From Schenck To Social Media: How Free Speech Law Evolved

Free speech law didn’t spring fully formed; it was hammered out case by case, crisis by crisis. We unpack how Schenck v. United States, a 1919 wartime case that actually upheld a conviction, planted the “clear and present danger” idea and nudged the Court away from the sweeping “bad tendency” rule. From there, we follow the thread through Holmes and Brandeis, whose dissents helped build a sturdier shield for political dissent, all the way to Brandenburg v. Ohio and its demanding standard: only speech intended and likely to incite imminent lawless action can be punished.

Along the way, we make sense of the narrow carve-outs—fighting words, obscenity, libel—and why courts resist expanding them to swallow political speech. We dive into equality-era pressures, campus speech codes, and the enduring myth of a “hate speech” exception. Matal v. Tam takes center stage as a modern proof that offensive speech is still protected, even when it stings, because pluralism requires resilience, not censorship.

Then we turn to the digital battleground. Social media, Section 230, algorithmic amplification, and the specter of real-world harm complicate the old doctrines. We explore what government can and cannot do, what platforms may choose to moderate, and how transparency and user control might reduce harm without trampling the First Amendment. If you’re a student, educator, or curious citizen, you’ll leave with a clearer map: where the lines are, why intent and imminence matter, and how to defend open debate while pushing back against true threats and incitement.

If this conversation helped clarify the free speech landscape, follow the show, share it with a friend who loves civics, and leave a quick review telling us where you’d draw the line.

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Chapters

• 0:00 Setting The Stage: Schenck
• 2:51 Origins Of Free Speech Protections
• 5:06 War, Anarchy, And Early Crackdowns
• 6:11 Holmes And Clear And Present Danger
• 8:06 From Bad Tendency To Protection
• 9:56 Brandenburg And Imminent Lawless Action
• 13:01 Separation Of Powers And Speech
• 15:21 New Tech: Media, Internet, Social
• 17:21 Equality, Speech Codes, And Limits
• 18:51 Fighting Words, Obscenity, Libel
• 20:06 Matal v. Tam And Reclaiming Slurs
• 21:56 Platform Liability And Section 230
• 23:31 Teaching Free Speech And Student Cases

Transcript

SPEAKER_01: 1:34

Welcome back to Civics Meteor. We today are talking about the Supreme Court case, Shank versus the United States. This happened in 1919. The case is on freedom of speech. And this episode is for all of our listeners, but especially our friends who are taking AP government and politics because this is one of the Supreme Court cases. Dr. Carisse is back with us. So, Dr. Carice, the Schank versus U.S. case on First Amendment right to freedom of speech is over a century old. Why is it important for us to understand this case?

SPEAKER_00: 2:09

Thank you, Liz. Freedom of speech is an important, even defining, characteristic of the American political and civic culture. It's present in in our prehistory, so to speak, in the colonial period. There's a kind of reference to it in the first article of the Constitution that members of Congress can't be questioned for any speech while doing their business in the houses of Congress. But this was a real complaint of the Anti-Federalists during the ratification debate that many of the state constitutions had bills of rights and had explicit protections for speech, and that this was a huge failing of the Constitution. And so the gentleman's agreement, so to speak, is struck at several of the ratification conventions that there would be a Bill of Rights protecting common law rights. Obviously, freedom of speech would be one of them. So James James Madison who puts forward in the House the drafting effort of the Bill of Rights. And what was the third in a list of 12 amendments becomes ratified as 10 amendments right away. We call it the Bill of Rights. And and freedom of speech is right there as what it's the third right protected, so to speak, along with freedom of press. And so this is an important characteristic. On the other hand, there's not a lot of Supreme Court activity about freedom of speech until the 20th century. So one thing to remember here is that the Bill of Rights in the Federal Constitution only restricts the federal government until the Fourteenth Amendment gives the opening or suggestion that liberties and privileges and immunities will now be protected under the Federal Constitution against the states. And it takes a while for the Supreme Court to develop this view that, oh, the rights protected in the federal Bill of Rights against government action, federal government action, now are to be questions adjudicated in the federal courts against states that might have infringed upon these rights. And it really does start arguably with this Schenck case, the Abrams case as well in 1919. And why is that happening? Because the what we call the First World War, the Great War. Another background, though, is that we all know why Abraham Lincoln was assassinated. U.S. President McKinley was assassinated in the 1890s, supposedly by an anarchist. So there are political revolutions happening in Europe because of socialism, communism, anarchy, you know, against what, capitalism or what? What is this against so there are laws that are being passed against syndicalism. Say that fast three times, criminal syndicalism to overthrow governments, and against anarchy and such things. The Schenck case arises out of the Great War, as it was called at the time, the First World War, speech that was opposing the war by opposing, you know, telling young men not to respond to a draft notice, not to support the war. And the Supreme Court at the time in 1919, and the a prominent justice here is Justin Oliver Wendell Holmes, Jr., who's sort of a storied figure on the court, is working to figure out how to protect speech, but also to recognize that governments, the federal government, the state governments, have legitimate concerns about public order and public safety in wartime. So the case is decided in 1919 after the war is over, but the but the case arises from activity during the war. And you know, one of the one of the paradoxes here is that Schenck versus the United States, Schenck loses the case. The speech is not protected under the First Amendment of the Federal Constitution. But Holmes writing for the unanimous court begins to work out this idea that there is a legitimate concern here about giving governments too much leeway to restrict what's political speech. And for goodness sakes, what's America about? America is about political debate and political liberty and speech. So Holmes for the court uses language which suggests a move toward a more protective Supreme Court legal doctrine, a way of interpreting the free speech clause in the First Amendment. So I'm gonna read this language. The question in every case is whether the words at issue, the words used, 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. You know, being able to sustain a war effort during wartime and political order and sustain the whole republic, right? These are legitimate aims of Congress and the President. So do the words used pose a clear and present danger to those legitimate concerns? Are they of such a nature themselves or the circumstances, right? That's a more speech-protective standard than the traditional standard under the common law, which had held sway during most of the 19th century. That did did the words have a bad tendency? Could, you know, it's a much gives a much broader sweep of authority to a state government to say, you know, these words are headed toward bad things. Bad things could pretty easily happen from these words. So very vague, very broad. So this is tightening it up in a more speech-protective way. But on the other hand, Schenck loses the case. Then a couple of years later, Holmes and Justice Brandeis start to dissent in these cases. And they're insisting you misunderstood what the clear and present danger test meant. We we interpret it differently. We don't think the speech in this case, you know, criminal critical sinal criminal syndicalism, you know, communism, what anarchy, whatever it is, this is not posing a clear and present danger to undermining the government or or wasn't in those later cases a war effort. And so I would put it this way: an important seed has been planted by Justice Holmes and Justice Brandeis joining him to say there should be a more speech-protective interpretation of First Amendment freedom of speech. And it takes time. And uh eventually clear and present danger itself starts to have the effect that it protects speech. One of the cases that many decades later that's important is in 1969, Brandenburg versus Ohio, which still makes reference to the Clear and Present Danger standard, but in a way the court is moving uh beyond it by saying that itself is not protective enough of uh freedom of speech. So in in the Brandenburg case, uh the court uh makes a ruling 8-0 that speech would have to be inciting imminent lawless action. And it would have to be likely to incite or produce such action for state government or the federal government to say that speech is not protected. So it's it it's a much tighter definition, building on clear and present danger, but it's much more specific and you know, merely advocating some action. I think this government ought to be overthrown because, you know, you know, I don't know, egg prices are too high, or you know, they're sending us into a war that's a horrible whatever it is. If I'm just you know standing in a public park or whatever, you know, the various ways of interpreting this imminent lawless action, inciting imminent lawless action likely to happen, the you know, the circumstances can involve very strong violent speech about political issues, and the Supreme Court, you know, from really from the 1950s onwards starts to be very protective of speech, even if you know state and local governments, police forces are saying, hey, wait a minute, you know, mob violence could break out here, or we're in the middle of a war. You know, when this when when the Brandenburg case is is issued, it's it's not particularly about the Vietnam War, but a war is is going on in Vietnam or in the Cold War. So again, the the earlier doctrine, clear and present danger, is no longer the Supreme Court doctrine. But it did shift the Supreme Court's thinking and and had uh therefore a significant legacy.

SPEAKER_01: 11:50

And to be clear, because I know that when students learn this case, they usually learn about the analogy that Holmes used about like you can't yell fire in a crowded movie theater, right? He was giving kind of this hypothetical example to show what clear and present danger is, because if you yell fire in a movie theater, you're creating panic. Like this can create something that can be harmful to people. But again, hypothetical thing here. But we then move toward this more kind of stricter standard in Brandenburg of the imminent lawless action. So the formulation by the Supreme Court of a principle or a doctrine about clear and present danger, kind of shifting that to public safety and sustaining a republic, speech was protected unless it was judged to pose against such a danger. Movie theater, again, very hypothetical. So now it's advanced for freedom of speech at the time, even if the court later decided it gives the government too much power to suppress speech. I mean, this feels like where is the kind of line of free speech that can be suppressed that we should allow? This is incredibly complicated.

SPEAKER_00: 13:08

It is complicated, right? It is complicated. So one of the issues in the background here is the separation of powers principle. Yeah. Shouldn't the political judgment of state legislatures and governors over the, you know, states have the police power for health, safety, welfare, and morals in their states? And then shouldn't the political judgment of the Congress and the President be allowed to judge what's required for public order and in a way for kind of public morality, sustaining the republic? Who appointed these federal judges, small in number, right, from district judges to circuit appellate court uh judges to the nine Supreme Court justices? Who appointed them emperors to overrule the judgment of these political figures who know more directly and just know more, period, in total substance awareness about our political and civic culture and what might be a danger to imminent lawless action? Why should they be second-guessing the judgment of police and prosecutors and mayors and governors and federal officials? So there's a there's a separation of powers issue during the 20th century. The Supreme Court justices themselves have a greater level of confidence that that First Amendment statement about freedom of speech has a clearer meaning in our minds than perhaps some earlier courts understood it to have. And it empowers us as justices to be more speech protective than earlier courts had thought, and state governments and the federal government are just gonna have to deal with it. Now there are complications, you know, of different technologies for speech. Uh it's not just being in a movie theater or a public park or even a newspaper, freedom of speech and freedom of the press, but with with the internet, you know, radio, radio and television, of course, complicated things, but now the internet and social media. So these are really perplexing questions for interested informed citizens to be thinking about.

SPEAKER_01: 15:22

So when we look at those kinds of things, what are some of those continuing issues or debates about freedom of speech in the courts and constitutional law and really in American public culture that informed citizens need to understand?

SPEAKER_00: 15:38

Well, I'll pick just two of them. One is uh an interesting development in our political and civic culture later in the 20th century and into the 21st century, with the principle of equality being important. Uh and and especially uh after the 1960 immigration law changed, uh people from from all kinds of cultures beyond Western Europe immigrating into the country from from all over the world and different civilizations, concern that certain kinds of speech could be harmful, you know, be uh bigoted, but but actually harming people by the way you talked about someone in their race or their or their sex or their or their gender or their their sexual identity or a civilization or cultural, religious term. And so speech codes developing, in effect, in schools, uh, you know, university public campuses, elsewhere. And so th this raised First Amendment free speech issues. Where does the First Amendment say that I can't say something rude, right? I mean, so during the 20th century the court developed these very strict categories. Okay, you know, the Czeplinski case from the 1940s. If you use fighting words, you know, if I, Liz, if I get right in your face and I start saying terrible things about, I don't know, whatever, women, or you're, you know, you're a Yankee, I know you're a Yankees fan, or whatever it is, right? If I get right in your face and start shouting at you, the the 1940s Supreme Court case said you you expect Liz to be able to want to punch me, right? And and who knows, a my uh a mob, riots or whatever, right? So you know, fighting words are not protected. And obscene speech, well, that gets complicated precisely what obscene speech is. We just talked about imminent lawless action. Clearly false libelous speech not protected, that gets complicated with, well, what if they're political figures? Can't you say just about anything about a political figure that's political speech, right? Even if you know it's a lie. But but then this other category came up about sort of equal dignity for all Americans. And if I say something that's bigoted about somebody's religion or their race or racial characteristic, shouldn't I be prevented from saying that in a school setting, in a campus setting? So I just want to mention one very interesting case from 2017. It's the case of Matal versus Tom. And this is an Asian American rock band, music band, uh Asian descent, and they call themselves the slants, talking about their facial characteristics, and they want to make a point out of it. But there's a federal rule, uh it's the it's the it's the it's a patent and trademark rule that you can't patent or copyright anything under the federal government if it's seen to be derogatory toward a particular racial group and there's other language. And so the slants had applied for a trademark patent of their name. We don't want some other band or somebody else selling merchandise or whatever using our name. And and the federal agency involved turned it down. Under this code, we we can't protect this. They took it to the Supreme Court and they won. Very strong ruling for the Supreme Court. Say, sorry, you know, and now it did help the case that they were of that racial group that was supposedly being protected. But the court gave a very stirring affirmation of freedom of speech, sorry. In a constitutional democratic republic like ours, with all this pluralism, First Amendment does protect speech that will be seen as harmful and bigoted or whatever. And that's just you've got to be tough. You gotta, you know, you gotta deal with it. Then a second category I'll mention that's really hasn't been entirely sorted out, but it's constantly being discussed in political speech debates and laws, is about social media and about the internet and about the general legal framework we have had for decades now about the Internet, which basically protects the providers of these social media platforms. They're not liable for the speech writing or video of people on these social media platforms. And and you know, it just goes, it stands to reason that because the Internet has grown more and more and more dominant in our political discourse, that of course there are people advocating to Congress, this is this is crazy. There's all kinds of false speech and all kinds of speech that leads to harmful action, political violence included, assassination attempts or actual assassinations of political figures that are traceable to internet uh social media platforms and chat groups and things like that. So it just stands to reason that these requests would be put in front of Congress and members of Congress would be deciding should it be put forward a bill that addresses these questions. So stay tuned about those debates.

SPEAKER_01: 20:54

I love that you brought up Mantal versus Tam because my students loved that case. We were actually studying it while it was out, and they were doing a moot court on it. This is before the Supreme Court had decided, and they were tweeting about it. And Simon Tam actually came in and started interacting with my students while they were live tweeting, but it was such a cool case to go through with students to talk about, you know, the disparagement clause and you know what it originally meant and you know what they're trying to do with it. So I think free speech cases, especially with students, are so interesting. And I'm glad that we were able to talk about Shank VUS today because it does kind of set the groundwork, even though it's not the standard used today, it still sets the groundwork for all of these cases. And you're right, and social media, I will be very interested to see how AI starts to play into a lot of these things when we talk about speech. But this is why we do the things we do, because they're they're interesting and we don't always have a black and white answer.

SPEAKER_00: 22:00

Yes. And for again, for us as educators, this category of hate speech, right, which does not have legal standing. There's no court that's gonna, under these 20th, 21st century Supreme Court doctrines, there's no court that's gonna shut down somebody's speech on the basis of this was hateful speech, right? Because it's not fighting words and it's not incitement to imminent lawless action. It's you know, sorry, this is the nature of our political and civic culture. We are free to say that was hateful, stupid, bigoted speech that you just used. We're free to respond and say, you you ought to apologize for that or you ought to be ashamed of that, or et cetera, right? But there's no legal recourse that you can take about. And so it then becomes a difficult question in educational settings. What policies can there be in schools? What policies can there be in private colleges and universities in public, colleges and universities that are more directly under the First Amendment, et cetera?

SPEAKER_01: 23:01

Yeah. And we do have a really good episode with Professor Eugene Bollock on, you know, I asked him the question about hate speech because it's not actually a doctrine. And we are in upcoming episodes going to talk about students in free speech. And actually, we have Mary Beth Tinker, who is a Supreme Court petitioner who is going to be on our podcast talking about it. So, Dr. Therese, again, thank you for laying the groundwork for this specific amendment in this case is greatly appreciated.

SPEAKER_00: 23:30

Great. Thank you, Liz.