The First Amendment, Abridged

by Rachel Sharma

When the First Amendment was created in the constitution, it did not have the same meaning it has today. The definition of this law today has been shaped and morphed by justices and judges that wrote opinions and decided cases pertaining to it. The history of cases relating to the First Amendment from World War I to the end of the 1960s shows the development of the meaning and restrictions of the amendment by the Supreme Court. Specifically, Schenck v. United States, Whitney v. California, Dennis v. United States, NAACP v. Alabama, and Brandenburg v. Ohio. Without an understanding of these historical shifts, one cannot see the First Amendment as what it is: law that protects the rights of everyone to speak.

In 1919, the Supreme Court ruled on Schenck v. United States. Charles Schenck, general secretary of the Philadelphia Socialist Party, and Elizabeth Baer published 16,000 anti-war leaflets that were distributed at a bookshop and sent through the mail to soldiers in World War I. The leaflets declared that the draft was unconstitutional and that those involved should assert their rights. The defendants were indicted under the Espionage Act for “conspiring and attempting to cause insubordination in the military and obstructing military recruitment.”[1] Justice Holmes wrote the unanimous opinion for this case in the Supreme Court that ruled against the defendants.[2] Justice Holmes also created one of the most widely used metaphors for free speech today. The metaphor created is not being able to falsely shout fire in a crowded theater. This is not a test of the First Amendment, but merely a metaphor which is used in the opinion. The actual test created by Justice Holmes in the opinion is that of clear and present danger. Justice Holmes states in the opinion, “The question in every case is whether the words used are used in such circumstances and are of 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.”[3] The qualifiers for this test are proximity and degree. Justice Holmes’ opinion created the clear and present danger test. This test is important to the meaning and restriction of the First Amendment as it introduces a new constitutional test of the First Amendment and free speech. The clear and present danger test remained the legal standard for almost thirty years; therefore, it is important to the evolution of the First Amendment.

In 1927, the Supreme Court decided Whitney v. California. Charlotte Anita Whitney attended a meeting of the Communist Labor Party Convention. She was convicted of association under a California law prohibiting advocacy of criminal anarchy and criminal syndicalism. The ruling was against Whitney; however, Justices Holmes and Brandeis wrote only a concurring opinion to the majority that relied on Schenck and permitted innocent association in a group to overrule First Amendment rights and protections. In this concurring opinion, Justice Brandeis outlined the emergency formulation which stated that there must be “imminent danger of a serious evil of the real likelihood of immediate serious violence before speech could be abridged”.[4] This emergency formulation is important as it is the base for the standard that is used today.

Dennis v. United States was eventually settled in 1951, when the FBI arrested Eugene Dennis and eleven other top-ranking members of the Communist Party of the United States. These men were charged with violating the Alien Registration Act of 1940, also called the Smith Act.[5] This act was modeled after New York’s Criminal Anarchy Act, the same act that convicted Benjamin Gitlow in Gitlow v. United States. In that case in 1925, the court decided against Gitlow, 7 to 2, with Justices Holmes and Brandeis dissenting. The majority opinion, written by Justice Sanford, became famous as it established the principle of incorporation of the First Amendment to the states.[6] Although Justice Sanford’s declaration of this is dicta, which is nonbinding legal language, it still suggested that the First Amendment should be incorporated to the states, and perhaps the rest of the Bill of Rights should follow. In Dennis v. United States, the Supreme Court opinion was written by Justice Vinson. This was a plurality opinion, however, and this makes it less credible in the eyes of the law. Justice Vinson concurs with the verdict and reasoning of Second Circuit Court Judge Learned Hand. Judge Hand’s opinion states the courts “must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as it necessary to avoid the danger”. Justice Vinson’s opinion goes on to say that the Supreme Court adopts this same position.[7] This is important as it reverses the clear and present danger test and establishes a new one.

NAACP v. Alabama was decided in 1964, but court action began eight years earlier. Although this case would go to the Supreme Court three times before finally being settled, the first time to the court is the most important. The NAACP was barred from conducting business of any kind in the state of Alabama, as it was incorporated in New York. Alabama filed an injunction and the NAACP tried to fight back. The only way Alabama would drop the injunction would be if the NAACP gave a list of names and addresses of its members in Alabama. They refused.[8] This went up to the Supreme Court in 1958. The court ruled that the decision of the Alabama State Court should be reversed, which was the denial of the appeals. Justice Harlan, who wrote for the court in this case, also stated that a person’s right to association was a constitutionally protected right, as a form of speech. By unanimous vote, the court had new doctrine.[9] Therefore, the NAACP should not have to give member information to the state of Alabama as the members’ right to association is constitutionally protected. This was the first time that the court and the government recognized that association is a form of speech.

In 1969, Brandenburg v. Ohio was decided by the Supreme Court. This was a realm of racial bigotry and free speech. These two had never been decided by the court before this case. Clarence Brandenburg was the Ohio leader of the Ku Klux Klan. He wanted TV coverage at a Klan rally. Because of the TV footage and the speech, Brandenburg was arrested under an Ohio state law from 1919. The Supreme Court outlined its beliefs in a per curium opinion that changed First Amendment law.[10] The court held that

“the constitutional guarantees of free speech and free press do not permit a State to forbid or prescribe 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.” [11]


This unanimous decision established the test of imminent lawless action. This test is like that established by Justice Brandeis in the Whitney case. This rule of law is what is used to when determining the prohibition or lawfulness of speech today.

These cases show the development of the First Amendment. Without this development, the First Amendment would not have the same meaning in our society today. The First Amendment has evolved from clear and present danger, to grave evils, to protected association, and then to imminent lawless action. This progress has led to the standard today, imminent lawless action. All speech should be protected, speech that no one agrees with and even hate speech is protected if that speech does not cause imminent lawless action. The history that shaped the First Amendment is pivotal to understanding it today.

[1] Schenck v. United States, 249 U.S. 47 (1919).

[2] Id.

[3] Id.

[4] Whitney v. California, 274 U.S. 357 (1927).

[5] Dennis v. United States, 341 U.S. 494 (1951).

[6] Gitlow v. New York, 268 U.S. 652 (1925).

[7] Dennis v. United States, 341 U.S. 494 (1951).

[8] NAACP v. Alabama, 377 U.S. 288 (1964).

[9] Id.

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

[11] Id.