Our current standard for determining the constitutionality
of legislation restricting or punishing speech
â€" which is that the speech in question
has to result in "imminent lawless action"
-- was formulated by the Supreme Court in
1969 in a case called Brandenburg v Ohio â€"
a mere 45 years ago.  That means that it
was not until the second half of the twentieth
century that we developed our current approach
to free speech.
But, why did it take so long?  This question
is important not only for understanding the
history and development of this free speech
right itself, but it's also important for
understanding how Civil Rights & Civil Liberties
developed more generally in the 20th century.
 Contextual, historical developments outside
of the Court, including the emerging civil
rights revolution and the Vietnam War, combined
with the Court's new role as a protector of
fundamental rights and liberties after 1937
drove free speech jurisprudence in the second
half of the twentieth century.  These 20th
century developments, though, not only had
to become politically possible in the 20th
century, but they also had to upend and replace
older conceptions of free speech that stretched
back centuries.
The original understanding of free speech
in the United States was one that was inherited
from England, and was thus woven into the
customs and laws of both the states and the
federal government.
These understandings included ideas like "no
prior restraint," which meant that speech
vehicles (newspapers, pamphlets, etc.) could
not be restricted.  However, the author and
publisher of these speech vehicles could be
prosecuted or muted for publishing anything
after publication that was determined by the
state to be licentious, libelous, obscene,
or detrimental to the state itself.
In the first decade of American government
we saw this play out with the passage of the
Alien & Sedition Acts by the administration
of President John Adams in the late 1790's.
 In part, the Act made it criminal to punish
anything negative about the Adams administration,
and many people, like Benjamin Franklin's
grandson, were prosecuted.  Others, like
James Madison and Thomas Jefferson, who had
a more libertarian view of free speech, protested
the acts most famously in the Virginia and
Kentucky resolutions, which argued that states
could declare federal law unconstitutional.
 Nevertheless, the views of Jefferson and
Madison remained a minority well into the
20th century.  Moreover, even among those
who were against the Alien & Sedition Acts,
there was still the belief that individual
states restrict speech in many different ways
â€" after all, the Free Speech clause would
not be incorporated against the states until
the 1920's.
Older, common law understandings would continue
to shape the development of the free speech
clause, especially as the slavery controversy
heated up in the first half of the nineteenth
century.  Anti-Slavery abolitionists often
used heated rhetoric in the condemnation of
slavery, leading some states to ban such material
through the mails.
And then in the 1870's, the federal government
passed the Comstock Act, which prohibited
the sending of obscene materials through the
mail. On the state level, states routinely
banned certain materials and books, like those
by Gustav Flaubert and James Joyce.
But the rumblings of change began with the
wars of the twentieth century.  During WWI,
states and the national government passed
syndicalism laws and Espionage Acts, which
severely restricted free speech, both written
and verbal.  By the end of WWII, 32 states
had passed syndicalism laws, 1900 people had
been prosecuted, and more than 100 newspapers,
pamphlets, and periodicals were censored.
 And from WWII to the change we see in 1969
in the Brandenburg case, the Court, with some
exceptions, was unable to muster a majority
of justices to strike down these laws as violative
of free speech.
So what changed?
For one, our experience with totalitarian
states during WWII gave some pause to our
mechanically applying the older common law
rules, such as the doctrine of no prior restraint.
 How were we any different than Nazi Germany
or Imperial Japan if we arrest and censor
people for their speech?
Relatedly, the Cold War was a fight between
the US and Russia over power throughout the
globe.  At the very least, older more restrictive
understandings of free speech were bad "PR"
for the United States as they sought to project
US values abroad.
During the Cold War, tensions ran high in
the upper echelons of government â€" and
in Hollywood, too â€" about Communist infiltration.
 Led by Senator Joseph McCarthy of Wisconsin,
his committee on Un-American Activities ruined
professional and personal lives with witch
hunt's centered around things people simply
said or wrote or who they met with.
The emerging Civil Rights movement and growing
concern about the Vietnam war also contributed
to the Court crafting a new, more libertarian
standard of balancing free speech rights with
governmental interests.
So by the late 1960's we can generally see
the development of the Free Speech clause
during the 20th century:  In the first half
of the twentieth century, the Court produced
balancing tests that sought to balance legitimate
governmental interests with free speech; in
the second half of the twentieth century,
the court will produce a two-level theory,
where political speech (like in the cases
for this section) receive special protection
(or strict scrutiny) unless they fall into
four categories: obscenity, libel, fighting
words, or commercial speech.
So as you read these cases here are some things
to consider:
How valuable is free speech to self-government
and the democratic process?  Is it possible
that it's the most important right?  And
if so, why did it take so long for us to recognize
it as such?
What, if any, are examples of legitimate governmental
interests that curtail free political speech?
 Is war one of them?
Could you think of a test that could balance
the interests of the state with the free speech
interests of the individual?
In this section, enjoy your relatively new-found
right to free speech.
