The Changing Landscape of Free Speech: Supreme Court Cases That Shaped American Rights

Jerald Lee Hill
4 min readDec 12, 2024

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The concept of free speech stands at the heart of American democracy, guaranteed by the First Amendment to the U.S. Constitution. However, what constitutes protected speech and where the line is drawn between free expression and harmful conduct has been shaped by numerous Supreme Court rulings throughout American history. From issues of national security to the rise of social media, the Court has faced complex questions about the limits of free speech in an ever-evolving society. This article explores key Supreme Court cases that have defined and reshaped the boundaries of free speech in the United States.

Early Limitations: Schenck v. United States (1919)

In the early 20th century, the United States was dealing with the effects of World War I, and fears of subversion and dissent during wartime led to the first significant restrictions on speech. In Schenck v. United States (1919), the Supreme Court addressed the issue of whether distributing anti-war leaflets during a time of national crisis constituted protected speech. Charles Schenck, a socialist, was arrested for promoting resistance to the draft and encouraging men to avoid military service.

Justice Oliver Wendell Holmes, in a unanimous opinion, upheld Schenck’s conviction. Still, more importantly, he introduced the “clear and present danger” test, which allowed the government to restrict speech that posed a threat to national security or public order. Holmes famously stated that the government could limit free speech when it “presents a clear and present danger of a significant evil that the government has a right to prevent.” This ruling marked the beginning of a legal precedent that justified limiting free speech in specific contexts, especially during wartime.

However, Schenck also laid the foundation for future cases that would refine this approach. Over the years, the Court would grapple with how to balance the need for government control with the protection of free expression.

Brandenburg v. Ohio (1969): Incitement to Violence

By the 1960s, the U.S. had experienced significant social change, and debates over the limits of free speech became even more complex. The case of Brandenburg v. Ohio (1969) is a landmark decision that refined the “clear and present danger” test. Clarence Brandenburg, a Ku Klux Klan leader, was convicted under an Ohio law that prohibited advocating violence or illegal activities. Brandenburg had made a speech during a Klan rally, which was deemed to incite violence.

In a unanimous decision, the Supreme Court overturned Brandenburg’s conviction, ruling that the speech in question was protected under the First Amendment. The Court established a new standard for when speech can be restricted, holding that speech can only be limited if it is directed to inciting “imminent lawless action” and is likely to produce such action. This decision clarified that the government could not restrict speech merely because it advocated violence in the abstract or the future; the speech must call for immediate unlawful acts.

Brandenburg was a critical ruling in expanding free speech protections and emphasized that even speech advocating violence could be protected unless it incited imminent illegal activity.

Tinker v. Des Moines Independent Community School District (1969): Student Speech Rights

The Tinker v. Des Moines case of 1969 marked a critical moment in the legal treatment of free speech in schools. In this case, students in Des Moines, Iowa, were suspended for wearing black armbands to protest the Vietnam War. The students argued that their First Amendment rights had been violated, while the school district contended that the armbands disrupted the educational environment.

The Supreme Court ruled in favor of the students, affirming that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court held that students could express their opinions so long as their speech did not materially disrupt school operations. This decision was significant because it extended First Amendment protections to public school students, affirming their right to engage in political protest and express dissent within the educational setting.

Tinker has since been a landmark case in discussions about the balance between student rights and the authority of school administrators, and it continues to be cited in cases involving student speech today.

Citizens United v. Federal Election Commission (2010): Corporate Speech and Political Influence

A more recent case that has generated widespread debate is Citizens United v. Federal Election Commission (2010), which addressed the role of corporations in political speech. The case revolved around a nonprofit corporation’s challenge to federal restrictions on corporate spending in elections. The Supreme Court ruled that corporate funding of independent political broadcasts in candidate elections cannot be limited under the First Amendment.

In a 5–4 decision, the Court concluded that the government could not restrict the free speech rights of corporations, arguing that the First Amendment protects the right of all entities, including corporations, to participate in the political process. This ruling effectively allowed unlimited corporate spending on political campaigns, leading to the rise of Super PACs (Political Action Committees) and substantial changes to the way money influences politics in the U.S.

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Jerald Lee Hill
Jerald Lee Hill

Written by Jerald Lee Hill

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Jerald Lee Hill is the President of Calamar Construction and Development, a distinguished construction and real estate firm based in Kansas City, Missouri.

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