Published January 23, 2025
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This podcast is funded by the New York City Council. It was developed by History UnErased and produced and edited by Dinah Mack; Kathleen Barker; and Deb Fowler.
TRANSCRIPT
Deb Fowler: Hello, and welcome to UnErasing LGBTQ History and Identities — A Podcast. I’m Deb Fowler, co-founder of History UnErased. Throughout American history, the definition of what is - and is not - protected speech under the First Amendment to the Constitution has changed dramatically, especially in the last several decades. Over the past century, the United States Supreme Court has been asked to rule on a wide range of issues relating to people’s right to express—and not express—certain forms of speech.
In this episode, you will learn about a few of these cases - related to free speech - that impact our lives and freedoms. Kathleen will introduce what, exactly, the 1st Amendment protects and remind us how a case advances to The Supreme Court. She will then unpack a few cases and the questions to the Court, giving you, our listeners, a chance to guess how the Court decided before revealing the answer. Take it away, Kathleen!
Kathleen Barker: In every corner of the world, free speech shapes our societies, fuels debates, and empowers change. But what does it truly mean to have the freedom to speak? Where do we draw the line between liberty and responsibility? And how does this fundamental right evolve as our societal norms change?
The First Amendment to the United States Constitution states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
In this podcast, we are focusing specifically on the Freedom of Speech Clause that reads: "Congress shall make no law... abridging the freedom of speech."
This clause protects individuals' right to express their ideas, opinions, and beliefs without government interference or restriction. However, this right is not absolute. Certain types of speech, such as incitement to violence, defamation, obscenity, and true threats, may not be protected under specific legal standards that have been developed by courts over time.
Our nation has relied on the Supreme Court to define freedom of speech since the First Amendment was written. The Court has decided a number of free speech cases over the years, including fascinating cases related to the US postal system, the recitation of the Pledge of Allegiance, students’ rights to free speech and dress, artistic expression, and social media.
We will jump into some of these cases in a moment, but first, let’s review some key points about the Supreme Court!
Article III, Section 1, of the United States Constitution, establishes the Supreme Court, but Congress has the power to organize the federal judiciary, including determining the number of justices, the structure of lower courts, and procedural rules.
Today, the Supreme Court is composed of a chief justice and eight associate justices who serve life terms, which means they serve until they die, resign, retire, or are impeached (accused of misconduct and removed from the bench). Some of the Court’s primary functions include ensuring that laws and policies comply with the Constitution and safeguarding rights and liberties by reviewing governmental actions.
The Constitution states that the Supreme Court has appellate jurisdiction over all lower courts, giving it the power to either uphold or overrule the decisions of lower courts. Nearly all Supreme Court cases are appeals from lower courts (as opposed to original jurisdiction cases, meaning the Supreme Court is the only court hearing the case).
So how does a case advance to the Supreme Court? If the plaintiff or the defendant is not satisfied with a lower court’s decision, they can petition the Supreme Court to issue a writ of certiorari: a legal document that asks a higher court to review a case from a lower court. At least four of the nine justices must vote to accept the case (this is known as “The Rule of Four”). The decision to accept a case is usually based on whether it could do one of three things: have national significance; reconcile conflicting lower court decisions; or establish precedent for future cases.
On average, approximately 100 cases are added to the Court’s docket each year out of more than 7,000 cases the Supreme Court is asked to review.
Now that we know how the Supreme Court works, let’s look at some cases they have heard related to the broad idea of “freedom of speech” and its First Amendment protections. What IS speech?
First up, in 1943, is the case of West Virginia State Board of Education v. Barnette.
In 1942, the West Virginia State Board of Education required all students to salute the flag and recite the Pledge of Allegiance as part of daily school activities. Failure to comply could result in expulsion. The policy was challenged by Jehovah’s Witnesses, whose religious beliefs prohibited them from saluting or pledging allegiance to a flag. The Barnette family argued that the policy violated their First Amendment rights to freedom of speech and religious expression.
The legal question was can the government compel individuals to participate in patriotic rituals, such as saluting the flag or reciting the Pledge of Allegiance, without violating their First Amendment rights?
What do you think the Court decided?
The Court ruled 6-3 in favor of the Barnette family, striking down the compulsory flag salute and Pledge of Allegiance requirement. Key Points in the Decision include: Justice Robert H. Jackson, writing for the majority, famously stating: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." The Court held that forcing individuals to salute the flag or recite the Pledge violated the First Amendment’s protections of free speech and religious expression.
Why was this case so important? The decision reinforced the principle that the government cannot compel individuals to express beliefs or participate in rituals they do not agree with. It also upheld religious freedoms and strengthened protections for individuals whose religious or personal beliefs conflict with state-mandated actions.
Next up we have ONE, Inc. v. Olesen, a case decided in 1958
The case centered on the distribution of a periodical called ONE: The Homosexual Magazine, published by ONE, Inc. In 1954, the U.S. Post Office declared the October issue "obscene" under the Comstock Act of 1873 and refused to distribute it through the mail. The Comstock Act was a federal law that prohibited the use of the postal service to send "obscene, lewd, or lascivious" materials, which included literature, contraceptives, abortifacients, and information on abortion or contraception. Named after Anthony Comstock, a zealous anti-vice crusader, the law was part of a broader effort to regulate morality during the late 19th century. ONE, Inc. filed suit, arguing that this censorship violated their First Amendment rights to freedom of speech and freedom of the press. The District Court and Ninth Circuit Court of Appeals sided with the government, holding that the magazine was obscene and thus not protected by the First Amendment.
What do you think the Supreme Court decided?
The Supreme Court, in a per curiam opinion, reversed the lower courts' rulings, without hearing any oral arguments. (A per curiam opinion is a legal decision issued by the court that is delivered collectively and attributed to the court as a whole, rather than to a specific justice.) The Court relied on its earlier decision in Roth v. United States (1957), which defined obscenity narrowly and emphasized that materials must lack any redeeming social importance to be deemed obscene.
This was the first time the Supreme Court ruled in favor of LGBTQ rights. By protecting the magazine, the Court acknowledged that materials addressing LGBTQ topics were not inherently obscene. The decision also reinforced the idea that controversial or marginalized viewpoints, such as those addressing LGBTQ themes, are protected under the First Amendment. ONE, Inc.’s victory helped pave the way for greater visibility and advocacy for LGBTQ rights in the U.S. This case marked a crucial step in affirming the rights of LGBTQ individuals to free expression and access to information.
In 1969 the court heard the case of Tinker v. Des Moines Independent Community School District. In 1965, a group of students in Des Moines, Iowa, decided to wear black armbands to school to protest the Vietnam War. The school authorities learned of the plan and quickly adopted a policy banning the wearing of armbands, threatening suspension for violations. Despite this, several students, including Mary Beth Tinker, John Tinker, and Christopher Eckhardt, wore the armbands to school and were subsequently suspended. The students and their parents sued the school district, arguing that the ban violated their First Amendment right to free speech.
The court’s legal question was: Does the First Amendment protect students’ rights to express themselves through symbolic speech in public schools?
What do you think the Court decided?
The Court ruled 7-2 in favor of the Tinker family, holding that the school’s actions violated the students’ First Amendment rights. This decision upheld free speech in schools when the court declared that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The black armbands were a form of symbolic speech, which is protected under the First Amendment. The Court emphasized that schools could only limit student expression if it caused a substantial disruption to the operation of the school or infringed on the rights of others. In this case, the armbands did not disrupt school activities.
Two Justices, Hugo Black and John Harlan dissented, arguing that the armbands could potentially distract students and disrupt the educational environment.
This landmark decision established that students have the right to express political and social views in schools, as long as it does not significantly interfere with the educational process and reinforced the idea that symbolic speech, like wearing armbands, is protected under the First Amendment. The Tinker v. Des Moines case remains a landmark case in defining the scope of free speech rights for students in public schools.
In 2018, the Court was confronted by the question of free speech yet again, this time in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. In 2012, same-sex couple Charlie Craig and David Mullins visited the Masterpiece Cakeshop in Lakewood, Colorado, to request a cake for their upcoming wedding. The shop’s owner, Jack Phillips, refused, stating that to create such a cake would violate his religious beliefs and artistic expression as a Christian. In response, Craig and Mullins filed a complaint with the Colorado Civil Rights Commission. Because of a Colorado state law prohibiting discrimination on the basis of sexual orientation in the dispensing of goods and services, the Commission ruled in favor of Craig and Mullins, finding that Phillips had unlawfully discriminated against them. Philips appealed the Commission’s decision all the way to the United States Supreme Court.
What do you think the Court decided? MUSICAL INTERLUDE
The legal question argued was: Did the Colorado Civil Rights Commission’s actions violate Phillips' First Amendment rights? The Court ruled 7-2 in favor of Masterpiece Cakeshop, but the decision was narrow and case-specific.
The majority opinion, written by Justice Anthony Kennedy, emphasized that the Colorado Civil Rights Commission showed clear hostility toward Phillips' religious beliefs during its proceedings. This bias violated his right to free exercise of religion under the First Amendment.
The Court did not decide the broader issue of whether businesses can refuse service to same-sex couples on religious grounds. Instead, it focused on the Commission’s failure to treat Phillips’ religious beliefs with neutrality. The Court acknowledged the importance of both protecting religious freedom and ensuring equal access to goods and services for all individuals, but it avoided creating a sweeping precedent.
Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented, arguing that the decision failed to uphold the state’s interest in preventing discrimination against LGBTQ+ individuals.
The Court left open the possibility of addressing broader questions about the rights of businesses to refuse services based on religious beliefs in future cases. The ruling did not establish whether businesses have a general right to refuse service based on religious beliefs, leaving that question unresolved. The case highlighted ongoing tensions between protecting religious freedom and enforcing anti-discrimination laws. Masterpiece Cakeshop remains a pivotal case in debates over the intersection of religious liberty and LGBTQ+ rights.
For our last example, we focus on a 2021 case that centered on social media and a snapchat message in Mahanoy Area School District v. B.L.
A high school cheerleader, Brandi Levy was suspended from her cheerleading team after posting a profanity-laden Snapchat message while off-campus. The post expressed frustration with her school and the cheerleading program. The message was shared privately but was eventually brought to the attention of school officials.
The legal question argued was does the First Amendment protect a student's off-campus speech, even if it is critical of the school or its programs?
Can you guess what the Court decided? MUSICAL INTERLUDE
The Court ruled 8-1 in favor of Brandi Levy, holding that her off-campus speech was protected under the First Amendment. The Court acknowledged that schools have some authority to regulate off-campus speech, especially if it disrupts the learning environment (or is a form of bullying or harassment). However, in this case, Levy’s speech did not cause significant disruption at the school. The Court emphasized the importance of protecting students' free expression, especially when they are not on school grounds or participating in school activities.
The decision reaffirmed that students retain their First Amendment rights even when they are off-campus. It clarified the limits of school authority over student speech, particularly in the digital age, where the line between on-campus and off-campus speech can blur. This case is a modern landmark in First Amendment law, highlighting the balance between students' rights and schools' authority to maintain order.
From landmark legal battles to the everyday ways we express ourselves, free speech is at the heart of what it means to live in a democracy. But with great freedom comes great responsibility. What does free speech look like in the age of social media? How do we balance the right to speak freely with the need to combat hate and misinformation? And whose voices are still fighting to be heard?
DF: Kathleen Barker is History UnErased’s program director and is a library and information specialist and public historian with 20 years of experience as a museum and library educator. This podcast is funded by the New York City Council. It was developed by History UnErased and produced and edited by Dinah Mack, our podcaster and youth equity program director. Our theme music is “1986” by BrothaD via Tribe of Noise.
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I’m Deb Fowler. Thanks for listening. Visit UnErased.org to learn how we are putting LGBTQ history in its rightful place - the classroom.
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