The First Amendment of the U.S. Constitution broadly prevents the government from restricting the freedom of speech or the press. It also prevents the government from prohibiting the free exercise of religion or passing laws regarding an establishment of religion. In addition, the First Amendment protects freedom of association, although this is not explicitly mentioned in the text. Below is an outline of key cases in First Amendment law with links to the full text of virtually every case, provided free by Justia.
The government may prohibit speech that is directed to inciting or producing imminent unlawful conduct and is likely to incite or produce it. The First Amendment also does not protect fighting words that by their utterance inflict an injury or tend to incite an immediate breach of the peace.
Schenck v. U.S. 一 Words that, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
Frohwerk v. U.S. 一 The First Amendment, while prohibiting legislation against free speech as such, was not intended to give immunity to every possible use of language.
Debs v. U.S. 一 The delivery of a speech in such word and such circumstances that the probable effect will be to prevent recruiting, and with that intent, is not protected because of the fact that the purpose to oppose the war and obstruct recruiting, and the expressions used in that regard, were but incidental parts of a general propaganda of socialism and expressions of a general and conscientious belief.
Abrams v. U.S.(Holmes dissent) 一 It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion when private rights are not concerned.
Gitlow v. New York 一 The government cannot reasonably be required to defer taking measures against revolutionary utterances advocating the overthrow of organized government until they lead to actual disturbances of the peace or imminent danger of the government’s destruction.
Whitney v. California(Brandeis concurrence) 一 No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.
Dennis v. U.S. 一 Courts must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.
Brandenburg v. Ohio 一 Freedoms of speech and press do not permit a state to forbid advocacy of the use of force or of law violation except when such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Cantwell v. Connecticut 一 When a clear and present danger of riot, disorder, interference with traffic on the public streets, or other immediate threat to public safety, peace, or order appears, the power of the state to prevent or punish is obvious.
Chaplinsky v. New Hampshire 一 There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words, which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
Cohen v. California 一 A state could not make the simple public display of a single four-letter expletive a criminal offense.
Terminiello v. Chicago 一 Freedom of speech, although not absolute, is protected against censorship or punishment unless it is shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.
Feiner v. New York 一 When a speaker passes the bounds of argument or persuasion and undertakes incitement to riot, the police are not powerless to prevent a breach of the peace.
Sometimes called symbolic speech, expressive conduct that is intended to convey a certain message may be entitled to some constitutional protection, but a more lenient standard known as intermediate scrutiny may apply.
U.S. v. O’Brien 一 When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms. A government regulation is sufficiently justified if it is within the constitutional power of the government, it furthers an important or substantial governmental interest, the governmental interest is unrelated to the suppression of free expression, and the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
Texas v. Johnson 一 The government generally has a freer hand in restricting expressive conduct than in restricting the written or spoken word. However, it may not proscribe particular conduct because it has expressive elements.
Barnes v. Glen Theatre, Inc. 一 Nude dancing at adult entertainment establishments is expressive conduct within the outer perimeters of the First Amendment, but only marginally so. The enforcement of a public indecency law to prevent totally nude dancing does not violate the First Amendment guarantee of freedom of expression.
Hate Speech Under the First Amendment
There is no categorical First Amendment exception for hate speech, which is generally treated as a form of political speech. The Supreme Court has acknowledged that hurtful speech on public issues must be protected to avoid stifling public debate.
Beauharnais v. Illinois 一 In the face of a history of tension and violence and its frequent obligato of extreme racial and religious propaganda, a state legislature was not without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented.
R.A.V. v. City of St. Paul 一 Areas of speech that can be regulated because of their constitutionally proscribable content still cannot be made vehicles for content discrimination unrelated to their distinctively proscribable content. However, when the basis for the content discrimination consists entirely of the very reason why the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular secondary effects of the speech, so the regulation is justified without reference to the content of the speech.
Virginia v. Black 一 While a state may ban cross burning carried out with the intent to intimidate, a provision in a statute treating any cross burning as prima facie evidence of intent to intimidate rendered the statute unconstitutional.
Snyder v. Phelps 一 The First Amendment can serve as a defense in state tort claims, including claims for intentional infliction of emotional distress. Whether the First Amendment prohibits holding a defendant liable for their speech turns largely on whether the speech is of public or private concern, as determined by all the circumstances of the case.
Obscenity and Free Speech
The First Amendment does not protect obscenity or child pornography. The three-part test for obscenity in Miller v. California limits this term to a narrow category of adult pornography. Disputes sometimes arise over material that is not obscene but may be harmful to children.
Roth v. U.S. 一 Obscenity is not within the area of constitutionally protected freedom of speech or press under the First Amendment.
Miller v. California 一 The guidelines for the trier of fact in an obscenity case are whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
New York v. Ferber 一 States are entitled to greater leeway in the regulation of pornographic depictions of children. The standard of Miller v. California for determining what is legally obscene is not a satisfactory solution to the child pornography problem.
Paris Adult Theatre I v. Slaton 一 States have a legitimate interest in regulating commerce in obscene material and its exhibition in places of public accommodation, including adult theaters.
Reno v. ACLU 一 Although the government has an interest in protecting children from potentially harmful materials, a law cannot pursue this interest by suppressing a large amount of speech that adults have a constitutional right to send and receive if less restrictive alternatives would be at least as effective in achieving the law’s legitimate purposes.
Ashcroft v. ACLU I 一 A law’s reliance on community standards to identify what material is harmful to minors did not by itself render the statute substantially overbroad for First Amendment purposes.
Ashcroft v. ACLU II 一 The government failed to show that it would be likely to disprove the contention that blocking and filtering software would be a less restrictive alternative.
Libel and Free Speech
A public official or public figure pursuing a libel claim must show a certain level of fault by the defendant to establish that the First Amendment does not shield them from liability. Private individuals generally need to meet only the standard provided by state law.
New York Times Co. v. Sullivan 一 A state cannot award damages to a public official for defamatory falsehood related to their official conduct unless they prove actual malice, which means that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.
Curtis Publishing Co. v. Butts 一 A public figure who is not a public official may recover damages for defamatory falsehood substantially endangering their reputation on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily maintained by responsible publishers. (In a concurrence, Justice Warren advised applying the New York Times standard.)
Gertz v. Robert Welch, Inc. 一 So long as they do not impose liability without fault, states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood that injures a private individual and whose substance makes substantial danger to reputation apparent.
U.S. v. Alvarez 一 There is no general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression that the First Amendment seeks to guarantee.
Elections and the First Amendment
Money spent on campaigns is considered political speech. The First Amendment affects campaign contributions and expenditures in different ways. Political speech may receive protection even if it comes from a corporation.
Buckley v. Valeo 一 Restrictions on individual contributions to political campaigns and candidates did not violate the First Amendment. However, restrictions on independent expenditures in campaigns, limits on expenditures by candidates from their personal or family resources, and limits on total campaign expenditures violated the First Amendment.
Citizens United v. FEC 一 Corporate funding of independent political broadcasts in candidate elections cannot be limited. Political speech is indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation.
McCutcheon v. FEC 一 Congress may regulate campaign contributions to protect against corruption or the appearance of corruption, but it may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.
Republican Party of Minnesota v. White 一 A canon of judicial conduct that prohibits a candidate for a judicial office from announcing their views on disputed legal or political issues violates the First Amendment.
Minnesota Voters Alliance v. Mansky 一 A ban on voters wearing a political badge, political button, or anything bearing political insignia inside a polling place on Election Day violated the Free Speech Clause.
Public Schools and Free Speech
Disputes over free speech in school settings usually involve either speech by students on controversial subjects or speech in school-sponsored expressive activities. For example, schools often can restrict student speech that promotes illegal conduct.
West Virginia State Board of Education v. Barnette 一 The action of a state in making it compulsory for children in public schools to salute the flag and pledge allegiance violates the First Amendment. The issue does not turn on the possession of particular religious views or the sincerity with which they are held.
Tinker v. Des Moines Independent Community School District 一 A student may express their opinions, even on controversial subjects, if they do so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school, and without colliding with the rights of others. However, conduct by a student that materially disrupts classwork or involves substantial disorder or invasion of the rights of others is not immunized by the constitutional guarantee of freedom of speech.
Hazelwood School District v. Kuhlmeier 一 Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns.
Morse v. Frederick 一 A principal may restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use.
Government Speech Under the First Amendment
Constitutional free speech requirements do not apply to government speech, which sometimes includes publicly funded private speech. Government employees may have free speech rights when they are speaking as private citizens on matters of public concern, but not as employees on matters of personal interest.
FCC v. League of Women Voters 一 A broad ban on all editorializing by every broadcast station that receives public funds exceeds what is necessary to protect against the risk of government interference or to prevent the public from assuming that editorials by public broadcasting stations represent the official view of the government.
Rust v. Sullivan 一 The government may make a value judgment favoring childbirth over abortion and implement that judgment by the allocation of public funds. In so doing, the government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another.
Legal Services Corp. v. Velazquez 一 Viewpoint-based funding decisions may be sustained when the government is the speaker, or when the government uses private speakers to transmit information pertaining to its own program. It does not follow that viewpoint-based restrictions are proper when the government does not speak or subsidize transmittal of a message that it favors but instead expends funds to encourage a diversity of views from private speakers.
National Endowment for the Arts v. Finley 一 Although the First Amendment applies in the subsidy context, Congress has wide latitude to set spending priorities. Also, when the government is acting as patron rather than sovereign, the consequences of imprecision in its decision-making criteria are not constitutionally severe.
Red Lion Broadcasting Co., Inc. v. FCC 一 It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail. The right of the viewers and listeners, rather than the right of the broadcasters, is paramount.
Pleasant Grove City v. Summum 一 The placement of a permanent monument in a public park is a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.
Pickering v. Board of Education 一 When a public employee’s false statements concerned issues that were currently the subject of public attention and did not interfere with the performance of their duties or the general operation of their employer, they were entitled to the same protection as if the statements had been made by a member of the general public.
Connick v. Myers 一 When a public employee speaks as an employee on matters only of personal interest, a federal court is generally not the appropriate forum to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.
Garcetti v. Ceballos 一 When public employees make statements pursuant to their official duties, the Constitution does not insulate their communications from employer discipline.
Lane v. Franks 一 A public employee’s sworn testimony outside the scope of their ordinary job duties is entitled to First Amendment protection.
Heffernan v. City of Paterson 一 When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment.
Public Forums and Free Speech
A three-part test applies to “time, place, and manner” restrictions that a government can impose on protected speech in public forums. When the government limits access to a designated public forum, it generally can engage in content discrimination but not viewpoint discrimination.
Ward v. Rock Against Racism 一 Even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided that the restrictions are justified without reference to the content of the regulated speech, they are narrowly tailored to serve a significant governmental interest, and they leave open ample alternative channels for communication of the information.
Rosenberger v. Rector and Visitors of the University of Virginia 一 In determining whether the government is acting to preserve the limits of the forum that it has created so that the exclusion of a class of speech is legitimate, there is a distinction between content discrimination and viewpoint discrimination. Content discrimination may be permissible if it preserves the purposes of the limited forum. Viewpoint discrimination is presumed impermissible when directed against speech that is otherwise within the forum’s limitations.
Reporter Shields and the First Amendment
The First Amendment does not create a privilege for members of the media who seek to shield their sources during a criminal investigation.
Branzburg v. Hayes 一 The First Amendment does not relieve a newspaper reporter of the obligation to respond to a grand jury subpoena and answer questions relevant to a criminal investigation. Therefore, the First Amendment does not afford a reporter a constitutional testimonial privilege for an agreement that they make to conceal facts relevant to a grand jury’s investigation of a crime or to conceal the criminal conduct of their source or evidence of it.
In re Miller 一 There is no First Amendment privilege that protects journalists’ confidential sources in the context of a grand jury investigation. If any federal common law privilege exists, it is not absolute.
The Free Exercise Clause
The First Amendment prevents the government from prohibiting the free exercise of religion. The federal Religious Freedom Restoration Act requires strict scrutiny for federal laws that burden free exercise, unless the burden is only incidental. In contrast, state and local laws in states that have not passed their own versions of RFRA are generally subject only to rational basis review as long as they are neutral and generally applicable.
Sherbert v. Verner 一 A substantial infringement of an individual’s right to religious freedom must be justified by a compelling state interest.
Employment Division v. Smith 一 The Free Exercise Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that their religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for non-religious reasons.
City of Boerne v. Flores 一 Although Congress can enact legislation enforcing the constitutional right to the free exercise of religion, its power to enforce under Section 5 of the Fourteenth Amendment is only preventive or remedial.
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal 一 The Religious Freedom Restoration Act prohibits the federal government from substantially burdening a person’s exercise of religion, unless the government demonstrates that the application of the burden to the person represents the least restrictive means of advancing a compelling interest.
Burwell v. Hobby Lobby Stores, Inc. 一 RFRA applies to regulations that govern the activities of closely held for-profit corporations. Protecting the free exercise rights of closely held corporations protects the religious liberty of the people who own and control them.
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 一 If the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral. It is invalid unless it is justified by a compelling interest and narrowly tailored to advance that interest.
Locke v. Davey 一 A state’s exclusion of the pursuit of a devotional theology degree from its otherwise inclusive scholarship aid program did not violate the Free Exercise Clause.
Goldman v. Weinberger 一 Review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society.
Wisconsin v. Yoder 一 The state interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause and the traditional interest of parents with respect to the religious upbringing of their children.
Bowen v. Roy 一 While the Free Exercise Clause affords an individual protection from certain forms of governmental compulsion, it does not afford an individual a right to dictate the conduct of the government’s internal procedures.
Lyng v. Northwest Indian Cemetery Protective Association 一 Incidental effects of government programs, which may interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require the government to bring forward a compelling justification for its otherwise lawful actions.
Reynolds v. U.S. 一 A party’s religious belief cannot be accepted as a justification for committing an overt act made criminal by the law of the land.
Trinity Lutheran Church of Columbia, Inc. v. Comer 一 Denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion. Thus, laws imposing special disabilities on the basis of religious status trigger the strictest scrutiny.
Fulton v. Philadelphia 一 A law is not generally applicable under the Free Exercise Clause if it invites the government to consider the particular reasons for a person’s conduct by creating a mechanism for individualized exemptions. When such a system of individual exemptions exists, the government may not refuse to extend that system to cases of religious hardship without a compelling reason.
Kennedy v. Bremerton School District 一 The Free Exercise and Free Speech Clauses protect an individual engaging in a personal religious observance from government reprisal. The Constitution neither mandates nor permits the government to suppress such religious expression.
The Establishment Clause
The First Amendment also prevents the government from establishing a religion. The Supreme Court articulated a three-part test in Lemon v. Kurtzman for Establishment Clause challenges. These often arise in the context of government benefits, school facilities and activities, and public religious displays. Establishment Clause cases tend to be highly fact-specific.
Lemon v. Kurtzman 一 To comply with the Establishment Clause, a law must have a secular legislative purpose, its principal or primary effect must neither advance nor inhibit religion, and it must not foster an excessive government entanglement with religion.
Everson v. Board of Education 一 The First Amendment does not prohibit a state from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools.
Mueller v. Allen 一 A statute does not violate the Establishment Clause when it allows state taxpayers to deduct expenses incurred in providing tuition, textbooks, and transportation for their children attending an elementary or secondary school, even if parents take the tax deduction for expenses incurred in sending their children to parochial schools.
Zelman v. Simmons-Harris 一 A government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their genuine and independent private choice.
McCollum v. Board of Education 一 The utilization of a state’s tax supported public school system and its machinery for compulsory public school attendance to enable sectarian groups to give religious instruction to public school pupils in public school buildings violated the First Amendment.
Zorach v. Clauson 一 A program did not violate the First Amendment when it permitted public schools to release students during school hours, on written requests of their parents, so that they may leave the school buildings and grounds and go to religious centers for religious instruction or devotional exercises.
Engel v. Vitale 一 State officials may not compose an official state prayer and require that it be recited in public schools, even if the prayer is denominationally neutral, and even if students may remain silent or be excused.
Lee v. Weisman 一 Including clergy who offer prayers as part of an official public school graduation ceremony is forbidden by the Establishment Clause.
Abington School District v. Schempp 一 No state law or school board may require that passages from the Bible be read or that the Lord’s Prayer be recited in public schools, even if students may be excused from attending or participating upon written request of their parents.
Epperson v. Arkansas 一 A state could not prohibit teachers in state-supported schools and universities from teaching or using a textbook that teaches the theory of evolution.
Edwards v. Aguillard 一 A state cannot forbid teaching the theory of evolution in public schools unless accompanied by instruction in creation science, even if the law does not require teaching either theory unless the other is taught.
Lynch v. Donnelly 一 A city’s inclusion of a creche in its annual Christmas display in a private park, which also included secular symbols, did not violate the Establishment Clause.
Allegheny County v. ACLU 一 A creche display violated the Establishment Clause when the creche angel’s words endorsed a patently Christian message, and nothing in the creche’s setting detracted from that message.
McCreary County v. ACLU of Kentucky 一 When the text of the Ten Commandments is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message that goes beyond an excuse to promote the religious point of view.
Van Orden v. Perry 一 While the Ten Commandments are religious, they also have a historical meaning. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.
American Legion v. American Humanist Association 一 When time’s passage imbues a religiously expressive monument, symbol, or practice with familiarity and historical significance, removing it may no longer appear neutral, especially to the local community. The passage of time thus gives rise to a strong presumption of constitutionality.
Freedom of Association
The Constitution implicitly provides not only a right to associate but also a right not to associate. Some freedom of association cases involve the involuntary collection of funds to support an association. In other cases, the right of a group to exclude certain people from membership clashes with anti-discrimination laws.
NAACP v. Alabama ex rel. Patterson 一 Immunity from state scrutiny of NAACP membership lists is so related to the right of NAACP members to pursue their lawful private interests privately and to associate freely with others in doing so that it comes within the protection of the Fourteenth Amendment.
Abood v. Detroit Board of Education 一 A union’s expenditures for ideological causes not germane to its duties as a collective bargaining representative must be financed from charges, dues, or assessments paid by employees who do not object to advancing such causes and who are not coerced into doing so against their will by the threat of loss of governmental employment.
Glickman v. Wileman Brothers & Elliott, Inc. 一 Assessments to fund a lawful collective program may be used to pay for non-ideological speech over the objection of some members of the group if the speech is germane to the purpose for which the compelled association was justified.
U.S. v. United Foods, Inc. 一 Compelled subsidies for speech have not been upheld in the context of a program in which the principal object is speech itself.
Johanns v. Livestock Marketing Association 一 Citizens may challenge compelled support of private speech but have no First Amendment right not to fund government speech. This is no less true when the funding is achieved through targeted assessments devoted exclusively to the program to which the assessed citizens object.
Janus v. AFSCME 一 The state’s extraction of agency fees from non-consenting public-sector employees violates the First Amendment. (This decision overturned Abood, although largely on free speech grounds.)
Roberts v. U.S. Jaycees 一 Infringements on the right to associate for expressive purposes may be justified by regulations adopted to serve compelling state interests that are unrelated to the suppression of ideas and cannot be achieved through means significantly less restrictive of associational freedoms.
Boy Scouts of America v. Dale 一 Government actions that unconstitutionally burden the right of expressive association include intruding into a group’s internal affairs by forcing it to accept a member whom it does not desire. Such forced membership is unconstitutional if the person’s presence significantly affects the group’s ability to advocate public or private viewpoints.
This outline has been compiled by the Justia team for solely educational purposes and should not be treated as an independent source of legal authority or a summary of the current state of the law. Students should use this outline as a supplement rather than a substitute for course-specific outlines.