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For Educators:
The Supreme Court and The Freedom of Speech
More on This Lesson:
Court Cases

A Case Study Approach
This lesson is designed for Grades 9-12


Case studies summarized by Joseph O'Brien, Virginia Institute for Law and Citizenship Studies, Inc. (Issues of Law and Citizenship)

Schenck v. United States
249 U.S. 47 (1919)

A portion of the Federal Espionage Act of 1917 reads as follows:

Section 3. Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States ... and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States ... shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.

In 1917, Charles T. Schenck general secretary of the Socialist Party, mailed out fifteen thousand leaflets to prospective military draftees urging them to resist the Conscription Act. He was convicted by a United States District Court of violating the Espionage Act. He appealed to the United States Supreme Court.

Schenck v. United States

Issue: Did Schenck's conviction constitute a violation of his First Amendment rights?

Decision: No. The United States Supreme Court affirmed Schenck's conviction.

Reasoning: In reviewing the Espionage Act and Schenck's activities Justice Oliver Wendell Holmes, speaking for a unanimous Court, observed:

"We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.... The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.... 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. 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. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 in section 4 ... punishes conspiracies to obstruct as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. "

Terminiello v. Chicago
337 U.S. 1 (1949)

Arthur Terminiello was arrested by Chicago police and charged with disorderly conduct in violating Chicago's breach of the peace ordinance. His arrest Few out of a speech that he gave in Chicago which attracted much public attention. Terminiello gave the speech in a Chicago auditorium which was filled with about eight hundred people almost all of them admirers. Outside the auditorium, a hostile crowd of about fifteen hundred angrily protested the meeting. Terminiello, in angry and sometimes vicious terms, criticized certain political and racial groups. He called several prominent figures in the Roosevelt administration communists and stated that certain members of a more liberal persuasion were scum. He also made harsh and cruel remarks about people of the Jewish faith. Despite the police attempts to block off the area around the auditorium, there were disturbances in the crowd. There was pushing and shoving, rocks were thrown, windows were broken, stink-bombs were set off, and there were efforts to break in through the back door of the meeting hall.

During this trial, Terminiello asserted that the Chicago breach of the peace ordinance violated his constitutional rights. The jury found Terminiello guilty and he was fined $100.00. The Illinois Supreme Court upheld Terminiello's conviction. He appealed to the United States Supreme Court.

Terminiello v. Chicago

Issue: Was this "inflammatory" speech protected by the First Amendment?

Decision: Yes. The United States Supreme Court overturned Terminiello's conviction.

Reasoning: The Court decided (5-4) that the trial judge's instructions were too broad, therefore, the conviction had to be reversed. (The trial judge instructed the jury that a breach of the peace includes speech which "Stirs the public anger, unites dispute, brings about a condition of unrest, or creates a disturbance.")

Said Justice Douglas, writing for the majority: "Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest.

Terminiello v. Chicago

Said Justice Jackson in a dissent joined by Justices Frankfurter and Burton:

"The choice is not between liberty and order. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

Drawing a less restrictive interpretation of the "clear and present danger" test, Jackson criticizes the majority for ignoring the highly charged, explosive context in which the remarks were made:

"Rioting is a substantive evil, which I take it, no one will deny that the State and the City have the right and the duty to prevent and punish. Where an offense is induced by speech, the Court has laid down and often reiterated a test of the power of the authorities to deal with the speaking as also an offense. 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 [or the State or City] has a right to prevent. Mr. Justice Holmes in Schenck v. United States. No one ventures to contend that the State on the basis of this test, for whatever it may be worth, was not justified in punishing Terminiello. In this case, the evidence proves beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate. If this Court has not silently abandoned this long standing test and substituted for the purposes of this case an unexpressed but more stringent test, the action of the State would have to be sustained."

Feiner v. New York
340 U.S. 315 (1951)

On the evening of March 8, 1949, Irving Feiner, a Syracuse University student, was addressing an open-air gathering in Syracuse. The purpose of the gathering was to urge listeners to attend a meeting to be held that night in the Syracuse Hotel. The police received a telephone complaint about the gathering and two police officers were sent to the scene. When they arrived, they found a crowd of about eighty people, both black and white, standing on the sidewalk and in the street.

According to the testimony of witnesses presented during the trial, Feiner made a variety of remarks about politics and specific politicians. According to the witnesses, Feiner called Mayor Costello of Syracuse a champagne-sipping bum, stated that the 5th Ward was run by corrupt politicians, called President Truman a bum, declared the American Legion a Nazi Gestapo organization, and said that Negroes don't have equal rights and that they should rise up in arms to fight for their rights. Irving Feiner denied making some of those remarks.

The police were first concerned about pedestrian and vehicular traffic. The crowd was restless and there was some pushing and shoving. While some people approved of the speaker's remarks; others became hostile. Some of the spectators commented to the police on their inability to handle the crowd. At least one person threatened violence unless the police did something.

After Feiner had been speaking for about twenty minutes, a man in the crowd said to the policemen, "If you don't get that son-of-a-bitch off, I will go over and get him off myself" One of the police officers turned to Feiner and asked him to stop and step down. Feiner refused and continued speaking. The officer waited a short while and then demanded a second time that Feiner stop. Feiner refused again and was arrested by the police for violating the disorderly conduct ordinance.

Feiner was found guilty and his case reached the United States Supreme Court on appeal.

Feiner v. New York

Issue: Is an individual's right to freedom of speech protected to the point that he can make inflammatory political remarks on a crowded street corner?

Decision: No. In a 6-3 decision, the United States Supreme Court upheld Feiner's disorderly conduct conviction.

Reasoning: In the opinion of the Supreme Court, Feiner's actions had created a clear and present danger of a riot or disturbance.

Said Chief Justice Vinson: "We are well aware that the ordinary murmurings and objections of a hostile audience cannot be allowed to silence a speaker, and are also mindful of the possible danger of giving overzealous police officials complete discretion to break up otherwise lawful public meetings .... A State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.... But we are not faced here with such a situation. It is one thing to say that police cannot be used as an instrument for the suppression of unpopular views, and another to say that when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of peace. Nor in this case can we condemn the considered judgment of three New York courts approving the means which the police, faced with a crisis, used in the exercise of their power and duty to preserve peace and order. The findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner's deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech.

Feiner v. New York

Justice Hugo Black focused on the rule of police as censors against unpopular speakers:

"I think this conviction makes a mockery of the free speech guarantees of the First and Fourteenth Amendments. The end result of the affirmance here is to approve a simple and readily available technique by which cities and states can with impunity subject all speeches, political or otherwise, on the streets or elsewhere, to the supervision and censorship of the local police. I will have no part or parcel in this holding which I view as a long step toward totalitarian authority. Moreover, assuming that the "facts" did indicate a critical situation, I reject the implication of the Court's opinion that the police had no obligation to protect petitioner's right to talk....Their duty was to protect petitioner's right to talk, even to the extent of arresting the man who threatened to interfere. Instead, they shirked that duty and acted only to suppress the right to speak."

Note: The opinion of the Supreme Court did not refer to the Terminiello case decided two years earlier.

Brandenburg v. Ohio
395 U.S. 444 (1969)

Charles Brandenburg who was the leader of a local Ku Klux Klan group spoke at a rally on a farm in Hamilton County, Ohio. During the rally a large wooden cross was burned. He made inflammatory remarks about both Jews and blacks. He was arrested and convicted of violating Ohio's criminal syndicalism statute. The statute prohibited the advocacy of violence and other unlawful terrorism as a means of accomplishing political reform and for voluntarily assembling with any group to teach these ideas. The appellate Court of Ohio upheld Brandenburg's conviction as did the Supreme Court of Ohio. He appealed to the United States Supreme Court.

Brandenburg v. Ohio

Issue: Did the Ohio statute violate the principles of free speech protected by the First Amendment?

Decision: Yes. The United States Supreme Court ruled in favor of Brandenburg.

Reasoning: The Supreme Court ruled that the statute must draw a distinction between the mere abstract advocacy of the use of violence and the actual preparation and incitement of a group to such action. When this distinction is not made, the constitutional guarantees of free speech and press are violated.

Texas v. Johnson
Argued March 21,1989
Decided June 21, 1989

During the 1984 Republican National Convention in Dallas, Texas, demonstrators marched to protest nuclear war and the Republican platform. Protesters ripped the American flag from a downtown bank building. According to police testimony, Gregory Lee Johnson poured lighter fluid on the flag and set it ablaze to the enthusiastic chanting of some fifty protesters.

The Texas flag desecration statute, one of forty-eight in the nation, prohibits defacing or damaging the flag in a way that the perpetrator knows will "seriously offend" spectators. Johnson was convicted of violating this Texas statute. He was sentenced to one year in jail and fined $2,000.

The Texas Court of Criminal Appeals, citing Brandenburg v. Ohio (1969), overturned the conviction and invalidated the law because flag-burning, occurring during a political protest was symbolic speech protected by the First Amendment. Texas appealed to the United States Supreme Court.

Texas v. Johnson

Issue: Is the Texas statute under which Gregory Lee Johnson was convicted of desecrating an American flag consistent with the First Amendment's guarantee of free speech?

Decision: No. Because the statute infringed on the First Amendment's guarantees of free speech, Johnson was wrongly convicted for engaging in political expression that did not threaten to disturb the peace.

Reasoning: In the majority opinion, Justice Brennan said that the First Amendment protects protesters who burn American flags in political demonstrations. Symbolic actions like flag burning is a form of constitutionally protected speech "at the core of our First Amendment," so long as there is no danger of rioting or other breach of the peace.

"The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong .... We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents." The judgment of the Texas Court of Criminal Appeals is affirmed.

Texas v. Johnson

Said Justice Kennedy:

The case before us illustrates better than most that the judicial power is often difficult to exercise. We cannot here ask another branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours.

The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the laws and the Constitution, as we see them, compel the result .... It is poignant but fundamental that the flag protects those who hold it in contempt."

Texas v. Johnson

Chief Justice Rehnquist, observing that the flag "throughout more than 200 years of our history, has come to be the visible symbol embodying our nation," argues that the flag's unique, revered position as the symbol of our nation justifies states who seek to prohibit its desecration. The American flag is not just another symbol.

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