First Amendment core doctrine

Upheld the Espionage Act of 1917 conviction of Charles Schenck for mailing leaflets urging resistance to the WWI draft. Justice Holmes announced the original "clear and present danger" test: speech may be punished when the words are used in circumstances that create a clear and present danger of bringing about substantive evils Congress may prevent. The opinion also gave us the (dictum) "falsely shouting fire in a theatre" line.

Affirmed Sedition Act of 1918 convictions for anti-war leaflets. It is remembered chiefly for Justice Holmes's dissent, which sharpened his own Schenck standard toward stronger protection and introduced the "marketplace of ideas" — that the best test of truth is the power of a thought to get itself accepted in the competition of the market.

Upheld Smith Act (1940) convictions of eleven leaders of the Communist Party USA for conspiring to advocate the overthrow of the U.S. government. The Court applied a diluted "gravity of the evil, discounted by its improbability" version of clear-and-present-danger, allowing punishment of advocacy far short of imminent action — a Cold War high-water mark for speech suppression.

Reversed Smith Act convictions of lower-level Communist Party members. The Court drew the line between the "advocacy of abstract doctrine" (the mere teaching of the propriety of overthrow, which is protected) and "advocacy directed at promoting unlawful action." After Yates, Smith Act membership prosecutions effectively ceased.

Per curiam, unanimously reversed the Ohio criminal-syndicalism conviction of a Ku Klux Klan leader for a speech at a rally. It announced the governing incitement test: advocacy of force or law violation may be punished only where it is directed to inciting or producing IMMINENT lawless action AND is likely to do so. This overruled Whitney v. California (1927) and displaced the older clear-and-present-danger and bad-tendency standards.

Per curiam, reversed the disorderly-conduct conviction of an anti-war demonstrator who, as police cleared a street, said "We'll take the fucking street later" (or "again"). Because the words were not directed to any person or group and amounted to nothing more than advocacy of illegal action at some indefinite future time, they were not directed to producing IMMINENT lawless action and were not likely to produce it — so they were protected under Brandenburg. The case is the leading illustration of how much work the word "imminent" does.

Unanimously reversed a Mississippi judgment that held NAACP organizers and participants liable for the economic losses of a civil-rights boycott of white merchants. The Court held that the nonviolent elements of the boycott — speech, assembly, petition, and association to bring about political, social, and economic change — occupy "the highest rung of the hierarchy of First Amendment values." Charles Evers's emotionally charged speeches, which included references to violence against boycott-breakers, were still protected under Brandenburg because they did not incite imminent lawless action; a person may be held liable for the unlawful acts of others only on proof that he specifically authorized or incited them.

Per curiam, reversed the conviction of an 18-year-old anti-war protester who said at a rally that if drafted and made to carry a rifle "the first man I want to get in my sights is L.B.J." The Court held this was not a "true threat" but constitutionally protected political hyperbole — crude and conditional speech uttered in the course of political debate. It established that the threat statute reaches only true threats, and that context, conditional phrasing, and the listeners' reaction all matter in telling a threat from hyperbole.

7-2 (Kagan, J.), held that to punish a true threat consistent with the First Amendment the State must prove the speaker had a subjective mental state of at least RECKLESSNESS — that he consciously disregarded a substantial risk that his words would be viewed as threatening violence. A purely objective "reasonable person" standard is not enough. The case arose from years of unwanted, alarming Facebook messages sent to a local musician. The Court borrowed the recklessness rule from its defamation cases.

5-4, held that burning the American flag as political protest is expressive conduct protected by the First Amendment, striking down a Texas flag-desecration law. "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." The ruling invalidated flag-desecration laws then on the books in 48 states.

8-1, held that the Westboro Baptist Church's picketing near a fallen Marine's funeral — with deliberately hurtful signs on matters the Court deemed of public concern — was protected speech, shielding the picketers from a tort judgment for intentional infliction of emotional distress. "Speech is powerful. It can stir people to action... And... it can inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker."

"Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press."