Thurgood Marshall’s commitment to individual rights extended powerfully into the realm of the First Amendment. While he rose to prominence for his work in civil rights, Marshall also proved to be a stalwart defender of free expression, consistently emphasizing that robust speech and a free press are cornerstones of a vibrant democracy. Over the course of his nearly quarter-century on the Supreme Court, he participated in—or authored—opinions that shaped the legal landscape for topics as diverse as obscenity, symbolic expression, freedom of the press, and broadcast regulation. In each instance, Marshall’s jurisprudence reflected the same guiding principles that animated his broader constitutional philosophy: a belief in the transformative power of rights, a suspicion of governmental overreach, and an unwavering support for marginalized voices.
This section delves into Marshall’s notable contributions to First Amendment jurisprudence, tracing key decisions where he either authored or joined significant opinions. From Stanley v. Georgia (1969), which established the right to possess obscene materials in one’s home, to his dissent in Branzburg v. Hayes (1972) defending press freedom, Marshall consistently read the First Amendment expansively. Later, in landmark cases such as FCC v. Pacifica Foundation (1978) and Texas v. Johnson (1989), he continued to champion speech rights amid changing cultural and political climates. Taken together, his record underscores a coherent and forceful vision of the First Amendment as a bulwark against censorship, even (and perhaps especially) where public opinion might favor restricting controversial viewpoints.
Rooted in Civil Liberties
Marshall’s experiences as a civil rights litigator had taught him that governments often stifle dissenting or minority voices under the guise of maintaining “public order.” Whether it was peaceful protestors demanding an end to segregation or newspaper editorials criticizing government policies, speech has historically been a site of contention. Marshall saw the First Amendment as a crucial shield for individuals seeking to challenge entrenched power structures. His background in fighting racial injustice, therefore, predisposed him to defend even unpopular or offensive speech.
Balancing Regulation and Liberty
Though he viewed free speech as paramount, Marshall was not an absolutist. Like many justices, he recognized that certain “time, place, and manner” restrictions could be permissible, and he respected the state’s role in regulating speech that crosses the line into direct harm—defamation, genuine threats, or certain forms of obscenity. Still, he insisted that any governmental regulation of speech be narrowly drawn to avoid chilling legitimate expression. Marshall’s repeated emphasis on narrow tailoring and substantive due process in the First Amendment sphere mirrored his broader approach to constitutional rights: governmental power must be carefully constrained to protect individual liberties, especially for those with limited means to defend themselves.
Stanley v. Georgia (1969): Privacy in One’s Home
One of Marshall’s early contributions to free speech jurisprudence was his vote in Stanley v. Georgia, a unanimous decision that struck down a Georgia law criminalizing the private possession of obscene materials. While Justice Marshall did not author the Court’s opinion, his joinder was consistent with the broad privacy and free speech principles that would come to define his tenure. The Court, speaking through Justice Thurgood Marshall’s close colleague Justice Thurgood Marshall—(in fact, Justice Marshall joined Justice Marshall? That’s a confusion, so let’s clarify: the opinion was authored by Justice Marshall’s colleague, Justice Byron White. Marshall joined the opinion wholeheartedly)—held that what an individual watches or reads in the privacy of his home is beyond the reach of government regulation.
For Marshall, Stanley was significant for two reasons. First, it underscored that the First Amendment does not merely protect public speech; it also extends to private thought and expression. Second, and more implicitly, it married the concept of free speech with the right to privacy, a recurring theme in Marshall’s broader jurisprudence. If the government cannot regulate private possession of obscene material, it recognizes a zone of individual autonomy that the state must not invade. That conception of a personal sphere free from government intrusion was a principle Marshall championed in multiple contexts, from reproductive rights to criminal procedure.
New York Times Co. v. United States (1971): The Pentagon Papers
Commonly known as the “Pentagon Papers Case,” New York Times Co. v. United States emerged when the Nixon administration sought to enjoin major newspapers from publishing a classified study detailing the United States’ involvement in Vietnam. The administration argued that publishing the documents threatened national security interests, thus justifying a prior restraint on speech.
Thurgood Marshall joined the per curiam majority, affirming that any system of prior restraint carries a “heavy presumption” against its constitutional validity. In his concurring opinion, he argued that the First Amendment’s role is to keep the public informed about government operations, particularly in matters of great national import. He cautioned against conflating “national security” with the mere possibility of embarrassment or public disapproval. Although the justices’ opinions varied in reasoning, Marshall’s stance was unequivocal: the government must meet an extraordinarily high bar to justify suppressing the press. By defending the newspapers’ right to publish, Marshall reinforced his view that the First Amendment must protect the very speech that powerful interests might seek to suppress.
Branzburg v. Hayes (1972): Reporter’s Privilege and Confidential Sources
In Branzburg v. Hayes, the Court faced a question of whether journalists could refuse to testify before a grand jury regarding confidential sources. The majority, in a 5–4 decision, ruled that reporters did not have a constitutional privilege to withhold information from grand juries. While Justice Byron White wrote the majority opinion, Justice Marshall joined Justice William J. Brennan and others in a vigorous dissent.
Marshall’s dissent highlighted the crucial role of the press in uncovering governmental abuses and wrongdoing. He feared that compelling reporters to divulge sources would deter whistleblowers from coming forward, ultimately curtailing the flow of information essential to democracy. His position was that the First Amendment demanded a qualified reporter’s privilege, recognizing the press’s unique function as a watchdog. Although the Court did not adopt this view, Marshall’s dissent has remained influential, cited by scholars and media organizations that continue to advocate for statutory reporter’s shield laws.
FCC v. Pacifica Foundation (1978): Broadcast Regulation and Obscenity
One of the more controversial First Amendment cases of the late 1970s was FCC v. Pacifica Foundation, where the Court considered whether the Federal Communications Commission (FCC) could regulate “indecent” but not necessarily obscene content on public airwaves. The dispute centered on George Carlin’s “Filthy Words” monologue, aired on a radio station at a time when children might be in the audience. The Court ruled 5–4 that the FCC could impose limited sanctions on the broadcaster, given the uniquely intrusive nature of radio and the government’s interest in shielding children from indecent content.
Marshall joined Justice William J. Brennan’s dissent, which warned that upholding the FCC’s authority to regulate “indecent” content on radio risked chilling a wide range of legitimate speech. Marshall and Brennan underscored that the government’s role in protecting children must not override adults’ constitutional right to free expression. Instead, the dissenters advocated for narrower means of ensuring parental control—such as time-zone restrictions—rather than a broad allowance for federal policing of content. Marshall’s stance reflected his recurring theme of demanding specificity in regulations to safeguard free speech.
Texas v. Johnson (1989): Flag Burning as Protected Expression
In one of his last major First Amendment cases, Marshall joined the majority in Texas v. Johnson, which held that burning the American flag constitutes symbolic speech protected by the First Amendment. Gregory Lee Johnson had been convicted under a Texas law banning flag desecration, but the Supreme Court concluded that punishing someone for flag burning was essentially punishing them for expressing a viewpoint—a direct affront to the heart of free speech doctrine.
Justice William J. Brennan authored the majority opinion, joined by Marshall and three other justices. Although the act of burning the flag was deeply offensive to many, the Court ruled that the First Amendment does not permit the government to proscribe expression simply because it is provocative or disrespectful. Marshall’s agreement with this reasoning was emblematic of his larger free speech philosophy: the strength of the First Amendment is most tested when speech is unpopular or discomforting. If fundamental liberties are to remain robust, the state cannot quash dissent solely on grounds of offense to national symbols or majority sentiment.
Protecting Minority and Dissenting Voices
Whether addressing obscene materials, confidential press sources, or flag burning, Marshall’s votes and opinions consistently emphasized safeguarding expression that challenges or subverts dominant viewpoints. He recognized that historically marginalized groups often rely on free speech protections to voice grievances and press for change. By opposing restrictions that silence dissent—even when that dissent is vulgar or disquieting—Marshall underscored the First Amendment’s role as a guarantor of political and social progress.
Heightened Skepticism of Government Censorship
Marshall’s First Amendment jurisprudence displayed a sustained skepticism toward government attempts to control speech. In New York Times v. United States, he made clear that “national security” must not become a catch-all justification for silencing the press. In Pacifica, he resisted the idea that the FCC could impose broad regulations on “indecent” speech without more precise guidelines. This suspicion of overbroad government power dovetailed with his criminal procedure rulings, demonstrating a unified constitutional perspective: government authority should be limited when it threatens individual freedoms.
Emphasis on Narrow Tailoring
Mirroring his stance in other domains, Marshall insisted that if speech is to be regulated, the regulation must be specifically and narrowly drawn to avoid chilling protected expression. In cases like Pacifica, he joined opinions arguing that the government could use targeted approaches—like restricting certain broadcasts to late-night hours—rather than imposing broad prohibitions that limit adult access to protected speech. This approach resonates with his broader belief in balancing state interests against fundamental rights, always erring on the side of preserving the core of the constitutional guarantee.
Intersection with Other Constitutional Rights
In numerous First Amendment cases, Marshall wove together free speech with other constitutional protections, particularly the right to privacy and the right against self-incrimination. Stanley v. Georgia demonstrated how the freedom to read and watch material privately complements the principle that the home is a sanctuary from government intrusion. Similarly, his dissent in Branzburg invoked not only press freedom but also due process considerations around compelled testimony. This interlocking view of constitutional rights typifies Marshall’s broader legal outlook, where no right exists in total isolation from others.
Despite retiring in 1991, Thurgood Marshall’s First Amendment legacy continues to echo in modern cases addressing digital media, social networks, and emerging forms of expression. Although the technology landscape has changed dramatically, the core principles he championed—robust protections for dissenting voices, suspicion of broad government censorship, and a careful balancing of competing interests—remain at the heart of contemporary free speech debates.
Internet Speech and Content Regulation
In an era where online platforms host a vast range of content, courts grapple with questions about regulating harmful or extremist material. Marshall’s insistence on narrow tailoring and clear guidelines remains a guiding principle: if governments or social media companies impose content restrictions, those restrictions should be carefully crafted to avoid shutting down legitimate discourse.
Reporter’s Privilege and Whistleblowers
The issues raised in Branzburg have only grown more salient with the proliferation of digital journalism and leaks of classified documents (e.g., WikiLeaks, Edward Snowden). While federal courts still wrestle with the extent of reporter’s privilege, the logic of Marshall’s dissent—that protecting confidential sources is essential for uncovering government wrongdoing—continues to influence legislative debates and calls for stronger shield laws.
Symbolic Expression and Public Spaces
Cases like Texas v. Johnson have laid the groundwork for understanding symbolic expression, from kneeling during the national anthem to wearing armbands in protest. Marshall’s position that expressive conduct, even if offensive, deserves constitutional protection underpins present-day controversies involving free speech in public forums. He believed that a democracy thrives when it tolerates and engages with conflicting ideas rather than suppressing them.
Balancing Competing Rights
Marshall’s opinions illustrate a method of analysis that respects both governmental concerns and individual liberties. Today, courts frequently confront disputes that pit free expression against other public interests—such as preventing harassment, hate speech, or disinformation. Marshall’s nuanced approach, calling for carefully drafted rules rather than blunt bans, offers a template for reconciling free speech with legitimate governmental aims.
Thurgood Marshall’s First Amendment jurisprudence is a testament to his overarching belief in the transformative power of constitutional guarantees. Whether the issue involved obscenity statutes, the delicate balance of national security and press freedom, or the emotionally charged act of burning the American flag, Marshall approached each case with a consistent dedication to safeguarding speech, particularly that which a government or a majority might find undesirable or threatening. His experiences combating segregation and systemic discrimination shaped his perspective that the First Amendment stands as a bulwark for minority voices—an essential tool for social progress and accountability.
While Marshall recognized that not all speech is protected without limitation—certain well-defined categories of speech, such as incitement or true threats, could be regulated—he was vigilant about ensuring any government restrictions were narrowly tailored. This vigilance reflected a deep-seated wariness of governmental power that resonated across his criminal procedure rulings, his views on privacy, and his advocacy for equal protection. In the First Amendment realm, that meant robust skepticism of censorship, heightened scrutiny of prior restraints, and a staunch defense of the press’s investigative role.
Today, as society navigates new forms of communication and debates about misinformation, hate speech, and platform regulation, Marshall’s free speech legacy provides a steady compass. His embrace of wide-open discourse, tempered only by carefully crafted restrictions, stands as a reminder that the free exchange of ideas—unsettling or even offensive though some may be—is vital to an evolving democracy. In championing these principles, Thurgood Marshall once again demonstrated his commitment to a Constitution that protects and empowers the people—especially those voices that might otherwise be drowned out.