Brandenburg v. Ohio set the modern standard for when speech can be punished as incitement

The Supreme Court's first major free-speech ruling rested on a legal standard that was later overturned

In Schenck v. United States (1919), the court introduced the "clear and present danger" test—permitting the government to restrict speech that posed an immediate threat to public safety. Although the doctrine was later replaced, the ruling upheld the conviction of a man who had distributed anti-draft pamphlets.

Not all speech in the United States is protected

This page explains the categories of speech—including defamation, incitement, true threats, fraud, and obscenity—the Supreme Court has placed outside First Amendment protection and how courts determine which standard to apply when speech is challenged.

In 1978, lower courts ruled that neo-Nazis had the right to march through Skokie, Illinois

Skokie was home to a large community of Holocaust survivors, making the planned march an extreme test of First Amendment principles. The courts ultimately ruled that even deeply offensive speech remains protected by the Constitution.

Justice Oliver Wendell Holmes championed the idea of speech as a 'marketplace of ideas'

In his landmark dissent in Abrams v. United States, Justice Holmes argued that the best way to combat harmful ideas is through open competition—a principle that became foundational to modern First Amendment law.

The Supreme Court ruled that burning the American flag is protected speech

In Texas v. Johnson (1989), the court held, 5-4, that flag burning is a form of symbolic political expression protected by the First Amendment—one of the most controversial free-speech rulings in American history.

Lemon v. Kurtzman (1971) created a 3-part test for church-state entanglement

In this case, the Supreme Court established a three-part test—requiring a secular purpose, no advancement of religion, and avoidance of excessive entanglement—for laws concerning the Establishment Clause. The test was later effectively sidelined in recent rulings.

Free speech has often been restricted in wartime, potentially unconstitutionally

From the Sedition Act of 1798 to the prosecution of anti-war activists during World War I, the US government repeatedly curtailed speech and dissent during wartime—actions widely criticized and, in some cases, later deemed unconstitutional.

The early DOJ led the first major federal civil rights prosecutions

During Reconstruction, the newly formed Department of Justice prosecuted Ku Klux Klan violence in the South—securing over 1,000 indictments and more than 500 convictions by 1873 in defense of newly established civil rights protections.

Snyder v. Phelps found that the First Amendment protects speech, even if it is deeply hurtful or inflammatory

When some members of the Westboro Baptist Church, carrying inflammatory signs, picketed the funeral of a fallen Marine, his father sued but lost. The Supreme Court ruled 8-1 that the protest addressed matters of public concern and was protected by the First Amendment.

White supremacist groups like the Ku Klux Klan emerged to undermine Reconstruction

Founded in 1865 by former Confederate officers in Tennessee, the Ku Klux Klan used terror, murder, and intimidation to suppress Black political power and restore white Democratic control across the postwar South.

A 1922 Oregon initiative that sought to ban private education inadvertently strengthened parents' ability to pursue options outside the public school system, building the legal case for homeschooling.

Carlin's 'Seven Words' led to a landmark Supreme Court ruling

The original recording of Carlin's bit aired on a New York radio station in 1973, leading to an FCC complaint. The case went up to the Supreme Court, which ruled that the FCC had the right to penalize broadcasters that aired obscene content during the daytime.

Reynolds v. United States (1878) established that religious belief is not a defense for a crime

In the first major Supreme Court case on the free exercise clause, the court ruled that the government cannot regulate religious belief, but it can regulate religious practice if it violates the law. The case arose from a Mormon man convicted of polygamy who argued his faith required it.

Learn about the long and contested history of free speech in America

This podcast examines how American free speech protections evolved—from the Founders' debates to landmark Supreme Court rulings—and why the country arrived at one of the most expansive speech regimes in the world.

The ACLU was founded in 1920 in direct response to the suppression of speech during World War I

The mass arrest and prosecution of anti-war activists, socialists, and immigrants under the Espionage and Sedition Acts prompted a group of civil libertarians to form the American Civil Liberties Union to defend constitutional rights.

The Prize Cases established that the president can respond to an attack without waiting for Congress to act

When Lincoln blockaded Confederate ports at the start of the Civil War without congressional authorization, the Supreme Court upheld his actions, ruling that a president does not initiate war by responding to an attack and need not wait for Congress when the nation is already under threat.

A 1986 Supreme Court ruling prohibited race-based jury strikes, but racial imbalance in jury selection persists

Batson v. Kentucky banned prosecutors from excluding jurors on the basis of race, but critics say it backfired. Prosecutors often use race-neutral pretexts to remove potential jurors that judges rarely reject, and some courts have never found a violation of the ruling.

Tinker v. Des Moines affirmed that students maintain the right to free speech at school

In 1969, the Supreme Court ruled that two Iowa teenagers had the right to wear black armbands to school in protest of the Vietnam War, establishing that students retain First Amendment protections in public schools.

A Gilded Age moral crusader convinced Congress to pass a law banning 'obscene, lewd or lascivious' materials from the mail that's central to today's debate over abortion pills.

Explore important free-speech cases with a First Amendment litigator

Hosted by Ken White, the "Make No Law" podcast explores landmark First Amendment cases—from student speech to defamation—breaking down complex legal battles in an accessible way for lawyers and nonlawyers alike.

Malcolm X's 'Ballot or the Bullet' speech emphasized the political power of Black voters.

Explore how free speech and justice coexist and sometimes clash

From the abolition of slavery to South African apartheid, this podcast explores how censorship has historically been used to suppress racial justice movements—and to promote them—and asks whether free speech is a foundation for, or a threat to, equality.

New York Times Co. v. Sullivan transformed libel law and the relationship between the press and public officials

The 1964 case arose when an Alabama official sued The New York Times over a civil rights advertisement he claimed was defamatory. The ruling makes it very difficult for public officials to win libel suits against the press unless they can prove deliberate falsehood.

The rise of the campaign speech

What compels an audience shifts over time, meaning yesterday's popular speeches might not go over the same way if delivered today. However, impactful campaign speeches across time share some qualities, including taking the audience seriously, inviting listeners to engage with or respond to presented materials, and using everyday, informal language. Additionally, US political candidates typically promote themselves in their speeches, an approach initially considered vulgar in Australia and Britain.

The Supreme Court decided that a public school coach's postgame prayers were protected speech

The Supreme Court ruled 6-3 in favor of a high school football coach who had been suspended for kneeling in prayer at midfield after games. The decision shifted away from the Lemon test and toward a more expansive view of religious freedom in the Establishment Clause.

The 'Howl' obscenity trial changed American publishing

The "Howl" obscenity trial is one of the most significant in American publishing, affirming that material with the "slightest redeeming social importance" cannot be considered "obscene." In the process, it permits artists, like Allen Ginsberg, to use the language they see fit to express themselves.

The Supreme Court limited federal judges' power to issue nationwide injunctions in 2025

In a 2025 decision arising from litigation over a presidential order on birthright citizenship, the Supreme Court held that individual federal judges may not nationwide block executive policies—curbing the use of sweeping injunctions and reshaping how constitutional challenges proceed through the courts.

Citizens United extended First Amendment protections to corporate political spending

The Supreme Court's 2010 decision struck down limits on independent political expenditures by corporations and other organizations, ruling that such spending is protected speech—a decision that was deeply contested and reshaped campaign finance law.

How a Cleveland woman who slammed the door on police changed the Fourth Amendment

In 1957, a bomb exploded under the front porch of boxing promoter Don King in Cleveland. When police received a tip to search Dollree Mapp's home, she refused to let them in. Her case went to the Supreme Court, resulting in a ruling that barred illegally obtained evidence from state criminal trials.

1978: Thurgood Marshall, commencement address at the University of Virginia

"Where you see wrong or inequality or injustice, speak out, because this is your country. This is your democracy. Make it. Protect it. Pass it on."

An 1873 Supreme Court case about slaughterhouses weakened parts of the 14th Amendment

In 1873, the Supreme Court's Slaughterhouse Cases ruled that the 14th Amendment's "privileges or immunities" clause protected only federal—not state—citizenship rights, greatly limiting the amendment's power to safeguard enslaved people from state discrimination.

Lenny Bruce's stand-up challenged US law

Bruce came up in burlesque theaters, but began to find success as stand-up comedy developed a more political and subversive bent. His sets often satirized what he believed to be an oppressively conformist society, which led to his arrest on several occasions.

The words 'separation of church and state' are not found in the Constitution

Responding to Connecticut Baptists concerned about religious liberty, Jefferson described the First Amendment as building "a wall of separation between church and state." The Supreme Court later cited the letter as an authoritative guide to the Establishment Clause.

A court designed to be the least powerful branch of government became one of the most influential institutions in America.

Listen to Dr. Martin Luther King Jr. read his famous Letter from Birmingham Jail

Written in 1963 while jailed for nonviolent protest, Dr. King’s letter defends civil disobedience, rejects calls for patience, and argues that unjust laws must be confronted to expose injustice and force meaningful change.

Orwell warned readers about how abuse of language can lead to dystopias

In his 1946 essay "Politics and the English Language," Orwell argues that language is the primary tool of political control and is "designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind." The essay warns readers that how they use and consume language will dictate what they permit—or prohibit—in society.

The Kansas-Nebraska Act sparked violence that foreshadowed the Civil War

The 1854 Kansas-Nebraska Act let settlers vote on whether to allow slavery, repealing the Missouri Compromise. Competing proslavery and antislavery groups poured into Kansas, sparking years of bloody conflict known as "Bleeding Kansas."

The US protects free speech more broadly than any other democracy

Well-known First Amendment lawyer Floyd Abrams explains that the US offers stronger free-speech protections than even close democratic allies, where hate speech is criminalized, libel laws favor plaintiffs, and a "right to be forgotten" can erase truthful information from the internet.

'What each of us must come to realize is that our intent always comes through.'

- First African American Supreme Court justice Thurgood Marshall (1908-1993)

Grand juries were once considered a formality, but that may no longer be the case

New York's former chief judge famously said a prosecutor could get a grand jury to "indict a ham sandwich," showing how rarely a grand jury refused. However, recent cases in which prosecutors failed to secure an indictment during the second Trump administration are challenging that assumption.

British Prime Minister Churchill’s speeches rallied the nation

Winston Churchill’s impassioned wartime oratory united Britain’s resolve, transforming fear into defiance and forging a path to continued resistance against Nazi aggression.

The FBI ran a covert campaign to discredit Dr. Martin Luther King Jr.

From 1963 to 1968, the FBI surveilled Dr. King with wiretaps, hotel bugs, informants, and anonymous threats, citing concerns about Communist influence—an effort later revealed through declassified files and documented in the film MLK/FBI.

Supreme Court Justice Louis Brandeis once called states 'laboratories of democracy'

Louis Brandeis argued that federalism allows states to experiment with new policies without committing the entire nation, thereby allowing successful ideas to spread while limiting the risks of failure.

Churchill’s 1946 ‘Iron Curtain’ speech warned of growing Soviet domination

In a 1946 speech, Winston Churchill declared that an “Iron Curtain” had descended across Europe—dividing East from West. The address marked one of the first public acknowledgments of the emerging Cold War and coined the term that would define the conflict.

Youngstown Sheet & Tube Co. v. Sawyer established the framework courts use to evaluate presidential war powers

When Truman seized US steel mills during the Korean War, the Supreme Court ruled that he had overstepped his authority. Justice Jackson's concurring opinion held that presidential power is strongest when Congress authorizes action, uncertain when Congress is silent, and weakest when Congress explicitly refuses authorization.

Lincoln's Gettysburg Address became one of the most famous speeches in American history

Delivered by Lincoln on Nov. 19, 1863, at the dedication of a national cemetery, the 272-word Gettysburg Address reframed the war as a struggle for equality. The speech would be cited as a moral touchstone for later movements such as women's suffrage and civil rights.

The Kent State massacre sparked a nationwide student strike

In 1970, the Ohio National Guard opened fire on Kent State University students—peacefully protesting the Vietnam War—and killed four. The tragedy led to more widespread nationwide protests, shutting down more than 200 colleges and universities. The event led to a Pulitzer Prize-winning photo of a slain and grieving student.

A 2013 Supreme Court case weakened federal oversight of redistricting

In Shelby County v. Holder, the Supreme Court struck down the Voting Rights Act's preclearance formula, reducing federal oversight of voting laws—including redistricting—and allowing changes to take effect without prior approval.

The term ‘McCarthyism’ was coined by a political cartoonist

In February 1950, Senator Joseph McCarthy infamously proclaimed that he had a list of communist State Department employees. The next month, cartoonist Herbert Block published a cartoon in the Washington Post featuring a reluctant elephant (the mascot of the Republican Party) being pushed to stand on a wobbly tower labeled “McCarthyism.”

'Under God' was added to the pledge in 1954 as an anti-communist statement

When President Eisenhower signed the phrase into law on Flag Day 1954, the intent was ideological: to distinguish American democracy from "godless" Soviet communism. The author of the original 1892 pledge, Francis Bellamy, was himself a Baptist minister who believed in the separation of church and state, making the addition an inversion of his intent.