top of page

Free Speech in America

A Poster for the ACLU and Justice Oliver Wendell Holmes Jr

This may be surprising, but free speech was not a true hot-button issue in American politics or jurisprudence before the 20th century. Of course, there are examples of speech-related controversies in the preceding years, such as the Sedition Acts in the 1790s and the gag-rule and mail suppression regarding abolition in the decades preceding to the Civil War, but these incidences never really percolated up the judicial system. However, the frequency of incidences of Supreme Court rulings on the limits of the First Amendment greatly increased during and after the Progressive Era.

However, the influx of new immigrants at the beginning of the 20th century brought new ideas - radical ones - to the United States. With the perceived threat of communism and radicalism, as well as the United States’ involvement in World War I, the federal government passed the Sedition Act of 1917 which strongly curtailed anti-war activities. A year later, the government passed the Espionage Amendment which outlawed any statement that was disloyal or crippled the war effort. This Amendment differed from the Act because whereas the Sedition Act only outlawed false statements, the Espionage Amendment did not differentiate between truth and falsity. Suddenly, the traditional American defense of truth – such as the famous defense of John Peter Zenger in the 1730s – was not viable.[1] Under these draconian restrictions, thousands of Americans from all across the country were jailed.

While it is unimaginable that such an Act would be allowed under our modern conception of free speech, in the 1910s and 1920s the future of speech in America was uncertain. However, these laws spurred the beginnings of the free speech jurisprudence. The first of these legendary cases was Schenk v. US (1919). The case involved the President of the Socialist Party, Mr. Schenk, who was arrested under the Espionage Amendment for mailing leaflets saying that people ought to resist the draft. While Mr. Schenk lost his case, Justice Oliver Wendell Holmes ruled that speech can only be restricted when it forms a clear and present danger (the famous “shouting fire in a crowded theater” example comes from this decision).[2] This ruling, while a personal loss for Mr. Schenk, established that there are constitutional rules for what speech can be censured.

Schenk was not the only important speech case in 1919. Factually similar to Schenk, Abrams v. US was another 1919 case in which Russian immigrants were arrested for throwing pamphlets out of a window onto a busy New York City which called for a general strike. Again, arrested under the Espionage Amendment, their case reached the Supreme Court; and again, the Supreme Court upheld their conviction, with majority relying on Justice Holmes’ decision from Schenk. Justice Holmes, however, dissented. Despite the passage of only a few months, Holmes seemingly changed his mind on the culpability of the defendants. In Holmes’ dissent he argued that free speech requires a “marketplace of ideas” where a free exchange can occur without censorship. Thus, only speech that led to a “fear of imminent evil” could be limited.[3]

While free speech in the 20th century did not have an auspicious start, by the end of the 1960s the Supreme Court had issued several new rulings that greatly expanded protections for freedom of speech. The case of Brandenburg v. Ohio (1969) exemplifies this transition. In this case, Mr. Brandenburg was a member of the KKK who the state arrested for expressing his racist beliefs. The ACLU rose to his defense, appealing his conviction on First Amendment grounds. Unlike the previously discussed cases, the Supreme Court ruled in favor of free speech. In a per curiam opinion, the Supreme Court greatly limited the government’s power to restrict speech, restraining it only to cases when it advocates an imminent lawless action and will likely cause such action.[4] Subsequent jurisdiction has largely upheld this decision, most notably in Tinker v. Des Moines, which upheld students’ right to free speech, and National Socialist Party v. Village of Skokie, wherein the Supreme Court found that even Nazi groups have the right to free speech and assembly.

Free speech has been a tumultuous topic this year. On issues ranging from campus speakers to counter protesting to kneeling, the United States Supreme Court has almost always ruled on the side of speech and liberty. As historian-citizens, we should arm ourselves with the knowledge of history of free speech in this country so that we may voice our opinions freely and speak out against tyranny.

bottom of page