the first Amendment states:

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.

This only mentions congress explicitly. According to https://www.law.cornell.edu/wex/incorporation_doctrine

The First Amendment has been interpreted by the Court as applying to the entire federal government even though it is only expressly applicable to Congress.

I would like to find the first court case where the first amendment was applied like this to the entire federal government(judiciary or executive).

Can you help?

  • 2
    The US President and the Supreme Court don't make laws. Otherwise your link goes into plenty of detail about incorporation.
    – pboss3010
    Commented Aug 22, 2019 at 18:23
  • 2
    To elaborate what @pboss3010 said, the President implements and enforces the laws and the Judiciary interprets the laws... If congress cannot make a law on a matter, the President cannot enforce a law and the courts cannot make interpretations about the law (SCOTUS can interprit if a law is in complaince with the First Amendment).
    – hszmv
    Commented Aug 22, 2019 at 19:23
  • @hszmv there can be unconstitutional arrests for a common-law offense, with no statute involved. See Cantwell v Ct in my answer . Commented Aug 23, 2019 at 12:09
  • @DavidSiegel: Just because they legally cannot does not mean in practice they cannot. That's why we have the word "unconstitutional". A common-law offense means that the "law" was made by case law setting legal precidence. My state, for example, doesn't have a codfied murder law because our courts long said "Murder is ilegal". THe only murder rules we have on the books are sentencing guidelines and there's never been a need to actually codify a legal definition for Murder. And my state is not unusual in this respect.
    – hszmv
    Commented Aug 23, 2019 at 12:50
  • 1
    Possible duplicate of Is the 21st century's idea of "freedom of speech" based on precedent? Commented Sep 22, 2019 at 14:00

2 Answers 2


At least in terms of U.S. Supreme Court decisions, the earliest I know of was New York Times Co. v. United States, 403 U.S. 713 (1971), which applied the standard First Amendment test for prior restraints to the judicial imposition of injunctions.


Near v. Minnesota, 283 U.S. 697 (1931) also applied First Amendment standards to an injunction, overturning the injunction and holding the state law authorizing such injunctions to be unconstitutional, at least as applied in the Near case. I believe this case was cited in New York Times Co. v. United States (the "Pentagon Papers" case). This was a case of state, not federal action, and so it applied the 1st as incorporated via the 14th, not directly as in New York Times Co. v. United States. See also Minnesota Rag By Fred W. Friendly, the excellent book about the Near case.

There was also New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the case that established the "actual malice" standard for defamation cases when the plaintiff is a public official (later expanded to "public figure"). Again this was a state case appealed to federal jurisdiction. See also Make No Law, a very through book about the case.

There was also Cantwell v. Connecticut, 310 U.S. 296 (1940) in which an arrest for violation of a statute prohibiting solicitation of religious or charitable donations without a license and also for a common-law offense of breach of the peace was held unconstitutional. This is perhaps more of a case of an unconstitutional law being enforced, but arbitrary and hence unconstitutional administrative action in denying permits was mentioned in the decision.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .