Freedom of Speech

Many congressional limitations on free speech were imposed on the United States between the time of the Civil War and World War I. Such restrictions included the Sedition Act of 1798, which forbade any advocation of treason or the overthrow of the government; and martial law during and after Reconstruction. However, no important cases involving the free speech were decided by the Supreme Court until after World War I.

With the advent of World War I, fears stemming from war with Germany and the 1917 Russian Revolution compelled Congress to again pass restrictions on speech about treason, including the Espionage Act of 1917 and the Sedition Act of 1918. In the first case concerning free speech before the Supreme Court, Schenck v. United States (1919), the Court attempted to balance concerns over national security with free speech. The Court introduced the "clear and present danger" test which stated that speech raising a clear and present danger of causing results that Congress had authority to prevent was not protected under the First Amendment. In the decision, an enduring statement on the limitations of free speech was made by Justice Oliver Wendell Holmes in that one cannot be free to falsely shout fire in a theater and cause panic. The Clear and Present Danger test was the standard applied by courts to free speech cases for the next half century. Importantly in Schenck, the Court held that constitutional protections of speech extend beyond prior restraint concerns, including protection from punishment after speech is made under certain circumstances.

In another sedition trial, Gitlow v. New York (1925), the Court applied the free speech clause to state laws for the first time. National security restrictions on speech continued as the Cold War commenced with associated anti-subversive laws. The 1940 Smith Act (another act regarding treason) was upheld in Dennis v. United States when the Court held that advocating overthrow of the U.S. government by force was sufficient danger to warrant restriction. However, the Court later limited government restriction by holding that advocacy of specific action must be present to not be protected. The test of incitement toward imminent illegal action was further applied during the 1960s anti-war protest era in Brandenburg v. Ohio (1969), where the Court ruled that a person's words were protected by free speech if they did not incite unlawful actions.