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Seditious Speech and Seditious Libel.—Opposition to government through speech alone has been subject to punishment throughout much of history under laws proscribing “seditious” utterances. In this country, the Sedition Act of 1798 made criminal, inter alia, malicious writings which defamed, brought into contempt or disrepute, or excited the hatred of the people against the Government, the President, or the Congress, or which stirred peo[p.1132]ple to sedition.90 In New York Times Co. v. Sullivan,91 the Court surveyed the controversy surrounding the enactment and enforcement of the Sedition Act and concluded that debate “first crystallized a national awareness of the central meaning of the First Amendment. . . . Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history . . . . [That history] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.” The “central meaning” discerned by the Court, quoting Madison’s comment that in a republican government “the censorial power is in the people over the Government, and not in the Government over the people,” is that “[t]he right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.”

Little opportunity to apply this concept of the “central meaning” of the First Amendment in the context of sedition and criminal syndicalism laws has been presented to the Court. In Dombrowski v. Pfister92 the Court, after expanding on First Amendment grounds the discretion of federal courts to enjoin state court proceedings, struck down as vague and as lacking procedural due process protections certain features of a state “Subversive Activities and Communist Control Law.” In Brandenburg v. Ohio,93 a state criminal syndicalism statute was held unconstitutional because its condemnation of advocacy of crime, violence, or unlawful methods of terrorism swept within its terms both mere advocacy as well as incitement to imminent lawless action. A seizure of books, pamphlets, and other documents under a search warrant pursuant to[p.1133]a state subversives suppression law was struck down under the Fourth Amendment in an opinion heavy with First Amendment overtones.94

Fighting Words and Other Threats to the Peace.—In Chaplinsky v. New Hampshire,95 the Court unanimously sustained a conviction under a statute proscribing “any offensive, derisive, or annoying word” addressed to any person in a public place under the state court’s interpretation of the statute as being limited to “fighting words”— i.e., to “words . . . [which] have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” The statute was sustained as “narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.”96 The case is best known for Justice Murphy’s famous dictum. “[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well–defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are 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.”97

Chaplinsky still remains viable for the principle that “the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so–called ‘fighting words,’ those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.”98 But, in actuality, the Court has closely scrutinized statutes on vagueness and overbreadth[p.1134]grounds and set aside convictions as not being within the doctrine. Chaplinsky thus remains formally alive but of little vitality.99

On the obverse side, the “hostile audience” situation, the Court once sustained a conviction for disorderly conduct of one who refused police demands to cease speaking after his speech seemingly stirred numbers of his listeners to mutterings and threatened disorders.100 But this case has been significantly limited by cases which hold protected the peaceful expression of views which stirs people to anger because of the content of the expression, or perhaps because of the manner in which it is conveyed, and that breach of the peace and disorderly conduct statutes may not be used to curb such expression.

The cases are not clear to what extent the police must go in protecting the speaker against hostile audience reaction or whether only actual disorder or a clear and present danger of disorder will entitle the authorities to terminate the speech or other expressive conduct.101 Neither, in the absence of incitement to illegal action, may government punish mere expression or proscribe ideas,102 regardless of the trifling or annoying caliber of the expression.103


Group Libel, Hate Speech.—In Beauharnais v. Illinois,104 relying on dicta in past cases,105 the Court upheld a state group libel law which made it unlawful to defame a race or class of people. The defendant had been convicted under this statute after he had distributed a leaflet, a part of which was in the form of a petition to his city government, taking a hard–line white supremacy position and calling for action to keep African Americans out of white neighborhoods. Justice Frankfurter for the Court sustained the statute along the following reasoning. Libel of an individual, he established, was a common–law crime and was now made criminal by statute in every State in the Union. These laws raise no constitutional difficulty because libel is within that class of speech which is not protected by the First Amendment. If an utterance directed at an individual may be the object of criminal sanctions, no good reason appears to deny a State the power to punish the same utterances when they are directed at a defined group, “unless we can say that this is a willful and purposeless restriction unrelated to the peace and well–being of the State.”106 The Justice then reviewed the history of racial strife in Illinois to conclude that the legislature could reasonably fear substantial evils from unrestrained racial utterances. Neither did the Constitution require the State to accept a defense of truth, inasmuch as historically a defendant had to show not only truth but publication with good motives and for justifiable ends.107 “Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary . . . to consider the issues behind the phrase ‘clear and present danger.”’108

Beauharnais has little continuing vitality as precedent. Its holding, premised in part on the categorical exclusion of defamatory statements from First Amendment protection, has been substantially undercut by subsequent developments, not the least of which are the Court’s subjection of defamation law to First Amendment challenge and its ringing endorsement of “uninhibited, robust, and wide–open” debate on public issues in New York Times Co. v. Sullivan.109 In R. A. V. v. City of St. Paul, the Court, in an[p.1136]opinion by Justice Scalia, explained and qualified the categorical exclusions for defamation, obscenity, and fighting words. These categories of speech are not “entirely invisible to the Constitution,” but instead “can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content.”110 Content discrimination unrelated to that “distinctively proscribable content” runs afoul of the First Amendment. Therefore, the city’s bias–motivated crime ordinance, interpreted as banning the use of fighting words known to offend on the basis of race, color, creed, religion, or gender, but not on such other possible bases as political affiliation, union membership, or homosexuality, was invalidated for its content discrimination. “The First Amendment does not permit [the city] to impose special prohibitions on those speakers who express views on disfavored subjects.”111


90 Ch. 74, 1 Stat. 596 , supra, p.1022, n.9. Note also that the 1918 amendment of the Espionage Act of 1917, ch. 75, 40 Stat. 553 , reached “language intended to bring the form of government of the United States . . . or the Constitution . . . or the flag . . . or the uniform of the Army or Navy into contempt, scorn, contumely, or disrepute.” Cf. Abrams v. United States, 250 U.S. 616 (1919) . For a brief history of seditious libel here and in Great Britain, see Z. Chafee, Free Speech in the United States 19–35, 497–516 (1941).
91 376 U.S. 254, 273–76 (1964) . See also Abrams v. United States, 250 U.S. 616, 630 (1919) (Justice Holmes dissenting).
92 380 U.S. 479, 492–96 (1965) . A number of state laws were struck down by three–judge district courts pursuant to the latitude prescribed by this case. E.g., Ware v. Nichols, 266 F. Supp. 564 (N.D. Miss. 1967) (criminal syndicalism law); Carmichael v. Allen, 267 F. Supp. 985 (N.D. Ga. 1966) (insurrection statute); McSurely v. Ratliff, 282 F. Supp. 848 (E.D. Ky. 1967) (criminal syndicalism). This latitude was then circumscribed in cases attacking criminal syndicalism and criminal anarchy laws. Younger v. Harris, 401 U.S. 37 (1971) ; Samuels v. Mackell, 401 U.S. 66 (1971) .
93 395 U.S. 444 (1969) . See also Garrison v. Louisiana, 379 U.S. 64 (1964) ; Ashton v. Kentucky, 384 U.S. 195 (1966) , considered infra. pp.1137–38.
94 Stanford v. Texas, 379 U.S. 476 (1965) . In United States v. United States District Court, 407 U.S. 297 (1972) , a Government claim to be free to wiretap in national security cases was rejected on Fourth Amendment grounds in an opinion which called attention to the relevance of the First Amendment.
95 315 U.S. 568 (1942) .
96 Id. at 573.
97 Id. at 571–72.
98 Cohen v. California, 403 U.S. 15, 20 (1971) . Cohen’s conviction for breach of peace, occasioned by his appearance in public with an “offensive expletive” lettered on his jacket, was reversed, in part because the words were not a personal insult and there was no evidence of audience objection.
99 The cases hold that government may not punish profane, vulgar, or opprobrious words simply because they are offensive, but only if they are “fighting words” that do have a direct tendency to cause acts of violence by the person to whom they are directed. Gooding v. Wilson, 405 U.S. 518 (1972) ; Hess v. Indiana, 414 U.S. 105 (1973) ; Lewis v. City of New Orleans, 415 U.S. 130 (1974) ; Lucas v. Arkansas, 416 U.S. 919 (1974) ; Kelly v. Ohio, 416 U.S. 923 (1974) ; Karlan v. City of Cincinnati, 416 U.S. 924 (1974) ; Rosen v. California, 416 U.S. 924 (1974) ; and see Eaton v. City of Tulsa, 416 U.S. 697 (1974) .
100 Feiner v. New York, 340 U.S. 315 (1951) . See also Milk Wagon Drivers v. Meadowmoor Dairies, 312 U.S. 287 (1941) , in which the Court held that a court could enjoin peaceful picketing because violence occurring at the same time against the businesses picketed could have created an atmosphere in which even peaceful, otherwise protected picketing could be illegally coercive. But compare NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) .
101 The principle actually predates Feiner. See Cantwell v. Connecticut, 310 U.S. 296 (1940) ; Terminiello v. Chicago, 337 U.S. 1 (1949) . For subsequent application, see Edwards v. South Carolina, 372 U.S. 229 (1963) ; Cox v. Louisiana, 379 U.S. 536 (1965) ; Brown v. Louisiana, 383 U.S. 131 (1966) ; Gregory v. City of Chicago, 394 U.S. 111 (1969) ; Bachellar v. Maryland, 397 U.S. 564 (1970) . Significant is Justice Harlan’s statement of the principle reflected by Feiner. “Nor do we have here an instance of the exercise of the State’s police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U.S. 315 (1951) .” Cohen v. California, 403 U.S. 15, 20 (1970) .
102 Cohen v. California, 403 U.S. 15 (1971) ; Bachellar v. Maryland, 397 U.S. 564 (1970) ; Street v. New York, 394 U.S. 576 (1969) ; Schacht v. United States, 398 U.S. 58 (1970) ; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) ; Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959) ; Stromberg v. California, 283 U.S. 359 (1931) .
103 Coates v. City of Cincinnati, 402 U.S. 611 (1971) ; Cohen v. California, 403 U.S. 15 (1971) ; Gooding v. Wilson, 405 U.S. 518 (1972) .
104 343 U.S. 250 (1952) .
105 Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) ; Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707–08 (1931) .
106 Beauharnais v. Illinois, 343 U.S. 250, 254–58 (1952) .
107 Id. at 265–66.
108 Id. at 266.
109 376 U.S. 254 (1964) . See also Collin v. Smith, 447 F. Supp. 676 (N.D.Ill.) (ordinances prohibiting distribution of materials containing racial slurs are unconstitutional), aff’d, 578 F.2d 1197 (7th Cir.), stay denied, 436 U.S. 953 (1978) , cert. denied, 439 U.S. 916 (1978) (Justices Blackmun and Rehnquist dissenting on basis that Court should review case that is in “some tension” with Beauharnais). But see New York v. Ferber, 458 U.S. 747, 763 (1982) (obliquely citing Beauharnais with approval).
110 112 S. Ct. at 2543 (emphasis original).
111 Id. at 2547.

Supplement: [P. 1136, add to n.111:]

On the other hand, the First Amendment does permit enhancement of a criminal penalty based on the defendant’s motive in selecting a victim of a particular race. Wisconsin v. Mitchell, 508 U.S. 476 (1993) . The law has long recognized motive as a permissible element in sentencing, the Court noted. Id. at 485. The Court distinguished R.A.V. as involving a limitation on “speech” rather than conduct, and because the state might permissibly conclude that bias– inspired crimes inflict greater societal harm than do non– bias inspired crimes (e.g., they are more likely to provoke retaliatory crimes). Id. at 487–88. See generally Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 Sup. Ct. Rev. 1.

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