J385: Communication Law Home Page

Interpretation of the First Amendment


The liberty of the press [consists] of laying no previous restraints upon publications, and not in freedom from censure for criminal matters when published...[T]o punish (as the law does at present) any dangerous or offensive writing, which, when published, shall on a fair and impartial trial to be adjudged of a pernicious tendency, is necessary for the presevation of peace and good order, of government and religion, the only foundations of civil liberty."

W. Blackstone, Commentaries on the Laws of England (1769)

[The] particular evil of silencing the expression of opinion is , that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more those who hold it....the opinion which it is attempting to suppress [may] be true...

John Stuart Mill, On Liberty (1859)

The Constitution must be interpreted within the context of the times

"Great concepts like...'liberty'...were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statemen who founded this nation knew all too well that only a stagnant society remains unchanged"

Felix Frankfurter, National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949).

Doctrine of Incorporation

The Marketplace of Ideas

[W]hen men have realized that time has upset many fighting faiths, they may come to believe...that the ultimate good desired is best reached by free trade in ideas--that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.
Abrams v. United States (1919) (Holmes dissent)

Original Intent

The intent of the framers is the determinative factor in interpreting the meaning of the speech and press clauses of the First Amendment.


" The term 'original intent' stands for an old idea that the Court should interpret the Constitution according to the understanding of it by its Framers. In most cases original intent should be followed when discernible, and it is always entitled to the utmost respect and consideration an an interpretive guide."

Leonard Levy, Original Intent and the Framer's Constitution (1988)

"The phrase 'Congress shall make no law' is complosed of plain words, easily understood.[The] language is absolute. [Of] course the decision to provide a constitutional safeguard for [free speech] involves a balancing of conflicting interests. [But] the framers did this balancing when they wrote the [Constitution]. Courts have neither the right nor the power to make a different [evaluation]

Black, The Bill of Rights, 35 N.Y.U.L. Rev (1960) quoted in Stone, et al The First Amendment.

Absolutist Theory

"Congress shall make NO LAW..."

For the First Amendment does not speak equivocally. It prohibits any law "abridging the freedom of speech, or of the press." It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.

J. Black, Bridges v. California (1941)


The freedoms protected in the First Amendment are those that enable a democratic society to function.

"The First Amendment protects the freedom of those activities of thought and communication by which we govern....{T]here are many forms of thought and expression...from which the voter derives the...knowledge, intelligence [and] sensitivity to human values...(1) Education, in all its phases (2) The achievements of philosophy and the sciences. (3) Literature and the arts. (4) Public discussion of public issues.

Alexander Meiklejohn, The First Amendment is an Absolute (1961)

New York Times v. Sullivan (1964)


Bad-Tendency Test

Gitlow v. New York (1925)

The Clear and Present Danger Test

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. [The] question in every case is whether the words are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Schenck v. United States (1919)

This Court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present...To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be
reasonable ground to believe that the danger apprehended is imminent...that the evil to be prevented is a serious one...The wide difference between advocacy and incitement...must be borne in mind... Whitney v. California (1927) (Brandeis concuring).

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 actions.

Brandenburg v. Ohio (1969)


Speech/Action distinction

All actions with a communicative component are not speech!

"Cohen's absurd and immature antic, in my view, was mainly conduct and little speech."

Cohen v. California (1971), Blackmun, dissent. 403 U.S. 15; 91 S. Ct. 1780; 1971 U.S. LEXIS 32; 29 L. Ed.
2d 284
Also see:

Huffman and Wright Logging Co. v. Wade, 317 Ore. 445; 857 P.2d 101; 1993 Ore. LEXIS 132 (Or. 1993).



Hate Speech


Balancing Theories

Pickering v Bd. of Education, 391 U.S. 563, 88 S. Ct. 1731, 1968 U.S. LEXIS 1471 (1968)

Categorical Approaches (Definitional Balancing)

School of Journalism and Communication