The constitutional amendment, ratified with the Bill of Rights in 1791. 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. Nearly every human action that the law affects, and virtually all governmental activity, involves speech. For First Amendment purposes, the Supreme Court has distinguished among contexts in which speech activity might arise, applying special speech-protective rules and presumptions in some of those areas, but not in others. See, e.g., Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 229 (2000) (indicating that less restrictive rules apply to governmental speech); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 564 (1980) (commercial speech subject to 'mid-level' scrutiny); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968) (applying special rules applicable to speech of government employees).
Under First Amendment jurisprudence, each method of communicating ideas is 'a law unto itself' and that law must reflect the 'differing natures, values, abuses and dangers' of each method. Kovacs v. Cooper, 336 U.S. 77, 97 (1949). Each medium of expression . . . must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems'); FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978) ('We have long recognized that each medium of expression presents special First Amendment problems'); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952) ('Each method tends to present its own peculiar problems').
The First Amendment, said Judge Learned Hand, 'presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.' United States v. Associated Press, 52 F. Supp. 362, 372 (D.C. S. D. N. Y. 1943). Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375-376, gave the principle its classic formulation: 'Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law - the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.'
The First Amendment, applicable to the States through the Fourteenth Amendment, provides that “Congress shall make no law . . . abridging the freedom of speech.” The hallmark of the protection of free speech is to allow “free trade in ideas” - even ideas that the overwhelming majority of people might find distasteful or discomforting. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); see also Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”). Thus, the First Amendment “ordinarily” denies a State “the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence.” Whitney v. California, 274 U.S. 357, 374 (1927) (Brandeis, J., dissenting). The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. See, e.g., R. A. V. v. City of St. Paul, 505 U.S., at 382; Texas v. Johnson, supra, at 405-406; United States v. O'Brien, 391 U.S. 367, 376-377 (1968); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505 (1969).
No state -- and therefore no federal court exercising diversity jurisdiction -- may impose sanctions or grant civil relief which would tend to chill or impair the free exercise of rights guaranteed by the First Amendment. Near v. Minnesota (1931) 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357; Herndon v. Lowry (1937) 301 U.S. 242, 57 S. Ct. 732, 81 L. Ed. 1066; Winters v. New York (1948) 333 U.S. 507, 68 S. Ct. 665, 92 L. Ed. 840; Wood v. Georgia (1962) 370 U.S. 375, 82 S. Ct. 1364, 8 L. Ed. 2d 569; NAACP v. Button (1963) 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405; New York Times v. Sullivan (1964) 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686; Cox v. Louisiana (1965) 379 U.S. 536, 559, 85 S. Ct. 453, 476, 13 L. Ed. 2d 471, 487; Amalgamated Food Employees v. Logan Valley Plaza (1968) 391 U.S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603; Tinker v. Des Moines School District (1969) 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731; Street v. New York (1969) 394 U.S. 576, 89 S. Ct. 1354, 22 L. Ed. 2d 572; Stanley v. Georgia (1969) 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542; Cohen v. California (1971) 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284.
The rationale is that the mere threat of even an ultimately unsuccessful lawsuit might deter a prospective defendant from the full exploitation of his First Amendment rights. Therefore in situations where such a possibility can be said to exist, a plaintiff must make a far more persuasive showing than required of an ordinary litigant in order to defeat a defense motion for summary judgment. See Trails West, Inc. v. Wolff (1973) 32 N.Y. 2d 207, 344 N.Y. S.2d 863, 298 N.E. 2d 52; Washington Post Co. v. Keogh (1966) 125 U.S. App. D.C. 32, 365 F.2d 965, cert. denied (1967) 385 U.S. 1011, 87 S. Ct. 708, 17 L. Ed. 2d 548; Hurley v. Northwest Publications, Inc. (D. Minn. 1967) 273 F. Supp. 967, aff'd (8th Cir.) 398 F.2d 346; United Medical v. CBS (9th Cir. 1968) 404 F.2d 706, cert. denied (1969) 394 U.S. 921, 89 S. Ct. 1197, 22 L. Ed. 2d 454; Dacey v. Florida Bar (5th Cir. 1970) 427 F.2d 1292; Thompson v. Evening Star (1968) 129 U.S. App. D.C. 299, 394 F.2d 774, cert. denied (1968) 393 U.S. 884, 89 S. Ct. 194, 21 L. Ed. 2d 160; Walker v. Pulitzer Pub. Co. (8th Cir. 1968) 394 F.2d 800; Time, Inc. v. McLaney (5th Cir. 1969) 406 F.2d 565, cert. denied (1969) 395 U.S. 922, 89 S. Ct. 1776, 23 L. Ed. 2d 239; Bon Air Hotel, Inc. v. Time, Inc. (S.D. Ga. 1969) 295 F. Supp. 704, aff'd (5th Cir. 1970) 426 F.2d 858; Sellers v. Time, Inc. (E.D. Pa. 1969) 299 F. Supp. 582, aff'd (3d Cir. 1970) 423 F.2d 887, cert. denied (1970) 400 U.S. 830, 91 S. Ct. 61, 27 L. Ed. 2d 61; Cerrito v. Time, Inc. (N.D. Cal. 1969) 302 F. Supp. 1071, aff'd (9th Cir. 1971) 449 F.2d 306; Medina v. Time, Inc. (D. Mass. 1970) 319 F. Supp. 398, aff'd (1st Cir. 1971) 439 F.2d 1129; Spern v. Time, Inc. (W.D. Pa. 1971) 324 F. Supp. 1201; Johnston v. Time, Inc. (4th Cir. 1971) 448 F.2d 378; Cervantes v. Time, Inc. (E.D. Mo. 1971) 330 F. Supp. 936; Goldman v. Time, Inc. (N.D. Calif. 1971) 336 F. Supp. 133.
One must never lose sight of the purpose behind the decisions implementing the First Amendment. The Supreme Court does not closely scrutinize restraints on obscenity because it feels that obscene literature is any boon to mankind. On the contrary, it scrutinizes such restraints solely because it feels that the concept of obscenity is so vague that unless rigorously circumscribed the fear of obscenity prosecution might inhibit the free expression of artistic talent. Thus, in Roth v. United States (1957) 354 U.S. 476, at 488, 77 S. Ct. 1304, at 1311, 1 L. Ed. 2d 1498, the Court, speaking through Mr. Justice Brennan, observed: 'The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests. It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.' Similarly with libel, the Court has no desire to encourage libelous publications. However, it has concluded -- or rather it has decided that the Founding Fathers had concluded -- that a considerable risk of unchecked libel (with its inevitably resulting private injustices) is preferable to a relatively slight risk of impeding untrammeled public debate. As observed in Rosenbloom v. Metromedia (1971) 403 U.S. 29, at 49-50, 91 S. Ct. 1811, at 1823, 29 L. Ed. 2d 296, per Mr. Justice Brennan: 'the vital needs of freedom of the press and freedom of speech persuade us that allowing private citizens to obtain damage judgments on the basis of a jury determination that a publisher probably failed to use reasonable care would not provide adequate 'breathing space ' for these great freedoms. Reasonable care is an 'elusive standard ' that 'would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it . . . ' Fear of guessing wrong must inevitably cause self-censorship and thus create the danger that the legitimate utterance will be deterred.'
The First Amendment does not prohibit all governmental regulation that depends on the content of speech. Schenck v. United States, 249 U. S. 47, 249 U. S. 52. The government may forbid speech calculated to provoke a fight. See Chaplinsky v. New Hampshire, 315 U. S. 568. It may pay heed to the 'common sense differences' between commercial speech and other varieties.' Bates v. State Bar of Arizona, supra at 433 U. S. 381. It may treat libels against private citizens more severely than libels against public officials. See Gertz v. Robert Welch, Inc., 418 U. S. 323. Obscenity may be wholly prohibited. Miller v. California, 413 U. S. 15. The Court has refused to hold that a 'statutory classification is unconstitutional because it is based on the content of communication protected by the First Amendment.' Young v. American Mini Theatres, Inc., supra, at 427 U. S. 52.