On April 5, 1926, H.L. Mencken, the most famous journalist, satirist, and scathing cultural critic of his time, stepped off a train in Boston, toting copies of his popular monthly magazine, The American Mercury. That month’s issue featured a short story by Herbert Asbury titled “Hatrack,” whose protagonist was a prostitute trying to set herself on the straight and narrow in an uptight town that wanted nothing to do with her.

Mencken founded the American Mercury two years earlier with fellow journalist George Nathan. It quickly established itself as a top-notch publication that showcased the work of the writers of the day: Langston Hughes, Sinclair Lewis, William Faulkner, W.E.B. du Bois, F. Scott Fitzgerald. The Mercury also featured the writings of controversial people, including anarchist Emma Goldman and birth control activist Margaret Sanger (later the founding mother of Planned Parenthood). Mencken created a magazine for Americans who were skeptical, iconoclastic, and part of the “civilized minority.” Immediately, it was a hit. Readers were particularly drawn to the magazine’s take on government’s “fumbles and follies.”

At Boston Common Mencken stopped at Brimstone Corner, where a crowd of onlookers gathered. Reverend J. Franklin Chase stepped forward. Pointing to the bundle of magazines, he asked Mencken if he would sell him one.

“I will,” Mencken said. “I will, indeed.”

Chase handed him a 50-cent piece and Mencken, hamming it up for the crowd, bit the coin as if checking its authenticity. Marion Elizabeth Rodgers in Mencken: American Iconoclast captures the action:

Naturally, Mencken staged the entire scene. In fact, the day before he announced his intent over the Associated Press newswire. Of his tactics, editors from one local paper, the Boston Herald, took a dim view.

Before the Founding of the Republic to the Civil War

Mencken's victory against censorship was rooted in principles laid out in the 18^th century Federalist Papers, a series of essays written in the late 1780s to compel delegates from the State of New York to ratify the Constitution. Alexander Hamilton reasoned in the 84th essay of the series that “the liberty of the press shall be inviolably free.” The Constitution was ratified in 1788 and followed three years later by the First Amendment (along with the rest of the Bill of Rights). As Hamilton had proposed, freedom of the press was enshrined in the Bill of Rights and is one of the tenets on which our nation was founded.

The First Amendment reads:

The idea of a free press long preceded the founding of the United States. In 1735, another Hamilton—Andrew Hamilton—was an attorney representing New York publisher John Peter Zenger, who was sued for libel by the State's royal governor and imprisoned for eight months until the trial. Forced to confront a combative chief justice, Hamilton pleaded Zenger’s case directly to the jury. He argued that a statement, even if defamatory, could not be libelous if it were true. After closing arguments, the jury deliberated for just 10 minutes before returning with a verdict of not guilty. The trial set a precedent by allowing truth as a defense to libel. Further, it placed the onus on a jury to determine what was libelous.

After Congress ratified the First Amendment the subject of sedition became a flashpoint for lawmakers when America’s second president, John Adams, a Federalist, signed into law the Alien and Sedition Act in 1798. The Act punished “false, scandalous, and malicious” writings, published or spoken, against the government.

One of the law’s first victims was Benjamin Franklin's grandson, Benjamin Franklin Bache, a printer who had inherited his grandfather’s printing press equipment. Bache was a vocal critic of both George Washington, who he accused of working secretly with the British during the war, and President John Adams.

Two days later, after a change of heart, Lincoln ordered the editors freed and both newspapers resumed publication.

1919: Three Landmark First Amendment Cases

Schenck v. the United States

As the Great War (1914-17) came to an end, Congress passed a new sedition act in 1918 to broaden the scope of the newly enacted Espionage Act. It made it illegal to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of the Government of the United States” or to “willfully urge, incite, or advocate any curtailment of the production" of the things “necessary or essential to the prosecution of the war.” Under these war-clouded skies the Supreme Court established the “clear and present danger” test, which it used as a framework to decide three landmark First Amendment cases.

All three involved war protesters. In the first, Charles Schenck, a prominent Socialist, distributed fliers to young men drafted into service, suggesting the draft was akin to servitude, and therefore unconstitutional. Schenck was arrested for conspiring “to cause insubordination ... in the military and naval forces of the United States.” Schenck’s attorney argued that his arrest violated his right to free speech.

Below are two leaflets that Schenck distributed; you’ll see they are quite tame by today’s standards.

The Supreme Court upheld his conviction, declaring that Schenck had intended to undermine the government and thus violated the Espionage Act. The First Amendment, therefore, offered no protection. Had Schenck distributed the fliers in peacetime, the Court suggested it would have ruled differently. But Schenck's intentions were clear.

Supreme Court Justice Oliver Wendell Holmes, Jr. wrote: “... the character of every act depends upon the circumstances in which it is done.” Holmes provided an analogy still in use today: if someone shouts “fire” from a beach, or from a quiet park, or from her own uncrowded living room, it creates no danger; but in another setting, another motive is implied. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

A key aspect of the Supreme Court ruling was that context, whether a speech, writing, or action presented a “clear and present danger,” determined the extent to which the First Amendment protected free speech.

“The question in every case is whether the words 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,” Holmes wrote.

Debs v. United States

That same year, 1919, the Supreme Court issued a similar ruling in another critical First Amendment case. Eugene Debs, a socialist candidate for president, was convicted under the Espionage Act for making anti-war speeches, sentenced to 10 years in prison and stripped of his citizenship. His attorneys appealed the conviction on free speech grounds.

While Debs had reworked his speeches so they would not run afoul of the Espionage Act, the court reviewed several documents the socialist activist had published, including “Anti-War Proclamation and Program,” which showed that his original intent was to protest the war. Federal prosecutors claimed he was trying to arouse mutiny and treason by interfering with the drafting of soldiers into the Army. Applying the “clear and present danger” test, the Court found that Debs had indeed intended to “obstruct recruitment.”

They were far from alone. During and immediately after the “war to make the world safe for democracy” the government reported 877 convictions under the 1918 Sedition Act and other laws.

In November 1919, the Supreme Court voted 7-2 to uphold the convictions of Abrams, Rosansky and the other defendants. Justice John H. Clarke, citing Holmes’ reasoning in the first two cases, held that “the language of these circulars was obviously intended to provoke and encourage resistance to the United States in the war”—and this, therefore, passed the “clear and present danger” threshold.

Holmes, for his part, voted with the minority. Surprised at the hail of criticism he had received in legal scholar circles over his two previous majority opinions, Holmes spent the summer rethinking his position. Joined by Justice Louis Brandeis, Holmes issued a dissent considered by many to be among the court’s most eloquent defenses of free speech in its more than two century history.

The Scopes “Monkey” Trial

In 1925, a year before H. L. Mencken orchestrated his own arrest for selling “obscene literature” to Reverend Chase, he famously covered the Scopes “Monkey” Trial. John Scopes, a schoolteacher, was found guilty under Tennessee law for teaching evolution after the state passed a law banning evolution from being taught in schools. The trial, which was moved to Dayton, Ohio, riveted the nation, the first trial broadcast over radio. Scopes’ lawyer, Clarence Darrow, held that the State had violated his client’s right of free speech, as well as provisions of the Tennessee Constitution, which prohibited the establishment of a state religion. Nevertheless Scopes was found guilty, although the decision was reversed on a technicality before the state’s Supreme Court could take it up.

H. L. Mencken summed up his view of the trial before the jury returned with the verdict:

World War II

In the 1940s, as Europe was again embroiled in war, attention again turned to the question of sedition. President Roosevelt issued an executive order that established the Office of Censorship. Strict instructions “on the proper handling of news” were provided and news outlets voluntarily followed them. When they didn’t, the military censored reports before they could be transmitted from the front.

Steinbeck added:

Fighting Words and More Censorship Skirmishes in Boston

In 1942, the Supreme Court in Chaplinsky vs. New Hampshire ruled that “fighting words” were not protected as free speech. Fighting words were defined as “those which by their very utterance inflict injury or tend to incite an immediate breach of peace.” Further, the court put a dent in Holmes’ marketplace of ideas concept when it wrote that “no essential part of any exposition of ideas ... of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Twenty-five years after Life's “Birth of a Baby” issue, Boston again was the site of a First Amendment brouhaha over obscenity. In 1963, a Boston teen purchased a copy of “Fanny Hill: The Memoirs of a Woman of Pleasure.” His mother was so horrified she reported the book to the Massachusetts’ Obscene Literature Control Commission.

Fanny Hill was written in 1750 by John Cleland in England, and was considered the first pornographic novel of the English language. Cleland wrote it as a joke; he had bet a friend that he could write a sex-laden novel without ever referring directly to sex. The book had never before been issued in America, and when G.P. Putnam published it in the early 1960s there was an immediate uproar. The book was banned briefly in several states before it landed back on bookshelves. But Massachusetts was another matter. The State sued to keep the ban in effect. The Supreme Court, however, ruled that the ban was unconstitutional.

A decade earlier, the Supreme Court tackled, more or less, the issue of what constituted obscenity. The justices ultimately decided that free speech covered art, but not pornography. But determining the difference between the two would prove difficult (though not child pornography, as that is strictly forbidden under the U.S. law). As Justice Stewart famously said about obscenity in 1964: He couldn’t say exactly what it was, but “I know it when I see it.”

As for Fanny Hill, the case didn’t make it to the U.S. Supreme Court. Instead, its journey disembarked at the state level with the Massachusetts Supreme Judicial Court, which declared the novel a work of historical literary importance and as such was protected by the First Amendment.

Over the years, Boston was a popular litigation locale for censorship battles over books. In addition to Fanny, the Massachusetts Court issued rulings on Tropic of Cancer, Henry Miller’s fictionalized memoir chronicling the graphically sexual experiences of a young expatriate writer in 1930s Paris; and William Burroughs’ Naked Lunch, which tells the story of a drug addict and hustler, who travels across America with his girlfriend on a quest for more drugs. Despite the books’ often graphic content the court deemed that both had redeeming social value and therefore were not obscene.

Sullivan, Branzburg and the Pentagon Papers

The mid-1960s and 1970s yielded further legal battles that further clarified the legal relationship between journalists and the First Amendment, including:

• New York Times v. Sullivan (1964): The Supreme Court established the malice standard, which must be established before a press report on a public official can be defamatory or libelous. The actual malice standard requires the plaintiff, if a public figure, to prove the publisher knew the statement was false or acted in reckless disregard of its truth. (More on this in Module 4: LIBEL & DEFAMATION.)
• Branzburg v. Hayes (1972): The Supreme Court decision that invalidated the First Amendment as a defense for reporters summoned before a grand jury. A journalist who refuses to testify or reveal confidential sources could be held in contempt of court. (More on this, below.)
• New York Times v. United States (1971): The Supreme Court ruled that the government could not through prior restraint prevent the publication of classified information. The case involved The Pentagon Papers, a secret history of the war compiled by the CIA and leaked by Daniel Ellsberg to The New York Times. (More on this, below.)

Pornography and Exemptions for Parody

Software and Videogames As Speech

Society has come along way since the days of Reverend Chase and H. L. Mencken battled over material that would scarcely raise an eyebrow today. The courts have moved the debate to terrain far removed from mere text on paper. And as the Internet became a mass-market digital utility in the early and mid-1990s it posed new legal questions for courts to ponder.

Four notable decisions extend the concept of speech to cover software, videogames, money and trademarks.

In the early 1990s, the U.S. government designated encryption software as a “munition,” which it sought to regulate. Encryption enables a user to prevent messages and other digitally formed entities from being read by anyone but the user and anyone she designates. Citing national security concerns, the government placed severe export restrictions on encryption.

Berkeley mathematics Ph.D. student, Daniel J. Bernstein, sought to publish an encryption algorithm he had developed called “Snuffle,” the source code for a program to run the algorithm, and a mathematical paper describing the algorithm. Before he could publish his research, the law required Bernstein to register as an arms dealer and apply for an export license. Even if Bernstein took these steps, the State Department informed him it would deny him a license because his technology was too secure.

Bernstein, represented by lawyers from the Electronic Frontier Foundation, sued the federal government. The plaintiffs argued these regulations were an assault on free speech as well as interfering with American business by limiting the export of encryption technologies and methods. In 1996, the United States District Court for the Northern District of California ruled that the export control laws on encryption violated Bernstein's First Amendment rights by prohibiting his constitutionally protected speech.

Judge Marilyn Hall Patel, writing for the majority, issued the first ruling that found that code is speech and is therefore protected by the First Amendment.

“This court can find no meaningful difference between computer language, particularly high-level languages… and German or French,” she wrote. “Like music and mathematical equations, computer language is just that, language, and it communicates information either to a computer or to those who can read it.”

Nine years later, the U.S. Supreme Court, voting 7-2, reaffirmed and extended that principle by rejecting a California law that restricted the sale of “violent” video games to minors. Lawyers for California had tried to shove video games into the narrow category of obscenity. It was, they knew, a long shot, since the court had consistently rejected efforts to treat violence in film, literature and comic books as speech lacking “serious literary, artistic, political, or scientific value,” a key criteria in the obscenity exception.

Trademarks As Speech

In another ruling with First Amendment ramifications, the Supreme Court in 2017 ruled that trademarks are a form of speech.

The court decided that members of The Slants, an Asian-American rock band, have the right to trademark a disparaging name. Its frontman, Simon Tam, sued the U.S. Patent and Trademark Office (USPTO) for disallowing him from registering the band’s name. The USPTO based its decision on the Lanham Act, which prohibits any trademark that could "disparage ... or bring ... into contemp[t] or disrepute" any "persons, living or dead."

After Tam and his band won round one in federal court the Patent and Trademark Office appealed. The Supreme Court sided with The Slants.

Justice Samuel Alito wrote in his opinion: “The disparagement clause violates the First Amendment's Free Speech Clause. Contrary to the Government's contention, trademarks are private, not government speech.”

For the band, this went well beyond standing up to authority.

“We grew up and the notion of having slanted eyes was always considered a negative thing,” Tam told NPR. “Kids would pull their eyes back in a slant-eyed gesture to make fun of us. ... I wanted to change it to something that was powerful, something that was considered beautiful or a point of pride instead.”

Money As Speech

On January 21, 2010, in Citizens United v. Federal Election Commission, the Supreme Court, in a narrow 5-4 decision, ruled that the First Amendment prohibits government from restricting the flow of corporate money into politics. In essence, the court ruled that money is speech.

It began when the conservative non-profit organization Citizens United attempted to buy air time for a film critical of Hillary Clinton. They wanted it to air during the 2008 Democratic primaries (Clinton was a candidate for president, running as a Democrat). The Federal Communication Commission said this would violate a federal statute that prohibits electioneering communications near an election.

The Supreme Court ruled 5-4 in favor of Citizen’s United. Their logic: The First Amendment provides Americans the right of free speech. Corporations are collections of individuals. Therefore, corporations must also have the right of free speech. They can sue and be sued, they pay taxes (well, most do), and act as a single entity in other ways. Spending money is essential to disseminating speech. Limiting how companies, labor unions, and for-profit and not-for-profit organizations can spend their spend money is therefore unconstitutional because it limits the ability of their members to associate freely and speak on political issues.

The Citizens United ruling gave corporations and labor unions free reign to spend unlimited amounts of money on an election as long as they don’t coordinate with a campaign or donate money to political candidates.

In a blistering dissent, Justice John Paul Stevens, joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor, warned that the court’s ruling might “undermine the integrity of elected institutions across the Nation.”

He wrote:

The Supreme Court ruled that corporations, like people, have inalienable rights. One is the freedom to make political expenditures. Another is religious freedom. The Supreme Court ruled in favor of Hobby Lobby, which had objected to providing employee health insurance that covers birth control, claiming it violated tenets of their religion.

Even a hardcore cynic like H. L. Mencken might be surprised at the thought of corporations being treated like people under the law.