The First Amendment

The First Amendment to the US Constitution is part of the Bill of Rights, and protects core American civil liberties.

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Learning Objectives

Compare and contrast civil rights with civil liberties with respect to the First Amendment


Key Takeaways

Key PointsThe First Amendment protects Americans’ rights to religious freedom. As part of this, the US cannot establish a religion nor prevent free exercise of religion.The First Amendment protects Americans’ rights to the freedom of speech, press, assembly, and petition.Originally, the First Amendment applied only to the federal government. However, Gitlow v. New York (1925) used provisions found in the Fourteenth Amendment to apply the First Amendment to the states as well.Some of the rights protected in the First Amendment have roots in other countries’ declarations of rights. In particular, the English Bill of Rights, the French Declaration of the Rights of Man and of the Citizen, and the Philippine Constitution all have similar elements to the First Amendment.Clear and present danger was a doctrine adopted by the Supreme Court of the United States to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press or assembly.In the 1919 case Schenck v. United States the Supreme Court held that an anti-war activist did not have a First Amendment right to speak out against the draft.Key TermsFirst Amendment: The first of ten amendments to the constitution of the United States, which protects freedom of religion, speech, assembly, and the press.civil liberties: Civil rights and freedoms such as the freedom from enslavement, freedom from torture and right to a fair trial.French Declaration of the Rights of Man and of the Citizen: A fundamental document of the French Revolution and in the history of human rights, defining the individual and collective rights of all the estates of the realm as universal.

The First Amendment

The First Amendment (Amendment I) to the United States Constitution is part of the Bill of Rights and protects American civil liberties. The amendment prohibits the making of any law pertaining to an establishment of a federal or state religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble, or prohibiting the petitioning for a governmental redress of grievances.


Vietnam War Protest in Washington D.C., April, 1971: The First Amendment established the right to assemble as a core American liberty, as is depicted here in a Vietnam-era assembly.


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Freedom of the Press Worldwide: The First Amendment to the Constitution guarantees Americans the right to a free press. This is something that many other countries do not enjoy, as this map illustrates.


The text of the First Amendment reads, ” 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. ”

Anti-war protests during World War I gave rise to several important free speech cases related to sedition and inciting violence. Clear and present danger was a doctrine adopted by the Supreme Court of the United States to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press or assembly. Before the twentieth century, most free speech issues involved prior restraint. Starting in the early 1900s, the Supreme Court began to consider cases in which persons were punished after speaking or publishing.

In the 1919 case Schenck v. United States the Supreme Court held that an anti-war activist did not have a First Amendment right to speak out against the draft. The clear and present danger test was established by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I. Following Schenck v. United States, “clear and present danger” became both a public metaphor for First Amendment speech and a standard test in cases before the Court where a United States law limits a citizen’s First Amendment rights; the law is deemed to be constitutional if it can be shown that the language it prohibits poses a “clear and present danger.

Incorporating the First Amendment

Originally, the First Amendment applied only to laws enacted by the Congress. However, starting with Gitlow v. New York (1925), the Supreme Court has applied the First Amendment to each state. This was done through the Due Process Clause of the Fourteenth Amendment. The Court has also recognized a series of exceptions to provisions protecting the freedom of speech.



Background to the First Amendment

Opposition to the ratification of the Constitution was partly based on the Constitution’s lack of adequate guarantees for civil liberties. To provide such guarantees, the First Amendment, along with the rest of the Bill of Rights, was submitted to the states for ratification on September 25, 1789, and adopted on December 15, 1791.

Comparing the First Amendment to Other Rights Protection Instruments

Some provisions of the United States Bill of Rights have their roots in similar documents from England, France, and the Philippines. The English Bill of Rights, however, does not include many of the protections found in the First Amendment. For example, the First Amendment guarantees freedom of speech to the general populace but the English Bill of Rights protected only free speech in Parliament. A French revolutionary document, the French Declaration of the Rights of Man and of the Citizen, passed just weeks before Congress proposed the Bill of Rights, contains certain guarantees that are similar to those in the First Amendment. Parts of the Constitution of the Philippines, written in 1987, contain identical wording to the First Amendment regarding speech and religion. Echoing Jefferson’s famous phrase, all three constitutions, in the section on Principles, contain the sentence, “The separation of Church and State shall be inviolable”.


English Bill of Rights: The US Bill of Rights drew many of its First Amendment provisions from other countries’ bill of rights, such as the English Bill of Rights. However, the US Bill of Rights established more liberties than the English Bill of Rights.


Although the First Amendment does not explicitly set restrictions on freedom of speech, other declarations of rights occasionally do. For example, The European Convention on Human Rights permits restrictions “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ” Similarly, the Constitution of India allows “reasonable” restrictions upon free speech to serve “public order, security of State, decency or morality. ”

Lastly, the First Amendment was one of the first guarantees of religious freedom: neither the English Bill of Rights nor the French Declaration of the Rights of Man and of the Citizen contain a similar guarantee.


Freedom of Religion

Freedom of religion is a constitutionally guaranteed right, established in the First Amendment of the Bill of Rights.


Learning Objectives

Summarize the meaning of “freedom of religion” in the U.S. constitution


Key Takeaways

Key PointsThe protection of religious freedom is laid out in the First Amendment, which states that Congress cannot establish a state religion nor prohibit free exercise of religion.The Establishment Clause prevents the U.S. from creating a state or national religion, from favoring one religion over another, or entangling the government with religion.The Free Exercise Clause gives all Americans the right to practice their religion freely, without interference or persecution by the government.Key TermsBill of Rights: The collective name for the first ten amendments to the United States Constitution.freedom of religion: The right of citizens to hold any religious or non-religious beliefs, and to carry out any practices in accordance with those beliefs, so long as they do not interfere with another person’s legal or civil rights, or any reasonable laws, without fear of harm or prosecution.civil liberties: Civil rights and freedoms such as the freedom from enslavement, freedom from torture and right to a fair trial.

The First Amendment

In the United States, freedom of religion is a constitutionally guaranteed right, laid out in the Bill of Rights. The following religious civil liberties are guaranteed by the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ” Thus, freedom of religion in the U.S. has two parts: the prohibition on the establishment of a state religion, and the right of all citizens to practice their religion.


Monument to the Right to Worship: This monument in Washington, DC honors the right to worship. The inscription reads, “Our liberty of worship is not a concession nor a privilege, but an inherent right. “


No U.S. State Religion

Many countries have made one religion into the established (official) church, and support it with government funds. In what is called the Establishment Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion”), Congress is forbidden from setting up, or in any way providing for, an established church. It has been interpreted to forbid government endorsement of, or aid to, religious doctrines. The Federal Government may not establish a national church or religion or excessively involve itself in religion, particularly to the benefit of one religion over another.


No State Religion: The Establishment Clause of the First Amendment prohibits the creation of a state religion in the U.S. Other countries have had state religions; for instance, the Church of England once dominated religious and political life (former Anglican church depicted here).


Freedom to Practice Religion

In addition to the rights afforded under the Establishment Clause, the Free Exercise Clause of the First Amendment protects the rights of citizens to practice their religions. This clause states that Congress cannot “prohibit the free exercise” of religious practices.

Incorporation of the First Amendment

The Supreme Court has interpreted the 14th Amendment as applying the First Amendment’s provisions on the freedom of religion to states as well as to the Federal Government. Therefore, states must guarantee freedom of religion in the same way the Federal Government must. Many states have freedom of religion established in their constitution, though the exact legal consequences of this right vary for historical and cultural reasons.

Most states interpret “freedom of religion” as including the freedom of long-established religious communities to remain intact and not be destroyed. By extension, democracies interpret “freedom of religion” as the right of each individual to freely choose to convert from one religion to another, mix religions, or abandon religion altogether.


The Establishment Clause: Separation of Church and State

As part of the First Amendment’s religious freedom guarantees, the Establishment Clause requires a separation of church and state.


Learning Objectives

Distinguish the Establishment Clause from other clauses of the First Amendment


Key Takeaways

Key PointsThe Establishment Clause prohibits the creation of a national religion, and also prohibits the US government from favoring one religion over another or excessively entangling itself with religious issues or groups.Thomas Jefferson is often cited as being the one who introduced the concept of the separation of church and state.The Establishment Clause has been incorporated against the states via the Fourteenth Amendment. However, the process has been tricky, as it is argued that the Fourteenth Amendment speaks to individual rights, while the Establishment Clause does not.The Supreme Court has made judgments on three main questions: can the US government give financial assistance to religious groups? Is state-sanctioned prayer in public schools acceptable? Are religious displays in government-affiliated places acceptable?The ” Lemon Test,” established by Lemon v. Kurtzman (1971) provided a three-part test for determining whether or not a law or act violates the Establishment Clause.Key Termsseparation of church and state: The distance in the relationship between organized religion and the nation state.First Amendment: The first of ten amendments to the constitution of the United States, which protects freedom of religion, speech, assembly, and the press.Thomas Jefferson: Thomas Jefferson (April 13, 1743 (April 2, 1743 O.S.) – July 4, 1826) was an American Founding Father, the principal author of the Declaration of Independence (1776) and the third President of the United States (1801–1809).Lemon Test: a method of measuring weather a government action violates the Establishment Clause of the United States’ constitution concerning religion. To pass the test, the action must have a secular legislative purpose, must not have the primary effect of either advancing or inhibiting religion, and must not result in an “excessive government entanglement” with religion.establishment clause: a pronouncement in the First Amendment to the U.S. Constitution which prohibits both the establishment of a national religion by Congress, and the preference by the U.S. government of one religion over another

The Establishment Clause

The Establishment Clause in the First Amendment to the Constitution states, ” Congress shall make no law respecting an establishment of religion. ” Together with the Free Exercise Clause (“… or prohibiting the free exercise thereof”), these two clauses make up what are called the “religion clauses” of the First Amendment.

The Establishment Clause has generally been interpreted to prohibit (1) the establishment of a national religion by Congress, or (2) the preference by the U.S. government of one religion over another. The first approach is called the “separation” or “no aid” interpretation, while the second approach is called the “non-preferential” or “accommodation” interpretation. The accommodation interpretation prohibits Congress from preferring one religion over another, but does not prohibit the government’s entry into religious domain to make accommodations in order to achieve the purposes of the Free Exercise Clause.

The “Wall of Separation”


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Thomas Jefferson: Founding Father and Third President of the United States. Thomas Jefferson’s phrase “the wall of separation,” is often quoted in debates on the Establishment Clause and the separation of church and state.

Thomas Jefferson wrote that the First Amendment erected a “wall of separation between church and state”, likely borrowing the language from Roger Williams, founder of the Colony of Rhode Island. James Madison, often regarded as the “Father of the Bill of Rights”, also often wrote of the “perfect separation”, “line of separation”, and “total separation of the church from the state. ”


Incorporation of the Establishment Clause

Incorporation of the Establishment Clause in 1947 has been tricky and subject to much more critique than incorporation of the Free Exercise Clause. The controversy surrounding Establishment Clause incorporation primarily stems from the fact that one of the intentions of the Establishment Clause was to prevent Congress from interfering with state establishments of religion that existed at the time of the founding.

Critics have also argued that the Due Process Clause of the Fourteenth Amendment is understood to incorporate only individual rights found in the Bill of Rights; the Establishment Clause, unlike the Free Exercise Clause (which critics readily concede protects individual rights), does not purport to protect individual rights.

Controversy Over the Establishment Clause

Controversy rages in the United States between those who wish to restrict government involvement with religious institutions and remove religious references from government institutions and property, and those who wish to loosen such prohibitions. Advocates for stronger separation of church and state emphasize the plurality of faiths and non-faiths in the country, and what they see as broad guarantees of the federal Constitution. Their opponents emphasize what they see as the largely Christian heritage and history of the nation (often citing the references to “Nature’s God” and the “Creator” of men in the Declaration of Independence).

Main Questions of the Establishment Clause

One main question of the Establishment Clause is: does government financial assistance to religious groups violate the Establishment Clause? The Supreme Court first considered this issue in Bradfield v. Roberts (1899). The federal government had funded a hospital operated by a Roman Catholic institution. In that case, the Court ruled that the funding was to a secular organization—the hospital—and was therefore permissible.

Another main question is: should state-sanctioned prayer or religion in public schools be allowed? The Supreme Court has consistently held fast to the rule of strict separation of church and state in this issue. In Engel v. Vitale (1962) the Court ruled that government-imposed nondenominational prayer in public school was unconstitutional. In Lee v. Weisman (1992), the Court ruled prayer established by a principal at a middle school graduation was also unconstitutional, and in Santa Fe Independent School Dist. v. Doe (2000) it ruled that school officials may not directly or indirectly impose student-led prayer during high school football games.



Lastly, are religious displays in public places allowed under the Establishment Clause? The inclusion of religious symbols in public holiday displays came before the Supreme Court in Lynch v. Donnelly (1984), and again in Allegheny County v. Greater Pittsburgh ACLU (1989). In the former case, the Court upheld a public display, ruling that any benefit to religion was “indirect, remote, and incidental. ” In Allegheny County, however, the Court struck down a display that had more overt religious themes.


Religious Displays: In 2001, the Chief Justice of Alabama installed a monument to the Ten Commandments in the state judicial building (pictured here). In 2003, a court case determined that this was not allowed under the Establishment Clause.


The Lemon Test

The distinction between force of government and individual liberty is the cornerstone of such cases. Each case restricts acts by government designed to establish a religion, while affirming peoples’ individual freedom to practice their religions. The Court has therefore tried to determine a way to deal with church/state questions. In Lemon v. Kurtzman (1971), the Court created a three part test for laws dealing with religious establishment. This determined that a law related to religious practices was constitutional if it:

Had a secular purpose;Neither advanced nor inhibited religion; and,Did not foster an excessive government entanglement with religion.

The Free Exercise Clause: Freedom of Religion

The Free Exercise Clause of the First Amendment establishes the right of all Americans to freely practice their religions.


Learning Objectives

Describe how the interpretation of the Free Exercise clause has changed over time.


Key Takeaways

Key PointsThe Free Exercise Clause and the Establishment Clause (which essentially establishes the separation of church and state ), compose the provisions on religious freedom in the First Amendment of the Bill of Rights.The interpretation of the Free Exercise Clause has narrowed and widened throughout the past decades. In the late 1800s, the Supreme Court took the view that it acceptable for the government to pass neutral laws that may incidentally impact certain religions.During the time of the Warren Court in the 1960s, the Supreme Court took the view that there must be a “compelling interest” in order for religious freedom to be restricted.In the 1990s, the Supreme Court moved away from this strict interpretation of the Free Exercise Clause, and removed the idea that there had to be a “compelling interest” in order to violate religious freedom.Jehovah Witnesses have been involved in a lot of litigation related to the Free Exercise Clause and, consequently, have helped define its limits.Key Termsfree exercise clause: the accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution, which prohibits Congress from interfering with the practices of any religionJehovah’s Witnesses: A monotheistic and nontrinitarian Restoration Christian denomination founded in 1879 as a small Bible study group.Warren Court: The Supreme Court of the United States between 1953 and 1969, when Earl Warren served as Chief Justice. Warren led a liberal majority that used judicial power in dramatic fashion, expanding civil rights, civil liberties, judicial power, and the federal power.strict scrutiny: The most stringent standard of legal review in American courts, used to evaluate the constitutionality of laws and government programs.

The Free Exercise Clause

The Free Exercise Clause is the accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution. The Establishment Clause and the Free Exercise Clause together read:” Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Thus, the Establishment Clause prevents the US from establishing or advocating for a specific religion, while the Free Exercise clause is intended to ensure the rights of Americans to practice their religions without state intervention. The Supreme Court has consistently held, however, that the right to free exercise of religion is not absolute, and that it is acceptable for the government to limit free exercise in some cases.



Interpreting the Free Exercise Clause

The history of the Supreme Court’s interpretation of the Free Exercise Clause follows a broad arc, beginning with approximately 100 years of little attention. Then it took on a relatively narrow view of the governmental restrictions required under the clause. The 1960s saw it grow into a much broader view and later receding again.

In 1878, the Supreme Court was first called to interpret the extent of the Free Exercise Clause in Reynolds v. United States, as related to the prosecution of polygamy under federal law. The Supreme Court upheld Reynolds’ conviction for bigamy, deciding that to do otherwise would provide constitutional protection for a gamut of religious beliefs, including those as extreme as human sacrifice. This case, which also revived Thomas Jefferson ‘s statement regarding the “wall of separation” between church and state, introduced the position that although religious exercise is generally protected under the First Amendment, this does not prevent the government from passing neutral laws that incidentally impact certain religious practices.

This interpretation of the Free Exercise Clause continued into the 1960s. With the ascendancy of the Warren Court under Chief Justice Earl Warren, a new standard of “strict scrutiny” in various areas of civil rights law was applied. The Court established many requirements that had to be met for any restrictions of religious freedom. For example, in Sherbert v. Verner (1963), the Supreme Court required states to meet the “strict scrutiny” standard when refusing to accommodate religiously motivated conduct. This meant that a government needed to have a “compelling interest” regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith.

This view of the Free Exercise Clause would begin to narrow again in the 1980s, culminating in the 1990 case of Employment Division v. Smith. Examining a state prohibition on the use of peyote, the Supreme Court upheld the law despite the drug’s use as part of a religious ritual. In 1993, the Congress passed the Religious Freedom Restoration Act (RFRA), which sought to restore the compelling interest requirement applied in Sherbert v. Yoder. In another case in 1997, the Court struck down the provisions of the Act on the grounds that, while the Congress could enforce the Supreme Court’s interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities.


Jehovah’s Witnesses Cases

During the twentieth century, many major cases involving the Free Exercise Clause were related to Jehovah’s Witnesses. Many communities directed laws against the Witnesses and their preaching work. From 1938 to 1955, the organization was involved in over forty cases before the Supreme Court, winning a majority of them. For example, the first important victory came in 1938 with Lovell v. City of Griffin. The Supreme Court held that cities could not require permits for the distribution of pamphlets.


Key Takeaways

Key PointsThe Bill of Right’s provision on the freedom of speech was incorporated against the states in Gitlow v. New York (1925).Core political speech, expressive speech, and most types of commercial speech are protected under the First Amendment.Certain types of speech (particularly, speech that can harm others) is not protected, such as obscenity, fighting words, true threats, child pornography, defamation, or invasion of privacy. Speech related to national security or state secrets may also not be protected.Key Termsfreedom of speech: The right of citizens to speak, or otherwise communicate, without fear of harm or prosecution.fighting words: agressive words that forseeably may lead to potentially violent confrontation; in law, often considered mitigation for otherwise sanctionable behavior (fighting)defamation: Act of injuring another’s reputation by any slanderous communication, written or oral; the wrong of maliciously injuring the good name of another; slander; detraction; calumny; aspersion.prior restraint: censorship imposed, usually by a government, on expression before the expression actually takes placeslander: a false, malicious statement (spoken or published), especially one which is injurious to a person’s reputation; the making of such a statement

Protesting for Freedom of Speech: This individual is protesting for the right to speak freely. Freedom of speech is a closely guarded liberty in American society


Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions as well.

The freedom of speech is not absolute. The Supreme Court of the United States has recognized several categories of speech that are excluded, and it has recognized that governments may enact reasonable time, place, or manner restrictions on speech.

Despite the exceptions, the legal protections of the First Amendment are some of the broadest of any industrialized nation, and remain a critical, and occasionally controversial, component of American jurisprudence.

Incorporation of Freedom of Speech

Although the text of the Amendment prohibits only the United States Congress from enacting laws that abridge the freedom of speech, the Supreme Court used the incorporation doctrine in Gitlow v. New York (1925) to also prohibit state legislatures from enacting such laws.

Protected Speech

The following types of speech are protected:

Core political speech. Political speech is the most highly guarded form of speech because of its purely expressive nature and importance to a functional republic. Restrictions placed upon core political speech must weather strict scrutiny analysis or they will be struck down.Commercial speech. Not wholly outside the protection of the First Amendment is speech motivated by profit, or commercial speech. Such speech still has expressive value although it is being uttered in a marketplace ordinarily regulated by the state.Expressive speech. The Supreme Court has recently taken the view that freedom of expression by non-speech means is also protected under the First Amendment. In 1968 (United States v. O’Brien) the Supreme Court stated that regulating non-speech can justify limitations on speech.

Type of Free Speech Restrictions

The Supreme Court has recognized several different types of laws that restrict speech, and subjects each type of law to a different level of scrutiny.

Content-based restrictions. Restrictions that require examining the content of speech to be applied must pass strict scrutiny. Restrictions that apply to certain viewpoints but not others face the highest level of scrutiny, and are usually overturned, unless they fall into one of the court’s special exceptions.Time, place, or manner restrictions. Time, place, or manner restrictions must withstand intermediate scrutiny. Note that any regulations that would force speakers to change how or what they say do not fall into this category (so the government cannot restrict one medium even if it leaves open another).Prior restraint. If the government tries to restrain speech before it is spoken, as opposed to punishing it afterwards, it must: clearly define what’s illegal, cover the minimum speech necessary, make a quick decision, be backed up by a court, bear the burden of suing and proving the speech is illegal, and show that allowing the speech would “surely result in direct, immediate and irreparable damage to our Nation and its people. “

Exceptions to Free Speech

Certain exceptions to free speech exist, usually when it can be justified that restricting free speech is necessary to protect others from harm. These restrictions are controversial, and have often been litigated at all levels of the United States judiciary. These restrictions can include include the incitement to crime (such as falsely yelling “Fire! ” in a crowded movie theater); fighting words (which are words that are likely to induce the listener to get in a fight); true threats; obscenity; child pornography; defamation; invasion of privacy; intentional infliction of emotional distress; or certain kinds of commercial, government, or student speech. Speech related to national security, military secrets, inventions, nuclear secrets or weapons may also be restricted.

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The flag of the United States is sometimes symbolically burned, often in protest of the policies of the American government, both within the country and abroad. The United States Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989), and reaffirmed in U.S. v. Eichman, 496 U.S. 310 (1990), has ruled that due to the First Amendment to the United States Constitution, it is unconstitutional for a government (whether federal, state, or municipality) to prohibit the desecration of a flag, due to its status as “symbolic speech. ” However, content-neutral restrictions may still be imposed to regulate the time, place, and manner of such expression.