Encyclopedia of the First Amendment
Publication Year: 2009
From public aid to parochial schools to censorship of library books, Americans are intensely interested in their expressive rights of speech, press, assembly and religion. They are also concerned about censorship, tolerance of pornography and obscenity, and about their security in a post 9-11 world.
This reference comprehensively examines all the freedoms in the First Amendment, including free speech, press, assembly, petition, and religion. Encyclopedia of the First Amendment covers the political, historical, and cultural significance of the First Amendment. It provides exclusive, singular focus on what most people consider the essential elements of the Bill of Rights and the basic liberties that Americans enjoy.
This work traces themes like expressive rights in American political and legal history, in American political thought and social movements, ...
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Copyright by Sage Publications, Inc.
About the Editors
JOHN R. VILE is a professor of political science and dean of the University Honors College at Middle Tennessee State University. He is the author of numerous books, including Presidential Winners and Losers: Words of Victory and Concession (2002), The Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–2002 (2d ed., 2003), The Constitutional Convention of 1787: An Encyclopedia of America’s Founding (2005), and A Companion to the United States Constitution and Its Amendments (4th ed., 2006). Vile is a member of the board of the American Mock Trial Association, a recipient of the Congressman Neal Smith award for contributions to law-related education, and a 2008 inductee into the American Mock Trial Coaches Hall of Fame.
DAVID L. HUDSON JR. is a scholar at the First Amendment Center at Vanderbilt University. He teaches First Amendment classes at the Nashville School of Law and Vanderbilt Law School. He also teaches at Middle Tennessee State University. Hudson is a contributing editor to the American Bar Association’s Preview of United States Supreme Court Cases. He is the author or co-author of twenty books, among them The Handy Supreme Court Answer Book (2008), The Rehnquist Court: Understanding Its Impact and Legacy (2006), The Silencing of Student Voices: Preserving Free Speech in America’s Schools (2003), and The Bill of Rights: The First Ten Amendments of the Constitution (2002).
DAVID SCHULTZ is a professor in the School of Business at Hamline University and a senior fellow and professor in the Institute of Law and Politics at the University of Minnesota School of Law. He is the author or editor of more than twenty-five books, including The Encyclopedia of the United States Constitution (2008) and The Encyclopedia of the Supreme Court (2005). Schultz is a past vice president of the Texas and Minnesota chapters of the American Civil Liberties Union.
Topical Table of ContentsConcepts and Legal TermsRelated to Speech, Press, Assembly, or Petition
Viewpoint DiscriminationControversial WorksDocuments
Virginia and Kentucky Resolutions of 1798
Virginia Declaration of Rights
Virginia Report of 1800
Virginia Statute for Religious FreedomGovernmental Entities and ActivitiesGroups and Organizations (Non-Religious)IssuesRelated to Religion
Vatican City, U.S. Recognition ofRelated to Speech, Press, Assembly, or Petition
Video GamesLaws and Proposed Laws1951–2007Laws and Proposed Laws (Categories)PeopleAmericans Prominently Involved with First Amendment IssuesJudges and Justices
Vinson, Frederick M.LawyersPublishers or Subjects of Attempted CensorshipScholars
Case Table of Contents
U.S. Supreme Court Unless Otherwise NotedAbortion / Anti-Abortion ProtestsAnimal Sacrifice LawsAnti-Discrimination LawsAnti-Slavery SpeechAntitrust LawsArtistic DisplaysAssociation, Freedom ofAttorney AdvertisingBar Admissions and DisciplineBroadcasting RegulationsCampaign Expenditure, Finance, and Election RegulationsCharitable SolicitationsChild Benefit TheoryChurch Property and GovernanceCivil Rights MovementCommercial Speech
Valentine v. Chrestensen (1942)
Village of Hoffman Estates v. Flipside (1982)
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976)Communist PartyCompelled SpeechConscientious ObjectionCorporationsCounterspeech DoctrineCross Burning
Virginia v. Black (2003)Door-to-Door Solicitation or SalesEconomic BoycottFairness DoctrineFaith-based Groups, Aid to (Nonschool)Governmental Funding RestrictionsGovernment InvestigationsGravity of the Evil TestImmigrants / NaturalizationIncorporation / Application of the Bill of Rights to the StatesJehovah’s Witnesses
Cox v. New Hampshire (1941)[Page xlvii]Jurisdictional and Standing Issues
Valley Forge Christian College v. Americans United for Separation of Church and State (1982)Libel and SlanderLicense PlatesLicensing RequirementsLobbyingLoitering OrdinancesLoyalty OathsMarketplace of IdeasMedia Access
El Vocero de Puerto Rico v. Puerto Rico (1993)MilitaryMovies, Video Games, and Comics
Vance v. Universal Amusement Co., Inc. (1980)Obscenity and Pornography
Virginia v. American Booksellers Association (1988)Parochial SchoolsPicketingPrayer, PublicPreferred Position DoctrinePresidential Proclamations of ThanksgivingPress, Freedom of thePrisoners’ RightsProbate
Vidal v. Girard’s Executors (1844)Profane or Indecent SpeechPublic EmployeesPublic ForumPublic Schools and ReligionRight of PublicityRight of ReplySabbath and Other Religious ObservancesSelective ServiceSpeech on Public Property
Virginia v. Hicks (2003)Students’ RightsSymbolic Speech
Village of Skokie v. National Socialist Party of America (Ill. 1978)
Virginia v. Black (2003)Tax PolicyTeachers’ RightsTen Commandments
Van Orden v. Perry (2005)Trial, Free Speech duringTrue Threats
Virginia v. Black (2003)Truth or Falsity of Religious BeliefsUnion RegulationsVouchers, School
Foreword: The First Forty-five Words
The words are plain, blunt and unequivocal—without literary frill or poetic flourish—a directive intended to put the natural rights of citizens above and beyond the punitive power of the new federal government:
“Congress shall make no law …”
Read aloud, this opening phrase of what would become the First Amendment to the newly ratified Constitution of the United States has almost a ring of harshness in the admonition to officials of the new government. Hands off, the amendment says. Hands off religion! Hands off dissent! Let the people speak out. Let them publish critically about their elected officials, and petition to right whatever wrongs they perceive done them. Let them assemble peaceably to protest injustice. That was the message the members of the First Congress sent in 1789 as they drafted that amendment and the others that would make up the Bill of Rights. If the people of the states decided to ratify the amendments, there indeed could be a “more perfect Union.”
No one should have been surprised by the strong tone and prohibitive tenor of the first forty-five words of the Bill of Rights. Two years earlier, meeting in Philadelphia from May until mid-September 1787, the members of the Constitutional Convention had blundered when they refused to include in the proposed national charter specific language that would bar the new government from stripping away the powers of the states or ripping away individual liberties that American citizens claimed were “unalienable.”
There were a handful of delegates who favored such a measure to protect the rights of the states and the people. Luther Martin of Maryland had written a version of a bill of rights but did not introduce it after gauging the negative feelings of the overwhelming majority of his convention peers. Charles Pinckney of South Carolina and Elbridge Gerry of Massachusetts had made a pass, on August 20, at pushing through a provision assuring freedom of the press, but it was overwhelmingly voted down, as Edward Dumbauld recounts in The Bill of Rights and What It Means Today (1957). Then, a few days before the convention adjourned, George Mason of Virginia warned his colleagues that public discontent was building in opposition to their work and that they needed to add a bill of rights. Anxious to complete their work, the delegates rebuffed Mason, but the four months of secret sessions had taken their toll on the people’s blind support for a new constitution. Americans had fought a revolution to rid themselves of an all-powerful, oppressive central government, insensitive to citizens’ rights. Now, Mason warned, folks were fearful that the fifty-five delegates, meeting with doors barred and drapes drawn, were drafting a blueprint for the same sort of autocratic bureaucracy.
Although there were no formal reports on the convention’s progress, the walls—as is the case whenever government relies on secret deliberations—had ears. Inevitable leaks must have occurred regarding what was going on behind closed doors. Individual delegates had their own ideas about issues. Some of them had come to Philadelphia merely to improve on the ineffective Articles of Confederation—the country’s initial constitution that failed to provide sufficient power to the central government. There had been a Virginia Plan, a New Jersey Plan, and a Connecticut Compromise for the new government; these related to the structure of the government and congressional representation for the people. There had been the “completely daft” suggestion from Alexander Hamilton, the New York delegate, for a sort of mini-monarchy, mirrored after the British government—which he called “the best in the world.” No wonder, given the delay and uncertainty, that public anxiety, as Mason said, was building. A bill of rights that protected specific individual rights was what the Constitution needed, he said. It would “give great quiet to the people.” It would still the growing public unrest.
Mason realized that his associates were tired from long weeks of work that included emotional discussions. They all had made sacrifices to participate in the convention. Many had traveled long distances to Philadelphia, and they were neglecting familial and business obligations. They were tired. They wanted to wrap up their business and go home. But, Mason argued, composing a federal bill of rights would not be time consuming. Five state constitutions included protections[Page lxiii] of citizen rights against government oppression. As the chief architect of such a declaration in the Virginia charter, he assured the convention that the addition, based on the bills of several states, could be drafted and grafted onto the proposed constitution “in a few hours.” Gerry made a motion that a committee be selected to draft such a bill. Mason seconded. When the vote was taken, a majority of every state delegation opposed it. Mason, his fellow Virginian Edmund Randolph, and Gerry refused to sign the Constitution. Mason later declared he would chop off his right hand before he put it to such an imperfect document.
In fact, on September 17, 1787, only thirty-nine of the fifty-five convention delegates put their names to the proposed constitution before George Washington, who had presided over the deliberations, sent the draft to the Continental Congress to be transmitted to the thirteen state conventions for ratification. Mason, Gerry, and Randolph flatly and unapologetically stated their reasons for refusal. The other thirteen delegates already had left the convention. No doubt some, drawn home by pressing business or financial obligations, simply left before all the “I”s were dotted and “T”s crossed. Others could have left their proxy favorable votes—as did John Dickinson of Delaware—but for their own reasons decided not to do so. There were, no doubt, a few among the fifty-five who worried that the document upon which they finally agreed went far beyond a simple revision of the Articles of Confederation, for which they thought they had convened. Others may have felt that the proposed charter’s language went too far in endangering states’ rights or did not go far enough in assuring citizen liberties.
Before adjournment, Benjamin Franklin, the oldest delegate, pleaded with his colleagues to endorse the document. “I confess,” he said in a personally written entreaty that was read on his behalf, “that there are several parts of this constitution which I do not approve at present.” Franklin added, however, that “with all its faults,” he thought it the very best the convention could create, given the disagreements among the delegates. So with thirty-nine signatures, the proposed constitution was transmitted to the states in hopes that each would call a convention and ratify it. With that, the political campaign either to adopt the draft or to defeat it was on, with newspapers reporting opinions on both sides. There was intense debate in many state capitals, much of it centering on the absence of a bill of rights.
Mason went home to Virginia to join with Patrick Henry in an effort to kill the Constitution there. From France, Thomas Jefferson, the U.S. minister, sent a letter to James Madison asserting that “a bill of rights is what people are entitled to.” Later he wrote to fellow American diplomat David Humphreys: “There are rights that are useless to surrender to the government, and which yet, governments have always been fond to invade. These are the rights of thinking and publishing our thoughts by speaking or writing.” Madison, who turned his back on fellow Virginian Mason when the older man pleaded in the convention for a bill of rights, had committed himself to help get the Constitution ratified as it had been drafted. He must have felt uncomfortable when he realized that Jefferson, his political mentor, agreed with Mason. Madison was less than candid in responding to Jefferson’s letter.
Convinced that a bill of rights was not a crucial ingredient for the Constitution, Madison put his considerable political writing skills into the media campaign for ratification. A bill of rights, he maintained, simply was not needed to protect freedoms that were natural. Madison joined with Hamilton (who had abandoned his nonsensical monarchical affectations early on) and with John Jay (who would soon become first chief justice of the United States) to draft what came to be known as The Federalist Papers. They published the essays under the pen name “Publius,” with Hamilton carrying most of the writing load, Madison sharing some of the heavy lifting, and Jay contributing little. Addressed to “the People of the State of New York,” these eighty-five well-reasoned essays promoted the values and virtues of the proposed constitution and comprise what Edward Mead Earle has described in The Federalist (1941) as “frankly, a campaign document.” They first were published in New York newspapers in October 1787, just a month after the convention, and continued well into May 1788. They were republished and circulated elsewhere as newspaper articles and in book form.
Mason (sometimes writing as “Cato”) and fellow Virginians Richard Henry Lee and Patrick Henry, while not so prolific as Madison’s team, launched their own media propaganda campaign against ratification of the Constitution. A contentious partisan press was evolving in the land, and Republican editors welcomed articles and letters from constitutional opponents like Mason, just as Federalist publications took the work of “Publius.” Mason knew that a patriot press had earned the confidence of the people during the revolution, and he warned that without an amendment for protection, newspapers that criticized government would be endangered. At the Virginia ratifying convention, Mason stated, “Now, suppose oppressions should [Page lxiv] arise under this Government, and any writer should dare to stand forth, and expose to the community at large the abuses of those powers; could not Congress, under the idea of providing for the general welfare … say that this was destroying the general peace, encouraging sedition, and poisoning the minds of the people? And could they not … lay a dangerous restriction on the press?”
The rhetorical questions needed no verbalization in the minds of many patriots. The opening words of one of Mason’s articles highlighted what he considered the most glaring defect in the drafted constitution. “There is no Bill of Rights,” he wrote, “and the Laws of the General government being paramount to the Laws and Constitutions of the several States, the Declaration of Rights in the separate states are no Security.” He expressed particular concern that there was no statement “of any kind, preserving the Liberty of the Press.” Mason concluded with a dire prediction that without protection for individual liberties, the government would “commence in a moderate Aristocracy. It is at present impossible to tell whether it will, in its Operation, produce … a corrupt oppressive monarchy.”
Henry, at the Virginia ratifying convention, warned his fellow Virginians to be “extremely cautious, watchful, jealous of your liberties; for, instead of securing your rights, you may lose them forever.” On the other side, Hamilton waited until his penultimate Federalist essay before he dealt directly with the needling issue that would not go away—a bill of rights. He asserted that “bills of rights, in the sense … which they are contended for, are not only unnecessary, but would even be dangerous.” He defined the “zeal” for such restraints on government as “injudicious.” He was particularly critical of any suggestion that press liberty could be assured. “Whatever fine declarations may be inserted in any constitution respecting it,” he said, “must altogether depend on public opinion and the general spirit of the people and the government.”
These contentious points of view, and others on diverse civil liberties questions, found their way into the floor fights at many state conventions before New Hampshire became the ninth state to ratify, the bar that the delegates had set for ratification. Opposition in many states was heated. Rhode Island, the smallest of the states and fearful of an all-powerful central government, had boycotted the Constitutional Convention; it was the only state to do so. The leaders of tiny “Rogue Island” now refused to call a state conference to consider ratification. Instead, they conducted a town-by-town referendum, and the citizens turned out to vote the Constitution down by a stunning ten-to-one margin.
North Carolina, where negative views were also strong, called a convention, but participants spent little time talking about ratification. Instead, they mostly discussed the need for a bill of rights and what should be in it. There was heated agitation in Massachusetts, New York, and Virginia—large states where there was strong sentiment for a second national convention to correct the imperfections of the draft so recently completed. In New York, the vote was close; ratification carried by only three votes. Had 6 more of the 368 delegates followed Henry and Mason in Virginia, the Constitution would have been lost there.
In Massachusetts, there were predictions that the state convention would refuse to embrace the Constitution. It was John Hancock who offered a compromise that saved ratification in the Bay State. Hancock, whose scrolled signature was the most prominent among signatories to the rebellious Declaration of Independence, was a strong advocate for a bill of rights. He had served as president of the Continental Congress, and he knew that operating the government under the provisions of the Articles of Confederation was damaging its credibility. He proposed therefore that Massachusetts ratify the Constitution but that its delegates insist that the First Congress, or a new federal convention, draft a bill of rights to be approved by the states. Had 6 delegates among the 168 in Massachusetts failed to follow Hancock’s advice, the Constitution would have failed there.
Of all the founders, Madison played the most important role in helping guide the Constitution through the quagmire of political dissent, then pushing the Bill of Rights through the First Congress. History regards him as the “father of the Bill of Rights.” Having helped craft the seven articles of the Constitution that divide powers between the central government and the states and created three branches of a new government, Madison was determined to be an active player in its affairs. To do so, he had to become an active candidate for the House of Representatives. He faced opposition from another rising political star, James Monroe.
All of Virginia knew that Madison had turned his back when Mason had made his case for a bill of rights in the national convention. Many were aware that he had a hand in writing The Federalist Papers, which called a bill of rights “dangerous.” As he and Monroe campaigned in their congressional district, the voters knew that Monroe was an outspoken proponent for a bill of rights. Now, under pressure of complaints from constituents, including Baptist leaders whose small but growing “sect” had felt the sting of religious persecution in Virginia, Madison flip-flopped. He publicly [Page lxv] endorsed amending the Constitution and said that if he were elected to Congress, he would work to provide a bill that assured citizen freedoms. A month before the election, he declared in a letter to George Eve his “sincere opinion that the Constitution ought to be revised, and the first Congress … ought to prepare and recommend to the states for ratification the most satisfactory provisions for all essential rights.” He specifically called for religious liberty “to the fullest latitude” and freedom of the press. Madison defeated Monroe by 366 votes.
George Washington, the new president, stated in his inaugural address on April 30, 1789, his preference for the Constitution to be amended by Congress, squelching once and for all the idea of a second constitutional convention. The debate that had raged in many state conventions resulted in eight states submitting as many as 200 proposed constitutional amendments for consideration by the new Congress. Madison went to work examining them and establishing priorities. After duplicate recommendations were consolidated, the number was reduced by about half.
When Congress met in April, Madison discovered that approximately 80 of the 100 requested changes were favored by four or fewer states. From the remaining list, he culled 22 issues and finally proposed that Congress consider 14 amendments. In early May, Madison told his fellow House members that he would have a list of proposed amendments ready for their consideration in a month. Other members of the House and Senate were in no hurry. Many of them had other legislative priorities that dealt with making functional the national government, which had been paralyzed under the now discarded Articles of Confederation. It was clear that many members of Congress would drag their legislative feet on constitutional amendments in favor of government business they thought more important, including the budget, how to fund it, and international affairs.
To convince them that a bill of rights was a pressing issue, Madison borrowed a paragraph from the lecture Mason had given the Constitutional Convention during its deliberations. The people were expecting Congress to act, he said, noting the 200 separate demands of amendments that had come in from the states. He spoke to his colleagues, as Mason had spoken to him, of the “anxiety” among citizens that their liberties were unprotected. Members of the public, he said, were waiting for assurances that this government would not abuse their inalienable rights.
“I believe that the great mass of people who opposed the Constitution disliked it because it did not contain effectual provisions against encroachments on particular rights,” he declared. He focused on what he called “the choicest rights”: free expression—speech and press—and religious liberty. Members of the government, he warned, should not assume that such rights were secure “while a great number of our fellow citizens think these securities necessary.”
Five weeks later, Madison presented the House with his honed list of proposals. With some House members still grousing, he again warned them of the feeling among many citizens that the government had let them down. A bill of rights drafted by Congress, he said, “would extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they so valiantly fought and honorably bled.” It also would help unify the land. By this time, Madison’s conversion to the cause for amendments to protect citizen liberties was absolute, and he was well on his way toward becoming “the father of the Bill of Rights.” Among the arguments he relied on to convince his colleagues in Congress was his assertion that a nation of eleven states well might become a nation of thirteen with a bill of rights, since Rhode Island and North Carolina had not yet embraced the Constitution. Both, he accurately predicted, would be favorably impressed by the amendments.
Congressional approval, however, was hardly immediate or assured. The debate rattled around the House and then the Senate until late September 1789, when Congress then approved and sent the amendments to the states for ratification. In the resolution offering the bill of rights to the states, Congress candidly acknowledged that public expectations had driven their action; Congress had heard and responded to the voice of the people. The resolution’s preamble stated,
The conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution, be it resolved …
Now the people would consider Congress’s recommendations. What ultimately emerged as the First Amendment was actually the third amendment of the twelve proposed to the states by Congress. The first two—one dealing with congressional[Page lxvi] salaries (ratified in 1992 as the Twenty-seventh Amendment) and the other with apportionment—were rejected by the states. Thus, the third proposed amendment—the forty-five words protecting the freedoms of religion, speech, press, assembly, and petition—became the First Amendment. Within nine months, the Bill of Rights had been ratified; “Rogue Island” became the deciding state on June 7, 1791. With ratification, rights of free expression and the other vital civil liberties set out in the Bill of Rights were made secure. The founders who served in the First Congress were certain of that, but they could not have been more wrong.
The emergence of a competing and politically divided partisan press raised the hackles of politicians who suffered sharp and caustic criticism. Beginning with the second term of George Washington, those in government felt growing resentment toward editors who condemned their actions. Washington, for all his popularity, bristled and sometimes in cabinet meetings exploded at what he believed were unfair criticisms of his leadership by journalists he called “infamous scribblers.” It took only seven years for the Federalist Congress, during the administration of President John Adams, to pass the Sedition Act of 1798. By then, the nation’s relationship with France had deteriorated. Fearing an invasion, Adams sent a request to Congress for funding to enlarge the nation’s military. His actions were criticized sharply by some of the nation’s anti-administration newspapers.
In response, Congress made a law abridging freedom of the press. The government thereby declared war on editors and newspaper owners whose publications belittled, ridiculed, mocked, or denigrated Adams and his administration. There followed a series of federal Sedition Act and common law prosecutions that sent editors to jail, fined them, closed down some publications, and created an environment of hostility among Adams supporters. Gordon Belt, in his essay “The Sedition Act of 1798,” provides detailed scholarship on the litany of abuses the government unloaded on critics of the president and the Federalist Congress. According to Belt, editors were harassed and harried, slugged, indicted, jailed, and fined. The intimidation even extended to a number of the clergy and to ordinary citizens who erected on their property “liberty poles” emblazoned with posters that urged early retirement for Adams and long life to Vice President Thomas Jefferson, already Adams’s rival in the 1800 presidential election. In one notorious incident, Jacob Schneider, a Pennsylvania editor, was grabbed by troops at his place of business, taken to the public whipping post, and beaten with a lash, without any formal judicial hearing or trial.
The most famous prosecution was that of a member of Congress, Matthew Lyon, who also was a Vermont publisher. Lyon, while campaigning for election to the House in 1798, wrote a piece condemning Adams’s “continual grasp for power” and describing the president’s “unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice.” Indicted, Lyon was sentenced by a jury to four months in prison and fined $1,000. A neighboring Vermont editor, Anthony Haswell, attacked the administration for its action against the congressman and called for a lottery to raise money to help Lyon pay his fine. This, the Federalist prosecutor decided, was in violation of the Sedition Act. Haswell was sentenced to two months in jail and a $200 fine.
The most outrageous prosecution involved a group of convivial fellows in a Newark bar, lifting their glasses in a round of toasts. They heard the echo of gunfire as Adams arrived in town to the welcome of a sixteen-gun salute. One of them, Luther Baldwin, who was “a little merry” according to press accounts, declared (and there is some question about his direct quote) that he would not mind at all if some of the shot lodged in the president’s buttocks. Baldwin and his two pub mates were prosecuted and fined. They were jailed until the fines and court costs were satisfied.
Congress’s law abridging freedom of expression expired with the election of 1800. The new president, Jefferson, pardoned those who had suffered conviction under it. Regardless, that 1798 act would not be the last law made that infringed on free expression. In times of war (both hot and cold) or national crises or national distress, criticism of the government has often not been welcomed by officials. The government has imposed laws or policies limiting rights of free expression, free association, and access to information needed by a self-governing citizenry.
More recently, in the wake of the al-Qaida attacks of September 11, 2001, the government passed the USA Patriot Act of 2001, giving itself extraordinary powers impinging on citizen rights. Presidential executive orders created increased government secrecy. Actions were taken to monitor the telephone conversations of some citizens without warrants. Other measures closed off public and press access to trials in which alleged terrorist “suspects” were secretly deported.
One of the aspects of the Patriot Act that raised protests is the power the law gives the government to review what citizens read. The law requires libraries and bookstores to report what publications a person has checked out or bought [Page lxvii] if the information is requested by the Federal Bureau of Investigation during an official investigation. In addition, the act allows the use of so-called national security letters to prohibit librarians or booksellers from disclosing such requests. Just as the Sedition Act of 1798 had nothing to do with sedition, some question what the Patriot Act of 2001 has to do with patriotism. Both were rushed through Congress in a time of war fever with little or no public protest by a fearful citizenry. In both instances, there was support for the government, but that gradually dissipated as the breadth of the laws became known. A striking difference, however, can be found in the public’s understanding, then and now, as to what is at stake when freedom of expression comes under attack.
Matthew Lyon was reelected in 1798 while sitting in his jail cell. Two years later, Adams was not. The voters came to understand that they needed to regain the rights of freedom of expression. Most recently, a series of public opinion polls reveal a remarkable absence of support among U.S. citizens for First Amendment rights—and, what is worse—a disturbing lack of knowledge about First Amendment values. These results reflect a marked departure from the public attitudes that changed the mind of Madison and shook the founders from their political complacency in the 1780s. They also starkly contrast the public opinion that resulted in Adams’s defeat.
These polls document that only 3 in 100 Americans can name all five freedoms in the First Amendment. Only 15 percent know that it guarantees freedoms of press and assembly. More than 80 percent fail to list freedom of religion as part of the amendment, and 36 percent do not identify freedom of speech as a First Amendment right. In a separate survey of 100,000 high school students, 36 percent were convinced that journalists should not be allowed to report news without government approval. One in three had no opinion about whether religious liberty, freedoms of speech and the press, and the rights to peaceably assemble and petition the government to correct wrongs were constitutional rights.
Some of the surveys’ results can be explained by the terror that lingers from the September 11 attacks, but regardless, the ignorance that pervades society with regard to rights of free expression is disturbing and dangerous. At such a time, this encyclopedia detailing and defining First Amendment rights could not be more valuable. These volumes, the work of three distinguished First Amendment scholars—John R. Vile, David L. Hudson Jr., and David Schultz—provide an indispensable and lasting resource. In a real sense, their work serves the public interest.
Founder, First Amendment Center
As the editors of Encyclopedia of the First Amendment and authors of numerous entries in it, we have particular reason to appreciate our First Amendment liberties, but we also value these rights as individuals and as private citizens. The framers of the Constitution viewed these rights as being grounded in timeless principles that precede their articulation in the Bill of Rights. In much the same way, our appreciation of these rights is informed and enhanced by knowledge of the larger story of which they are a part.
In Encyclopedia of the First Amendment, we have sought to publish a work that is unique in its breadth and its depth. Two of us—John Vile and David Schultz—have previously published a set of volumes on civil liberties in the United States with broad coverage of First Amendment issues. With so much ground to cover, however, such volumes only hit the high points. By contrast, Encyclopedia of the First Amendment provides exhaustive treatment of expressive and religious rights. Exceeding 1,400 entries and 700,000 words, this two-volume set contains more entries on the First Amendment than any other work of its kind. No other encyclopedia devotes such attention to First Amendment freedoms.Essays and Entries
When we began this project, we were uncertain about covering the entire First Amendment. We gave some thought to focusing instead on freedom of speech and freedom of the press. In time, however, and with the help of CQ Press, we decided that the other rights established in the First Amendment were so closely related that we could not offer an encyclopedic account of one set of rights without comparable coverage of the others. Concerned nonetheless that the topics might be so disparate that the result would seem more like a dictionary than an encyclopedia, we decided to open the first volume with a series of introductory essays to provide overviews of each of the provisions of the amendment. We are honored that individuals of national and international stature agreed to contribute these pieces; we are all honored that John Seigenthaler, the founder of the First Amendment Center, penned the foreword to the volume.
The introductory essays address the two religion clauses, freedom of speech, freedom of the press, and freedom of assembly, petition, and association. Other topics include the application of the First Amendment to the states via Supreme Court decisions interpreting the Fourteenth Amendment, the influence of the First Amendment around the world, and the future of the amendment. The essays along with the Introduction frame the entire project, and a chronology offers further perspective on the provisions of the First Amendment by succinctly tracing their development through the centuries.
The topical entries appear in alphabetical order and typically range from 250 to 1,500 words, depending on the significance or complexity of the subject. Each is designed to provide a succinct portrait of a fairly limited topic. Some of these entries would be suitable topics for an entire book, but we have tailored this encyclopedia toward individuals who want a handy source for broad research on First Amendment issues. Most entries fall into one of several distinct categories.Court Decisions and Doctrines
Entries concerning Supreme Court decisions are the most numerous. We have included all decisions that we thought to be important. We chose, however, to omit cases in which the Court, without a written opinion, refused to intervene and let stand existing opinions, as well as cases in which a decision might have implications for the First Amendment but the Court did not specifically cite it. In general, cases that were consolidated for argument and opinion when they reached the high court are covered in a single entry.
Because the Supreme Court in the nineteenth century decided relatively few First Amendment cases, many of which are not easily accessible, we have included notable cases from other courts during this period. We also present some of the more important state and lower federal court decisions from the twentieth century and the current one. With time and changes in American society, the increasing number of judicial decisions in First Amendment cases generated a number of legal doctrines, which can be somewhat arcane. Numerous entries in this encyclopedia thus also [Page lxix] examine doctrines and standards, among them actual malice, captive audiences, fighting words, least restrictive means, overbreadth, vagueness, public forums, government speech, viewpoint discrimination, public figures, and prior restraint. All are essential to understanding modern First Amendment jurisprudence.People, Laws, and Events
Like most advances in human freedom, those involving the First Amendment usually originated with and were perpetuated by individuals. We have chosen here to highlight some of the more important and sometimes notorious such individuals while emphasizing contemporary First Amendment controversies and developments. This encyclopedia thus includes entries on authors of seminal laws or treatises, leaders of movements that implicate First Amendment freedoms, judges and justices whose reasoning and decisions have had particular influence on First Amendment jurisprudence, individuals involved in First Amendment controversies, and lawyers, scholars, and leaders of organizations devoted to the protection of First Amendment rights.
Surprisingly few federal laws deal specifically with the First Amendment, but those that do are exceptionally important. Developments in the scope of government programs and advances in modern technology have increased the number of such laws that have been adopted in recent years. This work provides brief overviews of these laws and their relation to previous legislation. New statutes are often tied to significant events, so this encyclopedia provides brief summaries of landmark events, paying special attention to wars, eras, and movements that raised First Amendment issues and concerns.Issues and Organizations
As courts expanded the application of the First Amendment to state and local governments as well as to Congress, they embraced an increasing number of issues, some of which are yet to reach the Supreme Court. In addition to detailing decisions in individual cases, we have included entries on congressional investigations, charitable solicitation, campaign regulation, and the like that tie together cases and series of cases. Also included are a number of contributions on religious groups that have had particular influence on interpretation of the First Amendment. The intention was not to analyze doctrine, but to take note of those denominations—among them Baptists, Jehovah’s Witnesses, Jews, Mormons, and Quakers—whose doctrines or participation in litigation have especially influenced judicial and statutory treatment of the amendment.
Like religious denominations, advocacy groups have influenced First Amendment protections. This encyclopedia thus devotes entries to nineteenth-century abolitionists as well as to modern organizations, such as the American Center for Law and Justice, the American Civil Liberties Union, People for the American Way, and the Rutherford Institute. We could not of course include all such groups, but we have tried to include organizations from across the political spectrum.Using This Encyclopedia
Readers can take some measure of the breadth of this encyclopedia by examining the two topical tables of contents, focusing on subjects and cases. These are useful aids for readers, as are the professionally compiled indexes and select bibliography. As authors of other reference volumes, we understand the need to make these works as user friendly as possible. This is one of the reasons we commissioned the indepth introductory essays. In addition, we asked authors to provide cross-references to relevant entries in the volume and to include at least one primary or secondary source for further research. Because there is no substitute for reading original sources, we have provided the standard citation for each court case that is the subject of an entry.
We designed Encyclopedia of the First Amendment for use by students in a variety of disciplines. It is ideal for high school and public libraries seeking a single, comprehensive guide on First Amendment protections and their history. It was also developed with college and university libraries in mind, including those specializing in history, law, journalism, and theology. We are especially grateful to the librarians who so faithfully serve these institutions; we are confident that those who field questions at reference desks will find this two-volume set to be particularly useful. Many scholars will rely on libraries for access to these modestly priced volumes, but we hope that others will consider adding them to their personal collections. Those who frequently consult this work will find that its interdisciplinary perspectives, like the varied provisions of the First Amendment itself, complement and strengthen each other.
Two of us—David L. Hudson Jr. and David Schultz—have law degrees, and the other, John R. Vile, is the father of a lawyer, so we are well aware of the special needs of legal practitioners. This encyclopedia is at once comprehensive [Page lxx] and suitably organized to be a real resource for anyone litigating First Amendment cases and thus in need of a ready reference. In navigating complex areas of the law relative to the First Amendment, journalists as well require quick reference to cases that are not always easy to read or comprehend. Although this encyclopedia can hardly substitute for good legal advice, many newsroom denizens will find its volumes to be an indispensable reference as they carry out their daily tasks.
All of us teach university classes on aspects of the legal system, and David Hudson works at a center devoted exclusively to the study of First Amendment freedoms and to educating students about them. We accordingly recognize the needs of others who teach and of students and have tried therefore to tailor this encyclopedia to their needs as well. It should be an aid to people preparing for classes and to those writing about the First Amendment who need a quick reference to an obscure case or a thumbnail sketch of an important legal concept.Acknowledgments
Encyclopedia of the First Amendment, reflecting in part our scholarship as well as our personal commitment to First Amendment values, would not have been possible—at least not in this decade!—without the help and cooperation of scholars from across the United States. Contributors include professors of political science, journalism, law, history, and theology, as well as librarians, legal practitioners, and freelance writers. Most authors approached their contributions as labors of love; some took on essays at the last minute so that we could stay on track. We owe them our gratitude.
In addition to thanking our spouses for their extraordinary patience, we owe special recognition to the individuals at CQ Press who worked with us to make this project possible. We offer special thanks to acquiring editor Doug Goldenberg-Hart, development editor Timothy Arnquist, and intrepid interns Jon Bornstein, Elyse Franko, Vedonia Ingram, Isaac Levey, Katrina Overland, and Paige Maslen for their photo research and countless hours spent on a myriad of administrative tasks. Also indispensable in bringing this project to fruition are managing editor Joan Gossett, project editor Robin Surratt, and a superlative team of copy editors: Joanne Ainsworth, Jennifer Campi, Ann Davies, Elaine Dunn, Debbie Hardin, Kathryn Krug, Margot Harris, Sabra Bissette Ledent, Nancy Matuszak, Lorna Notsch, and Tracy Villano. We are grateful to Jon Preimesberger for handling production, to Inge Lockwood for proofreading the pages, and to Enid Zafran for indexing the two volumes. The editors also wish to extend special thanks to the talented Gina Logue, at Middle Tennessee State University, who helped correspond with the contributors and keep track of the entries.
We are all privileged to work at institutions that value our work. John R. Vile thanks his colleagues at Middle Tennessee State University. David L. Hudson Jr. thanks his at the First Amendment Center and the Freedom Forum. David Schultz thanks his colleagues at Hamline University for their continuing support. In the course of writing and editing this book, we have gained greater appreciation for one another’s skills and dedication to First Amendment values. We trust that this encyclopedia will continue to perpetuate the ideals of freedom that the First Amendment represents in the United States and throughout the world.
John R. Vile
David L. Hudson Jr.
JASON ABEL University of Pennsylvania
PRESTON ADAIR Texarkana, Texas
ALEX AICHINGER Northwestern State University
KAREN AICHINGER Natchitoches, Louisiana
MARK ALCORN Avon, Minnesota
JAMES R. ALEXANDER University of Pittsburgh, Johnstown
BRUCE ALTSCHULER State University of New York, Oswego
OJAN ARYANFARD Warren, Michigan
FRANK ASKIN, Rutgers School of Law, Newark
DAVID ASP Minnetonka, Minnesota
MARY W. ATWELL Radford University
BRUCE AUERBACH Albright College
JOHN AUGHENBAUGH Virginia Commonwealth University
JOHN S. BAKER Louisiana State University Law Center
DANIEL BARACSKAY Valdosta State University
ELIZABETH BEAUMONT University of Minnesota
FRANCIS J. BECKWITH Baylor University
MONICA BELL New Haven, Connecticut
JAMES BELPEDIO Becker College
ALVIN K. BENSON Indiana University
JASON D. BERGGREN University of Georgia
DAVID E. BERNSTEIN George Mason University School of Law
MICHAEL J. BITZER Catawba College
RYAN C. BLACK Washington University in St. Louis
MIKE BOBIC Emmanuel College
CHAD R. BOWMAN Washington, D.C.
KRISTI L. BOWMAN Drake University
CHRISTINA L. BOYD Washington University in St. Louis
BRANDI SNOW BOZARTH Middle Tennessee State University
JON BRUDVIG University of Mary, Bismarck
KEVIN BUCKLER Georgia Southern University
GARY BUGH Texas A&M University
BRANDON R. BURNETTE Southeastern Oklahoma State University
MARK E. BYRNES Middle Tennessee State University
WINSTON CALVERT St. Louis, Missouri
CHRISTOPHER CAPOZZOLA Massachusetts Institute of Technology
DAVID CARLETON Middle Tennessee State University
BRIAN CATERINO Rochester, New York
MATTHEW M. CAVERLY University of North Florida
ERWIN CHEMERINSKY University of California, Irvine School of Law
PATRICK W. CHINNERY Middle Tennessee State University
KANE M. CLICK University of Nebraska, Lincoln
FRANK J. COLUCCI Purdue University, Calumet
PAUL J. CORNISH Grand Valley State University
JESSE D. COVINGTON Westmont College
MARCIE K. COWLEY Michigan State University
BRETT W. CURRY Georgia Southern University
DEREK H. DAVIS University of Mary Hardin, Baylor
KEVIN R. DAVIS Vanderbilt University
CHRIS DEMASKE University of Washington, Tacoma
HEATHER K. DEMATOS Port Richey, Florida
KEVIN DEN DULK Grand Valley State University
ANUJ DESAI University of Wisconsin
DOUGLAS DOW University of Texas, Dallas
PHILIP A. DYNIA Loyola University, New Orleans
JONATHAN ELLZEY University of Florida
STEFANO FAIT Trento, Italy
JOHN FERGUSON Howard Payne University
CLEVELAND FERGUSON III Florida Coastal School of Law
PAUL D. FISCHER Middle Tennessee State University
MICHAEL P. FIX University of Kentucky
ROY B. FLEMMING Texas A&M University
JAMES C. FOSTER Oregon State University, Cascades
SEKOU FRANKLIN Middle Tennessee State University
JASON FRIEDMAN Michigan State University
LYNNE CHANDLER-GARCIA University of Maryland
PATRICK M. GARRY University of South Dakota
GENE C. GERARD Tarrant County College
CHRIS L. GIBSON Georgia Southern University
JAMES T. GIBSON Birmingham, Alabama
TOBIAS T. GIBSON Monmouth College
WILLIAM GILLESPIE Kennesaw State University
PAUL GOWDER Stanford University
WILLIAM C. GREEN Morehead State University
IVAN GREENBERG San Francisco, California
MARTIN GRUBERG University of Wisconsin
MICHAEL W. HAIL Morehead State University
H.L. HALL Hendersonville, Tennessee
SCOTT M. HAMMACK North Bethesda, Maryland
UPOHAR HAROON University of Florida
MATT L. HARRIS Colorado State University, Pueblo
THURMAN HART New Jersey City University
ROBB HARVEY Nashville, Tennessee
JUDITH HAYDEL Lafayette, Louisiana
ALLISON R. HAYWARD George Mason University
SHAWN HEALY University of Illinois at Chicago
VERONICA HEFNER University of Illinois, Urbana-Champaign
ROGER HEINRICH Middle Tennessee State University
CRAIG HEMMENS Boise State University
JOHN ALLEN HENDRICKS Southeastern Oklahoma State University
JOHN R. HERMANN Trinity University, San Antonio
KATRINA HOCH University of California, San Diego
WALTER HUBER Muskingum College
TIMOTHY S. HUEBNER Rhodes College
GEOFFREY HULL Middle Tennessee State University
RACHEL M. JANUTIS Capital University Law School
SCOTT P. JOHNSON Frostburg State University
PETER A. JOY Washington University in St. Louis
ROBERT A. KAHN University of St. Thomas
RONALD KAHN Oberlin College
ERIC T. KASPER University of Wisconsin, Barron County
DANIE MARTIN KATZ Anne Arbor, Michigan
MATTHEW A. KERN Miami University, Ohio
MARK KESSLER Texas Women’s University
JANE E. KIRTLEY University of Minnesota
HEIDI KITROSSER University of Minnesota
KENNETH J. KNIRCK California State University at Chico
HENRY J. KNOWLES State University of New York, Oswego
EMILE S. KRAFT Birmingham, Alabama
DANIEL C. KRAMER College of Staten Island, CUNY
KYLE L. KREIDER Wilkes University
STEPHANIE KUNZE Flagstaff, Arizona
JULIE LANTRIP Georgetown University
MAURICE LEACH Rosedale, New York
JEREMY LEAMING Greenville, Tennessee
DOUG LEE Dixon, Illinois
ABIGAIL LEIB New York, New York
HOWARD LEIB New York, New York.
VINCE LEIBOWITZ Mineola, Texas
SCOTT LEMIEUX Hunter College, CUNY
GINA KERRA LOGUE Middle Tennessee State University
MATTHEW MANWELER Central Washington University
STEPHEN G. MASON Orlando, Florida
JOHN H. MATHESON University of Minnesota Law School
TONY MAURO Washington, D.C.
DAVID A. MAY Eastern Washington University
MICHAEL MCCONNELL University of Utah
THOMAS MCCOY Vanderbilt University School of Law
SHANNON K. MCCRAW Southeastern Oklahoma State University
ROBB MCDANIEL Middle Tennessee State University
GEOFFREY MCGOVERN Binghamton University, State University of New York
TOM N. MCINNIS University of Central Arkansas
PETER MCNAMARA Utah State University
RICHARD J. MEAGHER Marymount Manhattan College
TIM MEINKE Lynchburg College
LINDA MEROLA George Mason University
SUSAN GLUCK MEZEY Loyola University Chicago
DENNIS B. MILES Southeastern Oklahoma State University
DALE MINESHIMA-LOWE Shefford, Bedfordshire, United Kingdom
SARA Z. MORRIS Georgia Southern University
SHARON L. MORRISON Durant, Oklahoma
KENNETH F. MOTT Gettysburg College
MARY-BETH MOYLAN University of the Pacific, McGeorge School of Law
CARYN E. NEUMANN Miami University, Ohio
LYNETTE NOBLITT Eastern Kentucky University
KATHYRN L. OATES University of Florida
JOHN OMACHONU Middle Tennessee State University
KEVIN FRANCIS O’NEILL Cleveland State University
ROBERT M. O’NEILL University of Virginia
TIMOTHY J. O’NEILL Southwestern University
RICHARD L. PACELLE JR. Georgia Southern University
DAVID RAY PAPKE Marquette University
RICHARD A. PARKER Northern Arizona University
KENNETH PAYNE Texas A&M University, Texarkana
LEONARD W. PECK Texas A&M University, Texarkana
WILLIAM D. PEDERSON Louisiana State University, Shreveport
AUDREY PERRY Washington, D.C.
KAREN K. PETERSEN Middle Tennessee State University
GENE F. POLICINSKI Nashville, Tennessee
BOB PONDILO Middle Tennessee State University
PAUL JAMES POPE Weber State University
NORMAN PROVIZER Metropolitan State College of Denver
MARC-GEORGES PUFONG Valdosta State
ELIZABETH PURDY LaGrange, Georgia
DARA E. PURVIS New Haven, Connecticut
JANE G. RAINEY, Eastern Kentucky University
NEIL RALSTON Western Kentucky University
NED RAMAGE Nashville, Tennessee
SANDEEP C. RAMESH New Haven, Connecticut
MITZI RAMOS University of Illinois at Chicago
JOHN DAVID RAUSCH West Texas A&M University
FRANK S. RAVITCH Michigan State University
JAMES H. READ University of Minnesota
ANNE REYNOLDS Durant, Oklahoma
ROBERT D. RICHARDS Pennsylvania State University
WILLIAM W. RIGGS Texas A&M International University
JOHN R. RINK University of Wisconsin, Platteville
JOSEPH ROBERTS University of Utah
STEVE ROBERTSON Middle Tennessee State University
ERIC P. ROBINSON New York, New York
JOSEPH ROSENBLUM Boulder, Colorado
DANIELLE ROSENGARTEN Washington, D.C.
CARRIE ARCHER RUSSELL Vanderbilt University
HANA M. RYMAN Palm City, Florida
ANTHONY B. SANDERS Chicago, Illinois
JOSEPH E. SANDLER Washington, D.C.
PATRICK SCHMIDT Southern Methodist University
KYLE SCOTT University of North Florida
JOHN SEIGENTHALER First Amendment Center
JOEY SENAT Oklahoma State University
SALMON A. SHOMADE University of New Orleans
GREGORY SISK University of St. Thomas
RONALD L. STEINER Chapman University
SIMON STERN University of Toronto
EDWARD STILL Birmingham School of Law
RUTH ANN STRICKLAND Appalachian State University
TARA W. STRICKO-NEUBAUER Kennesaw State University
NEAL TATE Vanderbilt University School of Law
ALAN TAUBER University of South Carolina
GABRIEL H. TENINBAUM Suffolk University
OLIVER THOMAS Greenville, Tennessee
SANDRA L. THOMAS Southeastern Oklahoma State University
ALEXANDER THOMSON Schoolcraft College
JURIJ TOPLAK University of Maribor, Slovenia
MARGARET M. TULLAI University at Albany, State University of New York
VIRGINIA VILE Alexandria, Virginia
EUGENE VOLOKH UCLA School of Law
KEVIN J. WAGNER Florida Atlantic University
CAROL WALKER Georgia State Univerity
JAMES WALKER Wright State University
ARTEMUS WARD Northern Illinois University
SUSAN L. WEBB Southeastern Oklahoma State University
STEPHEN J. WERMIEL American University, Washington College of Law
JOHN WERTHEIMER Davidson College
KEITH WESOLOWSKI Alexandria, Virginia
WENDY M. WHITMAN University of Florida
CARY S. WIGGINS Atlanta, Georgia
LEONARD WILLIAMS Manchester College
CLYDE E. WILLIS Middle Tennessee State University
LAURA WITTERN-KELLER University at Albany, State University of New York
VICTORIA S. WOESTE West Lafayette, Indiana
RAYMOND B. WRABLEY JR. University of Pittsburgh, Johnstown
SARA L. ZEIGLER Eastern Kentucky University
Few Americans would question the importance of the amendment to the Constitution that serves as the blueprint for personal liberty and the subject of this encyclopedia. However imperfectly Americans understand or honor the principles embodied in the core First Amendment freedoms, most would express pride in them—in worshiping or not worshiping according to the dictates of their conscience, expressing their opinions, assembling and associating with whomever they please, and petitioning the government. Hardly anyone would restrict any of these rights as they apply to themselves however much they might be tempted to constrain their application to others whose beliefs or behaviors they find distasteful or even abhorrent.
Americans generally share this heritage with their English forebears, whose roots in turn drew from Reformation theology and Greek and Roman ideals of democratic citizenship. Individuals who believed they were directly accountable to God wanted to be able to pursue spiritual truth wherever it led them, and some colonists, such as Roger Williams, challenged the religious establishments of some denominations brought to the New World. To influence government, citizens needed access to information. To participate in government, citizens needed to be able to express their opinions. The 1735 trial of John Peter Zenger in New York was reported throughout the colonies and indicated that while freedom of speech and press did not necessarily exempt colonial-era publishers from prosecution, the truth of their accusations was a defense, and defendants would be entitled to allow juries of their own peers to decide on such truth.
As American colonists approached independence, freedoms later embodied in the First Amendment assumed increasing importance. After ratification of the Constitution, citizens demanded that these rights be embodied in a bill of rights. Each subsequent period in U.S. history has added context to these guarantees, allowing contemporaries to draw valuable lessons not only from those times when such rights triumphed but also from times when they were jeopardized.Birth of the First Amendment
A vigorous exercise of speech and press that the British considered to be treasonous preceded the American Revolution. Even before the revolt, American air seemed freer than that in England, which was as free as that of any nation. Almost uniformly Protestant, the American colonies nonetheless contained an increasing number of religious sects; settler communities that needed labor welcomed them. In part because colonists desired to be able to read Scripture for themselves, literacy rates were relatively high. Newspapers multiplied, and pamphleteers flourished. Thomas Jefferson declared in the Declaration of Independence that all men are equally entitled to the rights of “life, liberty, and the pursuit of happiness,” and in that spirit, a number of the newly independent colonies issued declarations of rights to enshrine freedoms that are today embodied in the First Amendment. In retrospect, it is intriguing that the delegates who gathered in Philadelphia at the Constitutional Convention of 1787 and built such a wise form of government in so many other ways did not insist on a similar national bill of rights.
Convention delegates apparently viewed George Mason’s belated proposal for a bill of rights as yet another motion to vote down in order to get on with the real work of formulating a more effective government to replace the Articles of Confederation. Although they did not include a bill of rights, the framers did create a secular national government with multiple checks and balances designed to protect liberties by dividing power and impeding the capacity of the majority to tyrannize the rights of minorities. As some would later argue, in this respect the entire document was a bill of rights, although it largely excluded slaves and Native Americans from its protections and did not alter the inferior status of women.
It was only when delegates reported the Constitution to the states for ratification that they began to comprehend the significance of omitting a bill of rights, as the absence of one began to make ratification look problematic. Anti-Federalist opponents of the new constitution threatened to call another[Page lxxvi] convention to rectify the omission. Federalist supporters initially argued that a national bill of rights was unnecessary, but if (as they claimed) the new government had no intention of abridging individual rights, what real harm could come from including one?
The most prominent discussion of the subject is the correspondence between Thomas Jefferson, then serving as an ambassador to France, and James Madison, now recognized as the “father” of the Constitution and of the Bill of Rights. Although Jefferson was generally favorable toward the document, he considered the absence of a bill of rights a major flaw. Jefferson argued that a bill of rights would enable independent courts of justice to protect individual rights; he further asserted that statements of rights would serve to educate citizens in republican principles. Further persuaded by concerns of voters whose support he needed for election to the House of Representatives and by hopes of support that he thought the promise of a bill of rights would give to the new government, Madison served as the most vigorous champion of the bill of rights in the First Congress. In introducing these guarantes to his fellow members of Congress in June 1789, he referred to them as the “great rights of mankind.” The requisite majority of states ratified the Bill of Rights in 1791.Placement, Wording, and Application of the First Amendment
Scholars have documented the serendipity of why what is now the First Amendment became the first among the amendments of the Bill of Rights. Madison had actually hoped to incorporate the texts of the amendments within the Constitution rather than attaching them at the end as Connecticut’s Roger Sherman had insisted. Moreover, the bill of rights that Congress proposed contained twelve amendments, the first two of which the states did not initially ratify; both dealt with structural issues. In time, one putatively became the Twenty-seventh Amendment.
Nonetheless, it was hardly accidental that an individual like Madison—who had helped adopt Virginia’s Statute for Religious Freedom and had consistently championed religious and political liberty throughout his life—began his list of individual rights with those enumerated in the First Amendment. Scholars have noted that Madison replaced such words as should or ought, used in earlier state declarations of rights, with bolder and less equivocal language. As abolitionist supporters later demonstrated, the language of the amendment is succinct enough to be printed on a bread plate. Its forty-five words seem more like the “thou shalt nots” of the King James Version of the Ten Commandments than mere aspirations:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As unequivocal as these words are, Madison would have gone further. He had proposed including an amendment that would have guaranteed similar rights not only against congressional action, but also against state deprivation. His proposed amendment, which Madison considered his most important, read, “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” He realized that state governments often would be the greatest offenders of personal liberty, more so than the federal government. His proposal, however, became a casualty of the legislative process and would have to await later developments associated with changing views of federalism. Until adoption of the Fourteenth Amendment, U.S. courts fairly consistently recognized the principle that Supreme Court chief justice John Marshall articulated in Barron v. Baltimore (1833)—that is, “Congress shall make no law …” indicates that the Bill of Rights was designed to limit the national government rather than to hobble the states.
Modern scholars recognize that the First Amendment did not abolish established churches in states that had them; indeed, the amendment arguably perpetuated such establishments by prohibiting Congress from taking any action on the matter. Although no states seem to have provided for prior restraint of First Amendment freedoms, their laws varied in respect to standards for libel, obscenity, and some First Amendment issues that continue to bedevil jurists and law-makers to this day.The Alien and Sedition Acts and Nineteenth-Century Developments
The founders, contrary to some of their own expectations, soon divided into rival political parties under the new governing system. It is one of the great historical ironies that many who had helped to ratify the powerful language of the [Page lxxvii] First Amendment ignored its principles in seeking to silence political speakers with whom they disagreed.
Few milestones were more important in this development than the Federalists’ adoption of the Alien and Sedition Acts in 1798 during the United States’ undeclared war with France: The Alien Act made it more difficult for immigrants to become citizens, and the Sedition Act made it a crime to criticize the president or the government of the United States. Although the Supreme Court did not have occasion to rule on the constitutionality of these laws at the time they were adopted, scholarly consensus today recognizes the Sedition Act as a betrayal of revolutionary ideals and First Amendment freedoms. As Justice William J. Brennan Jr. wrote years later in New York Times Co. v. Sullivan (1964), “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.” The law provided fodder for a host of speeches and publications that pushed interpretations of the First Amendment in an increasingly libertarian direction. As Brennan noted, the Sedition Act “first crystallized a national awareness of the central meaning of the First Amendment.”
Jefferson and Madison may have unwisely sown the seeds for future disunion when they argued in the Kentucky and Virginia Resolutions of 1798 for state “interposition” against federal legislation that interfered with First Amendment rights, but they were on target in questioning the source from which Congress derived authority for such legislation. Madison elaborated further on these arguments in his Report of 1800, in which he argued that a law that would permit congressional regulation of speech and press might also be interpreted to deny religious freedom. The so-called Revolution of 1800 was not achieved through physical force but through the ballot box. When elected president, Jefferson pardoned individuals who had been convicted under the Sedition Act, and despite some arrests during the Civil War, the national slate remained relatively free of such legislation until World War I again stirred sentiments against possible espionage and sedition.
Although the Bill of Rights did not provide normative law for the states, it set a standard that increasing numbers of states would emulate over time. In 1833 Massachusetts became the last state to abolish state support for an established church. At about the same time, however, Alexis de Tocqueville observed that public opinion in the United States was so powerful that it sometimes enforced a “tyranny of the majority.” This was especially evident in the incorporation of religious teaching within the increasingly universalized public education systems that states provided. While southern European and Roman Catholic immigrants well recognized that public schools reflected the dominant Protestant Weltanschauung, those in the majority seemed almost oblivious to their own presuppositions. In Boston, a judge ruled in Commonwealth v. Cooke (1859) that a schoolteacher was justified in beating a Roman Catholic student who had refused to recite the Lord’s Prayer and the Ten Commandments from the King James Version of the Bible. Much like fundamentalist Protestants would do in the twentieth century, Roman Catholics often withdrew their children from public schools and established their own institutions of learning.
On another front, however, religion flourished without state sponsorship, providing much of the moral impetus for the anti-slavery movement and later for a national prohibition of alcohol and for woman’s suffrage. The nation’s diversity increased as more immigrants arrived and spawned a number of homegrown religions. Among them were the Latter-day Saints, whose beliefs forced courts to re-examine the lines between religious belief, advocacy, and practice.From Civil War to World War I
In Federalist No. 10, Madison argued that the diversity of a people spread throughout a geographically expansive republic would help secure liberty. He recognized that the positions of a majority and a minority race had led to injustice and that over time these injustices had become more geographically concentrated. Northerners, as they abolished slavery, increasingly viewed the institution as an abomination, and as Southerners perpetuated slavery, they increasingly defended it as a positive good. Congress’s gag order in the 1830s against anti-slavery petitions stirred fierce debates over the right of petition. Southerners conceived of such petitions as being as incendiary as the abolitionist doctrine they reflected. The abolitionist leader Elijah Lovejoy and his presses fell victim to a lynch mob, but the voices of Harriet Beecher Stowe and others were not silenced. War inevitably came.
Many leaders in Congress associated the Civil War not only with the institution of slavery, but with the inadequacy of state protections for individual rights. The Fourteenth Amendment, ratified in 1868, subsequently extended to all persons born or naturalized in the United States the citizenship that the decision in Scott v. Sandford (1857) had sought to limit and guaranteed all citizens basic privileges and immunities and due process rights. Some clearly thought this [Page lxxviii] amendment would effectively overturn the decision in Barron v. Baltimore that had limited the application of the Bill of Rights to the states. Others focused on the more immediate and pressing deprivations of the rights of former slaves.
In the early twentieth century, the Supreme Court would face another set of national laws challenging First Amendment freedoms, at which point it would begin the process of “incorporation” to clearly establish that the provisions of the First Amendment equally bound state and national governmental entities. It is common for legal casebooks to open discussion of freedom of speech and freedom of the press with cases from the World War I era that began to change the nature of this debate. In the words of free speech historian Paul L. Murphy, this period in many ways witnessed the “origin of civil liberties.” It would be comforting to think that the movement was always in the direction of protecting civil liberties, but the record lays out a crooked path.
During World War I, Congress enacted the Espionage Act of 1917, which criminalized attempting to foment insubordination of the war effort, willfully attempting to cause insurrection, and obstructing the recruiting or enlistment of potential volunteers. Another section of the law gave the postmaster general the power to ban from the mail any material “advocating or urging treason, insurrection, or forcible resistance to any law of the United States.” Congress then passed the Sedition Act of 1918, an amendment to the Espionage Act that further infringed on First Amendment freedoms. The law prohibited
[u]ttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language intended to cause contempt, scorn … as regards the form of government of the United States or Constitution, or the flag or the uniform of the Army or Navy … urging any curtailment of the war with intent to hinder its prosecution; advocating, teaching, defending, or acts supporting or favoring the cause of any country at war with the United States, or opposing the cause of the United States.
The Supreme Court first developed its body of First Amendment jurisprudence when examining Espionage Act charges leveled against political dissidents, that is, socialists, communists, and anarchists who opposed the U.S. effort in World War I. In Schenck v. United States (1919), Justice Oliver Wendell Holmes Jr. unveiled the clear and present danger test when he wrote, “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.” Holmes wrote this famous phrase in his majority opinion affirming the conviction of socialist Charles Schenck.
The Court used Holmes’s doctrine to affirm similar convictions in other cases, including Abrams v. United States (1919). Holmes and Justice Louis D. Brandeis dissented, however, with Holmes penning an opinion that introduced the marketplace of ideas metaphor that still permeates modern First Amendment law: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
The Court continued to examine free expression cases involving political dissidents, struggling to calibrate the proper balance between protecting individual liberty and safeguarding national security interests. In Gitlow v. New York (1925), it upheld another criminal conspiracy conviction of a socialist, but it also assumed that the First Amendment freedom of speech extended to the states. The Court wrote that freedom of speech and press “are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Before long, the Court was applying other provisions of the Bill of Rights to the states as well, including the free exercise clause in Cantwell v. Connecticut (1940) and the establishment clause in Everson v. Board of Education (1947).
The Supreme Court had taken on relatively few cases involving the First Amendment, or the Bill of Rights in general, during the nineteenth century, but in the twentieth century the justices became key interpreters of First Amendment freedoms. Justice Brandeis broadened Justice Holmes’s justifications for freedom of expression, most notably in his classic concurring opinion in Whitney v. California (1927), introducing the counterspeech doctrine: when confronted with harmful speech, “the remedy to be applied is more speech, not enforced silence.” Holmes and Brandeis are often called the “fathers of the First Amendment.” Their legacy lived on in Justices Hugo L. Black, William O. Douglas, Harlan Fiske Stone, Frank Murphy, and William J. Brennan Jr., who carried forth their vision of vigorously protecting free expression.From World War I to World War II and Cold War
Contrary to the hopes of Woodrow Wilson, World War I did not make the world safe for democracy. Indeed, communists took power in Russia, leading to the first red scare in the United States and creating fertile soil for the rise of Nazism in Germany. As soon as the Allies had defeated Germany, Italy, and Japan in World War II, the East and West split into rival camps, with Russia gorging on Eastern European states. Communism spread to China, and the Soviet Union and China would soon acquire the nuclear technology that the West had employed to end the war.
The resulting cold war was a time when fears often trumped hopes, and political associations no longer were considered mere private matters. Congress not only adopted laws designed to punish alleged subversion, but it also conducted investigations to root out would-be subversives. It made it illegal to organize parties to overthrow the government, created blacklists of potential enemies, and enacted loyalty oaths. Although the Supreme Court sometimes bowed to popular pressure, over time it began to establish a set of precedents that increasingly protected civil rights and liberties.
The Court weathered the storm when Franklin D. Roosevelt had threatened to pack it with new members in 1937 to get the New Deal off the ground. After initial resistance to New Deal legislation, the Court switched gears and only rarely struck down legislation dealing with economic matters; it required only that governments show a rational basis for such legislation and subjected it to minimal scrutiny. It also increasingly gave greater scrutiny to laws that impinged upon fundamental rights (like those of the First Amendment) or involved suspect categories (including racial and religious classifications). Many scholars trace this development to Justice Harlan Fiske Stone’s footnote four in United States v. Carolene Products Co. (1938) that contains an embryonic element of much of the Court’s subsequent agenda for applying a more stringent form of judicial review in individual liberty cases. Stone suggested that the Court should apply stricter scrutiny to legislation that violated specific provisions of the Bill of Rights and the Fourteenth Amendment, restricted political processes, or was directed at “discrete and insular minorities.”Civil Rights, Vietnam, and Church and State
While the cold war era produced McCarthyism, communist prosecutions, and other curtailments of First Amendment freedoms, another movement presented the Court with the ideal opportunity to expand these freedoms. In The Negro and the First Amendment (1965), Harry Kalven wrote that “we may come to see the Negro as winning back for us the freedoms the Communists seemed to have lost for us.”
The Warren Court (1953–1969) gave impetus to the civil rights movement with its landmark decision in Brown v. Board of Education (1954), which ended de jure racial segregation in schools and virtually all areas of public accommodation. During the movement, the Supreme Court expanded protection from libel suits in New York Times Co. v. Sullivan (1964), protected the right of organizations freely to associate without undue interference from the state in NAACP v. Alabama (1958), struck down permitting schemes used to prevent demonstrators from marching on public streets in Shuttlesworth v. Birmingham (1968), and ruled that demonstrators have the right freely to assemble and march on city streets in Edwards v. South Carolina (1963).
The Court also expanded First Amendment rights in a number of cases during the Vietnam War in the 1960s and 1970s. It ruled that a political protester could use crude political hyperbole without uttering a true threat in Watts v. United States (1969), decided that high school students could wear black armbands to school in protest of the war in Tinker v. Des Moines Independent Community School District (1969), held that the government could not force the press to stop printing material about the war in New York Times Co. v. United States (1971), and ruled that a state legislature could not expel a legislator for making comments critical of the U.S. war effort in Bond v. Floyd (1966). In Brandenburg v. Ohio (1969), it further made it more difficult to convict speakers for inflammatory speech that did not create the likelihood of imminent lawless action.
The Supreme Court’s increased judicial scrutiny of civil liberties issues dovetailed with its ongoing application of provisions of the Bill of Rights to the states. This process peaked during the Warren Court, especially with respect to the rights of criminal defendants. Also during this tumultuous period, when the nation often counterpoised the faith of its own citizens against communist atheism—Congress [Page lxxx] added the words “under God” to the Pledge of Allegiance in 1954—judges gave increased scrutiny to the place of religion in public schools. As discussed above, the dispersion of progressive Protestantism in public school curricula had been so pervasive that it truly took outsiders, most typically Roman Catholic immigrants, to recognize it. Beginning in the 1940s, the Court began to insist that secular education be truly secular, and it continued to prohibit most state funding of religious education.
Although the Court permitted New Jersey to provide aid for bus transportation to children in parochial schools, Justice Hugo L. Black articulated a strongly separationist position in Everson v. Board of Education (1947). Interpreting the establishment clause through the lenses of Jefferson and Madison, Black indicated that the Court would give particular scrutiny to governmental appropriations of money that seemed to benefit parochial schools. In due time, Black’s dicta was translated into the oft-criticized Lemon test—set out in Lemon v. Kurtzman (1971)—which requires that laws facing establishment clause challenges have a clear secular legislative purpose, have the primary effect of neither advancing nor inhibiting religion, and avoid creating excessive entanglement between church and state.
Around this time, the Court began also to look with increasing scrutiny at religious practices within public schools. First banishing most religious instruction from public school classrooms, the Court subsequently decided that devotional prayer, Bible reading, and recitations of the Lord’s Prayer were practices to be cultivated in homes and churches, but not in classrooms or at public school events. Continuing proposals for constitutional amendments (sometimes supported by presidents) to permit voluntary prayer in schools indicate that the public may still not be altogether comfortable with these decisions.Ongoing Developments
First Amendment doctrine continues to evolve. In addition to the decisions in New York Times Co. v. Sullivan (1964) constitutionalizing libel law and New York Times Co. v. United States (1971) limiting governmental prior restraint of publication, Miller v. California (1973) established national guidelines for judging obscenity. Other decisions broadened the application of the right of association, which is tied to other First Amendment freedoms. Numerous cases have further extended the rights of symbolic speech, or expressive conduct. The decisions in Texas v. Johnson (1989) and United States v. Eichman (1990) declared that the First Amendment protects the right to burn the American flag as a form of political protest.
The Court has had greater difficulty ascertaining the constitutionality of religious displays on public property. In such cases, it generally looks to history and context to determine whether a religious display is an acceptable part of a larger holiday or historic exhibit or whether it represents an unconstitutional attempt at endorsement. Thus on one day in 2005, the Court in Van Orden v. Perry upheld the display of a monument of the Ten Commandments installed along with other monuments in an Austin, Texas, public park, but in McCreary County v. American Civil Liberties Union struck down a display of a framed copy of the Ten Commandments in a courthouse that appeared to have been surrounded with other documents to highlight the commandments.
In the mid-1970s in cases such as Bigelow v. Virginia (1975), and more explicitly, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), the Supreme Court ruled that commercial speech—that is, advertising—had First Amendment protection. For years, the Court had followed its precedent in Valentine v. Chrestensen (1942) that the First Amendment did not protect “purely commercial advertising.” In Virginia Pharmacy, it rejected the reasoning of this decision, noting that consumers often have a “keener” interest in price advertising than in political issues of the day. In Bates v. State Bar of Arizona (1977), the Court ruled that truthful attorney advertising was a form of commercial speech protected by the First Amendment. Beginning in the mid-1990s—with 44 Liquormart, Inc. v. Rhode Island (1996) being a prime example—the Court subjected regulations on commercial speech to even more scrutiny. Justice Clarence Thomas bluntly stated that he does not “see a historical or philosophical reason” for treating truthful commercial speech to less protection than noncommercial speech.
Although the First Amendment clearly condemns laws designed to stifle religious exercise, recent years have witnessed renewed conflict over how to apply the free exercise clause to general laws, especially criminal laws, that seem to fall with force on religious minorities. Since Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Supreme Court no longer requires the state to show a compelling interest in cases in which a generally applicable law affects a religious belief. Since Smith, the Court and Congress have sparred over the proper level of protection for religious liberty with the passage of the [Page lxxxi] Religious Freedom Restoration Act (1993) and the Religious Land Use and Institutionalized Persons Act (2000).
Controversies over the teaching of evolution in public schools have re-emerged with attempts either to emphasize the “theoretical” nature of the concept or to balance its teaching with variants of creationism or intelligent design. Like similar controversies over the posting of the Ten Commandments in classrooms or the display of other religious symbols in public places, such issues are often highly emotional.
Efforts to restrict pornography on the Internet, to limit money in the form of campaign contributions, and to challenge the words “under God” in the Pledge of Allegiance have made front-page headlines. The Internet continues to represent a First Amendment frontier, as courts struggle not only with pornography but also anonymous speech. In Reno v. American Civil Liberties Union (1997), the Supreme Court invalidated Congress’s first foray into criminalizing speech on the Internet. Provisions of the Communications Decency Act of 1996 prohibited the transmission of “indecent” or “patently offensive” speech. The Court rejected these provisions, reasoning that the protection of minors did not justify a law that so severely curtailed the free speech rights of adults and even older minors. In later decisions, the Court looked with skepticism at Congress’s response, the Child Online Protection Act of 1998.
The Court continues to grapple with the concept of government speech, the public forum doctrine, and the fundamental principle of viewpoint discrimination in First Amendment cases. Although the bulk of challenges have arisen under the Fourth Amendment, legislative and executive responses to the al-Qaida attacks of September 11, 2001, have also posed some First Amendment challenges, which are likely to persist for the duration of the conflict with al-Qaida and similar groups.
John R. Vile
David L. Hudson Jr.
Chronology: Development and History of the First Amendment
List of Entries
- Abington School District v. Schempp (1963)
- Abolitionists and Free Speech
- Abood v. Detroit Board of Education (1977)
- Abortion Protests
- Abrams v. United States (1919)
- Abrams, Floyd
- Academic Bill of Rights
- Academic Freedom
- Access to Courtrooms
- Accommodationism and Religion
- Action for Children’s Television v. Federal Communications Commission (D.C. Cir. 1995)
- Actual Malice
- Adams, John
- Adams, John Quincy
- Adderly v. Florida (1966)
- Ad Hoc Balancing
- Adler v. Board of Education (1952)
- Adult Film Association of America
- Adventures of Huckleberry Finn
- Advocacy of Illegal Conduct
- Affirmative Action
- Agostini v. Felton (1997)
- Aguilar v. Felton (1985)
- Aid to Parochial Schools
- Aid to Religious Colleges and Universities
- Alberts v. California (1957)
- Alcohol Advertising
- Alexander v. United States (1993)
- Alien and Sedition Acts
- Alien Registration Act
- Alito, Samuel A., Jr.
- Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968)
- American Academy of Religion v. Chertoff (S.D.N.Y. 2006)
- American Amusement Machine Association v. Kendrick (7th Cir. 2001)
- American Association of University Professors
- American Aurora
- American Booksellers Association v. Hudnut (7th Cir. 1985)
- American Booksellers Foundation for Free Expression
- American Center for Law and Justice
- American Civil Liberties Union
- American Civil Liberties Union v. National Security Agency/Central Security Service (E.D. Mich. 2006)
- American Committee for Protection of Foreign Born v. Subversive Activities Control Board (1965)
- American Communications Association v. Douds (1950)
- American Federation of Labor v. American Sash and Door Co. (1949)
- American Federation of Labor v. Swing (1941)
- American Friends Service Committee
- American Indian Religious Freedom Act of 1978 as Amended in 1994
- American Library Association
- American Life League v. Reno (4th Cir. 1995)
- American Nazi Party and Related Groups
- American Radio Association, AFL-CIO v. Mobile Steamship Association (1974)
- American School of Magnetic Healing v. McAnnulty (1902)
- American Society of Newspaper Editors
- Americans United for Separation of Church and State
- Amish and Mennonites
- Anarchy Statutes
- Anderson v. Celebrezze (1983)
- Anderson v. Dunn (1821)
- Anderson v. Liberty Lobby (1986)
- Animal Sacrifice
- Anonymous Speech
- Ansonia Board of Education v. Philbrook (1986)
- Anti-Dial-a-Porn Act of 1989
- Anti-mask Laws
- Aptheker v. Secretary of State (1964)
- A Quantity of Books v. Kansas (1964)
- Arcara v. Cloud Books, Inc. (1986)
- Arkansas Educational Television Commission v. Forbes (1998)
- Arkansas Writers’ Project, Inc. v. Ragland (1987)
- Art Censorship
- As-applied Challenges
- Ashcroft v. American Civil Liberties Union (2002) (2004)
- Ashcroft v. Free Speech Coalition (2002)
- Ashton v. Kentucky (1966)
- Associated Press v. National Labor Relations Board (1937)
- Associated Press v. United States (1945)
- Associated Press v. Walker (1967)
- Attorney Advertising
- Attorney General’s Commission on Pornography
- Attorney General’s List of Subversive Organizations
- Austin v. Michigan Chamber of Commerce (1990)
- Autopsies and Treatment of the Dead
- Avis Rent-a-Car System v. Aguilar (2000)
- Bache, Benjamin Franklin
- Bachellar v. Maryland (1970)
- Backus, Isaac
- Bad Tendency Test
- Baggett v. Bullitt (1964)
- Baird v. State Bar of Arizona (1971)
- Baker v. Nachtrieb (1856)
- Baker, C. Edwin
- Bakery and Pastry Drivers and Helpers Local v. Wohl (1942)
- Baldwin, Luther
- Baldwin, Roger
- Ballot Access
- Balzac v. People of Porto Rico (1922)
- Banned Books Week
- Bantam Books, Inc. v. Sullivan (1963)
- Bar Admissions
- Barber v. Time (Mo. 1942)
- Barenblatt v. United States (1959)
- Barnes v. Glen Theatre, Inc. (1991)
- Barr v. Matteo (1959)
- Barrett v. Rosenthal (Cal. S. Ct. 2006)
- Barron v. Baltimore (1833)
- Bartnicki v. Vopper (2001)
- Bates v. Little Rock (1960)
- Bates v. State Bar of Arizona (1977)
- BE and K Construction Co. v. National Labor Relations Board (2002)
- Beard v. Banks (2006)
- Beauharnais v. Illinois (1952)
- Behind the Green Door
- Beilan v. Board of Education (1958)
- Bell v. Maryland (1964)
- Bell v. Wolfish (1979)
- Benbow, William
- Bender v. Williamsport Area School District (1986)
- Benevolent Neutrality
- Berkeley Free Speech Movement
- Bethel School District No. 403 v. Fraser (1986)
- Beussink v. Woodland School District (E.D. Mo. 1998)
- Bible Reading in Public Schools
- Bickel, Alexander
- Biddle, Francis
- Bigelow v. Virginia (1975)
- Bill Johnson’s Restaurants, Inc. v. National Labor Relations Board (1983)
- Bill of Rights
- Bipartisan Campaign Reform Act of 2002
- Birth Control
- The Birth of a Nation
- Black, Hugo L.
- Blackmun, Harry A.
- Blackstone, William
- Blaine Amendments
- Blasi, Vincent
- Blood Transfusions and Medical Care against Religious Beliefs
- Blount v. Rizzi (1971)
- Blue Laws
- Blue Sky Laws
- Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. (1987)
- Board of County Commissioners v. Umbehr (1996)
- Board of Directors of Rotary International v. Rotary Club of Duarte (1987)
- Board of Education v. Allen (1968)
- Board of Education, Island Trees Union Free School District v. Pico (1982)
- Board of Education of Kiryas Joel Village School District v. Grumet (1994)
- Board of Education of Oklahoma City v. National Gay Task Force (1985)
- Board of Education of the City of Cincinnati v. Minor (Ohio S. Ct. 1872)
- Board of Education of the Westside Community Schools v. Mergens (1990)
- Board of Regents of the University of Wisconsin System v. Southworth (2000)
- Board of Trustees of Scarsdale v. McCreary (1985)
- Board of Trustees of State University of New York v. Fox (1989)
- Bobbs-Merrill Co. v. Straus (1908)
- Bob Jones University v. United States (1983)
- Bolger v. Youngs Drug Products Corp. (1983)
- Bollinger, Lee C.
- Bond v. Floyd (1966)
- Bong Hits 4 Jesus
- Book Banning
- Boos v. Barry (1988)
- Borgner v. Florida Board of Dentistry (2002)
- Bork, Robert
- Bose Corp. v. Consumers Union of United States, Inc. (1984)
- Boudin, Leonard
- Bowdler, Thomas
- Bowen v. Kendrick (1988)
- Bowen v. Roy (1986)
- Boyle v. Landry (1971)
- Boy Scouts of America v. Dale (2000)
- Braden v. United States (1961)
- Bradfield v. Roberts (1899)
- Brandeis, Louis D.
- Brandenburg v. Ohio (1969)
- Branti v. Finkel (1980)
- Branzburg v. Hayes (1972)
- Braunfeld v. Brown (1961)
- Bray v. Alexandria Women’s Health Clinic (1993)
- Breach of the Peace Laws
- Breard v. Alexandria (1951)
- Breen, Joseph I.
- Brennan, William J., Jr.
- Breyer, Stephen G.
- Bridges v. California (1941)
- Broadcast Decency Enforcement Act of 2005
- Broadrick v. Oklahoma (1973)
- Brockett v. Spokane Arcades, Inc. (1985)
- Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar (1964)
- Brown v. Glines (1980)
- Brown v. Hartlage (1982)
- Brown v. Louisiana (1966)
- Brown v. Socialist Workers ’74 Campaign Committee (1982)
- Bruce, Lenny
- Bryan, William Jennings
- Buckley v. American Constitutional Law Foundation (1999)
- Buckley v. Valeo (1976)
- Building Service Employees International Union v. Gazzam (1950)
- Bumper Stickers
- Burdick v. Takushi (1992)
- Burger, Warren E.
- Burns v. United States (1927)
- Burnside v. Byars (5th Cir. 1966)
- Burson v. Freeman (1992)
- Burstyn v. Wilson (1952)
- Butler v. Michigan (1957)
- Butterworth v. Smith (1990)
- Byrne v. Karalexis (1969) (1971)
- Cable Communications Policy Act of 1984
- Cable Television Consumer Protection and Competition Act of 1992
- Cafeteria Employees Union v. Angelos (1943)
- Cain v. Kentucky (1970)
- California v. LaRue (1972)
- California Democratic Party v. Jones (2000)
- California Motor Transport Co. v. Trucking Unlimited (1972)
- Cameras in the Courtroom
- Cameron v. Johnson (1965) (1968)
- Cammarano v. United States (1959)
- Campaign Regulation
- Campbell v. Acuff-Rose Music, Inc. (1994)
- Campus Speech Codes
- Canady v. Bozzier Parish School Board (5th Cir. 2001)
- Cantrell v. Forest City Publishing Co. (1974)
- Cantwell v. Connecticut (1940)
- Capitol Square Review and Advisory Board v. Pinette (1995)
- Captive Audience
- Cardozo, Benjamin N.
- Carey v. Brown (1980)
- Carey v. Population Services International (1977)
- Carey, Warden v. Musladin (2006)
- Carlin, George
- Carlson v. California (1940)
- Carlson v. Landon (1952)
- Carolene Products Footnote Four
- Carpenters and Joiners Union of America, Local No. 213 v. Ritter’s Café (1942)
- Carroll v. President and Commissioners of Princess Anne (1968)
- Carter, Robert L.
- The Catcher in the Rye
- Catholics, Roman
- Cato’s Letters
- CBS, Inc. v. Federal Communications Commission (1981)
- Central Hudson Gas and Electric Corp. v. Public Service Commission (1980)
- Central Hudson Test
- Chafee, Zechariah, Jr.
- Chamberlin v. Public Instruction Board (1964)
- Chandler v. Florida (1981)
- Chandler v. McMinnville School District (9th Cir. 1992)
- Chaplinksy v. New Hampshire (1942)
- Charitable Solicitation
- Chemerinsky, Erwin
- Chicago Seven Trial
- Chicago Teachers Union v. Hudson (1986)
- Child Benefit Theory
- Child Custody
- Child Online Protection Act of 1998
- Child Pornography
- Child Pornography Prevention Act of 1996
- Child Protection and Obscenity Enforcement Act of 1988
- Child Protection Restoration and Penalties Enhancement Act of 1990
- Children’s Internet Protection Act of 2000
- Chilling Effect
- The Chocolate War
- Christian Amendment
- Christian Legal Society
- Christian Scientists
- Church of Jesus Christ of Latter-day Saints
- Church of Jesus Christ of Latter-day Saints v. United States
- Church of the Holy Trinity v. United States (1892)
- Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
- Churchill, Ward
- The CIA and the Cult of Intelligence
- Cigarette Advertising
- Citizen Publishing Co. v. United States (1969)
- Citizens Against Rent Control v. Berkeley (1981)
- Citizens for Decent Literature
- City Council of Los Angeles v. Taxpayers for Vincent (1984)
- City of Boerne v. Flores (1997)
- City of Chicago v. Morales (1999)
- City of Cincinnati v. Discovery Network (1993)
- City of Dallas v. Stanglin (1989)
- City of Edmond v. Robinson (1996)
- City of Erie v. Pap’s A.M. (2000)
- City of Houston v. Hill (1987)
- City of Ladue v. Gilleo (1994)
- City of Lakewood v. Plain Dealer Publishing Co. (1988)
- City of Littleton v. Z.J. Gifts D-4, L.L.C. (2004)
- City of Los Angeles v. Alameda Books (2002)
- City of Los Angeles v. Preferred Communications (1986)
- City of Madison v. Wisconsin Employment Relations Commission (1976)
- City of Newport v. Iacobucci (1986)
- City of Renton v. Playtime Theatres, Inc. (1986)
- City of San Diego v. Roe (2005)
- Civil Religion
- Civil Rights Movement
- Civil War, U.S.
- Clark v. Community for Creative Non-Violence (1984)
- Clark, Tom C.
- Classified Documents
- Clay v. United States (1971)
- Clear and Present Danger Test
- Clergy, Bans on Holding Office by
- Cleveland v. United States (1946)
- Clingman v. Beaver (2005)
- Coates v. City of Cincinnati (1971)
- Cochran v. Board of Education (1930)
- Coercion Test
- Cohen v. California (1971)
- Cohen v. Cowles Media Co. (1991)
- Cohen v. San Bernardino Valley College (9th Cir. 1996)
- Cohn, Roy
- Cole v. Oroville Union High School District (9th Cir. 2000)
- Cole v. Richardson (1972)
- Collins, Ron
- Colorado Republican Federal Campaign Committee v. Federal Election Commission (1996)
- Columbia Broadcasting System v. Democratic National Committee (1973)
- Columbine Shootings
- Commercial Speech
- Commission on Obscenity and Pornography
- Committee for Public Education and Religious Liberty v. Nyquist (1973)
- Committee for Public Education and Religious Liberty v. Regan (1980)
- Committee on Public Information
- Commonwealth v. Blanding (Mass. 1825)
- Commonwealth v. Clapp (Mass. 1808)
- Commonwealth v. Cooke (Mass. 1859)
- Commonwealth v. Kneeland (Mass. 1838)
- Commonwealth v. Lesher (Pa. 1828)
- Commonwealth v. Sharpless (Pa. 1815)
- Communications Act of 1934
- Communications Decency Act of 1996
- Communist Control Act of 1954
- Communist Party of Indiana v. Whitcomb (1974)
- Communist Party of the United States
- Communist Party of the United States v. Subversive Activities Control Board (1961)
- Community Standards
- Compelled Speech
- Compelling State Interest
- Comstock Act of 1873
- Comstock, Anthony
- Confederate Flag
- Confidential Sources
- Congressional Investigations
- Connell v. Higginbotham (1971)
- Connick v. Myers (1983)
- Conscientious Objection to Military Service
- Consolidated Edison Co. v. Public Service Commission (1980)
- Conspiracy Laws
- Constitution of the Confederate States of America
- Constitutional Amending Process
- Constitutional Convention of 1787
- Contemporary Community Standards
- Contempt of Court
- Content Based
- Content Neutral
- Continental Congress: Declaration and Resolves
- Continental Congress: Letter to the Inhabitants of the Province of Quebec
- Cooley, Thomas M.
- Cooper v. Pate (1964)
- Copyright Act of 1790
- Copyright Act of 1976
- Cornelius v. NAACP Legal Defense and Educational Fund (1985)
- Corn-Revere, Robert
- Corporate Speech
- Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos (1987)
- Counterspeech Doctrine
- County of Allegheny v. American Civil Liberties Union (1989)
- Covington, Hayden C.
- Cox v. Louisiana (1965)
- Cox v. New Hampshire (1941)
- Cox, Archibald
- Cox Broadcasting Corp. v. Cohn (1975)
- Craig v. Harney (1947)
- Craig v. Hecht (1923)
- Cramp v. Board of Public Instruction of Orange County (1961)
- Criminal Defamation
- Criminal Syndicalism Laws
- Critical Race Theory
- Cross Burning
- Crouter v. Lemon (1973)
- Cruz v. Beto (1972)
- Curtis Publishing Co. v. Butts (1967)
- Cutler, Lloyd N.
- Cutter v. Wilkinson (2005)
- Dancing, Nude
- Darrow, Clarence
- Dartmouth College v. Woodward (1819)
- Davenport v. Washington Education Association (2007)
- Davis v. Beason (1890)
- Davis v. Massachusetts (1897)
- Dawson v. Delaware (1992)
- Dean v. Utica Community Schools (E.D. Mich. 2004)
- Debs v. United States (1919)
- Debs, Eugene V.
- Declaration of Independence
- Deep Throat
- DeGregory v. Attorney General of New Hampshire (1966)
- De Jonge v. Oregon (1937)
- Deleting Online Predators Act
- Democratic Party of United States v. Wisconsin ex rel. LaFollette (1981)
- Dennis v. United States (1951)
- Denver Area Educational Telecommunications Consortium v. Federal Communications Commission (1996)
- De Scandalis Magnatum
- Detached Memoranda
- The Devil in Miss Jones
- Dietemann v. Time (9th Cir. 1971)
- Digital Millennium Copyright Act of 1998
- Disclosure Requirements
- Discrimination Laws
- Disorderly Conduct Statutes
- Dixie Chicks
- Doe v. Gonzales (2005)
- Dombrowski v. Pfister (1965)
- Donaldson v. Read Magazine (1948)
- Don’t Ask, Don’t Tell
- Door-to-Door Solicitation
- Doran v. Salem Inn (1975)
- Doremus v. Board of Education (1952)
- Dorsen, Norman
- Dot Kids Implementation and Efficiency Act of 2002
- Douglas v. City of Jeannette (1943)
- Douglas, William O.
- Draft Card Mutilation Act of 1965
- Dress Codes
- Dun and Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985)
- Dworkin, Andrea
- Eagle Forum
- Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961)
- Edenfield v. Fane (1993)
- Edwards v. Aguillard (1987)
- Edwards v. South Carolina (1963)
- Eldred v. Ashcroft (2003)
- Electronic Frontier Foundation
- Electronic Privacy Information Center
- Elfbrandt v. Russell (1966)
- Elk Grove Unified School District v. Newdow (2004)
- Ellis v. Brotherhood of Railway, Airline and Steamship Clerks (1984)
- Ellsberg, Daniel
- Elrod v. Burns (1976)
- Ely, John Hart
- Emerson, Thomas
- Employment Division, Department of Human Resources of Oregon v. Smith (1990)
- Endorsement Test
- Engel v. Vitale (1962)
- English Bill of Rights
- English-Only Laws
- Epperson v. Arkansas (1968)
- Epton v. New York (1968)
- Equal Access Act of 1984
- Equal Time Rule
- Erznoznik v. City of Jacksonville (1975)
- Espionage Act of 1917
- Established Churches in Early America
- Estes v. Texas (1965)
- Eu v. San Francisco County Democratic Central Committee (1989)
- Evans v. Selma Union High School District of Fresno County (Cal. 1924)
- Everson v. Board of Education (1947)
- Exit Polling
- Ex parte Curtis (1882)
- Ex parte Jackson (1877)
- Ex parte Vallandigham (1863)
- Express Advocacy
- Expressive Conduct
- Facial Challenges
- Fairness Doctrine
- Fair Use
- Faith-based Organizations and Government Aid
- False Light
- Fanny Hill
- Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY, Inc. (1959)
- Federal Anti-Obscenity Act (1873)
- Federal Bureau of Investigation
- Federal Communications Commission
- Federal Communications Commission v. League of Women Voters of California (1984)
- Federal Communications Commission v. Midwest Video Corp. (1979)
- Federal Communications Commission v. National Citizens Committee for Broadcasting (1978)
- Federal Communications Commission v. Pacifica Foundation (1978)
- Federal Election Campaign Act of 1971
- Federal Election Commission v. Beaumont (2003)
- Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001)
- Federal Election Commission v. Massachusetts Citizens for Life (1986)
- Federal Election Commission v. National Conservative PAC (1985)
- Federal Election Commission v. National Right to Work Committee (1982)
- Federal Election Commission v. Wisconsin Right to Life, Inc. (2007)
- Federal Radio Commission
- Federal Theatre Project
- Federal Trade Commission
- Federal Trade Commission v. Superior Court Trial Lawyers Association (1990)
- Feiner v. New York (1951)
- Feminist Theory
- Fighting Words
- Filthy Words
- First Amendment Center
- First Amendment Lawyers Association
- First Amendment Project
- First National Bank of Boston v. Bellotti (1978)
- Fiske v. Kansas (1927)
- Flag Desecration
- Flag Protection Acts of 1968 and 1989
- Flast v. Cohen (1968)
- Fleishman, Stanley
- Florida Bar v. Went for It, Inc. (1995)
- Florida Star v. B.J.F. (1989)
- Flower v. United States (1972)
- Flynt, Larry
- Follett v. Town of McCormick (1944)
- Folsom v. Marsh (C.C.D. Mass. 1841)
- Food and Drug Administration
- Foreign Languages, Right to Learn and Teach
- Forer, Joseph
- Forsyth County, Georgia v. Nationalist Movement (1992)
- Fort Wayne Books, Inc. v. Indiana (1989)
- Fortas, Abe
- Fortune Telling
- 44 Liquormart, Inc. v. Rhode Island (1996)
- Foundation for Individual Rights in Education
- Four Freedoms
- Fowle, Daniel
- Fowler v. Rhode Island (1953)
- Fox v. Washington (1915)
- Fraenkel, Osmond
- Frankfurter, Felix
- Franklin, Benjamin
- Frazee v. Illinois Department of Employment Security (1989)
- Freedman v. Maryland (1965)
- Freedom of Access to Clinic Entrances Act of 1994
- Freedom of Information Act of 1966
- Freedom to Display the American Flag Act of 2006
- Free Expression Network
- Free Flow of Information Act
- Free Speech League
- Free Speech Zones
- Freund, Paul
- Friedman v. Rogers (1979)
- Friendly, Fred
- Frisby v. Schultz (1988)
- Frohwerk v. United States (1919)
- Funeral Protests
- FW/PBS, Inc. v. City of Dallas (1990)
- Gag Orders
- Gag Rule in Congress
- Gallagher v. Crown Kosher Super Market of Massachusetts (1961)
- Gallatin, Albert
- Gandia v. Pettingill (1912)
- Gannett Co. v. DePasquale (1979)
- Garbus, Martin
- Garcetti v. Ceballos (2006)
- Garner v. Board of Public Works of Los Angeles (1951)
- Garner v. Louisiana (1961)
- Garrison v. Louisiana (1964)
- Gelling v. Texas (1952)
- General Media Communications v. Cohen (2d Cir. 1997)
- Gentile v. State Bar of Nevada (1991)
- Gerende v. Board of Supervisors of Elections of Baltimore (1951)
- Gertz v. Robert Welch, Inc. (1974)
- Gibbons v. District of Columbia (1886)
- Giboney v. Empire Storage and Ice Co. (1949)
- Gibson v. Florida Legislative Investigation Committee (1963)
- Gilbert v. Minnesota (1920)
- Gillette v. United States (1971)
- Ginsberg v. New York (1968)
- Ginsburg, Ruth Bader
- Ginzburg v. United States (1966)
- Girouard v. United States (1946)
- Gitlow v. New York (1925)
- Givhan v. Western Line Consolidated School District (1979)
- Glickman v. Wileman Brothers and Elliott, Inc. (1997)
- Globe Newspaper Co. v. Superior Court (1982)
- Goldberg, Arthur J.
- Goldman v. Weinberger (1986)
- Goldman, Emma
- Goldstein, Alvin
- Goldstein, Thomas C.
- Gompers v. Buck’s Stove and Range Co. (1911)
- Gonzales v. O Centro Espírita Beneficente União Do Vegetal (2006)
- Goodale, James C.
- Gooding v. Wilson (1972)
- Good News Club v. Milford Central School (2001)
- Gore, Tipper
- Government Funding and Free Speech
- Government Speech Doctrine
- Graduation Speech Controversies
- Grand Rapids School District v. Ball (1985)
- Gravity of the Evil Test
- Grayned v. City of Rockford (1972)
- Greater New Orleans Broadcasting Association v. United States (1999)
- Greenbelt Cooperative Publishing Association v. Bresler (1970)
- Green River Ordinances
- Greer v. Spock (1976)
- Gregory v. City of Chicago (1969)
- Grimm v. United States (1895)
- Griswold v. Connecticut (1965)
- Griswold, Erwin
- Grosjean v. American Press Co. (1936)
- Group Libel
- Grove Press v. Gerstein (1964)
- Grove Press v. Maryland State Board of Censors (1971)
- Gurfein, Murray Irwin
- Hague v. Committee for Industrial Organization (1939)
- Haig v. Agee (1981)
- Hair Length and Style
- Halter v. Nebraska (1907)
- Hamilton v. Regents of the University of California (1934)
- Hamilton, Alexander
- Hamling v. United States (1974)
- Hand, Learned
- Hannegan v. Esquire (1946)
- Harisiades v. Shaughnessy (1952)
- Harlan, John Marshall, I
- Harlan, John Marshall, II
- Harmful to Minors Laws
- Harper and Row v. Nation Enterprises (1985)
- Harper v. Poway Unified School District (9th Cir. 2006)
- Harte-Hanks Communications v. Connaughton (1989)
- Hartman v. Moore (2006)
- Hartzel v. United States (1944)
- Hatch Act of 1939
- Hate Speech
- Hay, George
- Haynes, Charles C.
- Hays, Arthur Garfield
- Hazelwood School District v. Kuhlmeier (1988)
- Headlight Flashing
- Healy v. James (1972)
- Heckler’s Veto
- Heffron v. International Society for Krishna Consciousness (1981)
- Hefner, Hugh
- Hein v. Freedom from Religion Foundation (2007)
- Heller v. New York (1973)
- Hennington v. Georgia (1896)
- Henry v. Collins (1965)
- Henry, Patrick
- Hentoff, Nat
- Herbert v. Lando (1979)
- Hernandez v. Commissioner of Internal Revenue (1989)
- Herndon v. Lowry (1937)
- Hess v. Indiana (1973)
- Hicklin Test
- Hill v. Colorado (2000)
- Hirsh v. City of Atlanta (1990)
- Hit Man Manual
- Hobbie v. Unemployment Appeals Commission of Florida (1987)
- Holidays, Religious
- Hollywood Ten
- Holmes, Oliver Wendell, Jr.
- Holocaust Denial
- Hoover, J. Edgar
- Horn Honking
- Hosty v. Carter (7th Cir. 2005)
- Hotel and Restaurant Employees’ International Alliance v. Wisconsin Employment Relations Board (1942)
- Houchins v. KQED (1978)
- House Un-American Activities Committee
- Hudgens v. National Labor Relations Board (1976)
- Hughes v. Superior Court of California (1950)
- Hughes, Charles Evans
- Hunt v. McNair (1973)
- Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995)
- Hustler Magazine v. Falwell (1988)
- Hutchinson v. Proxmire (1979)
- Hutchinson, Anne
- Hynes v. Mayor of Oradell (1976)
- Ibanez v. Florida Department of Business and Professional Regulation Board (1994)
- Illinois ex rel. Madigan v. Telemarketing Associates, Inc. (2003)
- Illinois ex rel. McCollum v. Board of Education (1948)
- Illinois State Board of Elections v. Socialist Workers Party (1979)
- Indecency and the Electronic Media
- Indian Appropriations Act of 1896
- Ingersoll, Robert
- In God We Trust
- In re Anastaplo (1961)
- In re Primus (1978)
- In re R.M.J. (1982)
- In re Rapier (1892)
- In re Sawyer (1959)
- In re Stolar (1971)
- In re Summers (1945)
- Intelligent Design
- Internal Security Act of 1950
- International Association of Machinists v. Street (1961)
- International Brotherhood of Electrical Workers v. National Labor Relations Board (1951)
- International Brotherhood of Teamsters Union v. Hanke (1950)
- International Brotherhood of Teamsters Union v. Vogt (1957)
- International Religious Freedom Act of 1998
- International Society for Krishna Consciousness v. Lee (1992)
- Interstate Circuit, Inc. v. Dallas (1968)
- Issue Advocacy
- Jackson, Robert H.
- Jacobellis v. Ohio (1964)
- Jamison v. Texas (1943)
- Jefferson, Thomas
- Jehovah’s Witnesses
- Jenkins v. Georgia (1974)
- Jenness v. Fortson (1971)
- Jimmy Swaggart Ministries v. Board of Equalization of California (1990)
- Johanns v. Livestock Marketing Association (2005)
- Johnson v. Avery (1969)
- Johnson v. Robison (1974)
- Joint Anti-Fascist Refugee Committee v. McGrath (1951)
- Jones v. City of Opelika (1942) (1943)
- Jones v. North Carolina Prisoners’ Union (1977)
- Jones v. Wolf (1979)
- Judicial Campaign Speech
- Kalven, Harry, Jr.
- Kaplan v. California (1973)
- Karlan v. City of Cincinnati (1974)
- Katzev v. County of Los Angeles (Cal. 1959)
- Kedroff v. Saint Nicholas Cathedral (1952)
- Keller v. State Bar of California (1990)
- Kelley v. Johnson (1976)
- Kennedy, Anthony M.
- Keyishian v. Board of Regents (1967)
- Kimm v. Rosenberg (1960)
- Kingsley Books, Inc. v. Brown (1957)
- Kingsley International Pictures v. Board of Regents (1959)
- Kinoy, Arthur
- Kleindienst v. Mandel (1972)
- Konigsberg v. State Bar (1961)
- Kovacs v. Cooper (1949)
- Kozinski, Alex
- Ku Klux Klan
- Kunstler, William
- Kunz v. New York (1951)
- Laird v. Tatum (1972)
- Lamb’s Chapel v. Center Moriches Union Free School District (1993)
- Lamont v. Postmaster General (1965)
- Landmark Communications, Inc. v. Virginia (1978)
- Largent v. Texas (1943)
- Larkin v. Grendel’s Den, Inc. (1982)
- Larson v. Valente (1982)
- The Last Temptation of Christ
- Late Corporation of the Church of Jesus Christ of Latter-day Saints v. United States (1890)
- Lavine v. Blaine School District (9th Cir. 2001)
- Lawson, Evan
- Law Student Research Council v. Wadmond (1971)
- Leach v. Carlile (1922)
- Least Restrictive Means
- Leathers v. Medlock (1991)
- Lee v. International Society for Krishna Consciousness (1992)
- Lee v. Weisman (1992)
- Lee Art Theatre v. Virginia (1968)
- Legal Services Corp. v. Velazquez (2001)
- Lehman v. City of Shaker Heights (1974)
- Lehnert v. Ferris Faculty Association (1991)
- Leland, John
- Lemon v. Kurtzman (1971)
- Lemon v. Kurtzman (1973)
- Lemon Test
- Levitt v. Committee for Public Education and Religious Liberty (1973)
- Levy, Leonard
- Lewis v. City of New Orleans (1974)
- Lewis Publishing Company v. Morgan (1913)
- Libel and Slander
- Liberty Legal Institute
- Liberty Model
- Libraries and Intellectual Freedom
- License Plates
- Licensing Laws
- Lilburne, John
- Liles v. Oregon (1976)
- Lincoln, Abraham
- Lincoln Federal Labor Union v. Northwestern Iron and Metal Co. (1949)
- Linmark Associates, Inc. v. Township of Willingboro (1977)
- Linn v. United Plant Guard Workers of America (1966)
- Lloyd Corporation, Ltd. v. Tanner (1972)
- Locke v. Davey (2004)
- Locke, John
- Loitering Laws
- Lo-Ji Sales, Inc. v. New York (1979)
- London, Ephraim
- Lorain Journal Co. v. United States (1951)
- Lorillard Tobacco Co. v. Reilly (2001)
- Los Angeles Police Department v. United Reporting Publishing Co. (1999)
- Louisiana ex rel. Gremillion v. NAACP (1961)
- Lovejoy, Elijah
- Lovell v. City of Griffin (1938)
- Lowe v. Securities and Exchange Commission (1985)
- Loyalty Oaths
- Lucas v. Arkansas (1974)
- Lynch v. Donnelly (1984)
- Lyng v. International Union, UAW (1988)
- Lyng v. Northwest Indian Cemetery Protective Association (1988)
- Lyon, Matthew
- Mabee v. White Plains Publishing Co. (1946)
- MacKinnon, Catharine
- Madigan v. Telemarketing Associates, Inc. (2003)
- Madison, James
- Madsen v. Women’s Health Center, Inc. (1994)
- Magna Carta
- Mann, Horace
- Manual Enterprises v. Day (1962)
- Mapplethorpe, Robert
- Marcus v. Search Warrant (1961)
- Marketplace of Ideas
- Marks v. United States (1977)
- Marsh v. Alabama (1946)
- Marsh v. Chambers (1983)
- Marshall, John
- Marshall, Thurgood
- Martin v. City of Struthers (1943)
- Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg (1970)
- Maryland Toleration Act of 1649
- Mason, George
- Massachusetts v. Oakes (1989)
- Masses Publishing Co. v. Patten (S.D.N.Y. 1917)
- Masson v. New Yorker Magazine (1991)
- Mayflower Compact
- McAuliffe v. Mayor of New Bedford (Mass. 1892)
- McCain Feingold Act
- McCarran Act of 1950
- McCollum v. Board of Education (1948)
- McConnell v. Federal Election Commission (2003)
- McConnell, Michael
- McCreary County v. American Civil Liberties Union (2005)
- McDaniel v. Paty (1978)
- McDonald v. Smith (1985)
- McGowan v. Maryland (1961)
- McIntyre v. Ohio Elections Commission (1995)
- McKinney v. Alabama (1976)
- McMasters, Paul K.
- Media Concentration
- Media Exemption to Antitrust Laws
- Media Institute
- Media Law Resource Center
- Meek v. Pittenger (1975)
- Meese v. Keene (1987)
- Meiklejohn, Alexander
- Melton v. Young (6th Cir. 1972)
- Membership Lists
- Memoirs v. Massachusetts (1966)
- “Memorial and Remonstrance”
- Metro Broadcasting, Inc. v. Federal Communications Commission (1990)
- Metromedia, Inc. v. City of San Diego (1981)
- Meyer v. Grant (1988)
- Meyer v. Nebraska (1923)
- Miami Herald Publishing Co. v. Tornillo (1974)
- Military Personnel, Rights of
- Milkovich v. Lorain Journal Co. (1990)
- Milk Wagon Drivers Union v. Meadowmoor (1941)
- Mill, John Stuart
- Miller v. California (1973)
- Miller, Arthur
- Miller, Judith
- Mills v. Alabama (1966)
- Milton, John
- Minarcini v. Strongsville City School District (6th Cir. 1976)
- Minersville School District v. Gobitis (1940)
- Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983)
- Minnesota Board for Community Colleges v. Knight (1984)
- Mishkin v. New York (1966)
- Mitchell v. Helms (2000)
- Monitor Patriot Co. v. Roy (1971)
- Morrill Anti-bigamy Act of 1862
- Morse v. Frederick (2007)
- Motion Picture Ratings
- Mount Healthy City School District Board of Education v. Doyle (1977)
- Movies, Presentation of Issues in
- Mueller v. Allen (1983)
- Municipality of Ponce v. Roman Catholic Apostolic Church in Porto Rico (1908)
- Munro v. Socialist Workers Party (1986)
- Murdock v. Pennsylvania (1943)
- Murphy v. Ramsey (1885)
- Murphy, Francis W.
- Murphy, Paul L.
- Murray v. Curlett (1963)
- Murray, John Courtney
- Murrow, Edward R.
- Music Censorship
- Congressional Measures
- Must-Carry Rules
- Mutual Film Corp. v. Industrial Commission of Ohio (1915)
- NAACP v. Alabama (1958)
- NAACP v. Button (1963)
- NAACP v. Claiborne Hardware Co. (1982)
- Narrowly Tailored Laws
- National Broadcasting Co. v. United States (1943)
- National Coalition Against Censorship
- National Do Not Call Registry
- National Endowment for the Arts v. Finley (1998)
- National Identification Cards
- National Labor Relations Board v. Catholic Bishop of Chicago (1979)
- National Labor Relations Board v. Fruit and Vegetable Packers (1964)
- National Labor Relations Board v. Virginia Electric and Power (1941)
- National Organization for Women v. Scheidler (1994)
- National Prayer Breakfast
- National Press Club
- National Security
- National Society of Professional Engineers v. United States (1978)
- Native Americans
- Natural Law
- Natural Rights
- Near v. Minnesota (1931)
- Nebraska Press Association v. Stuart (1976)
- Neutrality, Religion
- Neutrality, Speech
- Neutral Reportage Privilege
- Newspaper Preservation Act of 1970
- New York v. Cathedral Academy (1977)
- New York v. Ferber (1982)
- New York v. P.J. Video, Inc. (1986)
- New York ex rel. Bryant v. Zimmerman (1928)
- New York State Club Association, Inc. v. City of New York (1988)
- New York State Liquor Authority v. Bellanca (1981)
- New York Times Co. v. Sullivan (1964)
- New York Times Co. v. United States (1971)
- Niemotko v. Maryland (1951)
- Nike v. Kasky (2003)
- Nimmer, Melville B.
- Nixon v. Shrink Missouri Government PAC (2000)
- Nixon, Richard M.
- Nizer, Louis
- Noerr-Pennington Doctrine
- Norman v. Reed (1992)
- Northwest Ordinance of 1787
- Norton v. Discipline Committee of East Tennessee State University (1970)
- Norwood v. Harrison (1973)
- Nostrand v. Little (1960)
- Noto v. United States (1961)
- NOW v. Scheidler (2006)
- Nude Dancing
- Obscenity and Pornography
- Ocala Star-Banner Co. v. Damron (1971)
- O’Connor v. Washburn University (10th Cir. 2005)
- O’Connor, Sandra Day
- Oh! Calcutta!
- O’Hair, Madalyn Murray
- O’Hare Truck Service v. City of Northlake (1996)
- Ohralik v. Ohio State Bar Association (1978)
- Oklahoma Press Publishing Co. v. Walling (1946)
- Oklahoma Publishing Co. v. Oklahoma County District Court (1977)
- Old Deluder Satan Act of 1647
- O’Lone v. Estate of Shabazz (1987)
- One, Inc. v. Olesen (9th Cir. 1957)
- O’Neil, Robert M.
- On Liberty
- Open Meeting Laws and Freedom of Speech
- Order of St. Benedict v. Steinhauser (1914)
- Organization for a Better Austin v. Keefe (1971)
- Original Intent
- Osborne v. Ohio (1990)
- Overton v. Bazzetta (2003)
- Pacific Gas and Electric Co. v. Public Utilities Commission (1986)
- Paine, Thomas
- Palko v. Connecticut (1937)
- Palmer, A. Mitchell
- Palmer Raids
- Panhandling Laws
- Papish v. Board of Curators of the University of Missouri (1973)
- Paris Adult Theatre I v. Slaton (1973)
- Parker v. Levy (1974)
- Patriot Act
- Patterson v. Colorado (1907)
- Paulson, Ken
- Peel v. Attorney Disciplinary Commission of Illinois (1990)
- Pell v. Procunier (1974)
- PEN American Center
- Penn, William
- Pennekamp v. Florida (1946)
- Pennsylvania v. Nelson (1956)
- Pentagon Papers
- People v. Croswell (N.Y. 1804)
- People v. Phillips (N.Y. 1813)
- People v. Ruggles (N.Y. 1811)
- People for the American Way
- Perez v. Ledesma (1971)
- Permoli v. New Orleans (1845)
- Perry v. Sindermann (1972)
- Perry Education Association v. Perry Local Educators’ Association (1983)
- Personal Responsibility and Work Opportunity Reconciliation Act of 1996
- Pfeffer, Leo
- Pfeiffer v. Board of Education (Mich. S. Ct. 1898)
- Phelps, Fred
- Philadelphia Newspapers, Inc. v. Hepps (1986)
- Phillips et al. (Simon’s Executors) v. Gratz (Pa. 1831)
- Pickering v. Board of Education (1968)
- Pierce v. Society of Sisters (1925)
- Pierce v. United States (1920)
- Pinkus v. United States (1978)
- Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973)
- Planned Parenthood of the Columbia/Williamette, Inc. v. American Coalition of Life Activists (9th Cir. 2002)
- Pledge of Allegiance
- Police Department of Chicago v. Mosley (1972)
- Policinski, Gene
- Political Correctness
- Political Parties
- Political Patronage
- Pollak, Walter
- Pope v. Illinois (1987)
- Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986)
- Posner, Richard A.
- Poulos v. New Hampshire (1953)
- Powell, Lewis F., Jr.
- Prayer at Public Events
- Prayer at Public School Events
- Preferred Position Doctrine
- Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969)
- President’s Task Force on Communications Policy
- Press-Enterprise Co. v. Superior Court of California (1984)(1986)
- Prettyman, E. Barrett, Jr.
- Priestley, Joseph
- Priest-Penitent Privilege
- Prince v. Massachusetts (1944)
- Printing Ordinance of 1643
- Prior Restraint
- Private Property, Expression on
- Proclamations of National Days of Prayer or Thanksgiving
- Procunier v. Martinez (1974)
- Protection of Children against Sexual Exploitation Act of 1977
- Protests in Neighborhoods
- Prudential Insurance Co. of America v. Cheek (1922)
- PruneYard Shopping Center v. Robins (1980)
- Prynne, William
- Public Buildings and Religious Use
- Public Employees
- Public Figures and Officials
- Public Forum Doctrine
- Public Health Cigarette Smoking Act of 1969
- Publicity, Right of
- Public Nudity
- Public Radio
- Public Television
- Public Utilities Commission v. Pollak (1952)
- Quebec Act of 1774
- Quick Bear v. Leupp (1908)
- R.A.V. v. St. Paul (1992)
- Rabban, David
- Rabe v. Washington (1972)
- Rabeck v. New York (1968)
- Rabinowitz, Victor
- Radio Act of 1912
- Radio Act of 1927
- Railway Employees’ Department v. Hanson (1956)
- Randall v. Sorrell (2006)
- Rankin v. McPherson (1987)
- Rauh, Joseph L., Jr.
- Redish, Martin
- Red Lion Broadcasting Co. v. Federal Communications Commission (1969)
- Redrup v. New York (1967)
- Red Scare
- Reformation, Protestant
- Regan v. Taxation With Representation of Washington (1983)
- Regan v. Time, Inc. (1984)
- Regina v. Hicklin
- Rehnquist, William H.
- Rein, David
- Reindeer Rule
- Released Time
- Religious Discrimination
- Religious Freedom Restoration Act of 1993
- Religious Land Use and Institutionalized Persons Act of 2000
- Religious Liberty and Charitable Donation Protection Act of 1998
- Religious Right
- Religious Tests
- Reno v. American Civil Liberties Union (1997)
- Reporters Committee for Freedom of the Press
- Reporters’ Privilege
- Republican Party of Minnesota v. White (2002)
- Reynolds v. United States (1879)
- Richardson v. Goddard (1859)
- Richmond Newspapers, Inc. v. Virginia (1980)
- RICO Laws
- Right to Respond
- Riley v. National Federation of the Blind (1988)
- Roaden v. Kentucky (1973)
- Roberts v. United States Jaycees (1984)
- Roberts, John G., Jr.
- Roberts, Owen J.
- Roemer v. Bd. of Public Works of Maryland (1976)
- Romantic and Transcendental Movements
- Rosen v. United States (1896)
- Rosenberger v. Rectors and Visitors of the University of Virginia (1995)
- Rosenblatt v. Baer (1966)
- Rosenbloom v. Metromedia, Inc. (1971)
- Rosenfeld v. New Jersey (1972)
- Roth v. United States (1957)
- Rowan v. U.S. Post Office Department (1970)
- Rubin v. Coors Brewing Co. (1995)
- Rumsfeld v. Forum for Academic and Institutional Rights (2006)
- Rust v. Sullivan (1991)
- Rutan v. Republican Party of Illinois (1990)
- Ruthenberg v. Michigan (1927)
- Rutherford Institute
- Sable Communications of California v. Federal Communications Commission (1989)
- Sack, Robert D.
- Safety Valve Theory
- Saia v. New York (1948)
- St. Amant v. Thompson (1968)
- Salem Witch Trials
- Samuels v. Mackell (1971)
- Sanford, Bruce
- San Francisco Arts and Athletics v. U.S. Olympic Committee (1987)
- Santa Fe Independent School District v. Doe (2000)
- Sawyer, Henry W., III
- Saxbe v. Washington Post Co. (1974)
- Scales v. United States (1961)
- Scalia, Antonin
- Scarcity Rationale
- Schacht v. United States (1970)
- Schad v. Mount Ephraim (1981)
- Schaefer v. United States (1920)
- Schauer, Frederick
- Schaumburg v. Citizens for a Better Environment (1980)
- Scheidler v. National Organization for Women (2006)
- Schenck v. Pro-Choice Network of Western New York (1997)
- Schenck v. United States (1919)
- Schneider v. State (1939)
- School Violence
- School Vouchers
- Schroeder, Theodore
- Scopes Monkey Trial
- Seattle Times Co. v. Rhinehart (1984)
- Secondary Effects Doctrine
- Secretary of State of Maryland v. Joseph H. Munson Co., Inc. (1984)
- Secretary of the Navy v. Avrech (1974)
- Secretary of the Navy v. Huff (1980)
- Securities and Exchange Commission
- Sedition Act of 1798
- Sedition Act of 1918
- Seditious Libel
- Seigenthaler, John
- Sekulow, Jay Alan
- Selective Draft Law Cases (1918)
- Self-government Rationale
- Senn v. Tile Layers Protective Union (1937)
- Separation of Church and State
- Serbian Eastern Orthodox Diocese v. Milivojevich (1976)
- Seres v. Lerner (Nev. 2004)
- Settle v. Dickson County School Board (6th Cir.1995)
- Seven Dirty Words
- Seventh-day Adventists
- Sexual Harassment Laws
- Shapero v. Kentucky Bar Association (1988)
- Shaw v. Murphy (2001)
- Shelton v. Tucker (1960)
- Sheppard v. Maxwell (1966)
- Sherbert v. Verner (1963)
- Shield Laws
- Shuttlesworth v. Birmingham (1969)
- Sicurella v. United States (1955)
- Sidney, Algernon
- Simon and Schuster v. Members of the New York State Crime Victims Board (1991)
- Simon’s Executors v. Gratz
- Sirkin, H. Louis
- SLAPP Suits
- Slaughterhouse Cases (1873)
- Sloan v. Lemon (1973)
- Smith v. Arkansas State Highway Employees (1979)
- Smith v. California (1959)
- Smith v. Daily Mail Publishing Co. (1979)
- Smith v. Goguen (1974)
- Smith v. United States (1977)
- Smith, Joseph
- Smith Act of 1940
- Smolla, Rodney A.
- Smothers Brothers Comedy Hour
- Snake Handling
- Snepp v. United States (1980)
- Solomon Amendment
- Son of Sam Laws
- Souter, David H.
- Southeastern Promotions, Ltd. v. Conrad (1975)
- Specialty License Plates
- Speech and Debate Clause
- Speiser v. Randall (1958)
- Speiser, Lawrence
- Spence v. Washington (1974)
- Spies v. Illinois (Ill. 1887)
- Sports Logos and Mascots
- Stamp Act of 1765
- Stanford v. Texas (1965)
- Stanley v. Georgia (1969)
- Star Chamber
- State v. Chandler (Del. 1837)
- State v. Gruber (Md., Cty. Ct., 1819)
- State v. McKee (Conn. 1900)
- State v. Willson (S.C. App. 1823)
- State Constitutional Provisions on Expressive Rights
- State Constitutional Provisions on Religion
- State ex rel. Weiss v. City of Edgerton (Wis. 1890)
- Staub v. City of Baxley (1958)
- Stern, Howard
- Stevens, John Paul
- Stewart v. McCoy (2002)
- Stewart, Potter
- Stone v. Graham (1980)
- Stone, Geoffrey R.
- Stone, Harlan Fiske
- Storer v. Brown (1974)
- Story, Joseph
- Street v. New York (1969)
- Strict Scrutiny
- Stromberg v. California (1931)
- Student Activity Fees
- Student Press Law Center
- Students, Rights of
- Students for a Democratic Society
- Subversive Activities Control Act of 1950
- Sugarman v. United States (1919)
- Sunday Blue Laws
- Sunday Mail
- Sunshine Acts, Federal and State
- Superior Films v. Department of Education (1954)
- Swearingen v. United States (1896)
- Sweezy v. New Hampshire (1957)
- Symbolic Speech
- Taft, William Howard
- Taft-Hartley Act of 1947
- Talley v. California (1960)
- Tashjian v. Republican Party of Connecticut (1986)
- Taxation of Newspapers
- Taxation of Religious Entities
- Taylor v. Mississippi (1943)
- Teachers, Rights of
- Teitel Film Corp. v. Cusack (1968)
- Telecommunications Act of 1996
- Ten Commandments
- Tennessee Secondary School Athletic Association v. Brentwood Academy (2007)
- Terminiello v. Chicago (1949)
- Terrett v. Taylor (1815)
- Texas v. Johnson (1989)
- Texas Monthly, Inc. v. Bullock (1989)
- Thomas v. Board of Education, Granville (2d Cir. 1979)
- Thomas v. Chicago Park District (2002)
- Thomas v. Collins (1945)
- Thomas v. Review Board of Indiana Employment Security Division (1981)
- Thomas, Clarence
- Thomas Jefferson Center for the Protection of Free Expression
- Thompson v. Western States Medical Center (2002)
- Thornburgh v. Abbott (1989)
- Thornhill v. Alabama (1940)
- Thornton v. Caldor (1985)
- Threats on Life of President or Other Public Officials
- Tillman Act of 1907
- Tilton v. Richardson (1971)
- Time, Inc. v. Firestone (1976)
- Time, Inc. v. Hill (1967)
- Time, Inc. v. Pape (1971)
- Time, Place, and Manner Restrictions
- Times Film Corp. v. City of Chicago (1961)
- Times Square
- Timmons v. Twin Cities Area New Party (1997)
- Tinker v. Des Moines Independent Community School District (1969)
- Tobacco Advertising
- Tocqueville, Alexis de
- Toledo Newspaper Co. v. United States (1918)
- Tolerance Theory
- Tony and Susan Alamo Foundation v. Secretary of Labor (1985)
- Torcaso v. Watkins (1961)
- Tort Liability of Religious Groups
- Tory v. Cochran (2005)
- Trans World Airlines v. Hardison (1977)
- Tribe, Laurence
- True Threats
- Trustees of Philadelphia Baptist Association v. Hart’s Executors (1819)
- Tucker v. Texas (1946)
- Turner v. Safley (1987)
- Turner Broadcasting System, Inc. v. Federal Communications Commission (1994) (1997)
- Two Guys from Harrison-Allentown, Inc. v. McGinley (1961)
- 2 Live Crew
- Unconstitutional Conditions Doctrine
- United Association of Journeymen Plumbers and Steamfitters v. Graham (1953)
- United Mine Workers of America, District 12 v. Illinois State Bar Association (1967)
- United Public Workers of America v. Mitchell (1947)
- United States v. Albertini (1985)
- United States v. American Library Association (2003)
- United States v. Auto Workers (1957)
- United States v. Ballard (1944)
- United States v. Congress of Industrial Organizations (1948)
- United States v. Cruikshank (1876)
- United States v. Edge Broadcasting Co. (1993)
- United States v. Eichman (1990)
- United States v. Grace (1983)
- United States v. Harriss (1954)
- United States v. Hudson and Goodwin (1812)
- United States v. Kokinda (1990)
- United States v. Lee (1982)
- United States v. Macintosh (1931)
- United States v. Morison (4th Cir. 1988)
- United States v. National Treasury Employees Union (1995)
- United States v. O’Brien (1968)
- United States v. Orito (1973)
- United States v. Playboy Entertainment Group (2000)
- United States v. Press Publishing Co. (1911)
- United States v. Reidel (1971)
- United States v. Robel (1967)
- United States v. Rumely (1953)
- United States v. Schwimmer (1929)
- United States v. Seeger (1965)
- United States v. Smith (Ind. 1909)
- United States v. The Progressive (W.D. Wis. 1979)
- United States v. Thirty-seven Photographs (1971)
- United States v. Twelve 200-Ft. Reels of Film (1973)
- United States v. United Foods, Inc. (2001)
- United States v. Williams (2008)
- United States Civil Service Commission v. National Association of Letter Carriers (1973)
- United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson (1921)
- United States ex rel. Turner v. Williams (1904)
- United States Postal Service
- United States Postal Service v. Greenburgh Civic Associations (1981)
- United Steelworkers of America v. Sadlowski (1982)
- United Transportation Union v. State Bar of Michigan (1971)
- University of Pennsylvania v. EEOC (1990)
- Updegraph v. Commonwealth (Pa. 1824)
- Uphaus v. Wyman (1959) (1960)
- USA Patriot Act of 2001
- W.E.B. DuBois Clubs of America v. Clark (1967)
- Walker v. City of Birmingham (1967)
- Wallace v. Jaffree (1985)
- Wall of Separation
- Walz v. Tax Commission of the City of New York (1970)
- Ward v. Rock against Racism (1989)
- Ward, Nathaniel
- Warren, Earl
- Washington, George
- Watchtower Bible and Tract Society v. Village of Stratton (2002)
- Waters v. Churchill (1994)
- Watkins v. United States (1957)
- Watson v. Jones (1871)
- Watts v. United States (1969)
- Wayte v. United States (1985)
- Webster, Noah
- Wechsler, Herbert
- Weinberger, Harry
- Welsh v. United States (1970)
- West v. Derby Unified School District (10th Cir. 2000)
- West Virginia State Board of Education v. Barnette (1943)
- Wheaton v. Peters (1834)
- White v. Nicholls (1845)
- White, Byron R.
- Whitehill v. Elkins (1967)
- Whitney v. California (1927)
- Widmar v. Vincent (1981)
- Wieman v. Updegraff (1952)
- Wilkes, John
- Wilkinson v. United States (1961)
- Williams v. Rhodes (1968)
- Williams, Elisha
- Williams, Roger
- Wilson v. Layne (1999)
- Winters v. New York (1948)
- Winthrop, John
- Wireless Ship Act of 1910
- Wiretapping and Freedom of Expression
- Wisconsin v. Mitchell (1993)
- Wisconsin v. Yoder (1972)
- Witherspoon, John
- Witters v. Washington Department of Services for the Blind (1986)
- Wolff v. McDonnell (1974)
- Wolman v. Walter (1977)
- Wolston v. Reader’s Digest Association (1979)
- Wood v. Georgia (1962)
- Wooley v. Maynard (1977)
- Workplace Religious Freedom Act
- World War I
- World War II
- Wortman, Tunis
- Wright, J. Skelly
- Wulf, Melvin
- Yates v. United States (1957)
- Yellow Journalism
- Young v. American Mini Theatres (1976)
- Younger v. Harris (1971)
- Zacchini v. Scripps-Howard Broadcasting Co. (1977)
- Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985)
- Zelman v. Simmons-Harris (2002)
- Zemel v. Rusk (1965)
- Zenger, John Peter
- Zeran v. America Online, Inc. (4th Cir. 1997)
- Zobrest v. Catalina Foothills School District (1993)
- Zoning Laws
- Zorach v. Clauson (1952)
- Zurcher v. Stanford Daily (1978)
- Zwickler v. Koota (1967)
APPENDIXOnline Resources on the First AmendmentDecisions
The full text of Supreme Court First Amendment decisions can be found online. One can also listen to oral arguments from historic cases via the Web. The following sites are among the best.
Cornell University Law School Legal Information Institute
The Legal Information Institute’s Web site is popular because it is so easy to use. It offers the full text of all Supreme Court decisions from May 1990 to the present. Decisions are posted the day the Court releases them and can be accessed by using the name of the first party, the name of the second party, keyword, date, or other variables.
The site also provides nearly 600 historic Supreme Court decisions dating to the Court’s beginnings and concerning such topics as abortion, administrative law, copyright, patent law, school prayer, and trademarks. These cases can be accessed by topic, party name, or opinion author. The site also carries the full text of the Supreme Court rules, the Court calendar for the current term, the schedule of oral arguments, biographical data about former and sitting justices, and a glossary of legal terms.
FindLaw, a legal publisher, provides the full text of all Supreme Court decisions from 1893 to the present. Its database can be browsed by year and U.S. Reports volume number, as well as by citation, case title, and keywords. The decisions are in HTML, and many contain hyperlinks to citations from previous decisions. The Web site also offers the full text of the U.S. Constitution, with annotations by the Congressional Research Service.
Oyez: U.S. Supreme Court Media
Oyez, operated by Northwestern University, offers recordings of oral arguments from approximately 1,000 Supreme Court cases. Its database can be searched by title, citation, subject, and date. For each case, the site also provides text highlighting the facts of the case, the constitutional question involved, and the Court’s conclusion. The recordings are digitized from tapes held by the National Archives. Listening to the cases requires RealAudio. Oyez provides a link for free download of the software.Primary Documents
Documents pertaining to the First Amendment are easily accessible through several excellent Web sites. The list of primary sources below is by no means comprehensive, but a starting point for anyone interested in digging deeper into the origins of the First Amendment and its development. The sites also include correspondence between seminal figures of the founding generation, important legal and philosophical sources that informed them, and debates at the Constitutional Convention and in the First Congress.
The Avalon Project at Yale Law School
The Avalon Project at Yale Law School provides access to primary source materials in the fields of law, history, economics, politics, diplomacy, and government.
The Constitution Society
The Constitution Society is a private, nonprofit organization dedicated to research and public education on the principles of constitutional republican government. Its Web site is an excellent source for links to original documentation on the First Amendment.
The Founders Constitution
The Founders Constitution is a Web edition of the acclaimed five-volume set of the same name. It is a joint venture of the University of Chicago Press and the Liberty Fund.
Library of Congress American Memory Collection
“A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774–1875” consists of a linked set of published congressional records from the Continental Congress through the 43rd Congress.
“Documents from the Continental Congress and the Constitutional Convention, 1774–1789” is another valuable source for original documents.Other Historical Documents
Debates on the Bill of Rights (1789)
Massachusetts Constitution of 1780
“Memorial and Remonstrance”
Virginia Statute for Religious FreedomSelect Bibliography
Abraham, Henry J., and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed. Lawrence: University Press of Kansas, 2003.
Abrams, Floyd. Speaking Freely: Trials of the First Amendment. New York: Viking, 2005.
Alley, Robert S. School Prayer: The Court, the Congress, and the First Amendment. Buffalo, N.Y.: Prometheus Books, 1994.
———. The Supreme Court on Church and State. New York: Oxford University Press, 1988.
Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven, Conn.: Yale University Press, 1998.
Anastaplo, George. Reflections on Freedom of Speech and the First Amendment. Lexington: University of Kentucky Press, 2007.
Baker, C. Edwin. Human Liberty and Freedom of Speech. New York: Oxford University Press, 1989.
Berg, Thomas C., ed. The Free Exercise of Religion Clause: The First Amendment. Its Constitutional History and the Contemporary Debate. Amherst, N.Y.: Prometheus Books, 2008.
Berns, Walter. The First Amendment and the Future of American Democracy. New York: Basic Books, 1976.
Bollinger, Lee C. The Tolerant Society: Freedom of Speech and Extremist Speech in America. New York: Oxford University Press, 1986.
Bork, Robert H. “Neutral Principles and Some First Amendment Problems.” Indiana Law Journal 47 (1971).
Boyer, Paul S. Purity in Print: The Vice-Society Movement and Book Censorship in America. New York: Charles Scribner’s Sons, 1968.
Chafee, Zechariah, Jr. Freedom of Speech in the United States. Cambridge, Mass.: Harvard University Press, 1941.
Cleary, Edward. Beyond the Burning Cross: The First Amendment and the Landmark R.A.V. Case. New York: Random House, 1994.
Cord, Robert. Separation of Church and State: Historical Fact and Current Fiction. New York: Lambeth Press, 1982.
Cox, Archibald. Freedom of Expression. Cambridge, Mass.: Harvard University Press, 1981.
Curtis, Michael Kent. Free Speech: The People’s Darling Privilege. Durham, N.C.: Duke University Press, 2000.
Davis, Derek H. Religion and the Continental Congress, 1774–1789. New York: Oxford University Press, 2000.
De Grazia, Edward. Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius. New York: Random House, 1992.
Dierenfeld, Bruce J. The Battle over School Prayer: How Engel v. Vitale Changed America. Lawrence: University of Kansas Press, 2007.
Dollimore, Jonathan. Sex, Literature and Censorship. Cambridge: Polity Press, 2001.
Downs, Donald Alexander. Nazis in Skokie: Freedom, Community, and the First Amendment. South Bend, Ind.: University of Notre Dame Press, 1985.
Dudley, William, ed. The Bill of Rights: Opposing Viewpoints. San Diego: Greenhaven Press, 1994.
Dumbauld, Edward. The Bill of Rights and What It Means Today. Norman: University of Oklahoma Press, 1957.
Earle, Edward Mead. Introduction. The Federalist: A Commentary on the Constitution of the United States. New York: Modern Library, 1941.
Ellis, Richard J. To the Flag: The Unlikely History of the Pledge of Allegiance. Lawrence: University Press of Kansas, 2005.
Emerson, Thomas. A System of Free Expression. New York: Vintage Books, 1970.
———. Toward a General Theory of the First Amendment. New York: Vintage Books, 1966.
Ernst, Morris L., and Alexander Lindey. The Censor Marches On: Recent Milestones in the Administration of Obscenity Law in the United States. New York: Doubleday, 1940.
Finan, Christopher M. From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America. Boston: Beacon Press, 2007.
Fish, Stanley. There’s No Such Thing as Free Speech and It’s a Good Thing, Too. Oxford: Oxford University Press, 1994.
Fiss, Owen M. Liberalism Divided: Freedom of Speech and the Many Uses of State Power. Boulder, Colo.: Westview Press, 1996.
Gibson, Michael T. “The Supreme Court and Freedom of Expression from 1791 to 1917.” Fordham Law Review 55 (1986): 263–333.
Goines, David Lance. The Free Speech Movement: Coming of Age in the 1960s. Berkeley, Calif.: Ten Speed Press, 1993.
Goldstein, Robert Justin. Desecrating the American Flag: Key Documents of the Controversy from the Civil War to 1995. Syracuse, N.Y.: Syracuse University Press, 1996.
———. Flag Burning and Free Speech: The Case of Texas v. Johnson. Lawrence: University Press of Kansas, 2000.
Gordon, Sarah Barringer. The Mormon Question: Polygamy and Constitutional Conflict in the Nineteenth Century. Chapel Hill: University of North Carolina Press, 2002.
Greenawalt, Kent. Does God Belong in Public Schools? Princeton, N.J.: Princeton University Press, 2004.
———. Establishment and Fairness. Vol. 2 of Religion and the Constitution. Princeton, N.J.: Princeton University Press, 2008.
———. Free Exercise and Fairness. Vol. 1 of Religion and the Constitution. Princeton, N.J.: Princeton University Press, 2006.
Guliuzza, Frank, III. Over the Wall: Protecting Religious Expression in the Public Square. Albany: State University of New York Press, 2000.
Guttman, Amy, ed. Freedom of Association. Princeton, N.J.: Princeton University Press, 1989.
Hajdu, David. The Ten-Cent Plague: The Great Comic-Book Scare and How It Changed America. New York: Farrar, Straus and Giroux, 2008.
Hamburger, Philip. Separation of Church and State. Cambridge, Mass.: Harvard University Press, 2002.
Hasen, Richard L. The Supreme Court and Election Law. New York: New York University Press, 2003.
Haynes, Charles C., Sam Chaltain, and Susan M. Glisson. First Freedoms: A Documentary History of First Amendment Rights in America. New York: Oxford University Press, 2006.
Hentoff, Nat. The First Freedom: The Tumultuous History of Free Speech in America. New York: Delacorte Press, 1980.
———. Free Speech for Me—But Not for Thee: How the American Left and Right Relentlessly Censor Each Other. New York: Harper Collins, 1992.
Holmes, David. The Faith of the Founding Fathers. Oxford: Oxford University Press, 2006.
Hyman, Harold M. To Try Men’s Souls: Loyalty Tests in American History. Berkeley: University of California Press, 1960.
Johnson, John W. The Struggle for Student Rights: Tinker v. Des Moines and the 1960s. Lawrence: University Press of Kansas, 1997.
Kalven, Harry, Jr. The Negro and the First Amendment. Columbus: Ohio State University Press, 1965.
———. A Worthy Tradition: Freedom of Speech in America. New York: Harper and Row, 1988.
Kramnick, Isaac, and R. Laurence Moore. The Godless Constitution: A Moral Defense of the Secular State. Rev. ed. New York: W. W. Norton and Co., 2005.
Kurland, Philip B. Free Speech and Association: The Supreme Court and the First Amendment. Chicago: University of Chicago Press, 1975.
Laband, David, and Deborah Hendry Heindbuch. The History, Politics, and Economics of Sunday Closing Laws. Lanham, Md.: Lexington Books, 1987.
Labunski, Richard. James Madison and the Struggle for the Bill of Rights. New York: Oxford University Press, 2006.
Lampert, Frank. The Founding Fathers and the Place of Religion in America. Princeton, N.J.: Princeton University Press, 2003.
Lane, Robert Wheeler. Beyond the Schoolhouse Gate: Free Speech and the Inculcation of Values. Philadelphia: Temple University Press, 1995.
Larson, Edward J. Summer for the Gods: The Scopes Trial and America’s Continuing Debate over Science and Religion. Cambridge, Mass.: Harvard University Press, 1998.
Levy, Leonard W. Blasphemy: Verbal Offenses against the Sacred, from Moses to Salman Rushdie. Chapel Hill: University of North Carolina Press, 1995.
———. The Establishment Clause: Religion and the First Amendment. Chapel Hill: University of North Carolina Press, 1994.
Lewis, Anthony. Freedom for the Thought That We Hate: A Biography of the First Amendment. New York: Basic Books, 2008.
———. Make No Law: The Sullivan Case and the First Amendment. New York: Vintage, 1992.
MacKinnon, Catherine. Only Words. Cambridge, Mass.: Harvard University Press, 1993.
Martin, Robert W. T. The Free and Open Press: The Founding of American Democratic Press Liberty, 1640–1800. New York: New York University Press, 2001.
Matsuda, Mari. Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Boulder, Colo.: Westview Press, 1993.
McConnell, Michael W. “The Origins and Historical Understanding of Free Exercise of Religion.” Harvard Law Review 103 (1990): 1409–1517.
———. “The Supreme Court’s Earliest Church-State Cases: Windows on Religious-Cultural-Political Conflict in the Early Republic.” Tulsa Law Review 37 (Fall 2001).
Meiklejohn, Alexander. Free Speech and Its Relation to Self Government. New York: Harper Brothers Publishers, 1948.
———. Political Freedom: The Constitutional Powers of the People. New York: Oxford University Press, 1965.
Murphy, Paul. The Meaning of the First Amendment. Westport, Conn.: Greenwood Press, 1972.
———. World War I and the Origin of Civil Liberties. New York: W. W. Norton and Co., 1979.
Nelson, Jack.Captive Voices: High School Journalism in America. New York: Schocken Books, 1974.
Noll, Mark A., and Luke E. Harlow. Religion and American Politics. 2d ed. New York: Oxford University Press, 2007.
O’Neil. Robert M. The First Amendment and Civil Liability. Bloomington: Indiana University Press, 2001.
———. The Rights of Public Employees. 2d ed. Carbondale: Southern Illinois University Press, 1993.
Peters, Shawn Francis. Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution. Lawrence: University Press of Kansas, 2000.
Pfeffer, Leo. Church, State, and Freedom. Boston: Beacon Press, 1953.
Polenberg, Richard. Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech. New York: Viking Press, 1987.
Posner, Richard. Not a Suicide Pact: The Constitution in a Time of National Emergency. New York: Oxford University Press, 2006.
Powe, Lucas A., Jr. The Fourth Estate and the Constitution. Berkeley: University of California Press, 1991.
Rabban, David M. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997.
Redish, Martin. Freedom of Expression: A Critical Analysis. Charlottesville, Va.: Michie, 1984.
Reeves, Richard. What the People Know: Freedom and the Press. Cambridge, Mass.: Harvard University Press, 1999.
Rembar, Charles. The End of Obscenity: The Trials of Lady Chatterley, Tropic of Cancer, and Fanny Hill. New York: Random House, 1968.
Richards, Robert D. Freedom’s Voice: The Perilous Present and Uncertain Future of the First Amendment. Washington, D.C.: Brassey’s, 1998.
Rosenberg, Norman L. Protecting the Best Men: An Interpretative History of the Law of Libel. Chapel Hill: University of North Carolina Press, 1986.
Rosenfeld, Richard N. American Aurora. New York: St. Martin’s Press, 1997.
Ross, William G. Forging New Freedoms: Nativism, Education, and the Constitution, 1917–1927. Lincoln: University of Nebraska Press, 1994.
Sack, Robert D., ed. Sack on Defamation: Libel, Slander, and Related Problems. 3d ed. New York: Practising Law Institute, 1999.
Sanford, Bruce W. Don’t Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us. New York: Free Press, 1999.
Saunders, Kevin W. Violence as Obscenity: Limiting the Media’s First Amendment Protection. Durham, N.C.: Duke University Press, 1996.
———. The Yoder Case: Religious Education, Freedom and Parental Rights. Lawrence: University Press of Kansas, 2003.
Sekulow, Jay. Witnessing Their Faith: Religious Influence on Supreme Court Justices and Their Opinions. Lanham, Md.: Rowman and Littlefield, 2005.
Shiffrin, Steven H. Dissent, Injustice, and the Meanings of America. Princeton, N.J.: Princeton University Press, 1999.
———. The First Amendment, Democracy and Romance. Princeton, N.J.: Princeton University Press, 1993.
Smith, Craig R., and Scott Lybarger. The Ratification of the Bill of Rights, 1789–1791. Long Beach, Calif.: Center for First Amendment Studies, 1991.
Smith, James Morton. Freedom’s Fetters: Alien and Sedition Laws and American Civil Liberties. Ithaca, N.Y.: Cornell University Press, 1956.
Smolla, Rodney A. Free Speech in an Open Society. New York: Alfred A. Knopf, 1992.
———. Jerry Falwell v. Larry Flynt: The First Amendment on Trial. Urbana: University of Illinois Press, 1990.
———. Smolla and Nimmer on Freedom of Speech: A Treatise on the First Amendment. New York: Mathew Bender, 1994.
Sorauf, Frank J. The Wall of Separation. Princeton, N.J.: Princeton University Press, 1976.
Stone, Geoffrey R. “Content-Neutral Restrictions.” University of Chicago Law Review 54 (1987): 46–118.
———. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: W. W. Norton and Co., 2004.
Strossen, Nadine. Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights. New York: Scribner, 1993.
Sullivan, Kathleen, and Gerald Gunther. First Amendment Law. 2d ed. New York: Foundation Press, 2003.
Sunstein, Cass R. Democracy and the Problem of Free Speech. New York: Free Press, 1993.
Tedford, Thomas L., and Dale A. Herbeck. Freedom of Speech in the United States. 5th ed. State College, Penn.: Strata Publishing, 2005.
Van Alstyne, William W. “Academic Freedom and the First Amendment in the Supreme Court of the United States: An Unhurried Historical Review.” Law and Contemporary Problems 53 (1990).
Vile, John R. The Constitutional Convention of 1787: A Comprehensive Encyclopedia of America’s Founding. Santa Barbara, Calif.: ABC-CLIO Press, 2005.
Wagman, Robert J. The First Amendment Book. New York: Pharos Books, 1991.
Weaver, Russell L., and Donald E. Lively. Understanding the First Amendment. New York: Matthew Bender and Co., 2003.