doctrine.

A majority of the Supreme Court never even considered the First Amendment protection of “obscenity” until the Roth case in 1957. Before that time, the Court simply assumed that the first Amendment did not protect obscenity, so obscenity cases in the courts mainly involved applying obscenity statutes rather than constitutional analysis. In Roth the Court declared that obscenity is not protected by the First Amendment, but that non-“prurient” portrayal of sexuality and sexual themes is protected. Moving in a libertarian direction, the Court narrowed the constitutional definition of “obscenity” in Miller v. California (1973), which protects sexual depictions that fall short of being “hard core” pornography. Miller remains the basic First Amendment standard for obscenity to this day. In the 1980s lower federal courts rejected a new model for the restriction of sexual expression, the so-called “feminist civil rights ordinance” created by radical feminists Catherine MacKinnon and Andrea Dworkin. Eschewing the traditional morality logic of obscenity law, the feminist ordinance targeted “pornography,” which it defined as the “sexually explicit subordination of women.” Courts ruled that the ordinance fell afoul of the First Amendment because it targeted not just obscenity, but also ideas regarding gender relations.

Extending First Amendment rights to pre-college students was an important aspect of the Supreme Court’s liberalization project in the 1950s and 1960s. In subsequent decades, the Court has allowed more leeway for school officials to balance speech rights with other pedagogical values, such as the inculcation of civility and order. Courts have also distinguished primary and secondary public education from education in colleges and universities, extending greater First Amendment protection to the latter. In the 1990s, lower federal courts struck down so-called “speech codes” designed to limit expression of students in the name of sensitivity and civility. Finally, the Supreme Court has declared that the academic freedom of teachers and students enjoys basic, if nuanced, First Amendment protection.