speech and press meaning

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The first amendment, a common interpretation: freedom of speech and the press.

December 1, 2016 | by Geoffrey R. Stone and Eugene Volokh

As part of the National Constitution Center’s   Interactive Constitution project , leading scholars across the legal and philosophical spectrum find common ground on the Constitution’s articles,   amendments,   and provisions. In this essay from September 2015, Geoffrey R. Stone from the University of Chicago Law School and Eugene Volokh from the UCLA School of Law say the legal protection today offered by the First Amendment is stronger than ever before in our history.

“Congress shall make no law . . .  abridging the freedom of speech, or of the press.” What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.

Although the First Amendment says “Congress,” the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.

The Supreme Court has interpreted “speech” and “press” broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like.

The Supreme Court has held that restrictions on speech because of its  content —that is, when the government targets the speaker’s message—generally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information “the people” should be allowed to hear.

There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.

1. In some circumstances, the Supreme Court has held that certain types of speech are of only “low” First Amendment value, such as:

a. Defamation: False statements that damage a person’s reputations can lead to civil liability (and even to criminal punishment), especially when the speaker deliberately lied or said things they knew were likely false.  New York Times v. Sullivan (1964).

b. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished.  Watts v. United States (1969).

c. “Fighting words”: Face-to-face personal insults that are likely to lead to an immediate fight are punishable.  Chaplinsky v. New Hampshire   (1942). But this does not include political statements that offend others and provoke them to violence.  For example, civil rights or anti-abortion protesters cannot be silenced merely because passersby respond violently to their speech.  Cox v. Louisiana   (1965).

d. Obscenity: Hard-core, highly sexually explicit pornography is not protected by the First Amendment.  Miller v. California   (1973). In practice, however, the government rarely prosecutes online distributors of such material.

e. Child pornography: Photographs or videos involving actual children engaging in sexual conduct are punishable, because allowing such materials would create an incentive to sexually abuse children in order to produce such material.  New York v. Ferber   (1982).

f. Commercial advertising: Speech advertising a product or service is constitutionally protected, but not as much as other speech. For instance, the government may ban misleading commercial advertising, but it generally can’t ban misleading political speech.  Virginia Pharmacy v. Virginia Citizens Council (1976).

Outside these narrow categories of “low” value speech, most other content-based restrictions on speech are presumptively unconstitutional. Even entertainment, vulgarity, “hate speech” (bigoted speech about particular races, religions, sexual orientations, and the like), blasphemy (speech that offends people’s religious sensibilities), and violent video games are protected by the First Amendment. The Supreme Court has generally been very reluctant to expand the list of “low” value categories of speech.

2. The government can restrict speech under a less demanding standard when the speaker is in a special relationship to the government. For example, the speech of government employees and of students in public schools can be restricted, even based on content, when their speech is incompatible with their status as public officials or students. A teacher in a public school, for example, can be punished for encouraging students to experiment with illegal drugs, and a government employee who has access to classified information generally can be prohibited from disclosing that information. Pickering v. Board of Education   (1968).

3. The government can also restrict speech under a less demanding standard when it does so without regard to the content or message of the speech. Content-neutral restrictions, such as restrictions on noise, blocking traffic, and large signs (which can distract drivers and clutter the landscape), are generally constitutional as long as they are “reasonable.” Because such laws apply neutrally to all speakers without regard to their message, they are less threatening to the core First Amendment concern that government should not be permitted to favor some ideas over others.  Turner Broadcasting System, Inc. v. FCC (1994). But not all content-neutral restrictions are viewed as reasonable; for example, a law prohibiting all demonstrations in public parks or all leafleting on public streets would violate the First Amendment.  Schneider v. State   (1939).

Courts have not always been this protective of free expression. In the nineteenth century, for example, courts allowed punishment of blasphemy, and during and shortly after World War I the Supreme Court held that speech tending to promote crime—such as speech condemning the military draft or praising anarchism—could be punished.  Schenck v. United States  (1919). Moreover, it was not until 1925 that the Supreme Court held that the First Amendment limited state and local governments, as well as the federal government.  Gitlow v. New York  (1925).

But starting in the 1920s, the Supreme Court began to read the First Amendment more broadly, and this trend accelerated in the 1960s. Today, the legal protection offered by the First Amendment is stronger than ever before in our history.

Geoffrey R. Stone is Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School. Eugene Volokh is Gary T. Schwartz Professor of Law, UCLA School of Law.

You can read more from each author on our Interactive Constitution project on this topic, as they offer viewpoints beyond this common interpretation:  Fixing Free Speech By Geoffrey R. Stone  |  Frontiers For Free Speech By Eugene Volokh

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Freedom of Expression - Speech and Press

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.

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Madison’s version of the speech and press clauses, introduced in the House of Representatives on June 8, 1789, provided: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” 376 The special committee rewrote the language to some extent, adding other provisions from Madison’s draft, to make it read: “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.” 377 In this form it went to the Senate, which rewrote it to read: “That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.” 378 Subsequently, the religion clauses and these clauses were combined by the Senate. 379 The final language was agreed upon in conference.

Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause, and there is no record of debate in the Senate. 380 In the course of debate, Madison warned against the dangers that would arise “from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.” 381 That the “simple, acknowledged principles” embodied in the First Amendment have occasioned controversy without end both in the courts and out should alert one to the difficulties latent in such spare language.

Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone. “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.” 382

Whatever the general unanimity on this proposition at the time of the proposal of and ratification of the First Amendment, 383 it appears that there emerged in the course of the Jeffersonian counterattack on the Sedition Act 384 and the use by the Adams Administration of the Act to prosecute its political opponents, 385 something of a libertarian theory of freedom of speech and press, 386 which, however much the Jeffersonians may have departed from it upon assuming power, 387 was to blossom into the theory undergirding Supreme Court First Amendment jurisprudence in modern times. Full acceptance of the theory that the Amendment operates not only to bar most prior restraints of expression but subsequent punishment of all but a narrow range of expression, in political discourse and indeed in all fields of expression, dates from a quite recent period, although the Court’s movement toward that position began in its consideration of limitations on speech and press in the period following World War I. 388 Thus, in 1907, Justice Holmes could observe that, even if the Fourteenth Amendment embodied prohibitions similar to the First Amendment, “still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is ‘to prevent all such previous restraints upon publications as had been practiced by other governments,’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all.” 389 But as Justice Holmes also observed, “[t]here is no constitutional right to have all general propositions of law once adopted remain unchanged.” 390

But, in Schenck v. United States , 391 the first of the post-World War I cases to reach the Court, Justice Holmes, in his opinion for the Court upholding convictions for violating the Espionage Act by attempting to cause insubordination in the military service by circulation of leaflets, suggested First Amendment restraints on subsequent punishment as well as on prior restraint. “It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose . . . . We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. . . . The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Justice Holmes, along with Justice Brandeis, soon went into dissent in their views that the majority of the Court was misapplying the legal standards thus expressed to uphold suppression of speech that offered no threat to organized institutions. 392 But it was with the Court’s assumption that the Fourteenth Amendment restrained the power of the states to suppress speech and press that the doctrines developed. 393 At first, Holmes and Brandeis remained in dissent, but, in Fiske v. Kansas , 394 the Court sustained a First Amendment type of claim in a state case, and in Stromberg v. California , 395 voided a state statute on grounds of its interference with free speech. 396 State common law was also voided, with the Court in an opinion by Justice Black asserting that the First Amendment enlarged protections for speech, press, and religion beyond those enjoyed under English common law. 397

Development over the years since has been uneven, but by 1964 the Court could say with unanimity: “we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 398 And, in 1969, the Court said that the cases “have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 399 This development and its myriad applications are elaborated in the following sections.

The First Amendment by its terms applies only to laws enacted by Congress and not to the actions of private persons. 400 As such, the First Amendment is subject to a “state action” (or “governmental action”) limitation similar to that applicable to the Fifth and Fourteenth Amendments. 401 The limitation has seldom been litigated in the First Amendment context, but there appears to be no obvious reason why the analysis should differ markedly from Fifth or Fourteenth Amendment governmental action analysis. 402 Both contexts require “cautious analysis of the quality and degree of Government relationship to the particular acts in question.” 403 In holding that the National Railroad Passenger Corporation (Amtrak) is a governmental entity for purposes of the First Amendment, the Court declared that “[t]he Constitution constrains governmental action ‘by whatever instruments or in whatever modes that action may be taken’ . . . [a]nd under whatever congressional label.” 404

376 1 ANNALS OF CONGRESS 434 (1789). Madison had also proposed language limiting the power of the states in a number of respects, including a guarantee of freedom of the press. Id. at 435. Although passed by the House, the amendment was defeated by the Senate. See “Amendments to the Constitution, Bill of Rights and the States,” supra .

377 Id. at 731 (August 15, 1789).

378 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1148–49 (B. Schwartz ed. 1971).

379 Id. at 1153.

380 The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. 1 Annals Of Congress 731–749 (August 15, 1789). There are no records of debates in the states on ratification.

381 Id. at 738.

382 4 W. Blackstone’scommentaries On The Laws Of England 151–52 (T. Cooley, 2d rev. ed. 1872). See 3 J. Story, Commentaries On The Constitution Of The United States 1874–86 (1833). The most comprehensive effort to assess theory and practice in the period prior to and immediately following adoption of the Amendment is L. Levy, Legacy Of Suppression: Freedom Of Speech And Press In Early American History (1960), which generally concluded that the Blackstonian view was the prevailing one at the time and probably the understanding of those who drafted, voted for, and ratified the Amendment.

383 It would appear that Madison advanced libertarian views earlier than his Jeffersonian compatriots, as witness his leadership of a move to refuse officially to concur in Washington’s condemnation of “[c]ertain self-created societies,” by which the President meant political clubs supporting the French Revolution, and his success in deflecting the Federalist intention to censure such societies. I. Brant, James Madison: Father Of The Constitution 1787–1800 at 416–20 (1950). “If we advert to the nature of republican government,” Madison told the House, “we shall find that the censorial power is in the people over the government, and not in the government over the people.” 4 Annals Of Congress 934 (1794). On the other hand, the early Madison, while a member of his county’s committee on public safety, had enthusiastically promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period. 1 Papers Of James Madison 147, 161–62, 190–92 (W. Hutchinson & W. Rachal, eds., 1962). There seems little doubt that Jefferson held to the Blackstonian view. Writing to Madison in 1788, he said: “A declaration that the Federal Government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.” 13 Papers Of Thomas Jefferson 442 (J. Boyd ed., 1955). Commenting a year later to Madison on his proposed amendment, Jefferson suggested that the free speech-free press clause might read something like: “The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” 15 PAPERS, supra , at 367.

384 The Act, 1 Stat. 596 (1798), punished anyone who would “write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute.” See J. Smith, Freedom’sfetters: The Alien And Sedition Laws And American Civil Liberties (1956).

385 Id. at 159 et seq.

386 L. Levy, Legacy Of Suppression: Freedom Of Speech And Press In Early American History ch. 6 (1960); New York Times Co. v. Sullivan, 376 U.S. 254, 273–76 (1964). But compare L. Levy, Emergence Of A Free Press (1985), a revised and enlarged edition of Legacy Of Expression , in which Professor Levy modifies his earlier views, arguing that while the intention of the Framers to outlaw the crime of seditious libel, in pursuit of a free speech principle, cannot be established and may not have been the goal, there was a tradition of robust and rowdy expression during the period of the framing that contradicts his prior view that a modern theory of free expression did not begin to emerge until the debate over the Alien and Sedition Acts.

387 L. Levy, Jefferson And Civil Liberties: The Darker Side (1963). Thus President Jefferson wrote to Governor McKean of Pennsylvania in 1803: “The federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked it in an opposite direction; that is, by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. . . . This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.” 9 Works Of Thomas Jefferson 449 (P. Ford ed., 1905).

388 New York Times Co. v. Sullivan, 376 U.S. 254 (1964), provides the principal doctrinal justification for the development, although the results had long since been fully applied by the Court. In Sullivan , Justice Brennan discerned in the controversies over the Sedition Act a crystallization of “a national awareness of the central meaning of the First Amendment,” id. at 273, which is that the “right of free public discussion of the stewardship of public officials . . . [is] a fundamental principle of the American form of government.” Id. at 275. This “central meaning” proscribes either civil or criminal punishment for any but the most maliciously, knowingly false criticism of government. “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . [The historical record] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.” Id. at 276. Madison’s Virginia Resolutions of 1798 and his Report in support of them brought together and expressed the theories being developed by the Jeffersonians and represent a solid doctrinal foundation for the point of view that the First Amendment superseded the common law on speech and press, that a free, popular government cannot be libeled, and that the First Amendment absolutely protects speech and press. 6 WRITINGS OF JAMES MADISON, 341–406 (G. Hunt ed., 1908).

389 Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis in original, citation omitted). Justice Frankfurter had similar views in 1951: “The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. . . . ‘The law is perfectly well settled,’ this Court said over fifty years ago, ‘that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.’ Robertson v. Baldwin, 165 U.S. 275, 281. That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years.” Dennis v. United States, 341 U.S. 494, 521–522, 524 (1951) (concurring opinion).

390 Patterson v. Colorado, 205 U.S. 454, 461 (1907).

391 249 U.S. 47, 51–52 (1919) (citations omitted).

392 Debs v. United States, 249 U.S. 211 (1919); Abrams v. United States, 250 U.S. 616 (1919); Schaefer v. United States, 251 U.S. 466 (1920); Pierce v. United States, 252 U.S. 239 (1920); United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921). A state statute similar to the federal one was upheld in Gilbert v. Minnesota, 254 U.S. 325 (1920).

393 Gitlow v. New York, 268 U.S. 652 (1925); Whitney v. California, 274 U.S. 357 (1927). The Brandeis and Holmes dissents in both cases were important formulations of speech and press principles.

394 274 U.S. 380 (1927).

395 283 U.S. 359 (1931). By contrast, it was not until 1965 that a federal statute was held unconstitutional under the First Amendment. Lamont v. Postmaster General, 381 U.S. 301 (1965). See also United States v. Robel, 389 U.S. 258 (1967).

396 See also Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931); Herndon v. Lowry, 301 U.S. 242 (1937); DeJonge v. Oregon, 299 U.S. 353 (1937); Lovell v. City of Griffin, 303 U.S. 444 (1938).

397 Bridges v. California, 314 U.S. 252, 263–68 (1941) (overturning contempt convictions of newspaper editor and others for publishing commentary on pending cases).

398 New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

399 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

400 Through interpretation of the Fourteenth Amendment, the prohibition extends to the states as well. See Bill of Rights: The Fourteenth Amendment and Incorporation, infra . Of course, the First Amendment also applies to the non-legislative branches of government—to every “government agency—local, state, or federal.” Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979).

401 See Fourteenth Amendment: Equal Protection of the Laws: Scope and Application: State Action, infra .

402 Compare Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 399 (1995) (holding that, with respect to Amtrak, because “the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, [Amtrak] is part of the Government for purposes of the First Amendment”) with, Dep’t of Transp. v. Ass’n of Am. R.R., 575 U.S. ___, No. 13–1080, slip op. at 11 (2015) (extending the holding of Lebron , such that Amtrak is considered a governmental entity “for purposes of” the Fifth Amendment Due Process and separation of powers claims presented by the case).

403 CBS v. Democratic Nat’l Comm., 412 U.S. 94, 115 (1973).

404 See Lebron , 513 U.S. at 392 (quoting Ex parte Virginia, 100 U.S. 339, 346–47 (1880)). The Court refused to be bound by the statement in Amtrak’s authorizing statute that the corporation is “not . . . an agency or establishment of the United States Government.” This assertion can be effective only “for purposes of matters that are within Congress’s control,” the Court explained. “[I]t is not for Congress to make the final determination of Amtrak’s status as a Government entity for purposes of determining the constitutional rights of citizens affected by its actions.” Id. at 392.

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Georgetown Center for the Constitution

Congress shall make no law... abridging the freedom of speech, or of the press...., related citations, jud campbell, the invention of first amendment federalism, 97 tex. l. rev. 517 (2019)..

Arguing that the original meaning of the Clause at the time of the founding “put juries primarily in charge of administering governmental limitations of expression” but that Jeffersonian Republicans recast the Clause as a bar on “any [federal] authority to regulate speech or the press” during the debate over the Sedition Act of 1798.

Adam Griffin, First Amendment Originalism: The Original Law and a Theory of Legal Change as Applied to the Freedom of Speech and of the Press, 17 First Amend. L. Rev. 91 (2019).

Arguing that the Jeffersonian Republican’s arguments about the Clause in opposition to the Sedition Act of 1798 have become the meaning of the Clause through the theory of liquidation, whereby ambiguous original meaning of a constitutional clause is fixed or settled to a more refined meaning through an emerging consensus on one of the possible meanings.

Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246 (2018).

Arguing that this Clause is grounded in the Founders’ natural rights understanding and that the Clause’s original meaning included explicitly a prohibition on press licensing, as well as an immunity from government regulation for “well-intentioned statements of one’s views.”

Jud Campbell, What Did the First Amendment Originally Mean?, Richmond L. Mag., Summer 2018, at 19.

Arguing that “the founders thought that the First Amendment required Congress to restrict speech and the press only in promotion of the public good, while also guaranteeing more specific legal rules that had long protected expressive freedom.”

Ashutosh Bhagwat, The Democratic First Amendment, 110 Nw. U. L. Rev. 1097 (2016).

Reviewing the history and origin of the First Amendment’s protections of speech, the press, assembly, and petition, with a significant focus on George Mason’s Master Draft of the Bill of Rights, in order to argue that the goal of the Freedom of Speech Clause is “to advance Democratic self-governance” and the goal of the Freedom of the Press is to permit the press to serve as a “bulwark of liberty” against despotic governments.

Robert G. Natelson, Does “the Freedom of the Press” Include a Right to Anonymity? The Original Meaning, 9 N.Y.U. J.L. & Liberty 160 (2015).

Arguing that the Clause’s press protection includes a protection for author anonymity, except for the common law exceptions of perjury, defamation, obscenity, etc.

David B. Sentelle, Freedom of the Press: A Liberty for All or a Privilege for a Few, 13 Cato Sup. Ct. Rev. 15 (2014).

Arguing that the common view of “the press” as particular institutions is inconsistent with the Clause’s original meaning and arguing instead that the Clause protects every citizen’s right to write and publish.

Eugene Volokh, Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition, 96 Iowa L. Rev. 249 (2010).

Arguing “that constitutional constraints on speech-based civil liability have deep roots, stretching back to the Framing era” and that the author “know[s] of no other source” from the Founding era “that took the contrary view.”

Eugene Volokh, Symbolic Expression and the Original Meaning of the First Amendment, 97 Geo. L.J. 1057 (2009).

Arguing that symbolic expression is included within the original meaning of the First Amendment’s speech protections because Founding era law treated symbolic expression and verbal expression the same and because Founding era commentators like St. George Tucker argued that the First Amendment’s final language included a right to “publicly communicating symbolic expression, such as paintings, effigies, and processions.”

Philip B. Kurtland, The Original Understanding of the Freedom of the Press Provision of the First Amendment, 55 Miss. L.J. 225 (1985).

Discussing Founding era authorities, including Burke, Blackstone, James Wilson, The Federalist Papers, and the debate over the Sedition Act, in order to argue that the Freedom of the Press Clause was primarily to protect political speech from prior restraint by the government.

David A. Anderson, The Origins of the Press Clause, 30 UCLA L. Rev. 455 (1983).

Reviewing the legislative history of the Press Clause, as well as the interpretations of it during the debate about the Sedition Act of 1789, in order to argue that the Press Clause had original significance independent of the Speech Clause, that the press was intended to be the primary source of restraining the government, and that the Clause protected the press much more broadly, not just by prohibiting prior restraint.

Benjamin A. Richards, The Historical Rationale of the Speech-and-Press Clause of the First Amendment, 21 U. Fla. L. Rev. 203 (1969).

Reviewing Founding era interpretations, including the Committee of Detail, ratification debates, The Federalist Papers, early state constitutions, and the First Congress, in order to argue that the Speech and Press Clause was intended to “safeguard the free discussion of public characters and measures to the end that capable and honorable men should be elected to public office and governmental power be scrupulously and responsibly exercised.”

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Freedom of Speech and of the Press

The heritage guide to the constitution.

Congress shall make no law... abridging the freedom of speech, or of the press....

What exactly did the Framers mean by “freedom of speech, or of the press”? Little is definitively known about the subject. The debates in the First Congress, which proposed the Bill of Rights, are brief and unilluminating. Early state constitutions generally included similar provisions, but there is no record of detailed debate about what those state provisions meant. The Framers cared a good deal about the freedom of the press, as the Appeal to the Inhabitants of Quebec , written by the First Continental Congress in 1774, shows:

The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs.

The statement mentions some of the values that the Founders saw as inherent in the principle of freedom of the press: the search and attainment of truth, scientific progress, cultural development, the increase of virtue among the people, the holding of governmental officials to republican values, the strengthening of community, and a check upon self-aggrandizing politicians. But broad statements such as this tell us less than we would like to know about what “the freedom of the press” meant to the Founders as a rule of law, when the freedom would yield to competing concerns, or whether the freedom prohibited only prior restraints or also subsequent punishments.

There were few reported Founding-era court cases that interpreted the federal and state Free Speech and Free Press Clauses, and few Founding-era political controversies excited detailed discussion of what the clauses meant. The governments of the time were small, and the statute books thin. Not many states passed laws restricting commercial advertising. Only one state law banned pornography, and that ban appears to have been unenforced until 1821. Some states had blasphemy laws, but they were largely unenforced from the early 1700s until the 1810s. No laws banned flag-burning, campaign spending, or anonymous speech.

This may but does not necessarily mean that such speech was broadly believed to be constitutionally protected; then, as today, the government did not ban all that it had the power to ban. But the paucity of such bans meant that few people in that era had occasion to define carefully what the constitutional boundaries of speech and press protection might be.

In fact, the most prominent free press debate of the years immediately following the Framing—the Sedition Act controversy—illustrated that there was little consensus on even as central an issue as whether the free press guarantee only prohibited prior restraints on publications critical of the government, or whether it also forbade punishment for “seditious” speech once it was made.

In 1798, the country was fighting the Quasi-War with France. The Federalist Party controlled all three branches of the federal government, and its members suspected many Republican party stalwarts of sympathizing with France and the French Revolution and thus of fomenting disloyalty. Congress consequently made it a crime to publish “any false, scandalous and malicious writing or writings . . . with intent to defame” the government, Congress, or the President, “or to stir up sedition within the United States, or to excite any unlawful combinations . . . for opposing or resisting any law of the United States . . . or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government.” Several publishers were in fact convicted under the law, often under rather biased applications of the falsity requirement.

The Federalists’ actions likely represented a serious constitutional judgment, and not just political expediency. True, malicious falsehoods about the Vice President—Thomas Jefferson, who was a leading Republican—were not covered by the law, and the law was scheduled to expire on March 3, 1801, the day before Federalist President John Adams’s term was to end. But shortly before the law expired, and after the Federalists lost the 1800 election, Federalist Representatives nonetheless tried to renew the Act; had they succeeded, the Act would have punished libels against President Jefferson and the new Democratic-Republican Congressional majority. The bill was defeated in the House by a 53–49 vote, with all but four Federalists voting for it and all Republicans voting against it.

Indeed, in 1799 Federalist Congressman John Marshall (who would soon become Chief Justice), expressed doubts that the Sedition Act was wise but nonetheless argued that the free press guarantee meant only “liberty to publish, free from previous restraint”—free of requirements that printers be licensed, or that their material be approved before publication. Under this view, which echoed the British law as expounded by Sir William Blackstone, criminal punishment after publication was constitutional, at least if the punishment was consistent with the traditional rules of the common law. Other early American political leaders, such as James Madison, the principal drafter of the Bill of Rights, argued the opposite: “[T]his idea of the freedom of the press can never be admitted to be the American idea of it; since a law inflicting penalties on printed publications would have a similar effect with a law authorizing a previous restraint on them.”

Likewise, Marshall and other Federalists argued that the freedom of the press must necessarily be limited, because “government cannot be . . . secured, if by falsehood and malicious slander, it is to be deprived of the confidence and affection of the people.” Not so, reasoned Madison and other Republicans: even speech that creates “a contempt, a disrepute, or hatred [of the government] among the people” should be tolerated because the only way of determining whether such contempt is justified is “by a free examination [of the government’s actions], and a free communication among the people thereon.” It was as if half the country read the constitutional guarantee one way, and the other half, the other way.

The Founding generation undoubtedly believed deeply in the freedom of speech and of the press, but then, as now, these general terms were understood differently by different people. Many people did not think about their precise meaning until a concrete controversy arose; and when a controversy did arise, people disagreed sharply on that meaning.

A Supreme Court case, McIntyre v. Ohio Elections Commission (1995), illustrates the continuing debate over the original meaning of the clause. The question in McIntyre was whether the government could outlaw anonymous electioneering. The majority dealt with the question based on the Court’s twentieth-century case law and twentieth-century First Amendment theories. Justices Clarence Thomas and Antonin Scalia, the Court’s most devoted originalists, however, did focus on the original meaning discussion but reached different results.

Both Justices recognized that there was “no record of discussions of anonymous political expression either in the First Congress, which drafted the Bill of Rights, or in the state ratifying conventions.” They both recognized that much political speech in the time of the Framers (such as The Federalist Papers itself) was anonymous. Indeed, much political speech justifying resistance to Parliament before the Revolution was also anonymous.

To Justice Thomas, the experience of the Founders in their own use of anonymous speech— The Federalist Papers being a classic example—was dispositive of what they would have regarded as a vital part of the freedom of speech, particularly where political speech was at issue. Justice Scalia, however, who has a narrower view of what can be accepted as evidence of original intent apart from the text of the pro-vision itself, argued that “to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right”; perhaps the legislatures simply chose not to prohibit the speech, even though they had the constitutional power to do so.

Justice Thomas did produce evidence that some Founding-era commentators saw anonymous commentary as protected by “the Liberty of the Press,” but Justice Scalia replied that many of these were mere “partisan cr[ies]” that said little about any generally accepted understanding. Justice Thomas found the evidence sufficient to justify reading the First Amendment as protecting anonymous speech. Justice Scalia did not think the historical evidence of what people did necessarily shows much about what people believed they had a constitutional right to do. Instead, Scalia turned to American practices of the 1800s and the 1900s, a source that he considers authoritative where the original meaning is uncertain. A consensus on the original meaning on this subject thus remains elusive.

This having been said, on some questions it is possible to have a good idea of what the Framers thought, based on a combination of pre-Framing, Framing-era, and shortly post-Framing evidence. First, traditional libel law was seen as permissible. Several state constitutions also secured the “freedom of the press” and the “liberty of the press,” and under them, defaming another person was understood to be constitutionally unprotected.

Second, the Free Press Clause was seen as covering the press as technology—all who used printing presses to try to communicate to the public at large—and not the press in the sense of a specific industry or occupation. Professional publishers and journalists were not seen as having symbolic expression, such as paintings, effigies (whether just being displayed or being burnt), liberty poles, and the like as tantamount to verbal expression. Both would be equally punishable as libel, if they conveyed false and defamatory messages about someone. But both would also be equally covered by the freedom of speech or of the press.

Fourth, Framing-era sources treat civil tort liability for speech the same as criminal liability for constitutional purposes. Indeed, the very first court cases setting aside government action on constitutional freedom of expression grounds, an 1802 Vermont case and an 1806 South Carolina case, involved civil libel verdicts set aside because of the state constitutions’ Petition Clauses. Similar cases from that era applied the same principle to state Free Speech and Free Press Clauses.

As noted above, there was considerable controversy about how broad the constitutional protections were, and what the scope of the exceptions to protection might be. But the constitutional protections, whatever their substantive breadth, applied equally without regard to whether the speaker was a professional publisher, whether the communication was symbolic expression or verbal expression, and whether the case involved tort liability or criminal punishment.

Notwithstanding occasional references to originalist debates—such as the originalist debate between Justices Thomas and Scalia in McIntyre —today’s free speech and free press law is not much influenced by original meaning. It mostly stems from the experience and thinking of the twentieth century, as the Court first began to hear a wide range of free speech cases only in the late 1910s. This approach has produced the following general free speech rules:

• As with all of the Bill of Rights, the free speech/free press guarantee restricts only government action, not action by private employers, property owners, householders, churches, universities, and the like.
• As with most of the Bill of Rights, the free speech/free press guarantee applies equally to federal and state governments, which includes local governments as well as all branches of each government. In particular, the civil courts are subject to the First Amendment, which is why libel law and other tort law rules must comply with free speech/press principles. New York Times Co. v. Sullivan (1964).
• The Free Speech and Free Press Clauses have been read as providing essentially equal protection to speakers and writers, whether or not they are members of the institutional press, and largely regardless of the medium—books, newspapers, movies, the Internet—in which they communicate. Newspapers enjoy no more and no fewer constitutional rights than individuals. The one exception is over-the-airwaves radio and television broadcasting, which has for historical reasons been given less constitutional protection. Reno v. ACLU (1997).
• The free speech/free press guarantee also extends to any conduct that is conventionally understood as expressive—for instance, waving a flag, wearing an armband, or burning a flag. It also extends to conduct that is necessary in order to speak effectively, as, for example, using money to buy a public address system or to buy advertising. Restrictions on independent campaign expenditures, for instance, raise First Amendment problems because restricting the use of money for speech purposes is a speech restriction. Stromberg v. California (1931); Buckley v. Valeo (1976); Citizens United v. FEC (2010).
• The free speech/free press guarantee extends not just to political speech but also to speech about religion, science, morality, social conditions, and daily life, as well as to art and entertainment. In the words of a 1948 case, “The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.” And the guarantee extends to low-brow expression (such as jokes or even profanity) as well as high-brow expression. Winters v. New York (1948); Cohen v. California (1971).
• The free speech/free press guarantee extends to all viewpoints, good or evil. There is no exception, for instance, for Communism, Nazism, Islamic radicalism, sexist speech, or “hate speech,” what-ever that term may mean. “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc. (1974); New York Times Co. v. Sullivan.

a. Incitement : Speech may be restricted if it is: (i) intended to persuade people to engage in (ii) imminent unlawful conduct, and (iii) likely to cause such imminent unlawful conduct. Outside this narrow zone, even speech that advocates lawbreaking is constitutionally protected. Brandenburg v. Ohio (1969).

b. Libel, fraud, and perjury : Libel, fraud, and perjury may generally be punished if they consist of knowing lies, though generally not if they are honest mistakes (even unreasonable mistakes). There are, however, some situations where even honest mistakes can be punished. United States v. Alvarez (2012); Gertz v. Robert Welch, Inc .

c. Obscenity : Hard-core pornography is punishable if: (i) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to a shameful or morbid interest in sex or excretion; (ii) the work depicts or describes, in a way that is patently offensive under contemporary community standards, sexual conduct specifically defined by the applicable state law; and (iii) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller v. California (1973).

d. Child pornography : Sexually themed live performances, photographs, and movies that were made using actual children may be punished even if they do not fit within the obscenity test. This does not cover digitized pictures, drawings, or text materials, which are constitutionally protected unless they are obscene. The Court has reasoned that child pornography is unprotected because it hurts the children involved in its making, so the exception only covers cases where actual children were indeed involved. Ashcroft v. Free Speech Coalition (2002).

e. Threats : Speech that is reasonably perceived as a threat of violence (and not just rhetorical hyperbole) can be punished. Virginia v. Black (2003).

f. Fighting words : Face-to-face insults that are addressed to a particular person and are likely to cause an imminent fight can be punished. More generalized offensive speech that is not addressed to a particular person cannot be punished even if it is profane or deeply insulting. Cohen v. California .

g. Speech owned by others : Intellectual property laws, such as copy-right law, may restrict people from using particular expression that is owned by someone else; but the law may not let any-one monopolize facts or ideas. Harper & Row, Publishers, Inc. v. Nation Enterprises (1985).

h. Commercial advertising : Commercial advertising is constitutionally protected, but less so than other speech (political, scientific, artistic, and the like). Misleading commercial advertising may be barred, whereas misleading political speech can-not be. Commercial advertising may also be required to include disclaimers to keep it from being misleading; such disclaimers can’t be required for political speech. Recent cases hold that commercial advertising may not be restricted for paternalistic reasons, because of a fear that people will learn accurate information but will do bad things based on that information—for example, buy more alcohol, smoke more, or prescribe more expensive pharmaceuticals than the government thinks wise. This rule applies only to speech that proposes a commercial transaction between the speaker and the listener; it does not apply to speech that is merely sold in commerce, such as books, videos, and databases. Sorrell v. IMS Health Inc. (2011).

• All of the preceding rules apply to restrictions that relate to what the speech communicates—to the tendency of the speech to persuade people, offend them, or make them feel unsafe. Content-neutral restrictions that relate to the noncommunicative impact of speech—for instance, noise, obstruction of traffic, and so on—are easier to justify. The test for content-neutral restrictions is complicated, but the key point is that the government may generally impose content-neutral “time, place, and manner restrictions” so long as those restrictions leave open ample alternative channels for communication. All such restrictions, however, must be neutral as to content: if they treat speech differently based on con-tent, they are generally unconstitutional even if they focus only on the time, place, and manner of the speech. Ward v. Rock Against Racism (1989).
• Finally, the preceding rules apply to restrictions that are imposed by the government acting as sovereign and backed by the threat of jail terms, fines, or civil liability. They also apply to the government con-trolling what is said in “traditional public fora,” such as parks, streets, sidewalks, or the post office. But when the government is acting as, for instance, (a) employer, (b) K–12 educator, (c) proprietor of government property other than traditional public fora, (d) subsidizer, (e) speaker, or (f) regulator of the airwaves, it has broader (though not unlimited) authority. The rules for that, unfortunately, are too elaborate to set forth here.  Connick v. Myers  (1969);  Tinker v. Des Moines Independent Community School District  (1969);  ISKCON v. Lee  (1992);  Rosenberger v. Rector and Visitors of the University of Virginia  (1995);  FCC v. League of Women Voters of California  (1984).

Free speech/free press law is sometimes called the tax code of constitutional law. The discussion above suggests how complex the law is, but while some of the complexity may be needless, much of it is inevitable. Communication is in many ways the most complicated of human activities, and no simple rule can properly deal with all the different kinds of harms that it can cause--or all the different kinds of harms that restricting communication can cause.

Eugene Volokh

• Further Reading
• Related Essays

Michael Kent Curtis, Free Speech, "The People's Darling Privilege" (2000)

Leonard Levy, Emergence of a Free Press (1995)

David Rabban, Free Speech in Its Forgotten Years, 1870–1920 (1997)

Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech (1996)

Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today , 160 U. Pa. L. Rev. 459 (2012)

Eugene Volokh, Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition , 96 Iowa L. Rev. 249 (2010)

Eugene Volokh, Symbolic Expression and the Original Meaning of the First Amendment , 97 Geo. L.J. 1057 (2009)

Thomas G. West, Freedom of Speech in the American Founding and in Modern Liberalism , 21 Soc. Phil. & Pol’y 310 (2004)

Stromberg v. California, 283 U.S. 359 (1931)

Winters v. New York, 333 U.S. 507 (1948)

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

Brandenburg v. Ohio, 395 U.S. 444 (1969)

Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)

Cohen v. California, 403 U.S. 15 (1971)

Miller v. California, 413 U.S. 15 (1973)

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)

Buckley v. Valeo, 424 U.S. 1 (1976)

Connick v. Myers, 461 U.S. 138 (1983)

FCC v. League of Women Voters of California, 468 U.S. 364 (1984)

Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)

Ward v. Rock Against Racism, 491 U.S. 781 (1989)

ISKCON v. Lee, 505 U.S. 672 (1992)

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995)

Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996)

Reno v. ACLU, 521 U.S. 844 (1997)  

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

Virginia v. Black, 538 U.S. 343 (2003)

Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005)

Citizens United v. Federal Elections Comm’n, 558 U.S. 310 (2010)

Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011)

United States v. Alvarez, 132 S. Ct. 2537 (2012)

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freedom of speech

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• Business LibreTexts - Freedom of Speech
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• University of Washington Pressbooks - Media and Society: Critical Approaches - Censorship and Freedom of Speech
• Free Speech Center at Middle Tennessee State University - Freedom of Speech
• Cornell Law Scholl - Legal Information Institute - Freedom of Speech: Historical Background

freedom of speech , right, as stated in the 1st and 14th Amendments to the Constitution of the United States , to express information, ideas, and opinions free of government restrictions based on content. A modern legal test of the legitimacy of proposed restrictions on freedom of speech was stated in the opinion by Oliver Wendell Holmes, Jr. in Schenk v. U.S. (1919): a restriction is legitimate only if the speech in question poses a “clear and present danger”—i.e., a risk or threat to safety or to other public interests that is serious and imminent . Many cases involving freedom of speech and of the press also have concerned defamation , obscenity , and prior restraint ( see Pentagon Papers ). See also censorship .

Journalism and the Meaning of the First Amendment

Freedom of The Press

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The First Amendment to the U.S. Constitution guarantees the freedom of the press in the United States. The First Amendment is actually three separate clauses that guarantee not only press freedom, but freedom of religion, the right to assemble, and to "petition the government for a redress of grievances." For journalists it's the clause about the press that is most important.

"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."

Press Freedom in Practice

The U.S. Constitution guarantees a free press, which can be extrapolated to include all news media—TV, radio, the web, etc. What do we mean by a free press? What rights does the First Amendment actually guarantee? Primarily, press freedom means the news media are not subject to censorship by the government.

In other words, the government does not have the right to try to control or block certain things from being published by the press. Another term often used in this context is prior restraint, which means an attempt by the government to prevent the expression of ideas before they are published. Under the First Amendment, prior restraint is clearly unconstitutional.

Press Freedom Around the World

Here in America, we're privileged to have what is probably the freest press in the world, as guaranteed by the First Amendment to the U.S. Constitution. Most of the rest of the world isn't so lucky. Indeed, if you close your eyes, spin a globe and plop your finger down onto a random spot, chances are that if you don't land in the ocean, you'll be pointing to a country with press restrictions of some kind. 

China, the world's most populous country, maintains an iron grip on its news media. Russia, the largest country geographically, does much the same. Around the globe, there are entire regions—the Middle East is but one example—in which press freedom is severely curtailed or virtually non-existent. In fact, it's easier—and quicker—to compile a list of regions where the press truly is free.

Such a list would include the U.S., Canada, Western Europe, Scandinavia, Australia, New Zealand, Japan, Taiwan and a handful of countries in South America. In the U.S. and many industrialized nations, the press enjoys a great deal of freedom to report critically and objectively on the important issues of the day. In much of the world, press freedom is either limited or virtually nonexistent. Freedom House offers maps and charts to show where the press is free, where it's not, and where press freedoms are limited.

• Near v. Minnesota: Supreme Court Case, Arguments, Impact
• Freedom of the Press and Student Newspapers
• Republic vs. Democracy: What Is the Difference?
• What Is Prior Restraint? Definition and Examples
• Nebraska Press Association v. Stuart, Supreme Court Case
• The First Amendment: Text, Origins, and Meaning
• Gitlow v. New York: Can States Prohibit Politically Threatening Speech?
• Cantwell v. Connecticut (1940)
• James Madison and the First Amendment
• Kids' Book Censorship: The Who and Why
• Overview of Roth v. United States 1957 Supreme Court Decision
• Miller Test is the Standard Used for Defining Obscenity in U.S. Courts
• What Is Sedition? Definition and Examples
• How to Petition the Government in Under 5 Minutes
• Definitions of Defamation of Character, Libel, and Slander
• Censorship in the United States

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Freedom of the Press

By: History.com Editors

Updated: August 21, 2018 | Original: December 7, 2017

Freedom of the press—the right to report news or circulate opinion without censorship from the government—was considered “one of the great bulwarks of liberty,” by the Founding Fathers of the United States. Americans enjoy freedom of the press as one of the rights guaranteed by the First Amendment. New technologies, however, have created new challenges to media freedom.

The First Amendment , which protects freedom of the press, was adopted on December 15, 1791, as part of the Bill of Rights .

The Bill of Rights provides constitutional protection for certain individual liberties, including freedom of the press, freedom of speech, freedom of religion and the right to assemble and petition the government.

Origins Of Free Press

Before the thirteen colonies declared independence from Great Britain, the British government attempted to censor the American media by prohibiting newspapers from publishing unfavorable information and opinions.

One of the first court cases involving freedom of the press in America took place in 1734. British governor William Cosby brought a libel case against the publisher of The New York Weekly Journal , John Peter Zenger, for publishing commentary critical of Cosby’s government. Zenger was acquitted.

Cato’s Letters

American free press ideals can be traced back to Cato’s Letters, a collection of essays criticizing the British political system that were published widely across pre-Revolutionary America.

The essays were written by Brits John Trenchard and Thomas Gordon. They were published under the pseudonym of Cato between 1720 and 1723. (Cato was a statesman and outspoken critic of corruption in the late Roman Republic.) The essays called out corruption and tyranny in the British government.

A generation later, Cato’s Letters frequently were quoted in newspapers in the American colonies as a source of revolutionary political ideas.

Virginia was the first state to formally protect the press. The 1776 Virginia Declaration of Rights stated, “The freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.”

More than a decade later, Virginia Representative (and later president of the United States) James Madison would borrow from that declaration when drafting the First Amendment.

Media Freedom And National Security

In 1971, United States military analyst Daniel Ellsberg gave copies of classified documents to The New York Times . The documents, which would become known as the Pentagon Papers , detailed a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967.

The Pentagon Papers exposed government knowledge that the war would cost more lives than the public had been told and revealed that the presidential administrations of Harry Truman , Dwight D. Eisenhower , John F. Kennedy and Lyndon B. Johnson all had misled the public about the degree of U.S. involvement in Vietnam.

The government obtained a court order preventing The New York Times from publishing more excerpts from the papers, arguing that the published materials were a national security threat. A few weeks later, the U.S. government sought to block publication of the papers in the Washington Post as well, but the courts refused this time.

In the New York Times Co. v. United States , the Supreme Court ruled in favor of the newspapers, making it possible for The New York Times and Washington Post to publish the contents of the Pentagon Papers without risk of further government censorship.

Former CIA employee Edward Snowden leaked classified documents from the National Security Administration to newspapers in the U.K., United States and Germany in 2013. His leaks revealed several government surveillance programs and set off a global debate about government spying.

Some denounced Snowden as a traitor while others supported his actions, calling him a whistleblower and champion of media freedom.

Press Freedom Around The World

In 2017, a U.S.-based nonprofit, Freedom House, found that just 13 percent of the world’s population enjoys a free press—a media environment where political news coverage is robust and uncensored, and the safety of journalists is guaranteed.

The world’s 10 worst-rated countries and territories include: Azerbaijan, Crimea, Cuba, Equatorial Guinea, Eritrea, Iran, North Korea , Syria , Turkmenistan and Uzbekistan.

The United States ranked 37 of 199 countries and territories for press freedom in 2017. Norway, the Netherlands and Sweden were the top ranking countries.

The Origins of Freedom of Speech and Press; Maryland Law Review . Freedom of the Press 2017; Freedom House .

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Freedom of the Press 101: Definition, Examples, Significance

Freedom of the press is the principle that communication and expression through media is a fundamental right. Article 19 of the Universal Declaration of Human Rights states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” In this article, we’ll define freedom of the press, provide five key examples, and explain why a free press is so important.

Freedom of the press, which gives media like newspapers and TV news the right to communicate and express opinions, is essential to democracy and the protection of human rights.

What is freedom of the press?

Freedom of the press gives individuals and organizations the right to express, publish, and share information, ideas, and opinions without fear of censorship or government interference. It does not cover things like defamation, hate speech, and incitement to violence. In countries where freedom of the press is not protected, journalists, bloggers, political commentators, and others are frequently threatened. According to UNESCO, over 1,200 media professionals were killed between 2006 and 2020. In 90% of the cases, their murderers weren’t punished.

While the UDHR established freedom of the press in 1948, the concept is much older. In 1766, Sweden passed what’s considered the world’s first law protecting freedom of the press. It ended the government censorship of printed information. It also established that citizens of a state should be free to express and spread information without retaliation. 25 years later, the U.S. Constitution put free speech and a free press in the First Amendment.

What does freedom of the press look like?

Freedom of the press gives journalists, publishers, and other media the ability to uncover the truth, hold the powerful accountable, and share information that educates the public. Here are five examples of a free press in action:

Investigative reporting

Freedom of the press is vital to investigative reporting. While all reporting could technically be considered “investigative,” investigative journalists tend to report on especially serious issues, such as political corruption, crimes, major corporate scandals, human rights abuses, and so on. Investigative journalists collect massive amounts of in-depth research and communicate with people who often need to stay anonymous. In places where freedom of the press isn’t protected, investigative journalists face censorship and significant threats to their safety.

In 2021, reporter Timo Kollburner traveled to China to investigate the fast-fashion giant Shein. This company is known for cheap clothing and its mastery of social media, but for a while, no one was sure what was going on at their factories. Reporting for Public Eye, Kollbruner learned that thousands of Chinese workers work up to 12 hours a day with just one day off per month. Employees and undercover agents also reported that factories don’t use contracts, contribute to social security, or follow basic safety rules. Investigative reporting like this is essential to uncovering what the powerful want to keep hidden.

Whistleblower protections

Whistleblowers are individuals who share information about a private or public organization’s illegal, unsafe, or unethical actions. They’re usually employees of that organization. Because whistleblowers are at risk of retaliation from their organization, many countries have established protections. In 2019, the European Parliament approved new whistleblower rules protecting those who disclose information on illegal or harmful activities. They’re allowed to disclose information internally or externally, but if no appropriate action is taken, the whistleblower is still protected if they disclose information publicly. Public disclosure usually means going to a journalist. Freedom of the press gives journalists and publications the right to protect a whistleblower’s identity.

In 2004, a TV reporter from Providence, Rhode Island aired footage of a city official accepting a bribe from an undercover FBI informant. Because the tape he used had been sealed evidence, Jim Taricani was subpoenaed. He refused to reveal his source. Freedom of the press protected his right to keep it secret, he said, and his source had only given him the tape with the assurance of confidentiality. Taricani ended up serving six months of home confinement. The Reporters Committee, which is a nonprofit that provides pro bono legal services to journalists, released a statement supporting Taricani.

Political criticism

For the media, political criticism consists of reporting, analyzing, and commenting on any form of politics, such as politicians, legislation, and world events. Criticism occurs in newspapers, TV news, opinion pieces, political cartoons, talk shows, and more. Freedom of the press gives journalists, publishers, and TV networks the freedom to criticize any politician or legislation, regardless of how the target feels about it. In places without freedom of the press, political criticism is often illegal, so anyone (journalist or not) who engages in it is at risk of imprisonment or even death.

North Korea has some of the harshest punishments for political criticism. There are no independent media outlets, so all the state-run media companies show only political propaganda and praise for Kim Jong Un. All radio and TV sets bought in Korea can only receive government frequencies, and it’s illegal to tamper with the technology. Anyone who criticizes the government risks being sent to a prison camp where there’s forced labor, torture, and starvation.

Fair use is a legal doctrine that grants limited use of copyrighted material. If something falls under the “fair use” umbrella, it’s not necessary to get permission from the copyright owner. It’s mostly used within the United States, but other countries have similar doctrines. What’s considered fair use? It depends on what the material will be used for . If it’s for criticism, comment, teaching, research, parody, and news reporting, you most likely don’t need to obtain permission. It also depends on what the copywritten material is, how much of the material is being used, and whether using the material significantly impacts the potential market for the work or not. Fair use matters to a free press because it gives journalists and other media outlets some freedom to use copyrighted material.

In 2011, Bloomberg secretly got a recording of a finance conference call from Swatch Group, the world’s largest watchmaker. The publication released the transcripts. Swatch sued for copyright infringement, but the court ruled that the use of the materials fell under fair use. The judge expressed some criticism of how Bloomberg handled the recording, but its use served an “important public purpose.”

Editorial independence

Editorial independence gives editors the freedom to make decisions without interference from the publication’s owners. Why is this so important? If a big story about the publication’s owners or an advertising client emerges, editorial independence lets the journalists cover it without retaliation. Editorial independence is important to freedom of the press. Without it, journalists and editors are bound to the whims of their publishers, advertisers, or the state. A study from 2021 found almost 80% of the world’s state-run media companies don’t have editorial independence.

What do you consider the biggest threat to freedom of the press?

• Government Censorship: Laws and regulations that restrict what journalists can report on or publish.
• Corporate Influence: The sway that large corporations have over media organizations, possibly affecting unbiased reporting.
• Public Apathy: Lack of public interest or engagement in serious journalism, leading to reduced funding and diminished influence.
• Misinformation a Disinformation The spread of false or misleading information, either intentionally or unintentionally, which can erode public trust in journalism.

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Why is freedom of the press significant?

Freedom of the press is one of the foundations for a strong democracy . Without a free press, it’s much harder for the public to receive information free from government interference, corruption, and propaganda. It’s also much harder for individuals and organizations to develop ideas about the world, learn from perspectives different from their own, understand how to protect human rights , and expose corruption. There’s a reason why authoritarian countries like Germany under Hitler, Cuba under Castro, North Korea, China, and Russia target the media so strictly. When governments and corporations control the press, they control the flow of information. They can shape reality into a form that favors them and punishes dissent. Information is power.

In 2023, freedom of the press is threatened all over the world. According to the World Press Freedom Index, the situation is “very serious” in 31 countries, “difficult” in 42, and “problematic” in 55. The environment for journalism is “satisfactory” in just 3 out of every 10 countries. The fake content industry is a big reason why. In the Index’s questionnaire, most respondents reported an increased spread of disinformation and propaganda campaigns. Disinformation blurs the lines between what’s real and what’s fake. Disinformation has always existed, but technologies like artificial intelligence, which can create very convincing photos, are making things even harder for fact-checkers, journalists, and the general public. Actions like better funding for local and independent news, stronger regulations for social media platforms, better legal protections for journalists, and increased support for organizations that help journalists are necessary for freedom of the press.

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About the author, emmaline soken-huberty.

Emmaline Soken-Huberty is a freelance writer based in Portland, Oregon. She started to become interested in human rights while attending college, eventually getting a concentration in human rights and humanitarianism. LGBTQ+ rights, women’s rights, and climate change are of special concern to her. In her spare time, she can be found reading or enjoying Oregon’s natural beauty with her husband and dog.

The Freedom of the Press Is Enshrined in the First Amendment—But What That Means Has Changed

T he United Nations recognizes May 3 as World Press Freedom Day , and this year’s theme is “Media for Democracy, Journalism, and Elections in Times of Disinformation” — a choice meant to encourage discussions of the challenges faced by the press today when it comes to reporting on elections.

Ours is not the first era to recognize the importance of a free press in a functioning democracy. In the United States, that acknowledgement dates back to practically the beginning, as the First Amendment to the U.S. Constitution, among its other guarantees, bars Congress from making any laws “abridging the freedom of speech, or of the press.”

But the meaning of those words has evolved — and, as it turns out, the modern idea of a free press is a newer innovation than it seems. For more on that, TIME spoke to Lee C. Bollinger, President of Columbia University and co-editor of the recently released The Free Speech Century, an anthology of essays on the First Amendment.

TIME: Why do we have the First Amendment?

BOLLINGER: In democracies, the idea is that sovereignty rests with the citizens. In order for that sovereignty to be exercised effectively, citizens have to be able to discuss things and do so freely without interference of the government. I think press freedom is intimately associated with that, and that’s very easy to understand if you start with that premise. The citizens can’t know everything they need to know about the government and you need institutions that are dedicated to trying to inform the people.

The Free Speech Century takes 1919 as its starting point. Why then?

It wasn’t until 1919 that the Supreme Court weighed in for the first time to say what this right expressed in the First Amendment really means. Why it began then is one of the mysteries and puzzles of U.S. history and history of the First Amendment. What we do know is that in World War I there was a rising sense of patriotism, as always happens in wars, and accompanying that was a really serious case of intolerance toward anyone who dissented. In 1919, there were several cases that had been part of this wave of intolerance around the country. Three of these cases — Schenck , Frohwerk and Debs — made it up to the Supreme Court, which unanimously rejected the claim that free speech had been violated. So it was an inauspicious start to the First Amendment as we know it today.

While the court didn’t reach a pro-free-speech result as we think of it today, an opinion by Justice Oliver Wendell Holmes said that the First Amendment protected speech against government intervention until there was a clear and present danger. The juries in those cases could find one, and that’s why they affirmed the convictions, but the standard took hold as a potentially strong statement about the First Amendment, in the sense that the government had a burden now to prove to juries and courts that there was a clear and present danger, otherwise they couldn’t suppress the speech. Holmes was then joined by a new justice, Louis Brandeis , and together they wrote, in a series of opinions, some of the most eloquent, powerful and persuasive defenses of freedom of speech and freedom of the press. While they were in dissent in those early years, in the 1920s, their view eventually carried the day .

What do you think the Framers would think about the relationship between the President of the United States and the press today?

It’s hard to know what the Framers thought, but if you take the sum of history of the U.S. you have to be really discouraged and deeply concerned about the way in which free speech and free press are being talked about today by many people in this society, but by the President in particular. There is always going to be unhappiness on both sides, because of the press not having access to information and the government feeling they don’t have the ability to function effectively. [But] it has reached a level of disrespect for the basic principles of free speech and free press that is alarming. There are many ways for a government to exercise censorship. One is to make a law, but there are many more subtle ways in which you can accomplish very similar forms of censorship. The attacking of the press, the inciting of intolerance in society toward other points of view and towards the press, is itself a form of censorship.

How has interpretation of the First Amendment evolved since 1919?

It had some mixed results through the ’50s. Sometimes the court was very protective of speech; sometimes it was very un-protective of speech. There are wonderful pro-free speech decisions in the ’30s, a few in the 1940s. The famous example in the 1950s involves the McCarthy era and the efforts of the government to prosecute people believed to have Communist views, so there’s a kind of up and down.

Then everything changed in the ’60s, in particular with New York Times v. Sullivan; that case held that a citizen cannot be sued for defamation or libel by a public official for falsehoods that the citizen may have expressed, unless the public official can show the citizen made those false statements knowingly or in reckless disregard of the truth. That was very important in establishing the right of citizens to criticize government officials. But what was most important was that it established a broad theory of free speech that was highly protective. So when I said people think we have the First Amendment because of sovereignty lying in the citizenry, that idea was expressed in New York Times v. Sullivan in a very eloquent way. And for the past 50 years, but only 50 years, we have had a robust principle of freedom of speech in the press. The jurisprudence and freedom of speech and press, as developed beginning with New York Times v. Sullivan , is one of the great public goods the U.S. has offered to the world.

What do you think lies ahead for the First Amendment?

There’s a view of the U.S. Constitution that it should be interpreted according to the original intent of the Framers, but the fact of the matter is, we know virtually very, very little about what the Framers thought these general terms should mean. The First Amendment says “Congress shall make no law… abridging the freedom of speech, or of the press.” That’s very, very general. What is the freedom of speech? I think they deliberately didn’t say because that has to be interpreted for each new generation. I think the only thing that the Framers would find distressing is if the whole project were abandoned. It’s our responsibility to continue developing this responsibly.

How are we going to deal with the new technologies of communications, the Internet and social media? Destructive speech is on social-media platforms. A decade ago, the same media were thought to be the final answer to an open marketplace of ideas, and the final realization of free speech because now everybody can speak. We have to understand the arguments for protecting [extremist speech] and we have to be open to the arguments against protecting. The Supreme Court has two decisions that meet diametrically opposite conclusions on this; in 1952, the Supreme Court said that Illinois could punish somebody for racist speech that happened in that case, and then in 1968, in Brandenburg v. Ohio, the Supreme Court reached a different result, saying a meeting of the Klan that included potential threats against blacks and Jews was protected speech. Brandenburg has sort of won the day, but that issue continues to be a matter of debate.

What should the takeaway be about the history of the First Amendment on World Press Freedom Day?

The questions about a global development of free-press norms we can live by is extremely important. The Khashoggi murder needs to be thought about not only as an international human-rights violation, but also as a direct First Amendment issue. Arguably he was murdered because of what he was saying in the Washington Post. He was an American resident protected by the First Amendment in what he was saying, and a foreign government allegedly brought about his murder because of those statements. Given the fact that we now have a more interconnected world economically, the world is much more integrated. We all live closer together and there are global issues that can only be decided on a global basis.

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Freedom of speech: historical background.

• U.S. Constitution Annotated

First Amendment :

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.

Madison’s version of the speech and press clauses, introduced in the House of Representatives on June 8, 1789, provided: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” 1 Footnote 1 Annals of Cong. 434 (1789) . Madison had also proposed language limiting the power of the states in a number of respects, including a guarantee of freedom of the press. Id. at 435 . Although passed by the House, the amendment was defeated by the Senate. See “Amendments to the Constitution, Bill of Rights and the States,” supra . The special committee rewrote the language to some extent, adding other provisions from Madison’s draft, to make it read: “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.” 2 Footnote Id. at 731 (August 15, 1789). In this form it went to the Senate, which rewrote it to read: “That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.” 3 Footnote The Bill of Rights: A Documentary History 1148–49 (B. Schwartz ed. 1971) . Subsequently, the religion clauses and these clauses were combined by the Senate. 4 Footnote Id. at 1153 . The final language was agreed upon in conference.

Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause, and there is no record of debate in the Senate. 5 Footnote The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. 1 Annals of Cong. 731–49 (Aug. 15, 1789) . There are no records of debates in the states on ratification. In the course of debate, Madison warned against the dangers that would arise “from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.” 6 Footnote Id. at 738 . That the “simple, acknowledged principles” embodied in the First Amendment have occasioned controversy without end both in the courts and out should alert one to the difficulties latent in such spare language.

Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone. “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.” 7 Footnote 4 W. Blackstone’s Commentaries on the Laws of England 151–52 (T. Cooley, 2d rev. ed. 1872) . See 3 J. Story , Commentaries on the Constitution of the United States 1874–86 (1833) . The most comprehensive effort to assess theory and practice in the period prior to and immediately following adoption of the Amendment is L. Levy , Legacy of Suppression: Freedom of Speech and Press in Early American History (1960) , which generally concluded that the Blackstonian view was the prevailing one at the time and probably the understanding of those who drafted, voted for, and ratified the Amendment.

Whatever the general unanimity on this proposition at the time of the proposal of and ratification of the First Amendment , 8 Footnote It would appear that Madison advanced libertarian views earlier than his Jeffersonian compatriots, as witness his leadership of a move to refuse officially to concur in Washington’s condemnation of “[c]ertain self-created societies,” by which the President meant political clubs supporting the French Revolution, and his success in deflecting the Federalist intention to censure such societies. I. Brant , James Madison: Father of the Constitution 1787–1800 at 416–20 (1950) . “If we advert to the nature of republican government,” Madison told the House, “we shall find that the censorial power is in the people over the government, and not in the government over the people.” 4 Annals of Cong. 934 (1794) . On the other hand, the early Madison, while a member of his county’s committee on public safety, had enthusiastically promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period. 1 Papers of James Madison 147, 161–62, 190–92 (W. Hutchinson & W. Rachal, eds., 1962) . There seems little doubt that Jefferson held to the Blackstonian view. Writing to Madison in 1788, he said: “A declaration that the Federal Government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.” 13 Papers of Thomas Jefferson 442 (J. Boyd ed., 1955) . Commenting a year later to Madison on his proposed amendment, Jefferson suggested that the free speech-free press clause might read something like: “The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” 15 Papers , supra , at 367. it appears that there emerged in the course of the Jeffersonian counterattack on the Sedition Act 9 Footnote The Act, 1 Stat. 596 (1798), punished anyone who would “write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute.” See J. Smith , Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (1956) . and the use by the Adams Administration of the Act to prosecute its political opponents, 10 Footnote Id. at 159 et seq. something of a libertarian theory of freedom of speech and press, 11 Footnote L. Levy , Legacy of Suppression: Freedom of Speech and Press in Early American History ch. 6 (1960) ; New York Times Co. v. Sullivan, 376 U.S. 254, 273–76 (1964) . But compare L. Levy , Emergence of a Free Press (1985) , a revised and enlarged edition of Legacy of Expression , in which Professor Levy modifies his earlier views, arguing that while the intention of the Framers to outlaw the crime of seditious libel, in pursuit of a free speech principle, cannot be established and may not have been the goal, there was a tradition of robust and rowdy expression during the period of the framing that contradicts his prior view that a modern theory of free expression did not begin to emerge until the debate over the Alien and Sedition Acts. which, however much the Jeffersonians may have departed from it upon assuming power, 12 Footnote L. Levy , Jefferson and Civil Liberties: The Darker Side (1963) . Thus President Jefferson wrote to Governor McKean of Pennsylvania in 1803: “The federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked it in an opposite direction; that is, by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. . . . This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.” 9 Works of Thomas Jefferson 449 (P. Ford ed., 1905) . was to blossom into the theory undergirding Supreme Court First Amendment jurisprudence in modern times. Full acceptance of the theory that the Amendment operates not only to bar most prior restraints of expression but subsequent punishment of all but a narrow range of expression, in political discourse and indeed in all fields of expression, dates from a quite recent period, although the Court’s movement toward that position began in its consideration of limitations on speech and press in the period following World War I. 13 Footnote New York Times Co. v. Sullivan, 376 U.S. 254 (1964) , provides the principal doctrinal justification for the development, although the results had long since been fully applied by the Court. In Sullivan , Justice Brennan discerned in the controversies over the Sedition Act a crystallization of “a national awareness of the central meaning of the First Amendment ,” id. at 273 , which is that the “right of free public discussion of the stewardship of public officials . . . [is] a fundamental principle of the American form of government.” Id. at 275 . This “central meaning” proscribes either civil or criminal punishment for any but the most maliciously, knowingly false criticism of government. “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . [The historical record] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment .” Id. at 276 . Madison’s Virginia Resolutions of 1798 and his Report in support of them brought together and expressed the theories being developed by the Jeffersonians and represent a solid doctrinal foundation for the point of view that the First Amendment superseded the common law on speech and press, that a free, popular government cannot be libeled, and that the First Amendment absolutely protects speech and press. 6 Writings of James Madison , 341–406 (G. Hunt ed., 1908) . Thus, in 1907, Justice Holmes could observe that, even if the Fourteenth Amendment embodied prohibitions similar to the First Amendment , “still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all.” 14 Footnote Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis in original, citation omitted). Justice Frankfurter had similar views in 1951: “The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. . . . ‘The law is perfectly well settled,’ this Court said over fifty years ago, ‘that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.’ Robertson v. Baldwin, 165 U.S. 275, 281 (1897) . That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years.” Dennis v. United States, 341 U.S. 494, 521–522, 524 (1951) (concurring opinion). But as Justice Holmes also observed, “[t]here is no constitutional right to have all general propositions of law once adopted remain unchanged.” 15 Footnote Patterson v. Colorado, 205 U.S. 454, 461 (1907) .

But, in Schenck v. United States , 16 Footnote 249 U.S. 47, 51–52 (1919) (citations omitted). the first of the post-World War I cases to reach the Court, Justice Holmes, in his opinion for the Court upholding convictions for violating the Espionage Act by attempting to cause insubordination in the military service by circulation of leaflets, suggested First Amendment restraints on subsequent punishment as well as on prior restraint. “It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose . . . . We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. . . . The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Justice Holmes, along with Justice Brandeis, soon went into dissent in their views that the majority of the Court was misapplying the legal standards thus expressed to uphold suppression of speech that offered no threat to organized institutions. 17 Footnote Debs v. United States, 249 U.S. 211 (1919) ; Abrams v. United States, 250 U.S. 616 (1919) ; Schaefer v. United States, 251 U.S. 466 (1920) ; Pierce v. United States, 252 U.S. 239 (1920) ; United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921) . A state statute similar to the federal one was upheld in Gilbert v. Minnesota, 254 U.S. 325 (1920) . But it was with the Court’s assumption that the Fourteenth Amendment restrained the power of the states to suppress speech and press that the doctrines developed. 18 Footnote Gitlow v. New York, 268 U.S. 652 (1925) ; Whitney v. California, 274 U.S. 357 (1927) . The Brandeis and Holmes dissents in both cases were important formulations of speech and press principles. At first, Holmes and Brandeis remained in dissent, but, in Fiske v. Kansas , 19 Footnote 274 U.S. 380 (1927) . the Court sustained a First Amendment type of claim in a state case, and in Stromberg v. California , 20 Footnote 283 U.S. 359 (1931) . By contrast, it was not until 1965 that a federal statute was held unconstitutional under the First Amendment . Lamont v. Postmaster General, 381 U.S. 301 (1965) . See also United States v. Robel, 389 U.S. 258 (1967) . voided a state statute on grounds of its interference with free speech. 21 Footnote See also Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) ; Herndon v. Lowry, 301 U.S. 242 (1937) ; DeJonge v. Oregon, 299 U.S. 353 (1937) ; Lovell v. City of Griffin, 303 U.S. 444 (1938) . State common law was also voided, with the Court in an opinion by Justice Black asserting that the First Amendment enlarged protections for speech, press, and religion beyond those enjoyed under English common law. 22 Footnote Bridges v. California, 314 U.S. 252, 263–68 (1941) (overturning contempt convictions of newspaper editor and others for publishing commentary on pending cases).

Development over the years since has been uneven, but by 1964 the Court could say with unanimity: “we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 23 Footnote New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) . And, in 1969, the Court said that the cases “have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 24 Footnote Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) . This development and its myriad applications are elaborated in the following sections.

The following state regulations pages link to this page.

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The Kamala Harris coconut tree meme, explained as best we can

Lexie Schapitl

Rachel Treisman

Vice President Kamala Harris speaks to members of the Alpha Kappa Alpha Sorority at the Kay Bailey Hutchison Convention Center on July 10 in Dallas. Brandon Bell/Getty Images hide caption

For more on Biden's decision and the now open 2024 race, head to the NPR Network's live updates page .

In the weeks before President Biden announced he would not be seeking reelection , some Democrats online rallied behind Vice President Kamala Harris to become the party’s new nominee. And their symbol became the coconut tree.

Not long after Biden announced on Sunday he was dropping out of the race, Colorado Gov. Jared Polis tweeted out just three emojis : a coconut, a palm tree and an American flag. EMILYs LIST, the PAC focused on electing Democratic women, explicitly endorsed Harris in a tweet and, in a more subtle show of support, also added the tree and the coconut to its username. And Democratic Sen. Brian Schatz of Hawaii posted a picture of himself climbing up a coconut tree , adding, "Madam Vice President, we are ready to help."

🥥 🌴 🇺🇸 — Jared Polis (@jaredpolis) July 21, 2024

So how did the coconut tree emerge as the emblem of Harris' most devoted, or at least most-online followers? It's a story more than a year in the making.

Why are we even talking about coconut trees?

The “coconut tree” meme originates from a May 2023 speech Harris gave at a White House event for advancing opportunities for Hispanic Americans.

At one point near the end of her remarks, Harris talked about how the initiative's work would be focused on young people, but it should also take into account the needs of their families, teachers and communities, "because none of us just live in a silo."

We’re proud to endorse @kamalaharris as the next president of the United States because we know she is a qualified accomplished leader. She is the only candidate positioned to win against Trump in November, and the best voice to define the stakes in this election! #allinforkamala pic.twitter.com/CmdgImMaDz — EMILYs List 🥥🌴 (@emilyslist) July 21, 2024

"Everything is in context," Harris said, before launching into the now-famous anecdote.

"My mother ... would give us a hard time sometimes, and she would say to us, 'I don’t know what’s wrong with you young people. You think you just fell out of a coconut tree?' " Harris said with a laugh. "You exist in the context of all in which you live and what came before you."

The moment was first meme’d in earnest in February of this year, when for a period of time, one could not open X, formerly known as Twitter, without seeing clips of or oblique references to those remarks.

this video is literally like medicine to me. i watch it once every week or two and every time i do i get an enduring hit of light euphoria for the next 45 minutes pic.twitter.com/eIF6Rwiir0 — charlie squire (@evil_female) February 9, 2024

But the meme took on new life this summer , after President Biden’s disastrous debate performance fueled speculation that he might step aside as the Democratic nominee. Harris’ supporters, also known as the KHive, were waiting in the wings.

Since then, the moment has been remixed into Charli XCX’s “ Von Dutch ” and Britney Spears’ " Gimme More ." Democratic operatives have spoken of being “ coconut-pilled .” The meme flourished into 2028 debate fan fiction . Google searches for "coconut tree" started climbing in the U.S. in early July.

Like all of us, the coconut tree moment exists in the context of all in which it lives and what came before it. Which is to say, it’s part of a larger set of memes surrounding Kamala Harris’ political persona. Harris has been spawning memes longer than she’s been vice president. We Did It, Joe , is likely the most well-known. But her laugh , her bus , her dance moves and her love of Venn diagrams have all become social media fodder.

We did it, @JoeBiden . pic.twitter.com/oCgeylsjB4 — Kamala Harris (@KamalaHarris) November 7, 2020

So why did the coconut tree break through?

It's impossible to say why any particular meme — political or otherwise — catches fire over another. But part of Harris’ persona as portrayed on the internet is just that she   brings an energy that’s in stark contrast to President Biden and former President Donald Trump.

“We want something to laugh at and laugh with. And that's what Kamala does. And I think the coconut tree clip is a perfect example of that,” said Rebecca Jennings, a senior correspondent at Vox covering internet culture. 

Put another way, Harris — even being 59 and the incumbent vice president —represented something new in a campaign defined by old. And that stoked some enthusiasm among voters who were very unenthused.

“There's a sense of, like, nihilism that's like – OK, we have to do this again , and we have to do Trump and Biden again ,” Jennings said. “And so when you see clips of Kamala, it's like, well, at least that's fun to watch. At least it's, you know, not the same thing we've been seeing on screens for 10 years. It's a break in the just the drudgery of what what everyone thought this election was going to be.”

Young Democrats — among the most dissatisfied with Biden as a candidate, and the most online — also helped fuel the movement. As Washington Post internet culture reporter Taylor Lorenz wrote : "Harris’s new online prominence could help give the Democratic Party new prominence with young people — including major content creators — who are hesitant to vote for Biden again due to his climate policies, support of Israel’s war in Gaza, mishandling of the ongoing pandemic, and signing a bill that could ban TikTok."

One man's gaffe is another man's meme

From the coconut trees to the Venn diagrams, the Harris memes embrace what detractors might consider a gaffe. Trump, for instance, has dubbed Harris " laughing Kamala ," saying the laugh makes her seem "crazy."

Take another example, which grew out of one of Harris' go-to lines dating back to her 2020 presidential run: “I can imagine what can be, unburdened by what has been.”

The RNC compiled a supercut of Harris being "unburdened" and shared it on social media, arguing that it shows she is “unoriginal, annoying, and highly incompetent.” But the attacks aren’t sticking, as her supporters have taken ownership of the line and the laughter.

Jennings said it’s reminiscent of the critiques hurled at Trump throughout his political career, only to be welcomed by his base.

“People like the fact that he was saying offensive things,” Jennings said. "And I think it's strange for Republicans to kind of now be on the other end of that – which is making all these, you know, memes and videos of Kamala being goofy and quirky and the left being like, “Hell, yeah, brother.”

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Transcript: Biden’s speech explaining why he withdrew from the 2024 presidential race

President Joe Biden addresses the nation from the Oval Office of the White House in Washington, Wednesday, July 24, 2024, about his decision to drop his Democratic reelection bid. (AP Photo/Evan Vucci, Pool)

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WASHINGTON (AP) — Transcript of President Joe Biden’s address to the nation on July 24, 2024:

My fellow Americans, I’m speaking to you tonight from behind the Resolute Desk in the Oval Office. In this sacred space, I’m surrounded by portraits of extraordinary American presidents. Thomas Jefferson wrote the immortal words that guide this nation. George Washington, who showed us presidents are not kings. Abraham Lincoln, who implored us to reject malice. Franklin Roosevelt, who inspired us to reject fear.

I revere this office, but I love my country more.

It’s been the honor of my life to serve as your president. But in the defense of democracy, which is at stake, I think it’s more important than any title.

I draw strength and I find joy in working for the American people, but this sacred task of perfecting our union is not about me. It’s about you, your families, your futures. It’s about we the people, and we can never forget that. And I never have.

I’ve made it clear that I believe America is at an inflection point, one of those rare moments in history when the decisions we make now will determine our fate of our nation and the world for decades to come.

America is going to have to choose between moving forward or backward, between hope and hate, between unity and division. We have to decide, do we still believe in honesty, decency, respect, freedom, justice and democracy? In this moment, we can see those we disagree with not as enemies, but as fellow Americans. Can we do that? Does character in public life still matter?

I believe you know the answer to these questions because I know you, the American people, and I know this, we are a great nation because we are a good people.

When you elected me to this office, I promised to always level with you, to tell you the truth. And the truth, the sacred cause of this country, is larger than any one of us, and those of us who cherish that cause cherish it so much, a cause of American democracy itself must unite to protect it.

You know, in recent weeks it’s become clear to me that I needed to unite my party in this critical endeavor. I believe my record as president, my leadership in the world, my vision for America’s future all merited a second term, but nothing, nothing can come in the way of saving our democracy, and that includes personal ambition.

So I’ve decided the best way forward is to pass the torch to a new generation. That’s the best way to unite our nation. I know there is a time and a place for long years of experience in public life, but there’s also a time and a place for new voices, fresh voices, yes, younger voices, and that time and place is now.

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Over the next six months, I’ll be focused on doing my job as president. That means I’ll continue to lower costs for hard-working families, grow our economy. I’ll keep defending our personal freedoms and our civil rights, from the right to vote to the right to choose. I’ll keep calling out hate and extremism, make it clear there is no place, no place in America for political violence or any violence ever, period. I’m going to keep speaking out to protect our kids from gun violence, our planet from climate crisis, is the existential threat.

And I will keep fighting for my for my cancer moonshot, so we can end cancer as we know it because we can do it. And I’m going to call for Supreme Court reform because this is critical to our democracy, Supreme Court reform. You know, I will keep working to ensure America remains strong and secure and the leader of the free world.

I’m the first president in this century to report to the American people that the United States is not at war anywhere in the world. We’ll keep rallying a coalition of proud nations to stop Putin from taking over Ukraine and doing more damage. We’ll keep NATO stronger, and I’ll make it more powerful and more united than at any time in all of our history. I’ll keep doing the same for allies in the Pacific.

You know, when I came to office, the conventional wisdom was that China would inevitably surpass the United States. That’s not the case anymore. And I’m going to keep working to end the war in Gaza, bring home all the hostages and bring peace and security to the Middle East and end this war.

We’re also working around the clock to bring home Americans being unjustly detained all around the world. You know, we’ve come so far since my inauguration. On that day, I told you as I stood in that winter — we stood in a winter of peril and a winter of possibilities, peril and possibilities. We were in the grip of the worst pandemic in the century, the worst economic crisis since the Great Depression, the worst attack on our democracy since the Civil War, but we came together as Americans, and we got through it. We emerged stronger, more prosperous and more secure.

Today, we have the strongest economy in the world, creating nearly 16 million new jobs — a record. Wages are up, inflation continues to come down, the racial wealth gap is the lowest it’s been in 20 years. We’re literally rebuilding our entire nation, urban, suburban, rural and tribal communities. Manufacturing has come back to America.

We’re leading the world again in chips and science and innovation. We finally beat Big Pharma after all these years, to lower the cost of prescription drugs for seniors, and I’m going to keep fighting to make sure we lower the cost for everyone, not just seniors.

More people have health care today in America than ever before. And I signed one of the most significant laws helping millions of veterans and their families who were exposed to toxic materials. You know, the most significant climate law ever, ever in the history of the world, the first major gun safety law in 30 years. And today, violent crime rate is at a 50-year low.

We’re also securing our border. Border crossings are lower today than when the previous administration left office. And I’ve kept my commitment to appoint the first Black woman to the Supreme Court of the United States of America. I also kept my commitment to have an administration that looks like America and be a president for all Americans.

That’s what I’ve done. I ran for president four years ago because I believed, and still do, that the soul of America was at stake. The very nature of who we are was at stake and that’s still the case. America is an idea, an idea stronger than any army, bigger than any ocean, more powerful than any dictator or tyrant.

It’s the most powerful idea in the history of the world. That idea is that we hold these truths to be self-evident. We’re all created equal, endowed by our creator with certain inalienable rights, life, liberty, pursuit of happiness. We’ve never fully lived up to it, to this sacred idea, but we’ve never walked away from it either and I do not believe the American people will walk away from it now.

In just a few months, the American people will choose the course of America’s future. I made my choice. I made my views known. I would like to thank our great Vice President Kamala Harris. She’s experienced, she’s tough, she’s capable. She’s been an incredible partner to me and a leader for our country. Now the choice is up to you, the American people.

When you make that choice, remember the words of Benjamin Franklin. It’s hanging on my wall here in the Oval Office, alongside the bust of Dr. King and Rosa Parks and Cesar Chavez. When Ben Franklin was asked as he emerged from the convention going on, whether the founders have given America a monarchy or republic, Franklin’s response was “a republic, if you can keep it.” A republic if you can keep it. Whether we keep our republic is now in your hands.

My fellow Americans, it’s been the privilege of my life to serve this nation for over 50 years. Nowhere else on earth could a kid with a stutter from modest beginnings in Scranton, Pennsylvania, and Claymont, Delaware, one day sit behind the Resolute Desk in the Oval Office as President of the United States, but here I am. That’s what’s so special about America.

We are a nation of promise and possibilities, of dreamers and doers, of ordinary Americans doing extraordinary things. I’ve given my heart and my soul to our nation, like so many others. I’ve been blessed a million times in return with the love and support of the American people. I hope you have some idea how grateful I am to all of you.

The great thing about America is here kings and dictators do not rule, the people do. History is in your hands. The power is in your hands. The idea of America lies in your hands. We just have to keep faith, keep the faith and remember who we are. We’re the United States of America and there’s simply nothing, nothing beyond our capacity when we do it together.

So let’s act together, preserve our democracy. God bless you all and may God protect our troops. Thank you.

Trump urges Christians to vote, says they won't have to again if he wins 2024 election

WASHINGTON – Former President Donald Trump implored Christians attending a summit hosted by the conservative group Turning Point Action to vote in November, saying they wouldn’t have to cast a ballot again if he wins the presidency because “it’ll be fixed.” 

“I don't care how, but you have to get out and vote,” Trump told the crowd at Turning Point Action’s Believer’s Summit. “Christians get out and vote. Just this time. You won't have to do it anymore.” 

 “In four more years, you know what? It’ll be fixed. It’ll be fine. You won't have to vote anymore, my beautiful Christians,” Trump added during his 70-minute long speech. “We'll have it fixed so good. You're not going to have to vote.” 

He delivered the comments during a keynote speech at Turning Point Action’s Believers’ Summit in West Palm Beach, Fla. The event was aimed at “empowering attendees with practical knowledge and strategies to live out their faith boldly and counteract the prevailing 'woke' narratives with grace, truth, and conviction, rooted in the Gospel,” according to the group’s website. 

Politically conservative Christian voters are a key segment of Trump’s base that he must turnout in order to prevail in November’s election.  

Recent polls published since President Joe Biden exited the 2024 race show Trump’s lead in the race slipping. He is now neck-and-neck with likely Democratic nominee Vice President Kamala Harris.  

In the aftermath of the assassination attempt against him, Trump has also emerged as an unlikely spiritual figurehead. During a speech at the Republican National Convention in mid-July, Trump said he felt like he had God on his side as bullets whizzed by, coming within inches of killing him.  

If he wins the 2024 election, Trump won’t be able to run for the presidency again. The 22 nd Amendment to the U.S. Constitution prevents presidents from serving more than twice. 

But the GOP presidential nominee also has a history of using authoritarian rhetoric on the campaign trail. In December, he suggested that he would be a dictator for “one day”  if elected again.  

At a rally in Michigan last weekend, Trump hailed Xi Jinping of China as a “brilliant man” for ruling “with an iron fist” over the countries 1.4 billion people. He also praised Hungary’s Viktor Orbán and Russia’s Vladimir Putin as “tough” and “smart” leaders.  

Trump is facing multiple felony charges for allegedly conspiring to overturn the results of the 2020 election. The ex-president has spread false claims that widespread voter fraud led him to lose the race to President Joe Biden. There is no evidence to back the claims. 

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What Undecided Voters Thought of Trump’s Speech: Mostly, Not Much

The former president did not win them over — not that they like the alternative.

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By Julie Bosman Jack Healy Eduardo Medina Campbell Robertson and J. David Goodman

Former President Donald J. Trump began his prime-time speech at the Republican National Convention on Thursday with a message of unity, presenting a softer image of himself that appeared aimed at courting undecided voters.

But then he went on for an hour and a half, a long verbal walk through the kinds of exaggerations about his record and attacks on Democrats that have become familiar to voters from Mr. Trump’s previous two campaigns and presidency.

For a group of undecided voters from around the country, who are sharing their thoughts on key moments in the race with The New York Times, the effect was not strong. Some found the speech off-putting. A few found bright spots. None were swayed.

“I still don’t know what I’m going to do,” said Sharon Reed, 77, a retired teacher-turned-farmer in rural Pennsylvania who previously voted for Mr. Trump but is torn this year. “He tried, I think, to be much more unifying at the beginning. But then he got on his high horse there at the end.”

Ms. Reed’s husband, who watched the speech with her and is leaning toward Mr. Trump, was somewhat more positive. “He’s hitting all the points that I like,” Mr. Reed said, mentioning in particular Mr. Trump’s talk about securing the border and “drill, baby, drill.”

Arnel Ramos, 21, a food service worker living in Milwaukee, had hoped that Mr. Trump would talk about his belief systems, and that she would get to know him better before she casts a ballot in her first presidential election.

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Biden seeks to define his legacy in address explaining his campaign exit

Even with the spotlight now on Vice President Harris as Democrats’ likely presidential nominee, Biden sought to show how he’ll be engaged until his term ends.

President Biden delivered a somber, reflective address from the Oval Office on Wednesday evening, extolling democracy and decrying dictators during his first remarks to the nation since his monumental decision to end both his reelection campaign and political career.

“The defense of democracy, which is at stake, is more important than any title,” Biden said in remarks that were designed to have the gravitas of a presidential farewell speech. “I draw strength, and find joy, in working for the American people. But this sacred task of perfecting our union is not about me. It’s about you. Your families. Your futures. It’s about ‘We the People.’”