Key Supreme Court Cases on Free Speech and Censorship

Brandenberg v. Ohio

1969. Topic: Incitement of violence

Context: KKK leader invited a TV reporter to film a rally, film was used to prosecute under Ohio criminal syndicalism law

Brandenburg v. Ohio

Legal test - Imminent Lawlessness Test

Speech can only be punished if it is directed at inciting lawless action, likely to incite lawless action, and imminent

Brandenburg v. Ohio

Significance: Unanimous, per curiam opinion that overturned Whitney v. California, influenced "true threat" laws, replaced "clear and present danger" and "bad tendency," strongest modern protection for extremist speech

Schenck v. United States

1919. Topic: Wartime Speech

Context: Anti-draft leaflets during WWI, charged under espionage act

Schenck v. United States

Legal test: Speech may be punished if it creates clear and present danger of causing harm, such as shouting fire in a crowded theater

Schenck v. United States

Significance: First major first amendment test, created clear and present danger

Whitney v. California

1927. Context: Anita Whitney convicted for communist party membership, upheld by court. Convicted for having opinion?

Whitney v. California

Significance: Brandeis concurrence - fear alone doesn't justify suppressing speech, laid groundwork for later free speech expansion

Explicitly overturned by Brandenburg

Near v. Minnesota

1931. Topic: Prior restraint Context:

State tried to shut down a scandalous newspaper, The County Attorney sued Near for violating the law, operating a public nuisance

Near v. Minnesota

Significance: Majority ruled that prior restraints are presumptively unconstitutional because they amount to censorship. Officials must sue after publication, not beforehand. First major case limiting government censorship

New York Times v. United States

1971. Topic: Pentagon Papers

Context: Government tried to stop NYT from publishing classified Vietnam documents

New York Times v. United States

Test: If the government wishes to censor information before it is printed or published, it must be proven in court that the information will endanger national security.

New York Times v. United States

Significance: Government didn't meet heavy burden required for prior restraint, strengthened press freedom during wartime

Nebraska Press Association v. Stuart

1976. Topic: free press vs. fair trial

Context: Judge issued gag order forbidding media coverage in a small-town murder case

Nebraska Press Association v. Stuart

5-Part Test for Prior Restraint: Courts must consider:

Clear & present danger to fair trial

Alternatives to restraint

Whether restraint would work

Effect on open court proceedings

Precision (not vague or overbroad)

Nebraska Press Association v. Stuart

Significance: gag orders are unconstitutional. First Amendment does not prevent all prior restraints; prior restraints may be used to safeguard Sixth Amendment rights but the prior restraint must work

Sheppard v. Maxwell

1966. Topic: Media & fair trials

Context: Massive press coverage tainted jury

Sheppard v. Maxwell

Significance: Judges must control courtroom environment, Cannot punish the press, must use procedural safeguards instead

Tinker v. Des Moines

1969. Topic: Student political speech, students wore black armbands to school to protest Vietnam War

Rule: Students have first amendment rights unless it materially and substantially disrupts school operations.

Famous Line: "Students do not shed their constitutional rights at the schoolhouse gate."

Hazelwood v. Kuhlmeier

1988. Topic: School-sponsored speech, principal used prior restraint on school newspaper about divorce and birth control

Rule: Schools may censor non-public forums for legitimate pedagogical reasons

Key Concept: Forum analysis determines speech protection

Mahanoy Area School District v. B.L.

2021. Topic: Off Campus Speech, Context: girl didn't make cheer team and posted on Snapchat

Ruling: schools have limited power over off-campus speech, must show strong school interest to be punishable

Chaplinsky v. New Hampshire

1942. Topic: fighting words

Context: Preacher surrounded by angry mob called a police officer a fascist, he was arrested

Chaplinsky v. New Hampshire

Test: fighting words are speech that is a direct personal insult and likely to provoke immediate violence

Original Fighting Words Test: "What men of common intelligence would understand would be words likely to cause an average addressee to fight and create "a breach of the peace"

Chaplinsky v. New Hampshire

Significance: Fighting words are not protected by the first amendment

Cohen v. California

1971. Topic: offensive speech

Context: F the draft jacket, charged for disturbing peace and offensive conduct

Cohen v. California

Significance: Offensive language is protected speech, government can't prohibit speech because they disagree, there was no "captive audience" for the jacket

Famous Line:"One man's vulgarity is another man's lyric." - no violence was incited by jacket

Virginia v. Black

2003. Topic: True Threats

Context: KKK rally attendees were arrested for a law that prohibited cross burning

Virginia v. Black

True Threat Test: Speech is unprotected if speaker:

Directs message at a person or group

Intends to threaten

Knows a reasonable person would perceive it as a threat

Virginia v. Black

Significance: Cross burning with intent to intimidate may be banned, but automatic presumption of intent with cross burning is unconstitutional

United States v. O'Brien

1968. Topic: symbolic speech

Context: draft card burning

United States v. O'Brien

O'Brien Test: Government may regulate symbolic speech if:

Law is within government power

Furthers important interest

Interest unrelated to suppressing speech

Restriction no greater than necessary

United States v. O'Brien

Significance: limited symbolic speech protections, affirmed that laws regulating conduct, even if expressive, are treated differently from laws directly targeting speech

Content-neutral regulations are more likely to survive scrutiny

Texas v. Johnson

1989. Topic/context: flag burning

Significance: Flag burning is protected speech, Texas law failed strict scrutiny, government cannot single out one symbol as "sacred"

West Virginia v. Barnette

Topic: compelled speech

Context: Jehovah's Witnesses saying pledge in school

Significance: Government cannot force speech, including the pledge

Branzburg v. Hayes

1972. Topic: Reporter's privilege

Context: Journalists covering the Black Panther Party refused to identify sources before grand juries

Branzburg v. Hayes

Significance: No constitutional/first amendment reporter's privilege, journalists can be forced to testify, led to state shield laws

criminal syndicalism laws

Passed by many states during the Red Scare of 1919-1920, these nefarious laws outlawed the mere advocacy of violence to secure social change. Significant in Whitney and Brandenburg cases

Freedom of Information Act (FOIA)

Passed in 1966, anyone can request information from our government

Applies to federal executive agencies only

Does NOT apply to courts, Congress, or the White House

Often slow and broken — but enforceable via lawsuits

Shield Laws

State-based protections for journalists to protect confidential sources of information, with the exceptions of: evidence of a crime, no alternative source, and a compelling government interest

Over 30 states have them, including NC

Relevant in Black panther case

Espionage Act

This law, passed in 1917 after the United States entered WWI, imposed sentences of up to twenty years on anyone found guilty of aiding the enemy, obstructing recruitment of soldiers, or encouraging disloyalty. It allowed the postmaster general to remove from the mail any materials that incited treason or insurrection. Relevant in Schenck v. US