The Supreme Court and the Development of Free Speech Law

Oct 13, 2025 by wbrum.org 148 views

The Evolution of Free Speech: Who Decided that the Government Doesn't Get to Punish Offensive Speech?

Introduction

The concept of free speech has been a cornerstone of democratic societies for centuries. The idea that individuals have the right to express their thoughts and opinions without fear of government retribution is a fundamental aspect of a free and open society. However, the question remains: who decided that the government doesn't get to punish offensive speech? In this article, we will explore the history of free speech in the United States and examine the key court cases that have shaped our understanding of this fundamental right.

The Early Years: The Founding Fathers and the First Amendment

The First Amendment to the United States Constitution, which guarantees the right to free speech, was adopted in 1791. The Founding Fathers, who drafted the Constitution, were influenced by the Enlightenment thinkers of the 17th and 18th centuries, who emphasized the importance of individual liberty and the protection of individual rights. The First Amendment, which states that "Congress shall make no law... abridging the freedom of speech," was a direct response to the British government's attempts to suppress dissent and opposition during the American Revolution.

The Supreme Court and the Development of Free Speech Law

The Supreme Court has played a crucial role in shaping the law of free speech in the United States. In the early years of the Republic, the Court was reluctant to interfere with government regulation of speech, but over time, it has developed a robust body of law that protects the right to free speech. One of the key cases that established the principle of free speech was Gitlow v. New York (1925), in which the Court held that the First Amendment applied to the states as well as the federal government.

The "Clear and Present Danger" Test

In the 1919 case of Schenck v. United States, the Supreme Court established the "clear and present danger" test, which held that speech could be regulated if it posed a clear and present danger to national security or public order. This test was used to justify the prosecution of individuals who spoke out against the government during times of war or national crisis. However, the Court later modified this test in the 1969 case of Brandenburg v. Ohio, which held that speech could only be regulated if it was directed at inciting imminent lawless action.

The "Hate Speech" Cases

In recent years, the Supreme Court has grappled with the issue of "hate speech," which refers to speech that is intended to incite hatred or violence against a particular group. In the 1978 case of Cohen v. California, the Court held that a person had the right to wear a jacket with an anti-war slogan, even if it was considered offensive by some. However, in the 2017 case of Matal v. Tam, the Court held that the government could not prohibit the use of a trademark that was considered offensive by some.

The Slants and the Trademark Case

The case of Matal v. Tam involved a band called the Slants, which had been denied a trademark by the Patent and Trademark Office (PTO) because the name was considered derogatory to people of Asian descent. The band's lead singer, Simon Tam, argued that the PTO's decision was a form of viewpoint discrimination, which is prohibited by the First Amendment. The Supreme Court ultimately agreed with Tam, holding that the government could not prohibit the use of a trademark simply because it was considered offensive by some.

Conclusion

The question of who decided that the government doesn't get to punish offensive speech is a complex one that has been shaped by centuries of history and law. The Supreme Court has played a crucial role in developing the law of free speech, and its decisions have had a profound impact on our understanding of this fundamental right. From the early years of the Republic to the present day, the Court has consistently held that the government cannot regulate speech simply because it is considered offensive or unpopular. As we continue to grapple with the challenges of modern society, the principles of free speech established by the Supreme Court will remain a vital part of our democratic tradition.

Key Takeaways

The First Amendment guarantees the right to free speech, and the Supreme Court has consistently held that the government cannot regulate speech simply because it is considered offensive or unpopular.
The "clear and present danger" test, established in the 1919 case of Schenck v. United States, held that speech could be regulated if it posed a clear and present danger to national security or public order.
The "hate speech" cases, including Cohen v. California and Matal v. Tam, have established that the government cannot prohibit speech simply because it is considered derogatory or offensive.
The Supreme Court's decision in Matal v. Tam held that the government could not prohibit the use of a trademark simply because it was considered derogatory by some.

References

Gitlow v. New York, 268 U.S. 652 (1925)
Schenck v. United States, 249 U.S. 47 (1919)
Brandenburg v. Ohio, 395 U.S. 444 (1969)
Cohen v. California, 403 U.S. 15 (1971)
Matal v. Tam, 582 U.S. ___ (2017)
Q&A: The Evolution of Free Speech in the United States

Introduction

Q&A: Free Speech in the United States

Q: What is the First Amendment, and how does it relate to free speech?

A: The First Amendment is the first amendment to the United States Constitution, which guarantees the right to free speech, among other rights. It states that "Congress shall make no law... abridging the freedom of speech." This means that the government cannot regulate speech simply because it is considered offensive or unpopular.

Q: What is the "clear and present danger" test, and how has it been used in free speech cases?

A: The "clear and present danger" test was established in the 1919 case of Schenck v. United States. It held that speech could be regulated if it posed a clear and present danger to national security or public order. However, the Court later modified this test in the 1969 case of Brandenburg v. Ohio, which held that speech could only be regulated if it was directed at inciting imminent lawless action.

Q: What is "hate speech," and how has the Supreme Court treated it in free speech cases?

A: "Hate speech" refers to speech that is intended to incite hatred or violence against a particular group. The Supreme Court has grappled with the issue of hate speech in several cases, including Cohen v. California and Matal v. Tam. In these cases, the Court has held that the government cannot prohibit speech simply because it is considered derogatory or offensive.

Q: What is the significance of the case of Matal v. Tam, and how did it impact the law of free speech?

A: The case of Matal v. Tam involved a band called the Slants, which had been denied a trademark by the Patent and Trademark Office (PTO) because the name was considered derogatory to people of Asian descent. The Supreme Court ultimately agreed with the band's lead singer, Simon Tam, holding that the government could not prohibit the use of a trademark simply because it was considered offensive by some.

Q: What are the implications of the Supreme Court's decision in Matal v. Tam for free speech in the United States?

A: The decision in Matal v. Tam has significant implications for free speech in the United States. It establishes that the government cannot regulate speech simply because it is considered offensive or unpopular. This means that individuals have the right to express their thoughts and opinions without fear of government retribution, even if those thoughts and opinions are considered derogatory or hateful by some.

Conclusion

The question of who decided that the government doesn't get to punish offensive speech is a complex one that has been shaped by centuries of history and law. The Supreme Court has played a crucial role in developing the law of free speech, and its decisions have had a profound impact on our understanding of this fundamental right. As we continue to grapple with the challenges of modern society, the principles of free speech established by the Supreme Court will remain a vital part of our democratic tradition.

Key Takeaways

The First Amendment guarantees the right to free speech, and the Supreme Court has consistently held that the government cannot regulate speech simply because it is considered offensive or unpopular.
The "clear and present danger" test, established in the 1919 case of Schenck v. United States, held that speech could be regulated if it posed a clear and present danger to national security or public order.
The "hate speech" cases, including Cohen v. California and Matal v. Tam, have established that the government cannot prohibit speech simply because it is considered derogatory or offensive.
The Supreme Court's decision in Matal v. Tam held that the government could not prohibit the use of a trademark simply because it was considered derogatory by some.

References

Gitlow v. New York, 268 U.S. 652 (1925)
Schenck v. United States, 249 U.S. 47 (1919)
Brandenburg v. Ohio, 395 U.S. 444 (1969)
Cohen v. California, 403 U.S. 15 (1971)
Matal v. Tam, 582 U.S. ___ (2017)