The First Amendment protects the unsavory and all of us too! – Hopkinsville Kentucky New Era
It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not-very nice people. So wrote Supreme Court Justice Felix Frankfurter in his dissenting opinion in United States v. Rabinowitz (1950). Albert Rabinowitz was a forger and his case involved the Fourth Amendment right to be free from unreasonable searches and seizures.
But the principle articulated by Justice Frankfurter applies with equal if not more force in First Amendment jurisprudence. Many of our most important First Amendment freedoms have been advanced in the name of hatemongers, flag burners and similar ilk.
Three examples come immediately to mind Clarence Brandenburg, Gregory Lee Johnson and Fred Phelps.
Clarence Brandenburg was a Ku Klux Klan leader who, with about a dozen other members of his hateful tribe, burned a cross before a television reporter in Hamilton County, Ohio. Brandenburg gave a speech that butchered the English language a bit, including the line: Were not a revengent [sic] organization, but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, its possible that there might have to be some revengeance [sic] taken.
Charged and convicted of violating an Ohio criminal syndicalism law, the Supreme Court unanimously reversed his conviction, finding that there is a difference between hateful ideas and unlawful incitement. The court famously declared in Brandenburg v. Ohio (1969) that the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
The so-called Brandenburg or incitement test has protected many a political dissident or rabble-rouser through the years. It was truly a landmark free-speech precedent.
Gregory Lee Johnson was a political protestor who took part in the so-called Republican War Chest Tour in Dallas, Texas the site of the Republican presidential convention. Johnson and others protested the policies of President Ronald Reagan and some Dallas-based corporations.
While some protestors chanted America, red, white and blue, we spit on you, Johnson burned an American flag. The police arrested Johnson and charged him with violating a Texas flag desecration statute. A trial court convicted Johnson, but the Texas Court of Criminal Appeals reversed. On further appeal, the U.S. Supreme Court also ruled in Texas v. Johnson (1989) that the First Amendment protected Gregory Lee Johnsons repugnant form of political protest.
In oft-cited language, Justice William Brennan wrote: 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. Brennan and four other justices realized that by protecting the repugnant act of Gregory Johnson, they were ensuring freedom for all. This bedrock principle of the First Amendment remains a shining light in First Amendment jurisprudence.
Fred Phelps founded a group known as the Westboro Baptist Church, which somewhere along the way came upon the belief that God was killing Americas soldiers because the country tolerated and promoted homosexuality. Phelps and many of his children would travel around the country and picket near military members funerals. They would hold up hateful signs advocating their messages of intolerance.
They did so in Maryland at the funeral of slain Marine Matthew Snyder. Snyders father Albert later sued for intentional infliction of emotional distress and a federal jury agreed to the tune of more than $10 million. However, the U.S. Court of Appeals for the Fourth Circuit reversed on First Amendment grounds.
The U.S. Supreme Court agreed in Snyder v. Phelps (2011) that the First Amendment protected the awful speech of members of Westboro Baptist Church, who conveyed their hateful messages on matters of public concern but complied with police orders on distancing from the funeral.
In perhaps his most stirring passage, Chief Justice John G. Roberts, Jr. famously wrote:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and, as it did here, inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course to protect even hurtful speech on public issues to ensure that we do not stifle public debate.
The First Amendment protected the likes of Clarence Brandenburg, Gregory Lee Johnson and Fred Phelps.
But thank God it does, because it also protects all of us.
David Hudson Jr. is a Freedom Forum Fellow for the First Amendment and a law professor at Belmont University who publishes widely on First Amendment topics.
See original here:
The First Amendment protects the unsavory and all of us too! - Hopkinsville Kentucky New Era
- VICTORY! Tennessee man jailed 37 days for Trump meme wins $835,000 settlement after First Amendment lawsuit - FIRE | Foundation for Individual Rights... - May 27th, 2026 [May 27th, 2026]
- 'If you can frighten people, you can control them': Journalist Alex Berenson warns about fear-based tactics after securing $150K First Amendment... - May 27th, 2026 [May 27th, 2026]
- The First Amendment exists to protect speech we dont want to hear - CT Mirror - May 27th, 2026 [May 27th, 2026]
- ACLU of Indiana reaches settlement in First Amendment lawsuit against Ball State University - WTHI-TV - May 27th, 2026 [May 27th, 2026]
- Justice Department Appeals Federal Judges Ruling That First Amendment Protections Apply to Sanctioned UN Special Rapporteur - Foundation for Defense... - May 27th, 2026 [May 27th, 2026]
- Q&A: Anna Gomez Is the Sole Democrat on the FCC. She Has a Warning for Big Media Companies - First Amendment Watch - May 27th, 2026 [May 27th, 2026]
- How does the First Amendment apply to protesters at church? Onondaga County lawmakers consider question raised by new bill - AOL.com - May 27th, 2026 [May 27th, 2026]
- A free press is for all of us. Why I cover the First Amendment - The Tennessean - May 17th, 2026 [May 17th, 2026]
- First Amendment rights at center of clash between Pa. schools and students over ICE walkouts - LancasterOnline - May 17th, 2026 [May 17th, 2026]
- Letter to the Editor: An assault on the First Amendment - Brattleboro Reformer - May 16th, 2026 [May 16th, 2026]
- Re-Aligning Incentives in the Democratic Public Sphere - | Knight First Amendment Institute - May 13th, 2026 [May 13th, 2026]
- In Legal Dispute Over The View, ABC Argues Trump Administration Is Trying To Chill Free Speech - First Amendment Watch - May 13th, 2026 [May 13th, 2026]
- Appeals Court Spares Trump From Paying $83 Million Defamation Award to E. Jean Carroll For Now - First Amendment Watch - May 13th, 2026 [May 13th, 2026]
- Online Speech and Jawboning Hypocrisy: Does an Inglorious First Amendment Legacy Await Bondi and Noem? - American Enterprise Institute - AEI - May 13th, 2026 [May 13th, 2026]
- First Amendment rights at center of clash between Pa. schools and students over ICE walkouts - The Daily Item - May 13th, 2026 [May 13th, 2026]
- ABC accuses FCC of violating its First Amendment rights over its scrutiny of "The View" - CBS News - May 9th, 2026 [May 9th, 2026]
- ABC Accuses Government of Violating First Amendment - The New York Times - May 9th, 2026 [May 9th, 2026]
- Jane Fonda, Patti Smith, Rufus Wainwright to Gather in Celebration of the First Amendment in NYC - Rolling Stone - May 9th, 2026 [May 9th, 2026]
- FCC's warnings on political interviews 'chill' First Amendment, ABC says - Politico - May 9th, 2026 [May 9th, 2026]
- ABC Says FCCs Equal Time Crackdown On The View Chills Its First Amendment Rights - Deadline - May 9th, 2026 [May 9th, 2026]
- ABC accused the U.S. government of violating the First Amendment in a dispute with the FCC over The View. The networks argument is the most aggressive... - May 9th, 2026 [May 9th, 2026]
- ABC accuses government of violating First Amendment - Editor and Publisher - May 9th, 2026 [May 9th, 2026]
- ABC Accuses Trump Administration of Violating First Amendment with FCC's Pointed Attacks on The View - People.com - May 9th, 2026 [May 9th, 2026]
- Sen. Kelly First Amendment Case: Government Cannot Be Arbiter of Its Own Speech Restrictions - Cato Institute - May 9th, 2026 [May 9th, 2026]
- DCYF warning to union leader raises First Amendment concerns, ACLU says - Rhode Island Current - May 9th, 2026 [May 9th, 2026]
- ABC accuses the FCC of violating its first amendment rights - WQAD - May 9th, 2026 [May 9th, 2026]
- Local news and the First Amendment: Whats at stake - Roswell Daily Record - May 9th, 2026 [May 9th, 2026]
- Mark Kelly lawsuit: impact on First Amendment rights of retired veterans - KTAR News 92.3 FM - May 9th, 2026 [May 9th, 2026]
- ABC and Disney accuse Trump admin of violating First Amendment rights - The Verge - May 9th, 2026 [May 9th, 2026]
- ABC accuses FCC of violating the First Amendment in their attacks on 'The View': An overreach that "threatens to upend decades of settled... - May 9th, 2026 [May 9th, 2026]
- ABC alleges the FCC violated its First Amendment rights over 'The View' criticism - KBAK - May 9th, 2026 [May 9th, 2026]
- Disney-Owned ABC Accuses U.S. Government of Violating First Amendment - WDW News Today - May 9th, 2026 [May 9th, 2026]
- ADL Reports a Sharp Drop in US Antisemitic Incidents in 2025, Driven by a Steep Fall on Campuses - First Amendment Watch - May 9th, 2026 [May 9th, 2026]
- Bette Midler and Jane Fonda to Headline Protest Concert for the First Amendment in New York - TheWrap - May 9th, 2026 [May 9th, 2026]
- Rutgers University Withdraws Invite to a Graduation Speaker Over His Criticism of Israel - First Amendment Watch - May 9th, 2026 [May 9th, 2026]
- ABC alleges the FCC violated its First Amendment rights over 'The View' criticism - WKRC - May 9th, 2026 [May 9th, 2026]
- Patti Smith to take part in Rise Up, Sing Out: A Concert for the First Amendment - Everett Post - May 9th, 2026 [May 9th, 2026]
- ABC accuses FCC of chilling The View's First Amendment rights to be The View - AV Club - May 9th, 2026 [May 9th, 2026]
- James Comey Faces New Indictment With First Amendment Implications: What You Need to Know - Freedom Forum - May 5th, 2026 [May 5th, 2026]
- Supreme Court First Choice ruling crushes lawfare in win for First Amendment - Washington Examiner - May 5th, 2026 [May 5th, 2026]
- Letter: Exercising the First Amendment - The Daily News of Newburyport - May 5th, 2026 [May 5th, 2026]
- Celebrating the Power of Music and the First Amendment at Freely Fest - Freedom Forum - May 5th, 2026 [May 5th, 2026]
- Trump uses assassination attempt to justify his assault on first amendment rights to free speech - The Conversation - May 3rd, 2026 [May 3rd, 2026]
- The GUARD Act Undermines the First Amendment and Parental Choice - R Street Institute - May 3rd, 2026 [May 3rd, 2026]
- Art by Telephone, Art by Algorithm: Expression, AI, and the First Amendment - - Center for Democracy and Technology - May 3rd, 2026 [May 3rd, 2026]
- The first amendment shall prevail: Plaintiff in 2023 discrimination case speaks after judge orders St. George to pay $350K - ABC4 Utah - May 3rd, 2026 [May 3rd, 2026]
- RANDY EVANS: Reflecting on mentors, opportunity and the First Amendment - Indianola Independent Advocate - May 3rd, 2026 [May 3rd, 2026]
- Utah City Ordered to Pay $350k to Drag Performers After Losing First Amendment Fight - EDGE Media Network - May 3rd, 2026 [May 3rd, 2026]
- The Mouse vs. The White House: Disney Lawyers Up for First Amendment War Over ABCs License - Inside the Magic - May 3rd, 2026 [May 3rd, 2026]
- Analysis: What Disney is thinking as it faces a First Amendment fight with Trump - CNN - April 29th, 2026 [April 29th, 2026]
- First Amendment advocates blast the FCC's early review of ABC broadcast licenses - NBC News - April 29th, 2026 [April 29th, 2026]
- Kimmel, the First Amendment and a brewing battle with the FCC - USA Today - April 29th, 2026 [April 29th, 2026]
- Former Spokane mayor Woodward wants $10 million from the city, alleges First Amendment violations - KXLY.com - April 29th, 2026 [April 29th, 2026]
- The Taricani Visiting Journalist Series on First Amendment Rights Harrington School of Communication and Media - The University of Rhode Island - April 29th, 2026 [April 29th, 2026]
- In rare interviews, Bush hails the First Amendment and Obama says America doesn't have 'kings' - NBC News - April 23rd, 2026 [April 23rd, 2026]
- CBS Hosting Dinner Praising Trump And His Love Of The First Amendment - Techdirt. - April 23rd, 2026 [April 23rd, 2026]
- BREAKING: Street preacher threatens to sue SIUE on grounds of First Amendment rights violation - alestlelive.com - April 23rd, 2026 [April 23rd, 2026]
- First Amendment to Arkansas: You Cannot Sentence Speech on the Internet to Death by a Thousand Cuts in NetChoice Court Victory - NetChoice - April 23rd, 2026 [April 23rd, 2026]
- The GUARD Act dis-GUARDs the First Amendment and competition - Competitive Enterprise Institute - April 23rd, 2026 [April 23rd, 2026]
- Supreme Court Denies Hearing in First Amendment Cases Related to Occupational Speech - The Institute for Justice - April 23rd, 2026 [April 23rd, 2026]
- Code is functional free speech under the First Amendment: Coin Center - TradingView - April 23rd, 2026 [April 23rd, 2026]
- Texas public schools can now have Ten Commandments displays, Appeals Court ruled, but Supreme Court can still save this First Amendment disaster -... - April 23rd, 2026 [April 23rd, 2026]
- Trump admin violated First Amendment by forcing Facebook and Apple to remove ICE-trackers - Law and Crime News - April 19th, 2026 [April 19th, 2026]
- Judge sides with creators of banned ICE trackers who allege DHS and DOJ violated their First Amendment rights - Engadget - April 19th, 2026 [April 19th, 2026]
- How Originalism Broke the First Amendment - Balls and Strikes - April 19th, 2026 [April 19th, 2026]
- Trump says CNN may have committed a crime. The First Amendment says otherwise - Poynter - April 19th, 2026 [April 19th, 2026]
- Jon Prosser's last-ditch effort against Apple's lawsuit is the First Amendment - AppleInsider - April 19th, 2026 [April 19th, 2026]
- California Attorney Who Tried To Help Overturn 2020 Election Loses Law License - First Amendment Watch - April 19th, 2026 [April 19th, 2026]
- ANOTHER VIEWPOINT: First amendment lynchpin of American experiment - The Facts - April 19th, 2026 [April 19th, 2026]
- White House Correspondents Dilemma: Toasting the First Amendment as Trump Tramples Over It | Analysis - TheWrap - April 19th, 2026 [April 19th, 2026]
- Mitali Bags speech on The Constitution (One Hundred and Thirty-First Amendment) Bill, 2026 and The Delimitation Bill, 2026 - All India Trinamool... - April 19th, 2026 [April 19th, 2026]
- Occupational licensing has a First Amendment problem - The Hill - April 10th, 2026 [April 10th, 2026]
- Paterno: Dangerous Times for the First Right of the First Amendment - StateCollege.com - April 10th, 2026 [April 10th, 2026]
- When ICE enforcement and the First Amendment collide - News From The States - April 10th, 2026 [April 10th, 2026]
- Briefing Room: Advice on dealing with First Amendment auditors - Seal Beach News - April 10th, 2026 [April 10th, 2026]
- On Books, Book Reviews, and Bezos - First Amendment Watch - April 10th, 2026 [April 10th, 2026]
- Escambia County sheriff responds after heated argument between First Amendment auditor and deputy: did not reflect our core values - Yahoo - April 10th, 2026 [April 10th, 2026]
- Diddy Appeal: Lawyers Seek Release, Argue Freak-Offs Are Protected By First Amendment - HOT 97 - April 10th, 2026 [April 10th, 2026]
- Future of First Amendment: FIU to host 'Free Speech: A Florida Dialogue' with Georgetown University - WLRN - April 5th, 2026 [April 5th, 2026]
- Hollywood Stars Join Together to Defend the First Amendment - The Progressive - April 5th, 2026 [April 5th, 2026]