One of the most important amendments to the Constitution is the First Amendment. It's only one sentence long, but it contains important individual rights like freedom of religion, freedom of speech, freedom of the press, and freedom of assembly. It can also be one of the most controversial amendments at times!
First Amendment Definition
The First Amendment is - you guessed it - the first amendment that was ever added to the Constitution! The First Amendment includes some very important individual rights: freedom of religion, freedom of speech, freedom of the press, and freedom of assembly. Below is the text:
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.
First Amendment of the Constitution
When the United States was first formed under the Articles of Confederation during the Revolutionary War, there were no individual rights codified into law. In fact, there wasn't even a president or a way to regulate commerce codified into law! Several years after the war, Congress met to draft the constitution at the Constitutional Convention.
Constitutional Convention
The Constitutional Convention happened in Philadelphia in 1787. Over three months of meetings, the proposal to include individual rights in the constitution happened towards the end. The convention split into two main factions: the federalists and the antifederalists. The federalists didn't think a bill of rights was necessary because they believed were already implied in the Constitution. Plus, they worried that they wouldn't be able to finish up the discussions on time. However, the antifederalists were worried that the new central government would become too powerful and abusive over time, so a list of rights was necessary in order to restrain the government.
Figure 1: A painting depicting George Washington chairing the Constitutional Convention. Source: Wikimedia Commons
Bill of Rights
Several states refused to ratify the Constitution unless a Bill of Rights was added. So, the Bill of Rights was added in 1791. It's made up of the first ten amendments to the Constitution. Some of the other amendments include things like the right to bear arms, the right to a speedy trial, and the right to be free from unreasonable searches and seizures.
First Amendment Rights
Now that we know the history, let's start with Freedom of the Press!
Freedom of the Press
Freedom of the press means that the government can't interfere with journalists doing their job and reporting the news. This is important because if the government was allowed to censor the media, it could impact both the spread of ideas and government accountability.
Leading up to the American Revolution, England attempted to censor news sources and weed out any talk of revolution. Because of this, the framers of the Constitution knew how important freedom of the press was and how much it can impact important political movements.
The press is also an extremely important Linkage Institution for keeping the government accountable for its actions. Whistleblowers are people who alert the public to possible corruption or government abuse. They are very important for helping the public know what's happening in government.
One of the most famous Supreme Court cases regarding Freedom of the Press is New York Times v. United States (1971). A whistleblower who worked for the Pentagon leaked a number of documents to the press. The documents made the United States' involvement in the Vietnam War look incompetent and corrupt. President Richard Nixon tried to get a court order against publishing the information, arguing that it was a matter of national security. The Supreme Court ruled that the information wasn't directly related to national security, so the newspapers should be allowed to publish the information.
First Amendment: Freedom of Speech
Next up is Freedom of Speech. This right isn't just about making speeches to a crowd: it has been expanded to mean "freedom of expression," which includes any kind of communication, verbal or non-verbal.
Symbolic Speech
Symbolic speech is a non-verbal form of expression. It can include symbols, clothing, or gestures.
In Tinker v. Des Moines (1969), the Supreme Court ruled that students had the right to wear armbands to protest the Vietnam War.
Certain types of protest have also been protected as Symbolic Speech. Flag burning has grown as a form of protest since the 1960s. Several states, as well as the federal government, passed laws making it illegal to desecrate the American flag in any way (see the Flag Protection Act of 1989). However, the Supreme Court has ruled that burning the flag is a protected form of speech.
Protestors burn a U.S. flag, Wikimedia Commons
Non-Protected Speech
While the Supreme Court has frequently stepped in to strike down laws or policies that violate freedom of speech, there are a few categories of speech that are not protected by the Constitution.
Fighting words and words that encourage people to commit crimes or acts of violence are not protected by the Constitution. Any form of speech that presents a clear and present danger or the intent to harass people is also not protected. Obscenity (especially items that are patently offensive or have no artistic value), defamation (including libel and slander), blackmail, lying in court, and threats against the president are not protected by the First Amendment.
Establishment Clause of the First Amendment
Freedom of religion is another important right! The Establishment Clause in the First Amendment codifies the separation between church and state:
"Congress shall make no law respecting an establishment of religion..."
The Establishment Clause means that the government:
- Can neither support nor hinder religion
- Can't favor religion over non-religion.
Free Exercise Clause
Alongside the Establishment Clause is the Free Exercise Clause, which says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" (emphasis added). While the Establishment Clause focuses on restraining government power, the Free Exercise Clause focuses on protecting citizens' religious practices. These two clauses are interpreted together as Freedom of Religion.
Freedom of Religion Cases
Sometimes the Establishment Clause and Free Exercise Clause can conflict. This comes up with the accommodation of religion: sometimes, by supporting citizens' right to practice religion, the government can end up favoring some religions (or non-religion) over others.
One example is providing inmates in prison with special meals based on their religious preferences. This can include providing Jewish inmates with special kosher meals and Muslim inmates with special halal meals.
Most Supreme Court cases around the Establishment Clause have focused on:
- Prayer in schools and other government-run places (like Congress)
- State funding for religious schools
- Use of religious symbols (ex: Christmas decorations, images of the Ten Commandments) in government buildings.
Many cases around the Free Exercise Clause have centered on whether religious beliefs can exempt people from following the law.
In Newman v. Piggie Park (1968), a restaurant owner said he didn't want to serve Black people because it was against his religious beliefs. The Supreme Court ruled that his religious beliefs didn't give him the right to discriminate on the basis of race.
In another infamous case called Employment Division v. Smith (1990), two Native American men were fired after a blood test showed they had ingested Peyote, a hallucinogenic cactus. They said that their right to exercise their religion had been violated because Peyote is used in sacred rituals in the Native American Church. The Supreme Court ruled against them, but the decision caused an uproar and legislation was soon passed to protect Native Americans' religious use of Peyote (see the Religious Freedom Restoration Act).
Freedom of Assembly and Petition
Freedom of Assembly and Petition is often thought of as the right to peacefully protest, or the right of people to gather together to advocate for their policy interests. This is important because sometimes the government does things that are undesirable and/or harmful. If people don't have a way to advocate for changes through protesting, then they have no power to change policies. The text says:
Congress shall make no law... abridging... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Petition: As a noun, "petition" often refers to collecting signatures from people who want to advocate for something. As a verb, petition means the ability to make requests and ask for changes without fearing retaliation or punishment for speaking up.
In 1932, thousands of unemployed workers marched in Detroit. The Ford plant had recently shut down due to the Great Depression, so the people in the town decided to protest in what they called a Hunger March. However, police officers in Dearborn fired teargas and then bullets. The crowd started to disperse when the head of Ford's security drove up and started firing into the crowd. In all, five protesters died and many more were wounded. The police and Ford employees were largely acquitted by the courts, leading to outcries that the courts were biased against the protesters and had violated their First Amendment rights.
Figure 3: Thousands of people showed up for the funeral procession for the protesters who were killed at the Hunger March. Source: Walter P. Reuther Library
Exceptions
The First Amendment only protects peaceful protests. That means that any encouragement to commit crimes or violence or engage in riots, fights, or insurrections is not protected.
Civil Rights Era Cases
Figure 4: Many Supreme Court cases around Freedom of Assembly occurred during the Civil Rights era. Pictured above is the march from Selma to Montgomery in 1965. Source: Library of Congress
In Bates v. Little Rock (1960), Daisy Bates was arrested when she refused to reveal the names of the members of the National Association for the Advancement of Colored People (NAACP). Little Rock had passed an ordinance requiring that certain groups, including the NAACP, publish a public list of its members. Bates refused because she feared that revealing the names would put the members at risk due to other instances of violence against the NAACP. The Supreme Court ruled in her favor and said that the ordinance violated the First Amendment.
A group of Black students assembled to submit a list of grievances to the South Carolina government in Edwards v. South Carolina (1962). When they were arrested, the Supreme Court ruled that the First Amendment also applies to state governments. They said that the actions had infringed on the students' right to assembly and reversed the conviction.
First Amendment - Key takeaways
- The First Amendment is the first amendment that was included in the Bill of Rights.
- As a noun, "petition" often refers to collecting signatures from people who want to advocate for something. As a verb, petition means the ability to make requests and ask for changes without fearing reprisal or punishment.
- The experiences under British rule, and the insistence of the antifederalists who feared the government becoming too powerful, influenced the inclusion of these rights.
- Some of the most influential and controversial Supreme Court cases have centered on the First Amendment.
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