This timeline was compiled using a variety of sources including, but not limited to:

Patrick, John J. Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1994; Spaeth, Harold J. and Smith, Edward Conrad. The Constitution of the United States. New York: HarperPerennial, 1991; and Weber, Laura and Apple, Charles. “The Evolving 1st Amendment,” Chicago Tribune, Friday, July 4, 1997.

T his timeline is part of a packet of materi-als available from the American Library Association, developed to celebrate the freedom to read. The annual proactive cel-

ebration, Banned Books Week, provides the opportunity for libraries, bookstores, and schools to conduct or sponsor positive educational programs, including exhibits, lectures, discussions, plays, and films, demonstrating the harms of censorship. The packet includes a 200-plus page resource book, containing press releases, publicity ideas, bibliogra-phies, and recommended promotional activities, and post-ers. Also available are bookmarks, buttons, and T-shirts.

For further information, please contact American Library Association, Office for Intellectual Freedom, 50 E. Huron, Chicago, IL 60611; phone: 800-545-2433 x 4223; fax: 312-280-4227; e-mail: oif@ala.org. Or visit the Web site at http://www.ala.org/bbooks

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Evolving First Amendment

E v e r y c h a l l e n g e t o t h e F i r s t A m e n d m e n t h a s h e l p e d s h a p e t h e c u r r e n t i n t e r p r e t a t i o n o f A m e r i c a n s ’ r i g h t s .

1787

1917The court defines freedom of speech quite narrowly in the years around World War I, upholding the Espionage Act of 1917 in several cases.

1919U.S. Supreme Court Justice Oliver Wendell Holmes announces in Schenck v. U.S. (249 U.S. 47) a “clear and present danger” test to judge whether speech is protected by the First Amendment. Using the test, the Supreme Court affirmed the wartime convictions of the defendants charged with interfering in armed forces recruitment by mailing new recruits leaflets urging them to resist conscription.

Justice Holmes shows the intended reach of his “clear and present danger” test by dissenting in Abrams v. U.S. (250 U.S. 616), which affirmed the convictions of several Russian immigrants who distributed from an open window circulars that denounced as hypocritical President Wilson and urged workers to unite in support of the Bolshevik revolution.

1920Roger N. Baldwin creates the American Civil Liberties Union (ACLU).

1923Writer Upton Sinclair is arrested in Los Angeles after trying to read the Bill of Rights in public at a dockworkers strike. He is later charged with “discussing, arguing, orating and debating certain thoughts and theories, which…were detrimental and in opposition to the orderly conduct of affairs of business, affecting the rights of private property…”

1925When science teacher John Scopes challenges a Tennessee law forbidding him from teaching the theory of evolution, one of the most noted trials in U.S. history follows. Though Scopes lost the “monkey trial,” his conviction was overturned later on a technicality. It is 43 years before the U.S. Supreme Court rules on the same issue. In 1968, the court says requirements that only the biblical theory be taught violate First Amendment freedoms.

1925The U.S. Supreme Court, in Gitlow v. New York (268 U.S. 652), decides that rights protected under the First Amendment are among the personal “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by states. Nevertheless, the Court declined to apply Justice Holmes’ “clear and present danger” test and upheld the defendant’s convictions under New York statutes for publishing a manifesto advocating, advising, or teaching the overthrow of organized government by force or violence.

1931In Near v. Minnesota ex rel. Olson (283 U.S. 697), the U.S. Supreme Court interprets the First and Fourteenth Amendments to forbid as “prior restraints” a lawsuit authorized by a state statute to enjoin future publication of a newspaper. The case extended the definition of “prior restraints” to include more than simply official pre-publication review that involves either licensing or censoring of particular content.

1931The U.S. Supreme Court invalidates California’s “anti-red flag” law in Stromberg v. California, (283 U.S. 359). The Court found the California statute that made it a felony to display a red flag “as a sign, symbol or emblem of opposition to organized government” repugnant to the constitution.

1939The American Library Association adopts the Library Bill of Rights, the profession’s basic policy statement on intellectual freedom involving library materials.

1942In Chaplinsky v. New Hampshire (315 U.S. 568), the high court upholds a New Hampshire statute as a valid regulation of “fighting words,” i.e., words “which by their very utterance inflict injury or tend to incite an immediate breach of peace.” Fighting words, like certain other limited classes of speech, e.g., the lewd and obscene, “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.”

1943The Bill of Rights is included for the first time in the handbooks given to immigrants to study for their citizenship tests.

1951During the era of McCarthyism and Communist witchhunting, the court weakens free speech rights by ruling that speakers can be punished for advocating overthrow of the government, even if the likelihood of such an occurrence is remote.

1953The Freedom to Read statement issued by the Westchester Conference of the American Library Association and the American Publishers Council, which in 1970 consolidated with the American Educational Publishers Institute to become the Association of American Publishers. The statement was subsequently endorsed by American Booksellers Association, American Booksellers Foundation for Free Expression, American Civil Liberties Union, American Federation of Teachers AFL-CIO, Anti-Defamation League of B’Nai B’rith, Association of American University Presses, Children’s Book Council, Freedom to Read Foundation, International Reading Association, Thomas Jefferson Center for the Protection of Free Expression, National Association of College Stores, National Council of Teachers of English, P.E.N.-American Center, People for the American Way, Periodical and Book Association of America, Sex Information and Education Council of the U.S., Society of Professional Journalists, Women’s National Book Association, YWCA of the USA.

1957The appeal taken in Roth v. U.S. (354 U.S. 476) directly raises before the U.S. Supreme Court the question of whether obscenity is speech protected under either the First or Fourteenth Amendments. U.S. Justice Brennan answered that it is not, and set forth the standard for judging obscenity as “whether to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” The “Hicklin test,” which judged obscenity by the effect of isolated excerpts upon the most susceptible persons in a community, was thus rejected.

The Court, in Yates v. United States (354 U.S. 298), draws a distinction between advocacy of an abstract doctrine such as Marxism and advocacy directed at promoting unlawful action. The decision construed certain federal statutes regulating subversive political activity to permit advocacy and teaching of the forcible overthrow of the government, even with evil intent, so long as the advocacy and teaching is divorced from any effort to instigate action.

2000

1961In Scales v. U.S. (367 U.S. 203), the Court further construes the statutes at issue in Yates v. United States, upholding a clause that criminalizes knowing membership in any organization that advocates the overthrow of the government by force or violence. The clause presses the limits of constitutionality, the Court observed. However, “active” members who also have a “guilty knowledge and intent” — going beyond “merely an expression of sympathy with an alleged criminal enterprise” — “unaccompanied by any significant action” or “any commitment to undertake such action” engage in illegal advocacy.

1962The U.S. Supreme Court, in Engel v. Vitale (370 U.S. 421), rules that public school use of a prayer composed by state officials and recommended as part of a program for moral and spiritual training violated the First Amendment prohibition against governmental establishment of religion. The court found irrelevant the fact that the prayer may have been denominationally neutral or that its observance by students was voluntary.

1964In the first libel case to reach the Supreme Court, New York Times v. Sullivan (376 U.S. 254), the justices rule 9-0 that a public official may not

recover damages for a defamatory statement, unless he can prove the statement was made with “actual malice.”

1967The American Library Association establishes the Office for Intellectual Freedom. The office’s goal is to educate librarians and the general public on the importance of intellectual freedom.

1968Upholding a federal law against burning draft cards, the court says incidental limitation on First Amendment freedoms in justified in some cases.

1969Reversing the conviction of a Ku Klux Klan member, the U.S. Supreme Court, in Brandenberg v. Ohio (395 U.S. 444), overrules its earlier decision, which had upheld criminal syndicalism statutes that proscribe advocacy of violent means to effect political and economic change. Constitutional guarantees do not permit a state to forbid such speech, except where advocacy of the use of force “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

1969The Freedom to Read Foundation is created. The Foundation assists groups or individuals in litigation by securing counsel, or providing funding and by participating directly or as a “friend of the court” in important and possibly precedent-setting litigation.

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1971Efforts by the U.S. federal government to stop the publication of the “Pentagon Papers,” brings to a head conflicting claims of free speech and national security. The Court ruling in New York Times Company v. United States (403 U.S. 713) reaffirmed the heavy presumption that a “prior restraint” of free expression is constitutionally invalid. Because the government failed to meet the “heavy burden of showing justification” for such a restraint, newspapers were not enjoined from releasing the secret history of American involvement in Vietnam.

1973Striving to remove confusions concerning a test for obscenity requiring that the material be “utterly without redeeming social value,” the Supreme Court in Miller v. California (413 U.S. 15) reformulated the test. The Court’s test, which still stands, involves three parts. First, the average person, applying contemporary community standards, finds that the work, taken as a whole, appeals to the prurient interests. Second, that the work depicts sexual conduct in a patently offensive way. Third, the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

1977When neo-Nazi Frank Collin and his National Socialist Party of America are denied a permit to march in Skokie, a Chicago suburb with thousands of Holocaust survivors, the ACLU fights for their First Amendment rights. The protracted legal battle, concluding after the U.S. Supreme Court refused, in Smith v. Collin (439 U.S. 916), to review the proceedings, resulting in Collin eventually obtaining a permit. The Party’s march, however, was held in Chicago’s Marquette Park.

1978In proceedings on a complaint about an afternoon radio broadcast of comic George Carlin’s seven “dirty words” monologue, the Supreme Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726) upholds an FCC order as to “possible” sanctions against the radio station, which found the monologue as broadcast “indecent” but not obscene.

1979When the Progressive, an alternative newspaper in Madison, Wis., prepares to run a cover story that explains how to build a hydrogen bomb, the government takes quick action to prevent publication. After a seven-month showdown, the government backs down and the article runs.

1981Banned Books Week: Celebrating the Freedom to Read is created. The week is sponsored by the American Booksellers Association, the American Booksellers Foundation for Free Expression, the American Library Association, the American Society of Journalists and Authors, the Association of American Publishers and the National Association of College Stores. These groups sponsor this week to draw attention to the danger that exists when restraints are imposed on the availability of information in a free society.

1982In Island Trees Union Free School District No. 26 v. Pico (457 U.S. 853), a divided U.S. Supreme Court recognizes that a board of education’s discretion to remove books from junior and senior school libraries is more limited that its discretion with respect to classrooms and the curriculum. The plurality opinion by Justice William Brennan declared that “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.”

1982The U.S. Supreme Court added child pornography as another category of speech excluded from First Amendment protection. The ruling came in the case New York v. Ferber (458 U.S. 747), when the Court upheld the constitutionality of a New York statute prohibiting persons from promoting a sexual performance by a child under the age of sixteen by distributing material, which need not be legally obscene, that depicts such a performance.

1989Burning the U.S. flag is a protected form of symbolic political speech, the Supreme Court rules in Texas v. Johnson (491 U.S. 397). Because a principal function of

free speech is to invite dispute, any interest asserted by the state in preventing breaches of the peace from outraged onlookers was found to be insufficient to support the defendant’s conviction under a Texas statute prohibiting “desecration of a venerated object.”

1990The Supreme Court, in U.S. v. Eichmann and U.S. v. Haggerty (496 U.S. 310), strikes down convictions under the Flag Protection Act of 1989, passed by Congress in response to the Court’s flag desecration decision that year.

1990The constitutionally protected right to receive obscenity, and information generally, in the privacy of one’s home does not extend to child pornography, the U.S. Supreme Court rules in Osborne v. Ohio (495 U.S. 103). The Court found that Ohio reasonably concluded that the state will decrease the production of child pornography, thereby protecting child victims, if it penalizes those who possess and view the product.

1997The first Supreme Court decision regarding the Internet, American Library Association v. U.S. Department of Justice and Reno v. American Civil Liberties Union (117 S.Ct. 2329, 138 L.Ed.2d 874), strikes down provisions of the Communications Decency Act regulating “indecent” and “patently offensive” speech. Intended to protect minors, the Act was found to reduce, unconstitutionally, “the adult population (on the Internet) to reading only what is fit for children.”

1787The U.S. Constitution is ratified on the unwritten condition by many states that a Bill of Rights be added soon afterward.

1788The Constitution goes into effect; nine states have ratified it, with others to follow. Several states gave their approval on the unwritten condition that a Bill of Rights be added soon afterward.

1791The First through Tenth Amendments are adopted, comprising the Bill of Rights.

1798Fearing war with France, Congress passes the unpopular Sedition Act of 1798, curtailing First Amendment freedoms. Numerous newspaper editors were fined and jailed under the Act.

1868The Fourteenth Amendment is adopted, as one of the Civil War Amendments. The due process clause of this amendment has served as the basis for the Supreme Court to apply selectively, against actions by state governments, the checks and guarantees contained in the Bill of Rights. Up to this time, the free speech rights of the citizen of a state were safeguarded solely by the constitution and laws of the state.

1885Mark Twain’s The Adventures of Huckleberry Finn is banned in Concord, Mass. The book continues to be one of the most frequently challenged or banned books in the U.S. 2000

Challenges to library materials continue. Among the most frequently challenged titles in the past year are the best-selling Harry Potter series of children’s books by J. K. Rowling, the Alice series, by Phyllis Reynolds Naylor, The Chocolate War, by Robert Cormier, Of Mice and Men, by John Steinbeck, I Know Why the Caged Bird Sings, by Maya Angelou and the books of Judy Blume. Librarians, teachers, parents, trustees, students, and administrators continue to work to defend library collections.

This timeline is from Doyle, Robert P. Banned Books: 2000 Resource Book.Chicago: American Library Association, 2000.