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.

—Amendment I. Ratified December 15, 1791

While the language of the First Amendment looks straightforward, its text conceals as much as it reveals. Although “Congress” alone is mentioned, the First Amendment applies to any agent of the national government, including the president. As originally framed, the Bill of Rights guaranteed immunity only from the actions of the federal government, not the states. This changed in the twentieth century with the “doctrine of selective incorporation,” which applied the First Amendment to the states through the Fourteenth Amendment’s due process clause: no state shall “deprive any person of life, liberty, or property, without due process of law” (See Gitlow v. New York, 1925). The incorporation doctrine authorized the Supreme Court for the first time in its history to review state laws that might infringe upon the First Amendment. Moreover, the liberty guaranteed by the First Amendment should  be understood primarily in terms of protection from government control. Thus, it may come as a surprise to some that the First Amendment does not apply to private institutions—those social, political, civil, and religious groups, associations, and corporations that are not units of the federal or state government. So while a state university is bound by the First Amendment, a private college or a religious association may restrict expression as it sees fit in accordance with its own mission statement. A literal interpretation of the word “speech” is likewise misleading, since the Supreme Court has gradually extended the First Amendment to include symbolic, nonverbal expression such as flag-burning, visual imagery such as pornography, commercial communication such as advertising, and children’s entertainment such as video games. Finally, although the First Amendment says “no law,” the right to free speech is not absolute. As Justice Holmes famously said, it does not give one the right “to falsely shout fire in a crowded theater” (Schenck v. United States, 1919). Indeed, one of the enduring issues faced by the Supreme Court has been where to draw the line between protected speech and punishable speech. The goal of this documentary volume of landmark cases is to provide students with the basic texts and tools for understanding the Supreme Court’s evolving jurisprudence on freedom of expression: the First Amendment rights of speech, press, assembly, and association. Over the past century the First Amendment has attained a preferred place in our constitutional scheme that demands heightened protection by the Supreme Court. In Palko v. State of Connecticut (1937), Justice Benjamin Cardozo (1870–1938) aptly described First Amendment freedoms as “the matrix, the indispensable condition, of nearly every other freedom.” Free speech is essential to democracy for several reasons. First,  the expressive acts of speaking, writing, associating,  assembling, and dissenting  are crucial to the fundamental democratic principle of consent of the governed. Second, freedom of speech and of the press help to ensure the accountability of government and public officials. They expose the darkness of corruption to daylight. Third, free speech functions as a “safety valve” that provides an outlet for dissenting and radical voices to “blow off steam,” as Justice William O. Douglass (1889–1980) eloquently argued in Dennis v. United States (1951). “The airing of ideas releases pressures which otherwise might become destructive.”  Indeed, free speech is not only instrumental to democracy, it is valuable as an end in itself, as integral to individual human flourishing and the search for truth. (See Justice Brandeis’ concurrence in Whitney v. California, 1927). Finally free speech advances progress through a competition of ideas that spurs innovation and creativity. Justice Oliver Wendell Holmes (1841–1935) made this point in Abrams v. United States (1919), using the metaphor of a marketplace of ideas in which the best ideas slowly win out while archaic notions are abandoned. As the very lifeblood of democracy, political speech is guaranteed the utmost protection by the Court. Along with other fundamental rights such as the many guarantees of due process, it is awarded an advantage in any legal battle. The landmark First Amendment cases always pit the interest of a governmental authority (national, state, or local) against the dissenting party’s expressive right of speech, press, or association. To help appreciate this clash of interests, consider the image of Lady Justice, the goddess Themis, commonly found in many American courtrooms. She is blindfolded and clasps a sword in one hand and holds up a scale in the other. Her blindfold represents impartiality; the scale, equity; and the sword, the force of law. Given the privileged status of speech in our constitutional scheme, however, her scale will be tipped in favor of the First Amendment. Thus, right from the beginning of the contest, the government faces a burden, an “uphill battle,” if censorship is to prevail over free expression. That is to say, laws that suppress or threaten political speech are subjected to a heightened level of judicial review known as “strict scrutiny.” Since an understanding of the Court’s jurisprudence requires familiarity with its legal terminology, it will be useful to define some of the key First Amendment concepts readers will encounter throughout these documents. For example, to survive strict scrutiny, a law that infringes upon speech must pass two hurdles. First, the government must demonstrate that the law serves a “compelling purpose” or “end,” such as national security, civil order, or morality. This first hurdle is not too difficult for the government to overcome. Appealing to an implied or expressed constitutional power under state or federal law is usually sufficient. Second, the government must show that the law in question is “narrowly tailored” to achieve its purpose by “the least restrictive means.” This is a higher hurdle. To appreciate “narrow tailoring,” consider the example of a bulky winter jacket. While its “compelling purpose,” or end, is to protect you from cold weather, its means to do so—its excessive size and weight—nonetheless restrict your ability to move and breath freely. Much like being smothered in a large jacket, personal liberty is suffocated by poorly written laws that restrict speech. By contrast, a narrowly tailored jacket not only protects you from the elements, it accomplishes this end through means that allow you to move and breath freely. The review of “strict scrutiny” along with its requirement of “narrow tailoring” safeguards against two types of infirm laws that consistently menace liberty: “unduly vague laws” whose imprecision forces people of common intelligence to guess at their meaning and application; and “overly broad laws” that sweep too expansively in burdening protected speech along with unprotected speech. The modifiers “unduly” and “overly” are important recognitions of the fact that all language contains some degree of vagueness and ambiguity. Contrary to those who expect mathematical certainty in jurisprudence, the law will always have some “gray area.” Hence the cliché that jurisprudence is more an art than a science. Notwithstanding this inherent ambiguity, however, “unduly vague” and “overly broad” laws confer too much discretion upon authorities to abuse power in an arbitrary manner through ever-changing and unpredictable definitions. Unpopular views can be more easily suppressed under the pretext of generalized claims of “public order.” Returning to the Lady Justice metaphor, overly broad and unduly vague laws tilt her scale in favor of the authority and shift the burden of proof onto the dissenter, who is tasked with overcoming the state’s interest. To make thing worse, the very threat of punishment from these laws creates the notorious “chilling effect” that induces self-censorship. Fearing repercussions for speaking out, people choose to remain silent. If free speech is to perform its vital function in serving democracy, it should be exercised fearlessly, not timidly. If citizens are to debate controversial issues forthrightly rather than holding their peace in festering silence, they must do so with the confidence that their expression will not be investigated or punished by authorities. To prevent this chilling effect, the Supreme Court requires ample “breathing room” for free speech.  Put another way, it errs in protecting “too much” expression rather than “too little Consequently, the First Amendment tolerates offensive, feared, disturbing, and even some hateful speech (See New York Times Co. v. Sullivan and Matal v. Tam). Indeed, a core principle of First Amendment interpretation today is that authorities may not bar expression simply because they find it offensive, disturbing, or disagreeable. Once laws have passed strict scrutiny, under what circumstances may government permissibly restrict speech? When does speech “cross the line” between protected and punishable expression? Under current First Amendment law, the government may punish speech only in the case of an emergency when it can demonstrate a tight causal connection or nexus between the speech and an immediate harmful effect(Justice Holmes’ dissent in Abrams; Justice Brandeis’ concurrence in Whitney). Undifferentiated fear of some possible, remote harm is not sufficient to warrant restriction. Under current First Amendment law, the government can restrict speech only in the case of an emergency, for example, a direct incitement to “imminent lawless action” (Brandenburg v. Ohio, 1969). Though words certainly have the capacity to harm and hurt, the importance of protecting speech likewise outweighs the government’s interest in protecting citizens from emotional harm. The First Amendment does not protect one’s feelings. As Chief Justice John Roberts (1955–) explained in the controversial case of Snyder v. Phelps (2011): “As a nation we have chosen . . . to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” A different decision in this case that would have given greater weight to the emotional pain inflicted by speech would have constituted a major departure from the Court’s jurisprudence, which has consistently underscored that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger” (see Terminiello v. Chicago, 1949). Because feelings are highly subjective, they elude clear legal specification. Indeed, what would remain of free speech if it was subject to the objections of the most thin-skinned among us? In addition to the key concepts of “preferred freedom,” “strict scrutiny,” “narrow tailoring,” “undue vagueness,” “overbreadth” and “chilling effect,” the fundamental principle of “viewpoint” or “content neutrality” must be added to the list of key First Amendment concepts. Viewpoint neutrality prevents government from restricting speech on the basis of its content, message, or idea, and from favoring one viewpoint or side of a debate over another. This crucial concept explains why the First Amendment provides shelter to social justice activists and racists alike. Justice Holmes, whose thought dominated the Supreme Court’s jurisprudence on the First Amendment, went so far as to say: “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate” (United States v. Schwimmer, 1929). With all due respect to Justice Holmes, why shouldn’t certain messages be banned from public discourse? Why should we tolerate intolerant speech? Nazi propagandist Joseph Goebbels infamously maintained that a lie repeated often enough would eventually be accepted as true. Perhaps certain kinds of speech should be suppressed to prevent falsehood and lies from winning out in the marketplace of ideas. Indeed, history also reveals that people are swayed by base emotions and stirred by demagogic appeals. Perhaps censorship could have prevented the genocides of the twentieth century. While there are certainly risks involved in tolerating false, offensive, and even hateful speech, the current view of the First Amendment is that the benefits of free speech outweigh the societal costs of censorship. In a passage often cited by the Court, Justice Robert H. Jackson (1892–1954) defended the principle of viewpoint neutrality in these weighty terms: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein” (West Virginia v. Barnette, 1943). In sum, the First Amendment forbids the government from favoring any public orthodoxy, however well intentioned. In Texas v. Johnson (1989), for example, the Court decided that the state law punishing flag desecration was unconstitutional because it favored a message of patriotism over a disfavored message of contempt. In other words, the Texas law impermissibly engaged in viewpoint discrimination. However abhorrent speech may be, the state cannot take sides in the marketplace of ideas by favoring one message over another through censorship. The cases in this volume are arranged thematically. For example, they trace the development and evolution of the “clear and present danger” test from Schenck through the controlling precedent of Brandenburg and its “imminent lawless action” test. In the following decades, the Court expanded free speech to include symbolic expression of flag burning in Texas v. Johnson  and cross burning in Virginia v. Black (2003). As noted, the Court has underscored that the First Amendment protects offensive, disturbing, and feared speech. This is clearly seen in Cohen v. California (1971) and Matal v. Tam (2017). In Snyder v. Phelps  the Court preferred free speech over the claims of emotional distress. The right to liberty of the press is represented by a number of cases, including Near v. Minnesota (1931) and New York Times v. United States (1971). Because freedom of association to unite and advocate with others is a fundamental right implicit in the First Amendment, the volume includes the important precedents of NAACP v. Alabama (1958), Boy Scouts v. Dale (2000), and Roberts v. United States Jaycees (1984). This volume also explores those categories of unprotected speech that have traditionally been considered to lie outside of the First Amendment: libel (Times v. Sullivan, 1964), obscenity (Miller v. California, 1973), and fighting words (Chaplinsky v. New Hampshire, 1942). Failed efforts to expand these unprotected categories to “group libel” and violent video games for children are seen in the respective cases of Beauharnais v. Illinois (1952) and Brown v. Entertainment Merchants Association (2011). The Supreme Court’s first attempt to regulate the Internet as a “dramatic expansion of [a] new marketplace of ideas” is seen in Reno v. American Civil Liberties Union (1997). The Court’s First Amendment jurisprudence recognizes a hierarchy of speech that runs the gamut from the heightened protection of political speech to reduced protection of commercial and broadcast speech. Its consideration of lower-value commercial and broadcasting speech is thus seen in the respective cases of Central Hudson Gas & Electric v. Public Service Commission (1980) and FCC v. Pacifica (1978). Finally, the topic of the First Amendment in the educational setting is represented by the cases of Tinker v. Des Moines (1969), Bethel School District v. Fraser (1986), and Morse v. Frederick (2007). Campaign finance is notably absent. Protected under the First Amendment in the landmark case of Buckley v. Valeo (1976) and extended to corporations in Citizens United v. FEC (2010), campaign finance is too complex a topic, we thought, for inclusion in this volume. In conclusion, while these landmark cases contain many pearls of wisdom about free speech, history teaches us that we cannot always rely on the Court to safeguard our liberties. The Court’s decisions may be side-stepped or ignored. The Bill of Rights is only a parchment paper unless supported by habits of heart and mind that give it life. Indeed, free speech can only be preserved through a “First Amendment culture” that understands, cherishes, and jealously guards its preferred place in our democracy. This volume hopes to contribute in some small way to that worthy cause.