David Schultz, Ph.D., is a distinguished professor in political science, environmental studies and legal studies at Hamline University. He is also an adjunct law professor at the University of Minnesota and at the University of St. Thomas, and an affiliate faculty member at the Lithuanian Military Academy in Vilnius, Lithuania. Schultz is a four-time Fulbright scholar and the winner of the Leslie A. Whittington National Award for Excellence in Public Affairs Teaching. He is the author of more than 45 books and over 200 articles on various aspects of American politics, election law, and the media and politics. Schultz is regularly interviewed and quoted in the local, national, and international media on these subjects including The New York Times, Wall Street Journal, The Washington Post, the Economist, and National Public Radio. His most recent books are “Constitutional Precedent in US Supreme Court Reasoning” (2022), “Handbook of Election Law” (2022), and “Presidential Swing States” (2022). He is on the ACS Minnesota Advisory Board and is former executive director of Common Cause Minnesota and a former vice president for the Minnesota and South Texas chapters of the American Civil Liberties Union.
More Articles from this Author
44 Liquormart, Inc. v. Rhode Island (1996)
44 Liquormart v. Rhode Island (1996) advanced First Amendment protections for commercial speech when it struck down a state law banning the advertising of alcohol prices.
American Booksellers Association v. Hudnut (7th Cir.) (1985)
In American Booksellers Association v. Hudnut (1985), the 7th Circuit Court said an Indianapolis anti-pornography ordinance violated the First Amendment.
Anderson v. Celebrezze (1983)
Anderson v. Celebrezze (1983) struck down on First Amendment grounds a state law that imposed early filing requirements for an independent presidential candidate.
Attorney General’s Commission on Pornography (1986)
The Attorney General’s Commission on Pornography in 1986 recommended ways to halt the spread of pornography. Critics said some of the recommendations violated the First Amendment.
Attorney General’s List of Subversive Organizations
The Attorney General's List of Subversive Organizations cataloged organizations engaged in supposed subversive activity. The list chilled First Amendment freedoms.
Birth of the First Amendment
A vigorous exercise of speech and press that the British considered to be treasonous preceded the American Revolution. Even before the revolt, American air seemed freer than that in England, which was as free as that of any nation. Almost uniformly Protestant, the American colonies nonetheless contained an increasing number of religious sects; settler communities […]
California Democratic Party v. Jones (2000)
California Democratic Party v. Jones (2000) invalidated a state law that changed political primaries into “open” primaries. The Court based its decision on the First Amendment.
Carolene Products Footnote Four
Justice Harlan Fiske Stone inserted a footnote that marked a Court shift in giving more constitutional protection to individual rights, especially those of the First Amendment.
Civil Rights, Vietnam and Church and State
While the Cold War era produced McCarthyism, communist prosecutions, and other curtailments of First Amendment freedoms, another movement presented the Court with the ideal opportunity to expand these freedoms. In "The Negro and the First Amendment" (1965), Harry Kalven wrote that “we may come to see the Negro as winning back for us the freedoms the Communists […]
Commercial Speech
Commercial speech is a form of protected communication under the First Amendment, but it does not receive as much free speech protection as forms of noncommercial speech.
Federal Communications Commission v. League of Women Voters of California (1984)
In FCC v. League of Women Voters of California (1984), the Court said that banning noncommercial educational stations from editorializing violated the First Amendment.
Federal Election Commission v. Wisconsin Right to Life, Inc. (2007)
FEC v. Wisconsin Right to Life, Inc. (2007) ruled that part of the Bipartisan Campaign Reform Act violated the First Amendment as applied to certain forms of political speech.
From Civil War to World War I
In Federalist No. 10 of the Federalist Papers, James Madison argued that the diversity of a people spread throughout a geographically expansive republic would help secure liberty. Madison recognized that the positions of a majority and a minority race had led to injustice and that over time these injustices had become more geographically concentrated. […]
Gertz v. Robert Welch, Inc. (1974)
In Gertz v. Robert Welch, Inc., the court ruled that the First Amendment does not require a private individual who is libeled to prove actual malice in a defamation suit.
Harry Kalven Jr.
Harry Kalven Jr. was University of Chicago law professor best known for advocacy of and thoughtful writings about First Amendment freedom of speech and expression.
House Un-American Activities Committee
The House Un-American Activities Committee took a prominent role in investigating communist activity. Its critics contend that it trampled First Amendment rights.
Judicial Campaign Speech
To promote judicial impartiality, states have regulated judicial campaign statements, but recent court decisions have granted such comments greater First Amendment protection.
Lenny Bruce
Comedian Lenny Bruce was arrested numerous times due to alleged obscenity. Through his legal struggles, Bruce brought his craft more First Amendment protection.
Marketplace of Ideas
The marketplace of ideas refers to the belief that the test of the truth or acceptance of ideas depends on their competition with one another and not on the opinion of a censor.
Media Concentration
Critics of ownership concentration in the news media business say that it threatens the marketplace of ideas and poses a threat to First Amendment freedoms.
Media Exemption to Antitrust Laws
To promote diversity of ideas under the First Amendment, the Supreme Court has sometimes allowed news media organizations to have exemptions to antitrust laws.
Membership Lists
The free speech and freedom of association clauses of the First Amendment generally prevent the government from requiring associations to disclose their members’ names.
National Identification Cards
It has been proposed that United States residents be required to carry proof of identity, but critics of the idea argue that the proposal would raise First Amendment concerns.
Norman v. Reed (1992)
Norman v. Reed (1992) struck down a state law requiring minor political parties to obtain 25,000 signatures to appear on the ballot, finding it violated the First Amendment.
On Liberty
On Liberty by British philosopher John Stuart Mill presents an influential argument in favor of free speech, making it an inspiration for future First Amendment theory.
Placement, Wording and Application of the First Amendment
Scholars have documented the serendipity of why what is now the First Amendment became the first among the amendments of the Bill of Rights. James Madison, the chief author of the First Amendment, had actually hoped to incorporate the texts of the amendments within the Constitution rather than attaching them at the end as Connecticut’s […]
Political Parties
Political parties enjoy significant protection under the First Amendment. It is not always clear who is the “political party” and who can assert First Amendment rights.
Polygamy
Polygamy is a practice in which a person is married to more than one person at the same time. Polygamy raises issues under the free exercise clause of the First Amendment.
Regulation of Political Campaigns
Efforts to regulate political campaigns often involve competing First Amendment concerns, forcing the courts to adjudicate which rights deserve more protection.
Religious Freedom Restoration Act of 1993 (1993)
Congress passed the Religious Freedom Restoration Act of 1993 requiring courts to apply strict scrutiny when examining whether a law violates Amendment religious freedom.
Republican Party of Minnesota v. White (2002)
Republican Party of Minnesota v. White (2002) said a rule prohibiting judicial candidates from announcing their views on controversial issues violated the First Amendment.
RICO Laws
The application of the Racketeer Influenced and Corrupt Organizations law (RICO) raises First Amendment questions implicating the freedom of association.
School Vouchers
The Supreme Court has upheld school voucher programs, saying if they are administered without favoring one religion over another, they do not violate the First Amendment.
Seventh-day Adventists
Because of their beliefs, including that Saturday is the Sabbath, members of the Seventh-day Adventist Church have been plaintiffs in many First Amendment religious liberty cases.
Sexual Harassment Laws
The creation of a hostile, intimidating work environment through sexual comments can constitute a type of sexual harassment that may implicate First Amendment freedom of speech.
Spam
Congress is under growing pressure to regulate spam in much the same way it regulates telemarketing, but regulation of spam raises First Amendment free speech issues.
State Constitutional Provisions on Expressive Rights
All states have provisions in their constitutions that protect individual rights and in some cases offer greater protection for First Amendment rights than the U.S. Constitution.
Telemarketing
Telemarketing implicates the First Amendment, which has not been viewed as an absolute bar to regulation. Many regulations have passed First Amendment review.
The Alien and Sedition Acts and 19th Century Developments
America's founding fathers, contrary to some of their own expectations, soon divided into rival political parties under the new governing system. It is one of the great historical ironies that many who had helped to ratify the powerful language of the First Amendment ignored its principles in seeking to silence political speakers with whom they […]
Timmons v. Twin Cities Area New Party (1997)
Timmons v. Twin Cities Area New Party (1997) dismissed constitutional claims that so-called fusion ballots are protected by the First Amendment freedom of association.
Tolerance Theory
One premise underlying First Amendment jurisprudence is the tolerance theory — the belief that promoting expressive freedoms will make individuals more open to ideas.
United States Civil Service Commission v. National Association of Letter Carriers(1973 )
In 1973, the U.S. Supreme Court for a second time upheld the constitutionality of the Hatch Act against claims that it violated the free speech rights of government workers. In United States Civil Service Commission v. National Association of Letter Carriers, the Court explained the importance of limiting political activities of workers.
Wallace v. Jaffree (1985)
Wallace v. Jaffree (1985) struck down a state law requiring a minute of silence in public schools. The Court said the law had a religious purpose and violated the First Amendment.
Waters v. Churchill (1994)
Waters v. Churchill (1994) looked at the First Amendment rights of public employees and what should be done when there is a dispute about the nature of the employee’s speech.
William Rehnquist
Supreme Court Associate and Chief Justice William Rehnquist was not known as a defender of First Amendment rights, but he protective of some aspects of the amendment.
World War II and Cold War
Contrary to the hopes of Woodrow Wilson, World War I did not make the world safe for democracy. Indeed, communists took power in Russia, leading to the first red scare in the United States and creating fertile soil for the rise of Nazism in Germany. As soon as the Allies had defeated Germany, Italy, and Japan in World […]
Zoning Laws
While land-use zoning generally does not raise First Amendment issues, a government imposing controls to prevent certain businesses from operating may violate free speech rights.