The First Amendment largely does not protect speakers against private individuals or organizations, such as private employers, or private landowners. The First Amendment restrains only the government.

But the First Amendment largely does not allow the government to regulate the content of anyone's speech with exceptions.

Two socialists, Charles Schenck and Elizabeth Baer, distributed roughly 15,000 leaflets to army conscripts during World War I that argued that conscription violated the 13th Amendment and urged them to assert their rights.

The two were charged with, and ultimately convicted of, impeding military recruitment, in violation of the Espionage Act that Congress passed shortly after the United States entered World War I.

Schenck and Baer challenged their convictions on First Amendment grounds, but the Supreme Court—in an opinion written by Holmes—held that, because the pamphlets could have plausibly impeded the war effort, the two defendants could be punished for their speech.

Famous "Fire in a crowded theater" meme

Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?

Brandenburg Test: Speech may be prohibited if it is directed to incite and likely to incite imminent lawless action.

Overruled Schenck!

The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.

1960: New York Times ran full-page advertisement paid for by civil rights activists

Ad criticized Montgomery, Alabama police force for treatment of civil rights activists

Supposedly included some inaccurate information regarding the civil rights protesters and the Alabama police—stating that the police brutally assaulted them

L. B. Sullivan (police commissioner in Montgomery) took offense and sued the New York Times for libel

March 9, 1964: Court ruled in favor of New York Times

Court ruled that the Times would have to have had "actual malice"

"With knowledge that [information] was false or with reckless disregard for the truth"

Sullivan could only recover damages if he proved libelous statement had a distinct goal of defaming his character

Revolutionary impact on 1st Amendment:

Press now has "right to be wrong" if not acting recklessly or maliciously

Some completely false statements (if not deliberate) could be entirely free from punishment (new establishment under New York Times v. Sullivan)

"Mail matter, except sealed letters, which originates or which is printed or otherwise prepared in a foreign country and which is determined by the Secretary of the Treasury pursuant to rules and regulations to be promulgated by him to be 'communist political propaganda', shall be detained by the Postmaster General upon its arrival for delivery in the United States, or upon its subsequent deposit in the United States domestic mails, and the addressee shall be notified that such matter has been received and will be delivered only upon the addressee's request, except that such detention shall not be required in the case of any matter which is furnished pursuant to subscription or which is otherwise ascertained by the Postmaster General to be desired by the addressee." 39 U.S.C. 4008 (1964)

Dr. Corliss Lamont (left), founder and first chairman of Council on American-Soviet Friendship in the 1940s, had a copy of the Peking Review detained and declined to respond to the government's inquiry as to whether he wished to receive the delivery.

Lamont subsequently filed suit alleging that Section 4008 violated his 1st Amendment and 5th Amendment rights.

Justice Brennan, "It would be a barren marketplace of ideas that had only sellers and no buyers."

The Act, as construed and applied, is unconstitutional, since it imposes on the addressee an affirmative obligation which amounts to an unconstitutional limitation of his rights under the First Amendment.

Facts: Ernest Mandel, a Belgian journalist and Marxist theoretician, was invited by American scholars to participate in academic conferences in the United States.

Under the Immigration and Nationality Act of 1952, Mandel was deemed ineligible for entry due to his advocacy of communist doctrines.

Attorney General Kleindienst declined to waive this ineligibility, citing Mandel's unscheduled activities during a previous U.S. visit when a waiver had been granted.

Question: Did Attorney General Kleindienst violate the First Amendment rights of the scholars and students who invited Mandel to the United States by refusing to allow Mandel to enter the country?

Discuss! (3 Min)

No. In a 6-3 decision written by Justice Harry A. Blackmun, the Court held that the First Amendment did not obligate Kleindienst to grant a waiver to Mandel. Justice Blackmun acknowledged that the First Amendment protected the scholars and students' right to listen to and engage with Mandel in person --and that Mandel's participation via telephone was not a good replacement-- but held that the implication of First Amendment rights was not dispositive here.

Justice Blackmun noted Congress' longstanding power to exclude aliens from the United States, and to set the terms and conditions of their entry. Through the Immigration and Nationality Act, Congress legitimately delegated to the executive the authority to waive a finding of inadmissibility. He described the historical pattern of increasing federal control on the admissibility of aliens, particularly regarding individuals with Communist affiliation or views. Justice Blackmun held that the Court would not intervene so long as the executive used its waiver power on the basis of a facially legitimate and bona fide reason. This test did not balance the First Amendment interests of persons seeking to communicate with the applicant.

In 2021, Florida and Texas enacted statutes regulating large social-media companies and other internet platforms. The States' laws differ in the entities they cover and the activities they limit.

But both curtail the platforms' capacity to engage in content moderation—to filter, prioritize, and label the varied third-party messages, videos, and other content their users wish to post.

Both laws also include individualized explanation provisions, requiring a platform to give reasons to a user if it removes or alters her posts

https://knightcolumbia.org/cases/netchoice

Texas Statute: With several exceptions, the statute prevents platforms from "censor[ing]" a user or a user's expression based on viewpoint.

That ban on "censor[ing]" covers any action to "block, ban, remove, deplatform, demonetize, deboost, restrict, deny equal access or visibility to, or otherwise discriminate against expression."

The statute also requires that "concurrently with the removal" of user content, the platform shall "notify the user" and "explain the reason the content was removed."

The user gets a right of appeal, and the platform must address an appeal within 14 days.

https://knightcolumbia.org/cases/netchoice

Florida Statute: The statute restricts varied ways of "censor[ing]" or otherwise disfavoring posts—including deleting, altering, labeling, or deprioritizing them—based on their content or source. §501.2041(1)(b).

For example, the law prohibits a platform from taking those actions against "a journalistic enterprise based on the content of its publication or broadcast." §501.2041(2)(j).

Similarly, the law prevents deprioritizing posts by or about political candidates. See §501.2041(2)(h). And the law requires platforms to apply their content-moderation practices to users "in a consistent manner." §501.2041(2)(b).

https://knightcolumbia.org/cases/netchoice

Facts: California's Age-Appropriate Design Code Act (CAADCA) requires online platforms to assess and mitigate risks to children, prohibit use of minors' personal information in detrimental ways, and configure default privacy settings for high privacy.

NetChoice, representing tech companies, challenged the CAADCA as violating the First Amendment through content-based regulation of online speech and imposing prior restraints on expression.

Holding: The Ninth Circuit upheld parts of a preliminary injunction (August 2024), finding that certain CAADCA provisions likely violate the First Amendment by imposing content-based restrictions that may not survive strict scrutiny.

Discuss for 3 minutes, agree or disagree? Why? Why not?

Facts: Megan Garcia sued Character Technologies, Inc. alleging that her 14-year-old son, Sewell Setzer III, developed an emotional attachment to a Character.AI chatbot named "Dany" that led to his suicide.

First Amendment Argument: Character.AI argued that AI chatbot outputs are protected speech under the First Amendment, and restricting them would infringe on free speech rights.

Court's Decision: U.S. District Judge Anne Conway denied Character.AI's motion to dismiss (May 2025), stating the court is "not prepared to hold that Character.AI's output is speech" at this stage.

Facts: Missouri and Louisiana attorneys general sued federal officials, including Surgeon General Vivek Murthy, alleging government coercion of social media platforms.

The states claimed federal officials pressured platforms to suppress content about COVID-19 vaccines, election integrity, and other politically sensitive topics.

Individual social media users joined as plaintiffs, claiming their posts were removed due to government pressure on platforms.

Question: Did federal officials violate the First Amendment by coercing social media platforms to suppress certain viewpoints?

Discuss! (3 Min)

Holding: The Court held that the plaintiffs lacked standing to sue because they failed to demonstrate a direct causal link between the government's actions and the platforms' content moderation decisions.

To establish standing, plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one government defendant.

The Court found this to be a "tall order" on the record presented.

The Court emphasized that plaintiffs did not provide sufficient evidence to show that their past injuries were traceable to the government's conduct, nor did they establish a substantial risk of future harm attributable to the government.

Key Facts (as alleged): After a whistleblower said the NRA's "Carry Guard" insurance violated NY law, NY's DFS Superintendent Maria Vullo investigated three insurers linked to the product. Following the Parkland shooting, she pressed those insurers to end all NRA-"affinity" business.

In a private meeting she allegedly offered leniency on unrelated "technical regulatory infractions" if an insurer cut ties with the NRA; publicly, she issued Guidance Letters praising "social backlash" against the NRA, warning about "reputational" and other risks of doing business with it.

Holding: A unanimous Court reaffirmed Bantam Books: government "cannot do indirectly what [it] is barred from doing directly." Officials violate the First Amendment when they intentionally use threats of regulatory harm (or promises of benefits) to pressure private companies to cut ties with disfavored speakers/associations.

Implications: It rejects lower-court tests requiring near-compulsion. Any scheme of constitutional evasion via threats/promises is out of bounds, regardless of degree or result. Expect a shift toward an intent-focused, categorical anti-jawboning rule.