The First Amendment states that: "Congress shall make no law abridging the freedom of speech or of the press." Is that an absolute right? Justice Oliver Wendell Holmes probably framed the issue most succinctly when he wrote that "freedom of speech cannot protect the false shouting of fire in a crowded theater." The Supreme Court has been trying, for most of this century, to balance the protected right of speech with the need to protect other people's rights, lives, and liberties from being infringed.
The first test of freedom of speech came in the case of Schenck vs. United States. In this case, Charles Schenck had been convicted of distributing leaflets during World War I, urging people not to register for the draft. Justice Holmes declared that, in ordinary times, Schenck would have been within his constitutional rights but, since the times were not ordinary times, his actions could have been a threat to the country.
In the 1920’s, with the case of Gitlow vs. New York, the Court redefined the standard of what speech could be repressed. That standard became speech that had a bad tendency, i.e., speech that was likely to promote bad behavior.
In Chaplinsky v. New Hampshire (1942), Chaplinsky, a Jehovah Witness, was convicted of making public attacks on members of other religions, thus violating a New Hampshire Law. The Supreme Court wrote: "it is well understood that the right of free speech is not absolute at all times and all circumstances." Exceptions included speech that was lewd and obscene, libelous, and insulting; or fighting words, the very utterance of which inflicted injury or tended to incite an immediate breach of the peace”