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Educator Resource Freedom of Speech

Historical Context

The Bill of Rights and Free Speech

These lessons focus on the First Amendment’s protection of free speech, free assembly, and the right to petition government. The lessons examine how the definitions of protected expression in speech, petition, assembly, art, and demonstration have changed over time.  

Historical Events Related to Freedom of Speech 

  • Sedition Act of 1798 
    • Due to growing diplomatic tensions between the United States and France, President John Adams and the Federalists feared that if war were to ultimately break out, the Jeffersonians would criticize the government and cause disunity. Thus, Congress passed the Sedition Act, which made it a crime to criticize President Adams, Congress, and the federal government. While the law provided more protection for speech than was common at the time, the administration prosecuted numerous of political critics in a partisan way.  
    • Watch: Reading the Sedition Act of 1798 | A Primary Source Close Read w/ BRI 
  • Kentucky & Virginia Resolutions 
  • Civil War and Clement Vallandingham 
    • President Abraham Lincoln’s struggle to balance civil liberties with wartime necessities during the Civil War was exemplified by the case of Clement Vallandigham, who was arrested, tried by a military court, and convicted for criticizing the government and obstructing the war effort. The conflict between Vallandigham’s First Amendment rights and Lincoln’s wartime powers underscores the complexities of maintaining freedom of speech in times of national crisis. 
    • Essay: Clement Vallandigham and Constitutionalism 
  • Espionage Act of 1917 and Sedition Act of 1918 

Related Supreme Court Cases  

  • List of Freedom of Speech Supreme Court Cases 
  • Schenck v. United States (1919)  
    • During World War I, the federal government instituted a military draft. Some groups released anti-war and anti-government materials in opposition to the draft. Charles Schenck, a Socialist activist, was arrested for handing out pamphlets telling men to resist the draft. He argued the draft violated the Constitution, the 13th Amendment, and rights of conscience. However, the government said this broke the Espionage Act of 1917. The Supreme Court ruled that wartime limits on free speech were constitutional. The case resulted in the “clear and present danger” test. 
    • Watch: Schenck v. United States | BRI’s Homework Help Series 
    • DBQ: Scheck v. United States (1919)  
  • Abrams v. United States (1919)  
    • The Supreme Court upheld the conviction of Jacob Abrams and others under the Espionage Act of 1917 for distributing leaflets that criticized U.S. involvement in World War I and the draft. The Court, in a decision written by Justice John H. Clarke, applied the “clear and present danger” test established in Schenck v. United States (1919), ruling that the leaflets posed a threat to national security. Notably, Justice Oliver Wendell Holmes, Jr., and Justice Louis Brandeis dissented. 
  • Gitlow v. New York (1925)  
    • The Supreme Court held that the First Amendment’s protection of free speech applied to the states through the Due Process Clause of the Fourteenth Amendment. Benjamin Gitlow, a Socialist, was convicted under New York’s criminal anarchy law for distributing a manifesto advocating the overthrow of the government. The Court upheld Gitlow’s conviction, ruling that the state could constitutionally regulate speech that posed a “clear and present danger” to public safety. 
  • Tinker v. Des Moines (1969) 
    • The decision applied the First Amendment to local public schools based on the ruling that the government should not suppress speech unless it incites imminent violence. This case was another precedent for limits on free speech during war. In 1965, students John and Mary Beth Tinker wore black armbands to school to protest the United States’ involvement in the Vietnam War, violating a ban by the Des Moines school district. The Tinkers sued the district for violating their First Amendment rights, and the Supreme Court ruled in their favor in a 7-2 decision. Tinker v. Des Moines (1969) was a landmark free speech rights case for students, but subsequent Supreme Court rulings narrowed the scope of free expression rights at school.  
    • Watch: Tinker v. Des Moines | Homework Help from the Bill of Rights Institute 
  • Brandenburg v. Ohio (1969)  
  • Texas v. Johnson (1989)  
    • The Supreme Court ruled that burning the American flag in protest is protected as symbolic speech under the First Amendment. The ruling emphasized that the government cannot prohibit expression simply because it is offensive or controversial. This landmark decision affirmed flag desecration as another example of constitutionally protected symbolic speech. 
    • Lesson: Texas v. Johnson (1989) 
  • R.A.V. v. St. Paul (1992)  
    • The Supreme Court struck down a Minnesota statute that outlawed cross burning and other hateful symbols, ruling the law violated the First Amendment. The Court decided that the government could not ban hate speech just because it disapproved of the content of the speech.  
  • Reno v. ACLU (1997)  
    • The Supreme Court ruled that provisions of the Communications Decency Act, which sought to regulate indecent content on the Internet, were unconstitutional because they violated the First Amendment. The Court held that the law’s broad restrictions on online speech were overly vague and infringed on free expression rights. 
    • Lesson: Reno v. ACLU (1997) 

 Sample Questions to use with Discussion Protocols

You may use the following questions when discussing freedom of speech with your students. Here are suggestions on how to lead discussions in your classroom: Discussion Protocols 

  • Why is free speech considered an essential right in a democratic society? How does it contribute to the functioning of self-government? 
  • How do we balance the right to free speech with the need to protect individuals and groups from harm, as seen in cases like Brandenburg v. Ohio? 
  • How should free speech be protected during times of national crisis or security threats? Can there be justifiable limits on speech during emergencies, and if so, what should they be? 
  • Discuss historical examples like Schenck v. United States (the “clear and present danger” test), examining when the government has imposed limits on speech and the outcome of Supreme Court free speech cases.  
  • How does the protection of symbolic speech (like flag burning) reflect the values of free expression?  
  • Why is it important to protect forms of speech that are controversial or offensive to some? 
  • How should we think about protecting free speech in educational settings, such as schools and universities? How do student rights intersect with institutional rules and regulations? 
  • Refer to cases like Tinker v. Des Moines and Hazelwood School District v. Kuhlmeier to explore how student speech rights are balanced with institutional authority and educational objectives. 
  • Looking at past decisions on freedom of speech, what are the implications for freedom of expression in the digital age? 
  • Analyze how past rulings, such as Reno v. ACLU, apply to free speech in digital spaces. Consider how the principles of free expression are being challenged by online platforms and digital communication. 
  • What role does free speech play in civic engagement? How can we effectively contribute to public discourse while respecting others’ right to free speech?  
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