CITES BY TOPIC:  freedom of speech (1st Amendment)

American Communication Association v. Douds, 339 U.S 382, 442 - 443 (1950)


“. . . While the Governments, State and Federal, have expansive powers to curtail action, and some small powers to curtail speech or writing, I think neither has any power, on any pretext, directly or indirectly to attempt foreclosure of any line of thought. Our forefathers found the evils of free thinking more to be endured than the evils of inquest or suppression. They gave the status of almost absolute individual rights to the outward means of expressing belief. I cannot believe that they left open a way for legislation to embarrass or impede the mere intellectual processes by which those expressions of belief are examined and formulated. This is not only because individual thinking presents no danger to society, but because thoughtful, bold and independent minds are essential to wise and considered self-government.”

“Progress generally begins in skepticism about accepted truths. Intellectual freedom means the right to reexamine much that has been long taken for granted. A free man must be a reasoning man, and he must dare to doubt what a legislative or electoral majority may most passionately assert. The danger that citizens will think wrongly is serious, but less dangerous than atrophy from not thinking at all. Our Constitution relies on our electorate's complete ideological freedom to nourish independent and responsible intelligence and preserve our democracy from that submissiveness, timidity and herd-mindedness of the masses which would foster a tyranny of mediocrity. The priceless heritage of our society is the unrestricted constitutional right of each member to think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. “

[American Communication Association v. Douds, 339 U.S 382, 442 - 443 (1950)]

Gitlow v. People of State of New York, 268 U.S. 652 (1925)

It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. 2 Story on the Constitution ( 5th Ed.) 1580, p. 634; Robertson v. Baldwin, 165 U.S. 275, 281 , 17 S. Ct. 326; Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Ct. 556, 10 Ann. Cas. 689; Fox v. Washington, 236 [268 U.S. 652, 667]   U. S. 273, 276, 35 S. Ct. 383; Schenck v. United States, 249 U.S. 47, 52 , 39 S. Ct. 247; Frohwerk v. United States, 249 U.S. 204, 206 , 39 S. Ct. 249; Debs v. United States, 249 U.S. 211, 213 , 39 S. Ct. 252; Schaefer v. United States, 251 U.S. 466, 474 , 40 S. Ct. 259; Gilbert v. Minnesota, 254 U.S. 325, 332 , 41 S. Ct. 125; Warren v. United States, 183 F. 718, 721, 106 C. C. A. 156, 33 L. R. A. (N. S.) 800. Reasonably limited, it was said by Story in the passage cited, this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic.

That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question. Robertson v. Baldwin, supra, p. 281 (17 S. Ct. 326); Patterson v. Colorado, supra, p. 462 (27 S. Ct. 556); Fox v. Washington, supra, p. 277 (35 S. Ct. 383); Gilbert v. Minnesota, supra, p. 339 (41 S. Ct. 125); People v. Most, 171 N. Y. 423, 431, 64 N. E. 175, 58 L. R. A. 509; State v. Holm, 139 Minn. 267, 275, 166 N. W. 181, L. R. A. 1918C, 304; State v. Hennessy, 114 Wash. 351, 359, 195 P. 211; State v. Boyd, 86 N. J. Law, 75, 79, 91 A. 586; State v. McKee, 73 Conn. 18, 27, 46 A. 409, 49 L. R. A. 542, 84 Am. St. Rep. 124. Thus it was held by this Court in the Fox Case, that a State may punish publications advocating and encouraging a breach of its criminal laws; and, in the Gilbert Case, that a State may punish utterances teaching or advocating that its citizens should not assist the United States in prosecuting or carrying on war with its public enemies.

And, for yet more imperative reasons, a State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. These imperil its own existence as a constitutional State. Freedom of speech and press, said Story, supra, does not protect disturbances to the public peace or the attempt to subvert the government. It does not protect publications or teachings which tend to subvert or imperil the government or to impede or hinder it in the performance of its governmental duties. State v. [268 U.S. 652, 668]   Holm, supra, p. 275 (166 N. W. 181). It does not protect publications prompting the overthrow of government by force; the punishment of those who publish articles which tend to destroy organized society being essential to the security of freedom and the stability of the state. People v. Most, supra, pp. 431, 432 (64 N. E. 175). And a State may penalize utterances which openly advocate the overthrow of the representative and constitutional form of government of the United States and the several States, by violence or other unlawful means. People v. Lloyd, 304 Ill. 23, 34, 136 N. E. 505. See, also, State v. Tachin, 92 N. J. Law, 269, 274, 106 A. 145, and People v. Steelik, 187 Cal. 361, 375, 203 P. 78. In short this freedom does not deprive a State of the primary and essential right of self preservation; which, so long as human governments endure, they cannot be denied. Turner v. Williams, 194 U.S. 279, 294 , 24 S. Ct. 719. In Toledo Newspaper Co. v. United States, 247 U.S. 402, 419 , 38 S. Ct. 560, 564 (62 L. Ed. 1186), it was said:

'The safeguarding and fructification of free and constitutional institutions is the very basis and mainstay upon which the freedom of the press rests, and that freedom, therefore, does not and cannot be held to include the right virtually to destroy such institutions.'

[Gitlow v. People of State of New York, 268 U.S. 652 (1925)]

Laird v. Tatum, 408 U.S. 1 (1972):

"This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance. When an intelligence officer looks over every nonconformist's shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is [408 U.S. 1, 29]   cast in the image which Jefferson and Madison designed, but more in the Russian image, depicted in Appendix III to this opinion." 

[Laird v. Tatum, 408 U.S. 1 (1972)]


"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 and control the right of another; and this is the only check which it ought to suffer, the only bounds which it ought to know.

"This sacred privilege is so essential to free government that the security of property and the freedom of speech always go together; and in those wretched countries were a man cannot call his tongue his own, he can scarce call anything else his own. Whoever would overthrow the liberty of the nation must begin by subduing the freedom of speech, a thing terrible to public traitors." 

[Cato's Letters. No. 15, Feb. 4, 1720]

Texas v. Johnson, 491 U.S. 397 (1989)

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

[Texas v. Johnson, 491 U.S. 397 (1989) / Justice William Brennan]

New York Times v United States, 403 U.S. 713

"Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell." 

[New York Times v United States, 403 U.S. 713 (1971) / Justice Hugo Black, concurring]

Article XIX of the Universal Declaration of Human Rights

"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media regardless of frontiers."

[Article XIX of the Universal Declaration of Human Rights]

Free Speech in an Open Culture. (Page 367)

"Even a nation as committed to freedom of speech as the United States will often be sorely tempted to let paranoia triumph over liberty, treating speech from other nations as contraband, like drugs or smuggled goods. But, in the end, the towering hopes of the world for a new century of pluralistic tolerance and peace must be wagered on the faith that the free flow of information across international borders avoids more wars than it causes, averts more terrorism than it feeds, and uncovers more violations of human rights than it incites. The international marketplace of ideas is not a myth; it is inevitable. The global electronic village is not a dream, it is here. There is no better way to advance the progress of science, social justice, and culture, no better way to conquer hunger and disease, no better check on tyranny and exploitation, no better nourishment for the art, music, and poetry that stir the human spirit, than a world committed to open cultures and freedom of speech." 

[Free Speech in an Open Culture. (Page 367)]

Board of Education v. Pico, 457 U.S. 853(1982)

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe, what shall be orthodox in politics, nationalism, religion, or other matters of opinion...."

[Justice William Brennan. Board of Education v. Pico, 457 U.S. 853 (1982)]

Hustler v. Falwell, 485 U.S. 46 (1988):

"The freedom to speak one's mind is not only an aspect of individual liberty- and thus a good unto itself - but also is essential to the common quest for truth and the vitality of society as a whole."

[Chief Justice William Rehnquist, Hustler v. Falwell, 485 U.S. 46 (1988)]

Justice William O. Douglas

"The right to dissent is the only thing that makes life tolerable... The affairs of government could not be conducted by democratic standards without it."

[Justice William O. Douglas]

Police Department of the City of Chicago v. Moseley (1976)

"Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject, or its content."

[United States Supreme Court, Police Department of the City of Chicago v. Moseley (1976)]

Justice Potter Stewart

"Censorship reflects society's lack of confidence in itself. It is the hallmark of an authoritarian regime..."
[Justice Potter Stewart]

Other First Amendment cases:

  • Whitney v. People of State of California, 274 U.S. 357 (1927) excerpt from J. Brandeis concurring opinion
  • Roth v. United States, 354 U.S. 476 (1957);
  • Smith v. California, 361 U. S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205 (1960)
  • Winters v. New York, 333 U.S. 507, 509 -510, 517-518
  • Thornhill v. Alabama, 310 U.S. 88, 97 -98
  • Staub v. City of Baxley, 355 U. S. 313, 78 S. Ct. 277, 2 L. Ed. 2d 302 (1958)
  • Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495 ;
  • Grosjean v. American Press Co., 297 U.S. 233
  • Gibson v. Florida Legislative Investigation Commission, 372 U.S. 539, 83 S. Ct. 889, 9 L. Ed. 929 (1963)
  • NAACP Legal Defense and Education Fund, Inc. v. Committee on Offenses Against Administration of Justice, 204 Va. 693, 133 S. E. 2d 540 (1963),
  • LAW REVIEWS: Berger Liberty and the Constitution 29 Ga. L R 585, Spring 1995
    Louisiana ex. rel. Gremillion v. NAACP, 366 U.S. 293, 81 S. Ct. 1333, 6 L. Ed. 2d 301 (1961)
  • California Bankers Association v. Shultz, 416 U. S. 21, 94 S. Ct. 1494, 39 L. Ed. 2d 812 (1974)
  • NAACP v. Alabama, 357 U.S. 449 (1958).
  • Pollard v. Roberts, 283 F. Supp. 248 (ED Ark.), aff'd per curiam, 393 U.S. 14 (1968)
  • Louisiana v. N. A. A. C. P., 366 U.S. 293 (1961)
  • Bates v. City of Little Rock, 361 U. S. 516, 80 S. Ct. 412, 4 L. Ed. 2d 480 (1960),
  • NAACP v. State of Alabama ex. rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958)
  • NAACP v. Alabama ex. rel. Flowers, 377 U.S. 288, 84 S. Ct. 1302, 12 L. Ed. 2d 325 (1964)
    Watkins v. United States, 354 U.S. 178 (1957)
  • DeGregory v. Attorney General of the State of New Hampshire, 383 U.S. 825, 86 S. Ct. 1148, 16 L. Ed. 2d 292 (1966)
  • Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960)
  • Meachum v. Fano, 427 U. S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976)