QUESTION: This year marks the 100th anniversary of the first Supreme Court decisions interpreting the freedoms of speech and the press. From the perspective of 2019, it is hard to understand how the entire 19th century passed without any free speech cases at the court. How is it that these clauses from the First Amendment went unaddressed for so long? And what changed in 1919 to bring them to the court?
BOLLINGER & STONE: As originally enacted, the First Amendment, like the other guarantees of the Bill of Rights, applied only to the federal government. Unlike the state and local governments, the federal government has limited authority to regulate speech and press.
The two situations in which disputes over federal restrictions on these rights might most likely have reached the Supreme Court before 1919 involved the Sedition Act of 1798 and some of the actions of the Lincoln administration during the Civil War. In neither instance, though, did those cases make it to the Supreme Court. In part, this was no doubt due to the recognition that the makeup of the court at those times was such that the justices would almost surely have ruled in favor of the government.
What changed later was the federal government’s enactment of the Espionage Act of 1917 and the Sedition Act of 1918 during World War I. Some 2,000 individuals were prosecuted under these laws, so it was no surprise that the Supreme Court wound up deciding several cases dealing with the First Amendment at this time.
In 1925, in its decision in Gitlow v. New York, the court for the first time suggested that the First Amendment applied to the states through the due process clause of the 14th Amendment. That opened the door for a much greater range of First Amendment issues to reach the court involving laws enacted by state and local governments.
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