Why didn't any First Amendment controversies reach the US Supreme Court during the 19th century?

Answer 1

While the courts established the authority to overturn unconstitutional laws in Marbury v. Madison, (1803), they rarely did. Many federal judges were hostile to freedom of expression (freedom of religion was less an issue because society was more homogeneously Christian at that time), and failed to support constitutional law. This allowed Congress to issue restrictions on free speech, as they did in the Alien and Sedition Act of 1796. Although that particular piece of legislation was repealed in 1801, the crime of seditious libel survived into the 20th century (truth was not considered an absolute defense at that time).

Politicians used charges of seditious libel to regulate the press. The Federalists successfully prosecuted a number of Republican newspapers in the lower courts in the 19th century. Since none of these cases were appealed to the Supreme Court, there was no opportunity to brake this unconstitutional action.

States' and federal government also used sedition, criminal conspiracy, and criminal anarchy laws to suppress abolitionists' criticism of the United States and slavery. People were sometimes arrested simply for belonging to groups or organizations the government considered threatening.

The Supreme Court didn't hear any First Amendment cases from the inception of the court until the early 20th century. Schenck v. United States, (1919), was the first real challenge of laws impinging on First Amendment guarantees. Charles Schenck, a member of the Communist party, was prosecuted for violating the Espionage Act of 1917. Schenck mailed pamphlets to young men urging them to resist WW I recruitment efforts, which the Court held interfered with the United States' ability to build its military. Justice Oliver Wendell Holmes, Jr., who wrote the opinion in Schenck, instituted the "clear and present danger" doctrine that created the first legitimized exception to this constitutional freedom.

Another reason First Amendment controversies took so long to reach the Supreme Court was that the Bill of Rights didn't apply to the states until ratification of the Fourteenth Amendment in 1868. The United States uses a process called "selective incorporation" in deciding which Amendments to enforce, dependant largely on the result of legal challenges brought before the Supreme Court. Most First Amendment protections didn't adhere until the 1920s, 30s and later:

Establishment clause: (cannot teach religion in public schools): Everson v. Board of Education, 330 US 1 (1947)

Free exercise of religion: Cantwell v. Connecticut, 310 US 296 (1940)

Freedom of speech: Gitlow v. New York, 268 US 652 (1925)

Freedom of the press: Near v. Minnesota, 283 US 697 (1931)

Freedom of assembly: DeJonge v. Oregon, 299 US 353 (1937)

Expressive association (implied right): NAACP v. Alabama, 357 US 449 (1958)

On an individual basis, communities, churches and families placed greater social pressure on people to conform to strict behavioral standards in the 18th-, 19th-, and early-to-mid 20th-centuries; and more people complied then than now, for a variety of reasons.