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.
The First Amendment contains the cherished freedoms of religion, speech, press, assembly, and petition. But these rights to religious and political expression and to free speech are limited. The government must evaluate an individual’s freedom of expression against community interests, concern for public safety, and national security interests.
After years of being ignored by government and the courts, the First Amendment has emerged as the amendment that the public most closely associates with the Bill of Rights (the first ten amendments to U.S. Constitution), standing as a statement of the core values of American freedom and democracy. It serves as our blueprint for personal liberty.
From One Bill of Rights to Another
In 1689, the British Parliament (Great Britain’s government) enacted the English Bill of Rights, which sharply limited the power of the king and queen and gave greater power to Parliament. The Bill of Rights listed fundamental liberties, including: freedom of elections; freedom of debate in Parliament; freedom from excessive bail, and cruel and unusual punishments (see chapter eight); and the right to petition (ask) the government for correction of public grievances (complaints). As British subjects, colonists in Britain’s North American colonies also felt entitled to the liberties listed in the English Bill of Rights.
During the 1700s, ideas about individual rights grew in popularity. Such ideas were outlined by the English philosopher John Locke in Two Treatises on Government (1690). Locke argued that people are born completely free but that they give up some of their freedom to government for the good of society. However, since a government’s power comes directly from the people, a government must always act for the good of the people. Otherwise, people must have the right to change the government.
Revolution to Constitution
Locke’s ideas helped spur the American Revolutionary War (1775–83), in which the thirteen North American colonies fought for their independence from the British government. Colonists argued that the British government repeatedly violated rights established by the English Bill of Rights. For instance, petitioning the government to address grievances was made nearly impossible because of laws that made speaking against the government a crime.
The colonies’ growing dissatisfaction with the British government was revealed in an early case concerning freedom of the press. John Peter Zenger (1697–1746) was the publisher of the New York Weekly Journal. Zenger was charged with seditious libel (speaking out against the government) after printing a series of articles critical of New York’s colonial governor William Cosby. At that time, truth was not a defense to a charge of libel. Although the law was clearly against Zenger, the jury of colonists in his 1735 trial refused to convict him.
War broke out between Great Britain and the colonies in 1775. In June of 1776, Virginia adopted the Virginia Declaration of Rights. This colonial version of the Bill of Rights listed specific liberties that could not be taken away by government, such as freedom of the press and the freedom to practice whatever religion a person chose. In July of 1776, the colonists issued a formal Declaration of Independence. It listed complaints against the British government and asserted the people’s right to change their government.
A new government: old rights.
Great Britain and the colonies remained at war in North America for the next five years. In 1781, the colonies defeated the British Army and formed a limited national government under a document known as the Articles of Confederation. These Articles established a national legislature (law-making body) but did not create a court system or executive branch to enforce government policies. Calls for a stronger national (federal) government led to the adoption of the Constitution of the United States (see Introduction) in 1788. The new constitution created a strong federal government with the power to collect taxes, declare war, and maintain armed forces. The new government’s powers were divided in the following way:
- the executive branch, headed by the president, which carries out government policies;
- the legislative branch (Congress) made up of elected representatives in the House of Representatives and state-appointed representatives in the Senate; and
- the judicial branch (courts) headed by the Supreme Court (see below).
Before the states ratified (approved) the Constitution, many people worried that the new government would become too powerful. Many argued that the Constitution should have a list of guaranteed liberties similar to Virginia’s Declaration of Rights. The Constitution was ratified after supporters agreed that a bill of rights would be drafted during the first session of Congress.
Congress met for the first time in 1789. James Madison (1751–1836) was a member of the House of Representatives from Virginia. (He later became the fourth president of the United States.) Madison wrote and introduced seventeen proposals for amendments that guaranteed numerous rights. Congress reworked Madison’s proposals and passed twelve amendments to the U.S. Constitution on September 25, 1789. The states ratified ten of the amendments (including what became the First Amendment) in 1791, thereby establishing the U.S. Bill of Rights.
Interpreting the Law of the Land
As set up by the Constitution, the Supreme Court is the highest court in the United States. The Court originally consisted of six justices (judges) but was expanded to seven justices in 1807, nine justices in 1837, ten justices in 1863, and then nine justices in 1869. The number remained constant at nine into the twenty-first century. The Supreme Court is responsible for the final interpretation of U.S. laws, including amendments to the Constitution.
Most cases are heard by trial courts or by appellate courts that consider appeals. (An appeal is a legal request for a higher court to reconsider a lower court’s ruling in a case.) The U.S. Supreme Court has the power to hear cases from the federal appeals courts and from state supreme court rulings that involve constitutional issues. In the early 2000s, the Court is highly selective: It chooses to hear only about eighty cases out of the eight thousand presented to it every year for consideration.
In deciding cases, Supreme Court justices may write individual opinions, or sign another justice’s opinion. Sometimes the Court will collectively issue an opinion, which is called a per curiam (for the court) opinion. An opinion is a written explanation of the justice’s reasoning about the ruling handed down for a case. Regardless of how many opinions the Court issues in a case, the final ruling is decided by a simple vote of all the justices. Sometimes the Supreme Court changes its interpretation of law, often reflecting changes in American society.
Applying the Bill of Rights to the States
The Bill of Rights was originally intended only for the federal government. States were allowed to manage their own affairs, without regard for the first ten amendments. For example, the governments of Connecticut and Massachusetts continued to run state-supported Congregational churches into the 1800s, even though the First Amendment restricted Congress from establishing or sponsoring a religion. Thus, in compliance with the First Amendment, religion was not controlled by the federal government, but in these two states, the state government did support a specific religion.
The Fourteenth Amendment (ratified by the states in 1868) contains the due process clause (see chapter fourteen). This clause provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” Over the years, the Supreme Court has interpreted the due process clause to mean that various parts of the Bill of Rights do apply to state and local governments in addition to the federal government. For example, the U.S. Supreme Court ruled in Gitlow v. New York (1925) that "liberty" within the meaning of the due process clause encompassed freedom of speech in the First Amendment. Several of the First Amendment’s clauses have been “incorporated” (included) by the Supreme Court in this interpretation of the Fourteenth Amendment.
No Government in Religion, No Religion in Government
There are two clauses in the First Amendment that protect religious freedom:
- The establishment clause (“Congress shall make no law respecting an establishment of religion”) prohibits the establishment of an “official” state church and bans the government from taking any actions that may favor one religion over another or favor religion or non-religion.
- The free exercise clause (Congress shall make no law “prohibiting the free exercise” of religion) bans the government from undue interference with individuals’ right to practice their faith. The Supreme Court, however, has ruled that the government may limit religious practices that are deemed harmful to society.
The wall of separation between church and state
In 1802, President Thomas Jefferson (1743–1826) wrote in a letter to the Danbury Baptists that the First Amendment called for a “wall of separation between Church and State.” Many people disagree over just how high that “wall” should be. Over the years, the Supreme Court has helped build this wall. The Court has consistently ruled that in addition to prohibiting the establishment of a government-sponsored religion, the establishment clause also prohibits the government from taking any action that aids any religion or prefers one religion over another. Many religious freedom cases have focused on the activities of public and parochial (religious) schools.
Bus fare, but no salaries.
In Everson v. Board of Education (1947), the Supreme Court used the due process clause of the Fourteenth Amendment (see chapter fourteen) to apply the establishment clause to the actions of state and local governments. The case involved a New Jersey public school board’s decision to pay for the cost of transporting children to and from Catholic schools. This was part of a larger program that paid the transportation costs of children in public (government-run) and private schools.
The Supreme Court ruled that the government money could pay the costs of transporting children to religious institutions (the Catholic schools) because the state had an interest in transporting children “regardless of their religion … to and from accredited schools.” Since Everson, the Supreme Court has upheld state laws requiring public school districts to lend textbooks on secular (non-religious) subjects to students in private and parochial schools.
Even though the Court in Everson upheld the use of government monies for the bus transportation, Justice Hugo Black (who wrote the majority opinion) explained the meaning of the establishment clause in the following statement:
The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. … Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.
The Court was less receptive to state laws that gave direct financial assistance to religious schools. In Lemon v. Kurtzman (1971), the Court struck down laws that used public funds to help pay teachers in parochial schools. In this case, the Court established a three-part test to determine whether a governmental regulation violated the establishment clause. The three parts are whether the regulation has a religious or secular purpose; whether it has the primary effect of advancing or inhibiting religion; and whether the regulation involves an excessive entanglement of the government in religious matters.
Religious observance in school.
Prior to 1962, many states required public schools to begin the school day with a prayer or a Bible reading. For example, the state of New York developed a prayer that had been approved by Protestant, Catholic, and Jewish leaders. Student participation in the prayer was strictly voluntary. Nevertheless, the Supreme Court ruled 6–1 (two justices did not participate in the case) in Engel v. Vitale (1962) that the prayer violated the establishment clause. In Abington School District v. Schempp (1963), the Court struck down voluntary Bible readings or recitations of the Lord’s Prayer in public schools. In both cases the Court ruled that these practices served clearly religious purposes and, therefore, violated the establishment clause.
Some religious groups reacted strongly against these rulings. However, many religious groups applauded the decision because they believed that a strong wall between church and state prevents the government from favoring one religion over another. In any case, in the last two decades of the twentieth century, the Supreme Court ruled consistently against similar religious practices in public schools. In Stone v. Graham (1980), the Court struck down a Kentucky law that required the posting of the Ten Commandments in public school classrooms. In Wallace v. Jaffree (1985), the Court ruled that an Alabama law requiring public school students to observe a moment of silence “for the purpose of meditation or voluntary prayer” was unconstitutional, mainly because it was clear the sponsor of the law intended to bring prayer back in public school . In Lee v. Weisman (1992), the Court ruled 5–4 that a religious prayer read at a public school graduation violated the establishment clause.
Religious activities on public facilities.
While the government cannot establish religious activities in public schools, the Court ruled in Widmar v. Vincent (1981) that it is unconstitutional for a state university (or school) to prohibit a religious group from using its facilities if the facilities are also open for other organizations to use.
Providing special education at parochial schools
Under the Elementary and Secondary Education Act of 1965, all educationally and economically disadvantaged children are entitled to publicly funded remedial (special courses designed to help students overcome learning obstacles) education services, regardless of whether they attend public or private schools. Many school systems, including the New York City school system, complied with the law by paying public school teachers to conduct special training at private and parochial schools. In Aguilar v. Felton (1985), the Court ruled that this New York City practice was unconstitutional because it could lead to the kind of entanglement between church and state that the establishment clause prohibits.
In Agostini v. Felton (1997), however, the Supreme Court overruled its Aguilar v. Felton decision. In the 1997 case, the Court ruled that a program was not unconstitutional if it might lead to an entanglement of church and state, only if it actually did so. The Court found no evidence that the New York City practice of allowing public school teachers to teach remedial education in parochial schools led to such entanglements, and it ruled that the program could be reinstated.
Another pressing establishment clause issue concerns voucher programs in which the government gives money to parents to help pay for tuition to send their children to any school the parent chooses, even religious schools. Proponents of voucher programs emphasize that it increases educational opportunities for students. Opponents of voucher programs contend that it represents government funding of religious schools. In 2002, the U.S. Supreme Court ruled 5–4 in Zelman v. Simmons- Harris that a voucher program for students in Cleveland City School District did not violate the establishment clause even though a majority of the participating students attended Catholic schools. The Court majority focused on the fact that the program was neutral towards religion and that the money reached the religious schools only after a “genuine and independent choice” by the parents.
A subsequent establishment clause controversy involved a challenge filed by the father of a California elementary schoolchild to the reciting of the Pledge of Allegiance in school. Michael Newdow claimed the 1954 addition to the pledge with the words "under God" constituted a violation of the establishment clause. Francis Bellamy wrote the Pledge of Allegiance in 1892, but the words "under God" were added by Congress in 1954 to distinguish the United States from the apparently Godless Communists. However, many people view the Pledge as primarily a patriotic exercise, and not a religious one. The U.S. Supreme Court dismissed the challenge in Elk Grove Unified School District v. Newdow (2004) because the man who brought the suit, Michael Newdow, was not the custodial parent of his elementary-aged child.
Future of the Establishment Clause
Members of the Supreme Court are much divided on their understanding of the meaning of the establishment clause. This division showed in the Court’s 2005 decisions involving the posting of the Ten Commandments in a Texas public park (Van Orden v. Perry) and in two Kentucky county courthouses (McCreary County v. ACLU of Kentucky). In 5–4 decisions, the Court upheld the display in the Texas park but invalidated the displays in the Kentucky courthouses. The difference was the vote of a single justice—Justice Stephen Breyer. Given early twenty-first century changes in the composition of the Court—the additions of Chief Justice John Roberts and Associate Justice Samuel Alito—the Court’s jurisprudence (the course of court decisions) in this area was anticipated to change dramatically.
The free exercise clause
While the establishment clause clearly limits government’s role in supporting religious activities, the free exercise clause limits the government’s ability to restrict activities performed for religious purposes. However, from the earliest case concerning free exercise of religion, the Supreme Court has given the government broad power to limit religious practices.
The issue of polygamy.
In Reynolds v. United States (1878), a member of the Church of Jesus Christ of Latter-day Saints (whose members are commonly called Mormons) argued that a law outlawing polygamy (marriage to more than one person at the same time) interfered with his religious duty to have several wives. The Court, however, ruled that while Congress could not pass laws that tried to control religious belief, it could pass laws that controlled certain behaviors that were “in violation of social duties or (that undermined) good order.”
The Court ruled that a law outlawing multiple marriages did not violate the First Amendment since the law applied equally to everyone. Soon after the ruling, the Mormon leadership abandoned the practice of approving multiple marriages. Even with the free exercise clause, Reynolds established that the government may enforce laws that conflict with a person’s religious beliefs if there is sufficient interest in doing so.
Soliciting door-to-door for religion.
In Cantwell v. Connecticut (1940), the Supreme Court applied the free exercise clause to the states through the Fourteenth Amendment’s due process clause (see chapter fourteen). The ruling struck down a state law that prohibited religious groups from going door-to-door with their message unless they first obtained approval from a state agency. The Court found that requiring state approval of these religious activities violated the free exercise clause.
A balancing act.
The Court ruled against state interference again in Sherbert v. Verner (1963). In this case, Adele Sherbert, an unemployed woman, refused to take jobs that required her to work on Saturdays. It was against her religion as a Seventh Day Adventist to work on Saturdays. When she could not find other work, the woman tried to collect unemployment compensation from the state. The state refused her claim, arguing that the she had turned down suitable work.
The Supreme Court, however, weighed the government’s interest against Sherbert’s religious liberty and found that the state had no compelling interest in insisting a person work on Saturdays. Therefore, the Court ruled that the state was unnecessarily limiting the Sherbert’s religious freedom by refusing to pay her unemployment benefits.
Exceptions to separation of church and state.
The “wall of separation” between church and state prevents the government from taking part in religious activities, but it does not prevent religious leaders from participating in government. In McDaniel v. Paty et al. (1978), the Court ruled that a Tennessee law prohibiting “minister[s] of the Gospel, or priest[s] of any denomination whatever” from running for state office was unconstitutional. The Court ruled that the law violated the First Amendment because it required a person to give up a right—the right to seek political office—in order to fully participate in his or her religion.
Drugs and religion.
The free exercise clause does not permit religious groups to engage in conduct the government considers harmful to public health, safety, or morality. For instance, in Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Court upheld an Oregon law that prohibited members of the Native American Church from using peyote (an illegal drug) for traditional religious purposes. The Court ruled that as long as the law outlawing peyote was not passed specifically to limit a religious practice, the government could limit the drug’s use for religious and non-religious activities alike. The Court’s decision in Employment Division v. Smith concerned many in the religious liberty community because the Court abandoned the standard that it had developed in the Adele Sherbert case. In Sherbert, the government had to show a compelling interest before it could infringe on an individual’s religious liberty rights. In Employment Division v. Smith, the Court rejected the compelling interest standard and ruled that a generally applicable law not targeting a specific religious practice raised no free-exercise problem.
This decision led to a battle between Congress and the Courts that dealt with not only the meaning of the free-exercise clause but also separation of powers principles. In response to the Smith decision, Congress passed a law called the Religious Freedom Restoration Act of 1993 (RFFA), which was a legislative overturning of the Smith decision. In other words, Congress passed a law that made the Court’s decision no longer in effect. RFRA restored the Sherbert compelling interest standard when the government substantially burdened, or restricted, an individual’s religious liberty rights. In City of Boerne v. Flores (1997), the Supreme Court struck down RFRA, reasoning that Congress did not have the power to pass such a law and make it applicable to state and local governments. Congress then responded in 2000 with a narrower law called the Religious Land Use and Institutionalized Persons Act (RLUIPA). Many lawsuits were subsequently filed over the constitutionality of this law, and as of 2007, this disagreement between Congress and the Court remained unresolved.
Matters of conscience and the First Amendment
In some cases an individual may choose not to follow a law that seriously conflicts with the person’s religious values or conscience (personal beliefs about right and wrong).
Saluting the flag.
In Minersville School District v. Gobitis (1940), the Supreme Court originally upheld a state law that required public school students to salute the U.S. flag. Members of the Jehovah’s Witnesses religious sect argued that their religion prohibited them from saluting the flag, because it was a form of worshipping “graven images” (objects that are worshipped as gods). After this decision, a wave of violence broke out against Jehovah Witnesses. Because of this response, three justices—Hugo Black, William Douglas, and Frank Murphy—changed their mind on the flag-salute question. Three years later, in West Virginia State Board of Education v. Barnette, the Court overruled its Gobitis decision. The Court found that the First Amendment prohibited the government from forcing people to demonstrate patriotism (loyalty to the country).
Throughout U.S. history, the federal government has instituted drafts to enlist men in the armed services. A draft is a lottery: Men are selected by chance and required to serve in the armed services. Congress has excused from military service individuals who object to war on religious grounds. During times when a draft is in place, a conscientious objector may be excused from military service if the person signs the following statement: “I am, by reason of my religious training and belief, conscientiously opposed to participation in war of any form.”
In Welsh v. United States (1970), the Supreme Court ruled that even a person with strong non-religious objections to war may be excused from military service. The objections must be based on personal beliefs about right and wrong and be held with the same intensity as more common religious beliefs. However, this ruling did not allow a person to be excused as a conscientious objector if he had political objections to a particular war rather than a conscientious objection to all wars.
Legal Issues Connected to Types of Speech
Despite the First Amendment requirement that Congress make no law “abridging [shortening or weakening] the freedom of speech,” the Supreme Court has consistently ruled that the government may limit or even ban certain types of speech in various situations. The type of control the government may exercise often depends on what kind of speech is being considered. Different types of speech have been treated differently by the government and the courts.
Subversive and seditious speech
Less than ten years after Congress passed the First Amendment protecting free speech, it passed the Alien and Sedition Acts of 1798. The two acts, passed with the backing of President John Adams (1735–1826), restricted written and spoken criticism of the government (seditious speech). The political party of Adams—the Federalist Party—used the acts to punish its critics, most of whom were members of the Democratic-Republican Party. Many of those charged under the Sedition Act were newspaper editors who wrote editorials denouncing Adams and the Federalist Party. Democratic-Republican Thomas Jefferson (who was Adams’s vice president) objected to the acts. Jefferson argued that nowhere in the Constitution was Congress given the power to punish seditious speech. However, the laws were never reviewed by the Supreme Court. The Alien and Sedition Acts expired on March 3, 1801—just before Jefferson took office as the third president of the United States. Once in office, Jefferson pardoned all those convicted under the acts.
Federal and state governments continued to limit certain types of speech. It was illegal in southern states to speak out against slavery before the American Civil War (1861–65). (The Civil War was fought between the northern, or Union, states and the southern, or Confederate, states over issues such as state and federal power and the future of slavery in the United States.) During the war, the federal government censored what newspapers could print about the war and took outspoken critics of the government to court. However, the Supreme Court did not rule on any of these matters.
Testing for danger.
In 1917, the United States entered World War I (1914–18). (World War I was fought among a number of European nations and their allies.) The U.S. government instituted a draft that provided soldiers for the overseas war effort. Many citizens protested the draft and argued that the United States should not be involved in “foreign wars.”
Congress passed the Espionage Act of 1917 and the Sedition Act of 1918 with the intention of ending such criticisms. Under these acts, Charles T. Schenck was arrested for circulating pamphlets that urged men to resist the draft. The pamphlets suggested actions that seemed legal, such as petitioning the government to do away with the draft. In Schenck v. United States (1919), however, the Supreme Court ruled that the pamphlets were not entitled to First Amendment protection.
“The question in every case,” Justice Oliver Wendell Holmes wrote for the Court, “is whether the words used are used … to create a clear and present danger that … Congress has a right to prevent.” In other words, the Court found that Schenck’s pamphlets could harm the nation—by undermining the draft— and it ruled that they were not protected by the First Amendment. The Court went on to assert that “When a nation is at war many things that might be said in time of peace” cannot be protected by “any constitutional right.”
Unclear and absent danger
After Schenck, the Court left behind the “clear and present danger” test. In several cases, the Court allowed the suppression of speech that it admitted posed no “clear and present danger” because the Court found that certain speech might eventually be harmful to the country’s interests.
In 1940 Congress passed the Internal Security Act, commonly known as the Smith Act. The act made it illegal to argue for or to plan to overthrow the government. (Planning to overthrow the government represents a clear and present danger to the country. Supporting such a plan poses a less immediate threat to the country but is still considered a serious action.)
The Supreme Court upheld the constitutionality of the Smith Act in Dennis v. United States (1951). The Court found Eugene Dennis and ten others guilty of violating the act by carrying out the schemes of the American Communist Party (a political organization that, at the time, was thought to support the violent overthrow of the U.S. government).
In 1969, the Court returned to the “clear and present danger” test for determining whether the government could suppress anti-government speech. In Brandenburg v. Ohio, the Court ruled that an Ohio law that banned the support of illegal conduct was unconstitutional. In its decision, the Court stated that “the constitutional guarantees of free speech and free press do not permit a State to forbid the mere advocacy of violence or breaking the law, unless the advocacy is intended to incite [immediate lawless action]. The Brandenburg incitement to imminent lawless action was the Court’s refinement of Holmes’s original clear and present danger test that the Court used in Schenck v. United States (1919) and Gitlow v. New York (1925).
Statements without words
Symbolic speech is nonverbal (neither spoken nor written) actions that communicate a message. For instance, marching to protest a government policy is considered symbolic expression. The Supreme Court first gave symbolic speech First Amendment protection in Stromberg v. California (1931), in which the Court ruled that a California law prohibiting the display of a red flag as an “emblem of opposition to organized government” was unconstitutional.
In United States v. O’Brien (1968), the Supreme Court upheld the conviction of David Paul O’Brien for illegally burning his draft card at a rally protesting the Vietnam War. (The Vietnam War [1954–75] was fought between the government of South Vietnam, aided by the United States, and South Vietnamese rebels aided by the communist government of North Vietnam. U.S. involvement in Vietnam was widely protested in the United States during the late 1960s and early 1970s.)
O’Brien claimed that burning his card was symbolic speech protected by the First Amendment. But the Court ruled that any speech, symbolic or otherwise, could be regulated if the government had a substantial interest in doing so. In this case, the Court found that the government had a legitimate interest in requiring men to carry their draft cards to ensure the proper functioning of the military draft.
That same year, the Court ruled that the government did not have a legitimate interest in suppressing another form of symbolic protest. In Tinker v. Des Moines Independent Community School District (1969), high school officials suspended some students for wearing black armbands to protest the U.S. involvement in the Vietnam War. In its decision, the Court found that the wearing of armbands was “akin to ‘pure speech’ which … is entitled to comprehensive protection under the First Amendment,” and that public schools had no legitimate interest in banning the armbands. The Court reasoned that the school officials failed to reasonably forecast that the wearing of the black armbands would cause a substantial disruption of school activities.
The U.S. flag has often been used by political protesters as a way to express opposition to government policies. Though the Supreme Court heard several cases involving flag burning in the 1960s and 1970s, the Court did not specifically rule on the issue of flag burning as a form of symbolic speech until Texas v. Johnson (1989). In that case, Gregory Johnson was arrested after he burned a U.S. flag outside the 1984 Republican National Convention in Dallas, Texas. He was convicted of violating a Texas law prohibiting flag desecration, or not treating the flag as sacred. The U.S. Supreme Court ruled it was clear that “Johnson was convicted for engaging in expressive conduct.” The Court found the state of Texas had no compelling interest in preventing flag burning except to stifle free political expression.
In reaction to Texas v. Johnson, Congress passed the Federal Flag Protection Act of 1989. The act made flag burning a federal crime. But in United States v. Eichman (1990), the Court ruled that the act was unconstitutional because it suppressed free expression without proving that the government had any compelling interest in doing so. Following those decisions, Congress attempted to amend the Constitution to prohibit the desecration of the flag. In 2006, the Flag Protection Act passed the U.S. House of Representatives by a wide margin but fell one vote short (of the necessary two-thirds majority) in the Senate. Sixty-six senators voted for the proposed amendment, but sixty-seven were needed for passage.
Obscenity: “I know it when I see it.”
Obscenity is a legal term for a wide variety of expressions that may be offensive to a community’s moral standards, or principles of right and wrong. Obscenity may include pornography (sexual content in books, magazines, films, and recordings), nude dancing, or even objectionable comedy routines. The Supreme Court has ruled that obscene speech is not protected by the First Amendment. However, defining what is and is not obscene has proved to be a difficult task.
Supreme Court Justice Potter Stewart famously expressed this problem in Jacobellis v. Ohio (1964): “I know it when I see it.” In other words, the justice was saying that while obscenity is difficult to define in a way that includes all instances of it, he could easily recognize obscenity in a particular instance of objectionable behavior or speech.
Obscenity and the U.S. Postal Service.
In 1873, Congress passed the Comstock Law. The law made it illegal to send or receive “obscene,” “lewd,” or “lascivious” (lustful) publications through the U.S. mail. Under the law, if a judge or jury determined that even a single passage of the publication was obscene, the publication was not protected by the First Amendment.
In Roth v. United States (1957), the Supreme Court changed the test for obscenity. Under the Court’s ruling, materials were deemed obscene if they were found to be “utterly without redeeming social importance” and if the average person in a community would consider the material “as a whole” to be obscene.
The Supreme Court added more requirements to the definition of obscenity in a 1966 case involving the English novel, Memoirs of a Woman of Pleasure, often referred to as Fanny Hill after the main character. In Memoirs v. Massachusetts, the Court concluded that to establish obscenity, the material must be “utterly without redeeming social value,” and “patently offensive because it affronts [insults] contemporary community standards relating to the description of sexual matters.” The “utterly” without value requirement made prosecution difficult both in Roth and in Memoirs. Many defendants successfully argued that sexually explicit books or films also had literary or artistic value.
The Court formulated the test for obscenity again in Miller v. California (1973). Under this three-part test, the material must appeal predominately to the prurient, that is morbid or shameful interest in sex; must depict in a patently offensive way sexual matters defined by state law; and must have no serious literary, artistic, political, or scientific value. Generally, obscenity prosecutions are brought against individuals who sell particularly objectionable pornography.
One related area the Supreme Court has had no trouble defining is child pornography. In New York v. Ferber (1982), the Supreme Court held that child pornography (materials that show children in sexual situations) is not protected by the First Amendment and that the government can ban the production of such materials. In Osborne v. Ohio (1990), the Court went even further and allowed laws that prohibit the possession or viewing of child pornography. However, in Ashcroft v. Free Speech Coalition (2002), the Court rejected a provision of a federal law that banned so-called virtual child pornography—material that did not involve an actual child in its production.
Other forms of pornography have been protected by the Supreme Court. With the growth of the Internet in the 1990s, it became easier to distribute and receive pornographic pictures and other materials. In 1996, Congress passed the Communications Decency Act (CDA). The act prohibited the “knowing” distribution of obscene and indecent material to persons under eighteen through computer networks or other telecommunications media.
However, in Reno v. American Civil Liberties Union (1997), the Supreme Court found that the parts of the CDA that criminalized the transmission of “indecent” and “patently offensive” material violated the First Amendment. The CDA effectively made it illegal to distribute sexually explicit materials to adults as well as to children. The ruling recognized the importance of “protecting children from harmful materials.” However, the law went too far in limiting the free-speech rights of adults. The Court pointed out that a number of filtering systems have been developed to help parents limit their children’s access to objectionable material on the Internet.
After this decision, Congress passed another law called the Child Online Protection Act (COPA), which was narrower and sought to ban material that is “harmful to minors.” This law has been invalidated by the federal courts, though as of 2007 litigation was still ongoing.
Despite the failures of parts of the CDA and COPA, the Supreme Court did uphold the Children’s Internet Protection Act, which requires public schools and libraries to install filtering software on computers in order to receive federal funding for Internet access. The Court in U.S. v. American Library Association (2003) reasoned that the filtering law restricted speech less than criminal laws such as the CDA and COPA.
Pitching, pushing, and selling
Until the 1970s, the Supreme Court viewed advertisements and other commercial speech as forms of economic activity open to regulation by Congress. In 1942 the U.S. Supreme Court ruled in Valentine v. Chrestensen that the regulation of advertising presents no First Amendment issue. Local governments were free to restrict advertising. Many state and local laws prohibited the advertisement of prescription drug prices, liquor, and the professional services of attorneys or doctors.
In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), the Court struck down a Virginia law that prohibited the advertising of prescription drug prices. The Court found that even though the state could prohibit false and misleading advertisements, consumers had a strong First Amendment interest in the free flow of information. In a similar case, Bates v. State Bar of Arizona (1977), the Court ruled that truthful newspaper ads for lawyers were also protected by the First Amendment and could not be banned.
However, in Florida Bar v. Went-For-It, Inc. (1995), the U.S. Supreme Court ruled 5–4 that the Florida Bar could prohibit attorneys from sending solicitation letters to accident victims and their families up to thirty days after the accident. The Court reasoned that such a measure protected the privacy rights of victims and the reputation of the legal profession.
Justice Clarence Thomas argued that truthful, non-misleading commercial speech should receive as much protection as political speech. Whether this view ever commands a majority of the Court remained to be seen, as of 2007.
Limiting broadcast speech
Unlike print media, radio and television broadcasts may be regulated for content. The federal government owns the broadcasting frequencies on behalf of the citizens of the United States and licenses the frequencies to radio and television stations. The Federal Communications Commission (FCC) was established by the Communications Act of 1934. The FCC issues licenses to radio and television stations and permits stations to use specific frequencies to transmit programming. The FCC has the authority to regulate broadcasts of allegedly obscene or indecent material.
The Supreme Court has upheld FCC regulations banning obscene material, since obscenity is not protected by the First Amendment. In FCC v. Pacifica Foundation (1978), the Court permitted the FCC to prohibit the broadcasting of material that is “patently offensive” and either “sexual” or “excretory ” (pertaining to urinating and defecating) during times when children are presumed to be in the audience.
Congress passed a law in 2006 granting the agency the power to issue increased fines, and is considering passing restrictions on violent material as well.
Twenty-four hour nude TV.
Governmental restrictions, however, do not necessarily apply to cable programming. Cable shows are not broadcast over public airwaves but are instead transmitted through privately owned cable lines. In United States v. Playboy Entertainment Groups (2000), the Court struck down a section of the federal Telecommunications Act of 1996. The section required cable channels that transmitted sexually explicit materials to “fully scramble [block]” their signals or to restrict their transmission hours to times when children are unlikely to be viewing, such as the hours between ten p.m. and six a.m.
However, the Court found there were other ways to keep sexually explicit programming from reaching children without interfering with the cable companies’ right to free expression. For instance, cable companies have the ability to block any channel from reaching an individual cable subscribers home if the individual requests it.
The Press and Freedom of Speech
The First Amendment protection of a free press is, of course, closely connected to the broader protection of free speech. However, there are certain issues surrounding free expression that pertain specifically to the press.
When government prohibits the expression of certain ideas before they are even published, it is exercising prior restraint. This action has often been regarded as the ultimate form of censorship because it allows government not only to punish speech but to keep certain ideas from being heard at all. A limit on prior restraint is the heart of the First Amendment’s protection of a free press.
This understanding became official in Near v. Minnesota (1931), in which the U.S. Supreme Court struck down a Minnesota state law that gave government officials the power to stop publication of any “malicious, scandalous, and defamatory newspaper, magazine, or other periodical.” This case was the first in which the Court interpreted the due process clause of the Fourteenth Amendment to hold that state and local governments must obey free press clause in the First Amendment. The Court ruled the Minnesota law unconstitutional, calling it “the essence of censorship.”
National security and prior restraint.
However, the Near decision did not provide an absolute protection against all prior restraint. For example, the Court pointed out that in time of war, the government could prohibit any publication of “the sailing dates of [navy ships] or the number and location of troops,” or other matters that if released might threatened national security.
But national security interests are hard to prove. In the case of New York Times Co. v. United States(1971), the government sought to prevent the New York Times and the Washington Post newspapers from publishing excerpts of a classified study on the history of U.S. involvement in the Vietnam War. The government argued that publishing the so-called Pentagon Papers would hurt national security interests. The Supreme Court ruled against the government. The Court found efforts to block publication of the papers amounted to unconstitutional prior restraint. The Court ruled there was no national security interests blocking the publication since the papers dealt with events that were all several years old.
Censorship in schools
While the right to a free press is one of the first rights taught in public schools, the right does not always apply to student newspapers. In Hazelwood School District v. Kuhlmeier (1988), the Supreme Court upheld a public school principal’s decision to remove controversial material about teen pregnancy and divorce from the school’s newspaper. The Court ruled that educators could exercise some editorial control over school-run newspapers but only when such control was “reasonably related to legitimate [educational] concerns.” The Court’s decision in Hazelwood applies to all school-sponsored speech, as opposed to the student-initiated speech at issue in the Tinker black armband case. For instance, Hazelwood applies to many official school newspapers but the more protective Tinker standard would apply to student underground newspapers.
Libel consists of injuring a person’s reputation by reporting falsehoods about that person. A person injured by such actions may sue the person or group responsible for the libel. However, since the 1960s, the Supreme Court has made it harder to sue publishers, editors, and writers for libel.
In 1960, Dr. Martin Luther King Jr. (1929–1968) and other civil rights leaders sought to end segregation in Montgomery, Alabama. They participated in events such as public marches to raise awareness of the civil rights cause but were met with fierce resistance from Montgomery public officials. They placed a full-page advertisement in the New York Times stating that thousands of southern black students were engaging in nonviolent demonstrations in favor of civil rights. The advertisement also stated that the demonstrations had suffered a “wave of terror” because of state and local governments. Events backing up this charge were described, but no particular public official was named.
L. B. Sullivan was the commissioner responsible for supervising the Montgomery police department. He filed a libel suit in Alabama state court against four of the civil rights leaders and the New York Times. Sullivan declared that the advertisement libeled him because it suggested that he was responsible for the outrageous conduct of the officers under his command.
This charge became the case of the New York Times Co. v. Sullivan (1964). In Sullivan, the Supreme Court ruled that the ad was protected by the First Amendment. Justice William Brennan wrote for the Court that “debate on public issues should be uninhibited, robust, and wide-open, and … may well include vehement [passionate], caustic [hostile], and sometimes unpleasantly sharp attacks on government and public officials.” The Court maintained that some erroneous statements are inevitable in free debate and must be protected if freedom of expression is to have the “breathing space” it needs to survive.
According to the ruling, a public official could only sue for libel (false statements about someone that hurt the person’s reputation) if a libelous statement about the official was made with “‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” As long as there is an “absence of malice” (or ill will) on the part of the press, public officials cannot sue the press for publication of false statements about them.
Sources for news reports
In order to protect a free press, publishers and journalists have argued that reporters have an absolute right to keep the identity of their sources secret. They argue that without such a right, the press will be unable to obtain information vital to the public. In Branzburg v. Hayes (1972), the Supreme Court ruled that there is no First Amendment-based privilege that allows journalists to refuse to disclose evidence. The Court acknowledged that newsgathering is protected by the First Amendment, but it ruled that forcing a journalist to reveal a source does not substantially interfere with a free press. After all, reporters may still collect information from legal sources and report their findings.
In Branzburg, a journalist had refused to identify persons he had seen using and selling drugs. Justice Byron R. White stated that the Court “cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source … on the theory that it is better to write about crime than to do something about it.”
In response to the Branzburg ruling, many states passed so-called reporter shield laws that seek to protect reporters when the government seeks to force them to disclose the identity of their sources and to turn over their materials. As of May 2007, Congress had not passed a federal reporter shield law, though several versions of the so-called Free Flow of Information Act had been introduced and discussed. One area of contention over such a measure concerned who fits the definition of a reporter. Many disagree over whether a blogger—an online, individual writer—should qualify for shield law protection.
Despite this ruling, a reporter may be held accountable for revealing a source’s identity if the source was promised his or her identity would be kept secret. In Cohen v. Cowles Media Co. (1991), the Minneapolis Star and Tribune and the St. Paul Pioneer Press Dispatch printed information provided by a source after first promising the source that his identity would remain secret. However, both papers eventually revealed the source’s identity. The source lost his job as a result of the papers’ actions and sued the publishers of both papers for breach of contract.
The publishers argued that state officials cannot constitutionally punish a newspaper for printing truthful information about a public matter except in extraordinary circumstances. The Supreme Court, however, ruled that the papers were guilty of illegally breaking their agreement with the source. The Court held that the press must follow laws, including contract laws, even if those laws might interfere with a paper’s ability to gather information. For instance, the Court noted that the press may not break into an office to gather news. It was “beyond dispute” that the press has no “special immunity” from following general laws. Therefore, the First Amendment did not offer the press a constitutional right to disregard promises that would otherwise be enforceable under state law.
Freedom of Assembly and the Right to Petition the Government
The First Amendment guarantees individuals freedom of assembly (the right to meet or gather with others) and to petition (ask) the Government for a redress (correction) of grievances (complaints). People may petition the government in various manners, including sending written statements or requests to government officials. For instance, between 1836 and 1840 more than two million people signed petitions opposing slavery. The petitions were sent to the U.S. House of Representatives in an effort to get Congress to make slavery illegal. Citizens may also petition the government by peacefully assembling in public places to call attention to political issues.
In Edwards v. South Carolina (1963), the Supreme Court overruled the conviction of 187 black American students who were arrested for demonstrating on the grounds of the state capitol in Columbia, South Carolina. The Court ruled that the convictions had infringed on the demonstrators’ “rights of free speech, free assembly, and freedom to petition for redress of their grievances.”
The First Amendment does not give demonstrators the right to break existing laws or to prevent the proper use of public property. In Adderly v. Florida (1966), Harriet L. Adderly and other college students protested the arrest of civil rights protesters by blocking a jail driveway. When they ignored requests to leave the area, they were arrested and charged with trespass. The Supreme Court ruled that the state, like any private property owner, has the power to preserve its property “for the use to which it is lawfully dedicated.”
Although citizens generally have the right demonstrate and assemble in public places, the government may regulate parades, processions, and large public gatherings by requiring a license for such activities. Licenses cannot, however, be granted or denied to a group because of its political message.
The right to associate
The right to associate (join) with others is not specifically stated in the First Amendment, but courts have found that such a right is suggested by the guarantees of freedom of speech. The right to associate with people of one’s choosing has allowed political parties and other politically active groups to form in the United States. But the freedom of political association is not absolute.
In Scales v. United States (1961), the Supreme Court upheld Section 2 of the Smith Act. This section made it a crime to belong to the Communist Party. The Court ruled that the provision applied only to “active” members of the Communist Party who had a “specific intent” to bring about the violent overthrow of the U.S. government.
The civil rights movement, which started in the 1950s, led to attempts by some southern state governments to suppress certain political activity. In NAACP v. Alabama (1958), the Supreme Court held that a state court’s order violated a group’s right to associate freely. The State of Alabama had requested the National Association for the Advancement of Colored People (NAACP) to disclose the names and addresses of its Alabama members. The Court ruled that the freedom to associate is inseparable from freedom of speech as long the association was not promoting illegal objectives. The Court stressed that the NAACP used only lawful means (such as boycotts) in seeking its goals.
Freedom to disassociate
Freedom of association includes the right not to associate with someone. For example, the government cannot force an individual to support a certain belief or to join a particular political group. However, the Court has also ruled that the freedom of association does not include the right to discriminate against a person based on race, gender, or ethnic background.
In Roberts v. United States Jaycees (1984), the Court ruled that the Jaycees (a popular commercial association) could not deny admission to women simply based on gender. The Court ruled that the government had a strong interest in eliminating sex discrimination and assuring its citizens equal access to publicly available goods and services. Therefore, the government could force the Jaycees to allow women to join their group.
Subsequently, the Supreme Court ruled 5–4 in Boy Scouts of America v. Dale (2000) that the Boy Scouts had a free-association right to exclude an assistant scoutmaster who was gay: “The Boy Scouts takes an official position with respect to homosexual conduct and that is sufficient for First Amendment purposes,” the majority wrote.
A Statement of Principles
The First Amendment originally restricted the role the federal government could play in limiting free speech, political activities, and religious practices. Eventually, most of these limits were also applied to the activities of state and local governments. The free expression of ideas, however, was absolute. In the twentieth century, the growth of the mass media and new technologies led to renewed debates about the government’s role in limiting free speech and a free press. Political and social protests led to arguments over the right to “peaceably assemble.” In addition, religious freedom issues were at the center of debate as courts struck down laws that gave government support to certain religious practices.
The Supreme Court continued to struggle to find a balance between the freedoms protected by the First Amendment and other societal interests. As a result, the Court relaxed some restrictions on free expression and reinforced others. Even though the High Court’s interpretation of the amendment occasionally shifted, the Court rarely wavered from the First Amendment’s basic assertion that an individual’s personal, religious, and political expression should be as free from government interference as possible.
For More Information
Abrams, Floyd. Speaking Freely: Trials of the First Amendment. New York: Viking, 2005.
Barron, Jerome A., and C. Thomas Dienes. First Amendment Law in a Nutshell. 3 rd ed. St. Paul, MN: West Publishing, 2004.
Brownstein, Alan, ed. The Establishment of Religion Clause : The First Amendment : Its Constitutional History and the Contemporary Debate. Amherst, N.Y. : Prometheus Books, 2007.
Hall, Kermit L. The Magic Mirror: Law in American History New York: Oxford University Press, 2007.
Hall, Kermit L., et al., eds. The Oxford Companion to American Law. New York: Oxford University Press, 2002.
Hickok, Eugene W. Jr. The Bill of Rights: Original Meaning and Current Understanding. Charlottesville: University of Virginia Press, 1991.
Hudson, David L. Jr. The Bill of Rights: The First Ten Amendments of the Constitution. Berkeley Heights, NJ: Enslow, 2002.
Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. New York: Vintage, 1992.
O’Neil, Robert M. The First Amendment and Civil Liability. Bloomington: Indiana University Press, 2001.
Volokh, Eugene. The First Amendment and Related Statutes, Problems, Cases, and Policy Arguments. 2nd ed.New York: Foundation Press, 2005.
Bick, Jonathan. “Defamatory Blogging.” New Jersey Law Journal (November 13, 2006).
Chiang. Jerry C. “Plainly Offensive Babel: An Analytical Framework for Regulating Plainly Offensive Speech in Public Schools.” Washington Law Review (May 2007): 403.
Duffy, Shannon P. “Internet Porn Law Unconstitutional.” New Jersey Law Journal (March 23, 2007).
Harris, Shubha. “Silencing the Noise of Democracy - the Supreme Court Denies First Amendment Protection for Public Employees Job-Related Statements.”William Mitchell Law Review (Spring 2007): 1143–1185.
Maness, Audrey. “Does the First Amendment’s Right of Access Require Court Proceedings to be Televised? A Constitutional and Practical Discussion. ”Pepperdine Law Review (December 2006): 123—184.
Electronic Frontier Foundation. http://www.eff.org (accessed on July 19, 2007).
First Amendment Center Online. http://www.firstamendmentcenter.org (accessed on July 19, 2007).
Thomas Jefferson Center for the Protection of Free Expression http://www.tjcenter.org (accessed on July 19, 2007).