First Amendment to the United States Constitution

More than a constitutional protection against governmental interference with the freedoms of speech, press, assembly, and religion or a guarantee of the separation of church and state, the First Amendment is one of the nation's fundamental normative and cultural symbols. It reflects vital attributes of the American character and is the cornerstone of the nation's liberty. The First Amendment is known and cherished by virtually all citizens, who comprehend its essence even if they may not be able to recite its precise phrasing.

Nationalization

The First Amendment was approved by Congress during its first session in 1789 in response to concerns by anti‐Federalists that the Constitution did not sufficiently protect individual liberties from federal intrusion. Rapidly ratified by the states, it became part of the Constitution in 1791 along with nine other amendments protecting personal liberties. As written, the First Amendment restrained only federal power, a limitation confirmed by U.S. Supreme Court decisions during the first half of the nineteenth century. In an era when the federal government was relatively weak, Congress enacted little legislation that infringed on personal liberties, and few cases arose under the First Amendment until the twentieth century. Since virtually every state constitution contained similar limitations upon state power similar to those found in the First Amendment, the state courts were the principal protectors of basic liberties.

It was not until two decades beginning in the middle 1920s that the Supreme Court held that the various provisions of the First Amendment acted as restraints against the states pursuant to the Fourteenth Amendment's ban on state infringements upon liberty. Although the liberties guaranteed by the First Amendment were usually no broader and sometimes were narrower than those specified in state constitutions, the nationalization of the Bill of Rights was profoundly important because it made the federal judiciary the arbiter of the precise scope of the liberties that states had to accord their citizens. The Supreme Court has generally interpreted the First Amendment and other provisions of the Bill of Rights more broadly than state courts have interpreted analogous provisions in their own constitutions, although by the late twentieth century, civil libertarians sometimes found state courts to be more sympathetic toward their claims.

Free Speech

The Supreme Court first began to develop a coherent doctrine of First Amendment liberties in a series of decisions arising out of federal legislation designed to stifle opposition to American participation in World War I. Although the Court upheld the convictions of political radicals under these statutes, the kernels of modern free speech doctrine were sown when Justices Oliver Wendell Holmes and Louis D. Brandeis dissented in Abrams v. United States (1919), a decision upholding the convictions of socialists who opposed the dispatch of American troops to Russia to fight Bolsheviks. In one of his most stirring opinions, Holmes eloquently argued that a free society must be committed to the search for truth.

This need for a free people to test the truth is rooted in classical writings of Western civilization, such as John Milton's Aeropagitica and John Stuart Mill's On Liberty. It is closely related to the concept that free speech is vital for a democratic system of government. Another rationale for free speech is that it reflects a social commitment to the value of individual freedom and personal autonomy.

After exercising increasing scrutiny of laws that infringed upon free speech, the Court in Brandenburg v. Ohio (1969) established the doctrine that the government may restrain only speech that is likely to incite imminent unlawful action. The First Amendment therefore protects even speech that calls for overthrow of the government or lawless action.

The government may, however, impose reasonable limitations upon the time, place, and manner in which speech is exercised in order to protect public order and the smooth functioning of public administration. In imposing such restrictions, however, the state may not discriminate on the basis of the content of speech since such limitations would permit the state to favor one type of speech over another. Narrow exceptions are drawn for special categories of speech, particularly obscenity and so‐called “fighting words,” which could lead to public disturbances. Even in these categories, the Court has gradually expanded the scope of judicial scrutiny. For example, hecklers are generally not permitted to exert a “veto” over speech by creating a threat of violence and disorder; the state is obligated to protect, not stop, the controversial speaker.

Similarly, the Court has gradually extended the scope of protection for commercial speech, although commercial speech still receives less protection than political speech. In particular, the state may impose sanctions against false or misleading commercial speech or commercial speech that involves an unlawful activity.

Since the 1960s, the Court also has protected symbolic speech, in which political views are expressed without words. For example, the Court overturned state and federal statutes that prohibited the burning of the American flag in Texas v. Johnson (1989) and United States v. *Eichman (1990).

During recent years, the enactment of restrictions upon so‐called hate speech has tested the limits of First Amendment doctrine. Proponents of such laws contend that hateful speech directed against women or various minorities fails to promote First Amendment values because it instigates violence, perpetuates discrimination, and interferes with the freedom of expression of its victims. In R.A.V. v. St. Paul (1992), the Supreme Court held that a city ordinance that prohibited words that insulted or provoked violence “on the basis of race, color, creed, religion or gender” was unconstitutional because it imposed a content‐based discrimination. Lower courts have often overturned similar laws on the same grounds. In Apprendi v. New Jersey (2000), however, the Court sustained a law that permitted a state to enhance the sentence for a battery that was racially motivated.

Freedom of the Press

Judicial recognition that a free media is also essential to democracy has resulted in a heavy presumption against any law that restricts the gathering or publication of news. In particular, the Court in Near v. Minnesota (1931) and New York Times Co. v. United States (1971) made clear that the government may not issue prior restraints against publication, except when there is an imminent threat to national security. Although the press remains subject to libel actions, the Court beginning with *New York Times v. Sullivan (1964) has constitutionalized libel law in a series of complex cases. In essence, a public official or public figure cannot maintain a libel action against a news organ that has not knowingly or recklessly published false information. In cases involving private persons and issues of public interest, a state may impose liability only if the news organ was negligent.

Religion

Freedom of religion and protection from an established religion, like freedom of speech and the press, helps to ensure a free flow of ideas, bolsters pluralism in a highly diverse society, and helps to prevent governmental tyranny. Although the First Amendment clearly forbids direct support for religion, the inevitable interaction between church and state prevents an absolute “wall of separation” and an excessively literal interpretation of separation can violate the free exercise clause.

In assessing establishment clause issues, Lemon v. Kurtzman (1971) held that governmental action must have a secular legislative purpose and a primary effect of neither advancing nor inhibiting religion, and must not foster an excessive entanglement with religion. During recent years, the Court has modified the Lemon test to include consideration of whether a law constitutes an endorsement or disapproval of religion or whether the government has coerced anyone to support or participate in religious activity.

Although government clearly cannot favor any religion, problems arise when government acts to “aid” religion. Some support, such as police and fire protection, are clearly permissible. Other forms of assistance are controversial. Government aid to religiously affiliated schools has long been a special source of tension. On the controversial issue of school vouchers, the Court in Zelman v. Simmons‐Harris (2002) upheld an Ohio program that provided state funds for needy students to attend private or sectarian schools. During recent years, some justices have suggested that the Court should be more concerned with accommodating the needs of religious organizations in a neutral manner than with maintaining a strict “wall of separation” between church and state.

In assessing free exercise claims, the Court has held that the government may not impose a significant burden on religion unless it can demonstrate a compelling state interest and show that the law is narrowly tailored to achieve such an interest. In recent years, however, the Court has ruled that such strict scrutiny does not apply to a law that is generally applicable and otherwise constitutional. Although Congress restored the strict scrutiny test in the Religious Freedom Restoration Act of 1993, the Court invalidated the statute, at least for nonfederal cases, in City of Boerne v. Flores (1997).

The idea of separation of church and state remains a potent—and controversial—principle in American society. Fearing the divisiveness that might arise from official involvement in religious affairs, the Court has generally sought to maintain a high level of separation of religion and government, while maintaining a high degree of freedom of conscience.

See also Speech and the Press.

Bibliography

• Lee C. Bollinger and Geoffrey R. Stone, eds., Eternally Vigilant: Free Speech in the Modern Era (2002)

— Lee C. Bollinger

One of the most important amendments to the United States Constitution encapsulating several rights deemed essential to liberal democracy: freedom of religion, of speech, and of the press, and the right of the people to assemble and to petition the government. This amendment is one of those added to the Constitution as a bill of rights immediately after it was first drawn in order to assuage the concerns of those who feared the emergence of an overbearing central government. In the twentieth century, the Supreme Court, drawing on the due process wording of the Fourteenth Amendment, has argued that First Amendment freedoms are also protected from impairment by the states.

— David Mervin

The First Amendment of the U.S. Constitution protects several essential rights, against congressional infringements: freedom of speech, freedom of the press, free exercise of religion, and the right of assembly and to petition the government for a redress of grievances. It also forbids the "establishment of religion." Beginning in 1925, in Gitlow v. New York, the Supreme Court began applying the clauses against the actions of state and local governments as well.

Though these rights constitute distinct jurisprudential claims, their common denominator is freedom of thought and conscience. As the Court wrote in West Virginia State Board of Education v. Barnette (1943), striking down West Virginia's law requiring students to salute the American flag, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."

First Amendment freedoms have become considerably more extensive than when the Bill of Rights was ratified. Most scholars agree that the free speech and press clauses originally prohibited only "prior restraints" of publications, allowing for the criminal punishment of seditious libel (criticism of the government). Establishment meant primarily state support of an official church or favoritism among sects, while free exercise applied simply to beliefs, not to actions attendant to the practice of religion.

In 1798, seven years after the ratification of the Bill of Rights, the Federalist Congress passed the Sedition Act, which included punishment for any "false, scandalous and malicious" writing against the government. The Supreme Court never dealt with the act, but lower federal courts consistently upheld severe punishments meted out in its name. Over the next 150 years courts generally allowed governments to punish expression if it had a "natural tendency" to harm a legitimate state interest (the "bad tendency" test). Courts consistently upheld convictions for printing material that authorities construed as a threat to moral order, as well as writings or statements that were believed to go beyond the pale of acceptable criticism of authority. Though Justices Oliver Wendell Holmes and Louis Brandeis strove to establish the more protective "clear and present danger test" in the 1920s and 1930s, courts continued for the most part to adhere to the bad tendency test, sanctioning widespread restriction of political dissent and morally offensive expression.

With the demise of Mccarthyism in the mid-1950s and the rise of the civil rights movement and political dissent in the 1960s, the Court, under Chief Justice Earl Warren, began to craft the modern doctrine of speech. The Court established the principle that government must remain "viewpoint neutral" toward all speech and significantly narrowed the definitions of such traditional exceptions to free speech as obscenity, libel, fighting words, and offensive expression. The Court ruled in Brandenburg v. Ohio (1969) that advocacy of violence or revolution may be proscribed only if it constitutes a "direct incitement to imminent lawless action that is likely to occur." The Court declared in The New York Times v. Sullivan (1964) that public officials could not recover civil damages for libel unless they prove the libel was committed intentionally or recklessly. In so holding, the Court declared that making seditious libel a crime conflicted with the "central meaning" of the First Amendment. New claims for censorship in the twentieth century involved protecting women and minorities from pornography and hate speech and shielding children from exposure to "indecent" material on the Internet. Overall the Burger and Rehnquist Courts continued to protect the modern doctrine of free speech, for example, in Reno v. American Civil Liberties Union (1997).

The jurisprudence of the religion clauses has developed differently from that of free speech. Following the McCarthy era, the Warren Court held that some actions pursuant to religious beliefs embrace free exercise and are constitutionally protected unless they harm a compelling state interest. Accordingly, government could not deny unemployment benefits to individuals who quit their jobs because of their religious beliefs (Sherbert v. Verner, 1963). The Burger Court continued this logic. But the Rehnquist Court drew a different line in Employment Division v. Smith in 1990, which upheld Oregon's refusal to pay unemployment benefits to two Native Americans who had been fired from their jobs in a drug rehabilitation organization for smoking peyote in a religious ceremony. The free exercise clause does not protect acts that violate a criminal law that is "a valid and neutral law of general applicability." Applying the neutrality principle in Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993), the Court struck down a Florida ordinance barring the ritualistic sacrifice of animals because the city allowed the killing of animals for other purposes.

Establishment clause jurisprudence has been even more convoluted. The Warren Court built up a relatively high wall of separation between church and state, most prominently in cases prohibiting state aid to religious schools and prayer in public schools, such as Engle v. Vitale (1962). After the 1971 Lemon v. Kurtzman decision, the Burger Court became more accommodating toward state involvement with religion, upholding prayers by legislative chaplains, a "moment of silence" in public schools, equal access to religious groups in schools, and tax deductions for religious school expenses. Construing religious expression as one voice in a culturally pluralistic society, the Rehnquist Court went even further in accommodating religion, especially in the areas of direct state aid in Agostini v. Felton (1997) and equal access in Rosenberger v. University of Virginia (1995). The Rehnquist Court, however, found school-sponsored prayer at official school events unconstitutional in Santa Fe Independent School District v. Doe (2000).

Bibliography

Choper, Jesse H. Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses. Chicago: University of Chicago Press, 1995.

Haiman, Franklyn S. Speech and Law in a Free Society. Chicago: University of Chicago Press, 1981.

Tedford, Thomas L. Freedom of Speech in the United States. 2d ed. New York: McGraw-Hill, 1993.

—Donald A. Downs

The First Amendment to the U.S. Constitution 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.

At first glance, the First Amendment appears to be written in clear, unequivocal, and facile terms: "Congress shall make no law" (emphasis added) in contravention of certain religious and political principles. After a closer reading and upon further reflection, the amendment's underlying complexities rise to the surface in the form of persistent questions that have nagged the legal system over the last two centuries.

For example, what kind of law "respect[s] the establishment of religion"? Does the First Amendment include here only laws that would establish an official national religion as the Anglican Church was established in England prior to the American Revolution? Or does it also include laws that recognize or endorse religious activities such as the celebration of Christmas? More important, can people agree on what is meant by the word religion so that judges may know when religion is being "established" or when the right to its "free exercise" has been infringed?

In the area of free speech, does the right to speak your mind include the right to use offensive language that could start a fight or incite a riot? Is freedom of speech synonymous with freedom of expression, such that the right to condemn the U.S. government extends to offensive symbolic actions involving no written or spoken words, like burning the U.S. flag? Does freedom of the press protect the right to publish scurrilous, defamatory, and libelous material? If not, can the government prohibit the publication of such material before it goes to print?

The Supreme Court has confronted most of these questions. Its answers have not always produced unanimous, or even widespread, agreement around the United States. But the Court's decisions have provided a prism through which U.S. citizens have examined the appropriate limitations society may place on the freedoms protected by the First Amendment, and have sparked colorful and spirited discussions among friends and family members, as well as politicians and their constituents.

Freedom of Speech

The Founding Fathers were intimately familiar with government suppression of political speech. Prior to the American Revolution, the Crown imprisoned, pilloried, mutilated, exiled, and even killed men and women belonging to minority political parties in England in order to extinguish dissenting views. Many of these dissenters left England searching for more freedom in the New World, where they instead found colonial governments that stifled political dissidence with similar fervor. Maryland, for example, passed a law prohibiting "all speeches, practices and attempts relating to [the British Crown], that shall be thought mutinous and seditious," and provided punishments that included whipping, branding, fines, imprisonment, banishment, and death. The Free Speech Clause of the Constitution was drafted to protect such political dissenters from a similar fate in the newly founded United States.

In light of this background, the U.S. Supreme Court has afforded dissident political speech unparalleled constitutional protection. However, all speech is not equal under the First Amendment. The Supreme Court has identified five areas of expression that the government may legitimately restrict under certain circumstances. These areas are speech that incites illegal activity and subversive speech, fighting words, obscenity and pornography, commercial speech, and symbolic expression.

Speech that Incites Illegal Activity and Subversive Speech

Some speakers intend to arouse their listeners to take constructive steps to alter the political landscape. Every day in the United States, people hand out leaflets imploring neighbors to write Congress about a particular subject, vote in a certain fashion on a referendum, or contribute financially to political campaigns and civic organizations. For other speakers, existing political channels provide insufficient means to effectuate the type of change desired. These speakers may encourage others to take illegal and subversive measures to change the status quo. Such measures include resisting the draft during wartime, threatening public officials, and joining political organizations aimed at overthrowing the U.S. government.

The Supreme Court has held that the government may not prohibit speech that advocates illegal or subversive activity unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]). Applying the Brandenburg test, the Supreme Court ruled that the government could not punish an antiwar protester who yelled, "[W]e'll take the fucking street later," because such speech "amounted to nothing more than advocacy of illegal action at some indefinite future time" (Hess v. Indiana, 414 U.S. 105, 94 S. Ct. 326, 38 L. Ed. 2d 303 [1973]). Nor could the government punish someone who, in opposition to the draft during the Vietnam War, proclaimed, "[I]f they ever make me carry a rifle the first man I want in my sights is [the president of the United States] L.B.J." (Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 [1969]). Such politically charged rhetoric, the Supreme Court held, was mere hyperbole and not a threat intended to be acted on at a definite point in time.

Fighting Words

Fighting words are words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace" or have a "direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed" (Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 [1942]). Whereas subversive advocacy exhorts large numbers of people to engage in lawless conduct, fighting words are directed at provoking a specific individual. Generally, only the most inflammatory and derisive epithets will be characterized as fighting words.

Fighting words should also be distinguished from speech that is merely offensive. Crude or insensitive language may be heard in a variety of contexts — at work, on television, even at home. The Supreme Court has ruled that speech that merely offends, or hurts the feelings of, another person — without eliciting a more dramatic response — is protected by the First Amendment. The Supreme Court has also underscored the responsibility of receivers to ignore offensive speech. Receivers can move away or divert their eyes from an offensive speaker, program, image, or message. In one case, the Court ruled that a young man had the right to wear, in a state courthouse, a jacket with the aphorism Fuck the Draft emblazoned across the back, because persons at the courthouse could avert their eyes if offended (Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 [1971]). "One man's vulgarity," the Court said, "is another's lyric," and the words chosen in this case conveyed a stronger message than would a sublimated variation such as Resist the Draft.

Obscenity and Pornography

State and federal laws attempt to enforce societal norms by encouraging acceptable depictions of human sexuality and eliding unacceptable portrayals. Over the years, libidinous books such as Lady Chatterly's Lover (1951-1975) and adult movies such as Deep Throat (1972) have rankled communities, which have struggled to determine whether such works should be censored as immoral or protected as art.

The Supreme Court has always had difficulty distinguishing obscene material, which is not protected by the First Amendment, from material that is merely salacious or titillating. Justice Potter Stewart admitted that he could not define obscenity, but quipped, "I know it when I see it." Nonetheless, the Supreme Court has articulated a three-part test to determine when sexually oriented material is obscene. Material will not be declared obscene unless (1) the average person, applying contemporary community standards, would find that its predominant theme appeals to a "prurient" interest; (2) it depicts or describes sexual activity in a "patently offensive" manner; and (3) it lacks, when taken as a whole, serious literary, artistic, political, or scientific value (Miller v. California, 413 U.S. 15 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]).

Although the Supreme Court has failed to adequately define words like prurient, patently offensive, and serious artistic value, literary works that deal with sexually related material are strongly protected by the First Amendment, as are magazines like Playboy and Penthouse. More difficult questions are presented in the area of adult cinema. Courts generally distinguish hard-core pornography, which graphically depicts copulation and oral sex, from soft-core pornography, which displays nudity and human sexuality short of these ultimate sex acts. In close cases falling somewhere in the gray areas of pornography, the outcome may turn on the community standards applied by a jury in a particular locale. Thus, pornography that could be prohibited as obscene in a small rural community might receive First Amendment protection in Times Square.

Commercial Speech

Commercial speech, such as advertising, receives more First Amendment protection than fighting words and obscenity, but less protection than political oratory. Advertising deserves more protection than the first three categories of expression because of the consumer's interest in the free flow of market information (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 [1976]). In a free enterprise economy, consumers depend on information regarding the quality, quantity, and price of various goods and services. Society is not similarly served by the free exchange of obscenity.

At the same time, commercial speech deserves less protection than political orations because society has a greater interest in receiving accurate commercial information and may be less savvy in flushing out false and deceptive rhetoric. The average citizen is more prone, the Supreme Court has suggested, to discount the words of a politician than to discount the words of a Fortune 500 company. The average citizen may be more vulnerable to misleading advertising as well. Even during an election year, most people view more commercial advertisements than political advertisements, and rely on those advertisements when purchasing the clothes they wear, the food they eat, and the automobiles they drive. Thus, the Supreme Court permits government regulation of commercial speech that is intended to prevent misleading and deceptive advertising.

Symbolic Expression

Not all forms of expression involve words. The nod of a head, the wave of a hand, and the wink of an eye all communicate something without language. The television image of a defenseless Chinese student facing down a line of tanks during protests in support of democracy near Tiananmen Square in 1989 will be forever seared into the minds of viewers.

Not all symbolic conduct is considered speech for First Amendment purposes. If an individual uses a symbolic expression with the intent to communicate a specific message and under circumstances in which the audience is likely to understand its meaning, the government may not regulate that expression unless the regulation serves a significant societal interest unrelated to the suppression of ideas (Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 [1974]; United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 [1968]). Applying this standard, the Supreme Court overturned the conviction of a person who burned the U.S. flag in protest over the policies of President Ronald Reagan (Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]), and reversed the suspension of a high school student for wearing a black armband in protest of the Vietnam War (Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 [1969]), but upheld federal legislation that prohibited the burning of draft cards (O'Brien). Of the government interests asserted in these three cases, maintaining the integrity of the Selective Service System was the only interest of sufficient weight to overcome the First Amendment right to engage in symbolic expression.

Freedom of the Press

The American Revolution was a revolution of literature as well as politics. The colonists published a profusion of newspaper articles, books, essays, and pamphlets in opposition to various forms of British tyranny. Thomas Paine's Common Sense (1776) and Thomas Jefferson's Declaration of Independence (1776) are two well-known and influential examples of Revolutionary literature published in the colonies. A free press, the Founding Fathers believed, was an essential check against despotism, and integral to advancing human understanding of the sciences, arts, and humanities.

However, the Founding Fathers did not agree on how best to protect the press from arbitrary government action. A majority of the Founding Fathers adhered to the English common-law view that equated a free press with the doctrine of no prior restraint. This doctrine provided that no publication could be suppressed by the government before it is released to the public, and that the publication of something could not be conditioned upon judicial approval before its release. On the other hand, the English common law permitted prosecution for libelous and seditious material after publication. Thus, the law protected vituperative political publications only insofar as the author was prepared to serve time in jail or pay a fine for wrongful published attacks.

A minority of Founding Fathers adhered to the view articulated by James Madison: "The security of the freedom of the press requires that it should be exempt, not only from previous restraint of the executive, as in Great Britain; but from legislative restraint also; and this exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws." Madison was concerned that authors would be deterred from writing articles assailing government activity if the government were permitted to prosecute them following release of their works to the public.

Before 1964, the Madisonian concept of a free press found very little support among the fifty states. Not only was subsequent punishment permitted for seditious and libelous publications, but in many states, truth was not a defense to allegations of defamation. If a story tended to discredit the reputation of a public official, the publisher could be held liable for money damages even if the story was accurate. In states where truth was allowed as a defense, the publisher often carried the burden of demonstrating its veracity. Newspapers and other media outlets soon flooded the courts with lawsuits alleging that these libel laws violated their First Amendment rights by "chilling" the pen of writers with the specter of civil liability for money damages.

In the seminal case New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), the Supreme Court extended First Amendment protection for print and electronic media far beyond the protection envisioned by the English common law. Before money damages can be assessed against a member of the media for a libelous or defamatory statement, the Supreme Court held, the injured party, not the publisher, must demonstrate by "clear and convincing" evidence that the statement not only was false but was published with "actual malice." Actual malice may be established only by proof that the media member recklessly published a statement without regard to its veracity or had actual knowledge of its falsity. In arriving at this standard, the Court balanced society's need for an uninhibited flow of information about public figures, particularly elected officials, against an individual's right to protect the integrity and value of his or her reputation.

The twentieth century has also seen the Supreme Court strengthen the doctrine of no prior restraint. In Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the Court ruled that there is a constitutional presumption against prior restraint that may not be overcome unless the government can demonstrate that censorship is necessary to prevent a "clear and present danger" of a national security breach. In New York Times v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971), the Court applied this presumption against the U.S. Department of Justice, which had sought an injunction to prevent the publication of classified material revealing the secrecy and deception behind the U.S. involvement in the Vietnam War. If this classified material, also known as the Pentagon Papers, had threatened U.S. troops by disclosing their location or movement, the Court said, publication would not have been permitted.

Freedom of Religion

Establishment Clause

Prior to the American Revolution, the English designated the Anglican Church as the official church of their country. The church was supported by taxation, and all English people were required to attend its services. No marriage or baptism was sanctioned outside the church. Members of religious minorities who failed to abide by the strictures of the church were forced to endure civil and criminal penalties, including banishment and death. Some American colonies were also ruled by persecutorial theocrats, such as the Puritans in Massachusetts.

These English and colonial experiences influenced the Founding Fathers, including Jefferson and Madison. Jefferson supported a high wall of separation between church and state. Furthermore, Jefferson, a student of the Enlightenment (an eighteenth-century philosophical movement whose members rejected traditional values and embraced rationalism), opposed religious influence on the business of government. In turn, Madison, a champion of religious minorities, opposed government interference with religion. For Madison, the establishment of a national church differed from the Spanish Inquisition "only in degree," and he vociferously attacked any legislation that would have led the colonies down that path. For example, Madison led the fight against a Virginia bill that would have levied taxes to subsidize Christianity.

Yet the thoughts and intentions of Madison have been the subject of rancorous discord among the Supreme Court justices who have attempted to interpret the Establishment Clause in a variety of contexts. Some justices, for example, cite Madison's opposition to the Virginia bill as evidence that he opposed only discriminatory government assistance to particular religious denominations, but favored nonpreferential aid to cultivate a diversity in faiths. Thus, the Framers of the First Amendment left posterity with three considerations regarding religious establishments: (1) a wall of separation that protects government from religion and religion from government; (2) a separation of church and state that permits nondiscriminatory government assistance to religious groups; and (3) government assistance that preserves and promotes a diversity of religious beliefs.

The Supreme Court attempted to incorporate these three considerations under a single test in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971). In Lemon, the Court held that state and federal governments may enact legislation that concerns religion or religious organizations so long as the legislation has a secular purpose, and a primary effect that neither advances nor inhibits religion nor otherwise fosters an excessive entanglement between church and state. Under this test, the federal court of appeals for the fifth circuit invalidated a Mississippi statute that permitted public school students to initiate nonsectarian prayers at various compulsory and noncompulsory school events (Ingebretsen v. Jackson Public School District, 88 F.3d 274 [1996]). In contrast, the Court permits state legislatures to open their sessions with a short prayer — because, the Court says, history and tradition have secularized this otherwise religious act (Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 [1983]).

The Court has made seemingly inconsistent rulings in other areas as well. For instance, it permitted a municipality to include a Nativity scene in its annual Christmas display (Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355, 79 L. Ed. 2d 604 [1984]), whereas it prohibited a county courthouse from placing a cr;ageche on its staircase during the holiday season (Allegheny v. ACLU, 492 U.S. 573, 109 S. Ct. 3086, 106 L. Ed. 2d 472 [1989]). In Allegheny, the Court said that nothing in the county courthouse indicated that the cr;ageche was anything other than a religious display, whereas in Lynch, the Nativity scene was part of a wider celebration of the winter holidays. Such inconsistencies will continue to plague the Supreme Court as the justices attempt to reconcile the language of the Establishment Clause with the different considerations of the Founding Fathers.

Free Exercise Clause

The Establishment Clause and the Free Exercise Clause represent flip sides of the same coin. Whereas the Establishment Clause focuses on government action that would create, support, or endorse an official national religion, the Free Exercise Clause focuses on the pernicious effects government action may have on an individual's religious beliefs or practices. Like the Establishment Clause, the Free Exercise Clause was drafted in response to the Framers' desire to protect members of religious minorities from persecution.

The Framers' understanding of the Free Exercise Clause is illustrated by the New York Constitution of 1777, which stated,

[T]he free exercise and enjoyment of religious … worship, without discrimination or preference, shall forever … be allowed … to all mankind: Provided, that the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State. (N.Y. Const. Art. 1 § 3)

The New Hampshire Constitution of 1784 similarly provided that "[e]very individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; and no subject shall be hurt … in his person, liberty or estate for worshipping God" in a manner "most agreeable" to those dictates, "provided he doth not disturb the public peace" (N.H. Const. Pt. 1, Art. 5).

These state constitutional provisions not only provide insight into the Founding Fathers' original understanding of the First Amendment, they embody the fundamental tenets of modern free exercise jurisprudence. The Supreme Court has identified three principles underlying the Free Exercise Clause: (1) no individual may be compelled by law to accept any particular religion or form of worship; (2) all individuals are constitutionally permitted to choose a religion freely in accordance with their conscience and spirituality, and the govern- ment may not inhibit their religious practices; and (3) the government may enforce its criminal norms against persons whose religious practices would thwart a compelling societal interest.

Rarely is a law that infringes upon someone's religious beliefs or practices supported by a compelling state interest. The Supreme Court has held that no compelling societal interest would be served by actions that conflict with deeply held religious beliefs: coercing members of the Jehovah's Witnesses to salute the U.S. flag in public schools (West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 [1943]), denying unemployment benefits to Seventh-Day Adventists who refuse to work on Saturdays (Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 [1963]), or requiring Amish families to keep their children in state schools until the age of sixteen (Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 [1972]). However, a compelling government interest is served by the federal revenue system, so no member of any religious sect can claim exemption from taxation (United States v. Lee, 455 U.S. 252, 102 S. Ct. 1051, 71 L. Ed. 2d 127 [1982]).

A different question is presented when the government disputes whether a particular belief or practice is religious in nature. This typically happens when conscientious objectors resist the government's attempt to conscript them during wartime. Some draft resisters object to war on moral or ethical grounds unrelated to orthodox or doctrinal religions. If a conscientious objector admits to being atheistic or agnostic, the government asks, how can that objector avoid conscription by relying on the First Amendment, which protects the free exercise of religion?

In an effort to answer this question, the Supreme Court explained that the government cannot "aid all religions against non-believers," any more than it can aid one religion over another (Torasco v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 [1961]). Thus, as long as a person "deeply and sincerely holds beliefs which are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs" are protected by the First Amendment (Welsh v. United States, 398 U.S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 [1970]). A belief — religious, moral, or ethical — that manifests itself in a person's selective opposition to only certain wars or military conflicts is not protected by the Free Exercise Clause.

See: Engel v. Vitale; New York Times v. Sullivan; New York Times v. United States.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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The first article of the Bill of Rights. It forbids Congress from tampering with the freedoms of religion, speech, assembly, and the press.

An amendment to the United States Constitution guaranteeing the rights of free expression and action that are fundamental to democratic government. These rights include freedom of assembly, freedom of the press, freedom of religion, and freedom of speech. The government is empowered, however, to restrict these freedoms if expression threatens to be destructive. Argument over the extent of First Amendment freedoms has often reached the Supreme Court. (See clear and present danger, libel, and obscenity.)

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The Bill of Rights in the National Archives.

"First Amendment" redirects here. For other uses, see First Amendment (disambiguation).

The First Amendment to the United States Constitution is the part of the United States Bill of Rights that expressly prohibits the United States Congress from making laws "respecting an establishment of religion" or that prohibit the free exercise of religion, infringe the freedom of speech, infringe the freedom of the press, limit the right to peaceably assemble, or limit the right to petition the government for a redress of grievances.

Although the First Amendment only explicitly applies to the Congress, the Supreme Court has interpreted it as applying to the executive and judicial branches. Additionally, in the 20th century, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment applies the limitations of the First Amendment to each state, including any local government within a state.

Contents 1 Text 2 Background 3 Establishment of religion 4 Free exercise of religion 5 Freedom of speech 5.1 Sedition 5.2 War protests 5.3 Anonymous speech 5.4 Flag desecration 5.5 Obscenity 5.6 Libel, slander, and private action 5.7 Political speech 5.8 Involuntary commitment 5.9 Memoirs of convicted criminals 6 Freedom of the press 6.1 Taxation of the press 6.2 Content regulation 7 Petition and assembly 8 Freedom of association 9 International significance 10 See also 11 References 12 Sources 13 External links

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.

”

Background

Main article: Anti-Federalism

Opposition to the ratification of the Constitution was, in part, based on the Constitution's lack of adequate guarantees for civil liberties. In order 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.

Establishment of religion

Main article: Establishment Clause of the First Amendment

The Establishment Clause of the First Amendment prohibits the establishment of a national religion by the Congress or the preference of one religion over another, non-religion over religion, or religion over non-religion. Originally, the First Amendment only applied to the federal government. Subsequently, under the incorporation doctrine, certain selected provisions were applied to states. It was not, however, until the middle and later years of the twentieth century that the Supreme Court began to interpret the Establishment and Free Exercise Clauses in such a manner as to restrict the promotion of religion by state governments. For example, in the Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994), Justice David Souter, writing for the majority, concluded that "government should not prefer one religion to another, or religion to irreligion".

Free exercise of religion

Main article: Free Exercise Clause of the First Amendment

In Sherbert v. Verner, 374 U.S. 398 (1963), the Warren Court applied the strict scrutiny standard of review to this clause, holding that a state must show a compelling interest in restricting religion-related activities. In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court retreated from this standard, permitting governmental actions that were neutral regarding religion. The Congress attempted to restore this standard by passing the Religious Freedom Restoration Act, but in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court held that such an attempt was unconstitutional regarding state and local government actions (though permissible regarding federal actions).

Freedom of speech

Main article: Freedom of speech in the United States

Sedition

The Supreme Court never ruled on the constitutionality of any federal law regarding the Free Speech Clause until the 20th century. The Supreme Court never ruled on the Alien and Sedition Acts of 1798, whose speech provisions expired in 1801.^[1] The leading critics of the law, Thomas Jefferson and James Madison, argued for the Acts' unconstitutionality on the basis of the First Amendment, among other Constitutional provisions (e.g. Tenth Amendment).^[2] In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court said, "[a]lthough the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history."^[3]

After World War I, several cases involving laws limiting speech came before the Supreme Court. The Espionage Act of 1917 imposed a maximum sentence of twenty years for anyone who caused or attempted to cause "insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States." Under the Act, there were over two thousand prosecutions. For instance, one filmmaker was sentenced to ten years imprisonment because his portrayal of British soldiers in a movie about the American Revolution impugned the good faith of an American ally, the United Kingdom. The Sedition Act of 1918 went even further, criminalizing "disloyal," "scurrilous" or "abusive" language against the government.

In Schenck v. United States, 249 U.S. 47 (1919), the Supreme Court was first requested to strike down a law violating the Free Speech Clause. The case involved Charles Schenck, who had, during the war, published leaflets challenging the conscription system then in effect. The Supreme Court unanimously upheld Schenck's conviction for violating the Espionage Act. Justice Oliver Wendell Holmes, Jr., writing for the Court, suggested that "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

The "clear and present danger" test of Schenck was extended in Debs v. United States, 249 U.S. 211 (1919), again by Justice Oliver Wendell Holmes. The case involved a speech made by Eugene V. Debs, a political activist. Debs had not spoken any words that posed a "clear and present danger" to the conscription system, but a speech in which he denounced militarism was nonetheless found to be sufficient grounds for his conviction. Justice Holmes suggested that the speech had a "natural tendency" to occlude the draft.

Thus, the Supreme Court effectively shaped the First Amendment in such a manner as to permit a multitude of restrictions on speech. Further restrictions on speech were accepted by the Supreme Court when it decided Gitlow v. New York, 268 U.S. 652 (1925). Writing for the majority, Justice Edward Sanford suggested that states could punish words that "by their very nature, involve danger to the public peace and to the security of the state." Lawmakers were given the freedom to decide which speech would constitute a danger.

Freedom of speech was influenced by anti-communism during the Cold War. In 1940, the Congress enacted the Smith Act. The Smith Act made punishable the advocacy of "the propriety of overthrowing or destroying any government in the United States by force and violence." The law was mainly used as a weapon against Communist leaders. The constitutionality of the Act was questioned in Dennis v. United States 341 U.S. 494 (1951). The Court upheld the law in 1951 by a 6-2 vote (Justice Tom C. Clark did not participate because he had previously ordered the prosecutions when he was Attorney General). Chief Justice Fred M. Vinson relied on Oliver Wendell Holmes' "clear and present danger" test when he wrote for the majority. Vinson suggested that the doctrine did not require the government to "wait until the putsch is about to be executed, the plans have been laid and the signal is awaited", thereby broadly defining the words "clear and present danger." Thus, even though there was no immediate danger posed by the Communist Party's ideas, the Court allowed the Congress to restrict the Communist Party's speech.

Dennis has never been explicitly overruled by the Court, but subsequent decisions have greatly narrowed its place within First Amendment jurisprudence. In 1957, the Court changed its interpretation of the Smith Act in deciding Yates v. United States, 354 U.S. 298 (1957). The Supreme Court ruled that the Act was aimed at "the advocacy of action, not ideas". Thus, the advocacy of abstract doctrine remains protected under the First Amendment. Only speech explicitly inciting the forcible overthrow of the government remains punishable under the Smith Act.

War protests

The Warren Court expanded free speech protections in the 1960s, though there were exceptions. In 1968, the Court upheld a law prohibiting the mutilation of draft cards in United States v. O'Brien, 391 U.S. 367 (1968), because the Court felt that burning draft cards would interfere with the "smooth and efficient functioning" of the draft system. In contrast, in Cohen v. California, 403 U.S. 15 (1971), the court found that a person could not be punished for wearing, in the corridors of the Los Angeles County courthouse, a jacket reading "Fuck the Draft".

In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court ruled that free speech rights extended to students in school. The case involved several students who were punished for wearing black arm-bands to protest the Vietnam War. The Supreme Court ruled that the school could not restrict symbolic speech that did not cause undue interruptions of school activities. Justice Abe Fortas wrote,

[S]chools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students...are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.

However, in Bethel School District v. Fraser, 478 U.S. 675 (1986), the Court held a student could be punished for his speech before a public assembly. In the landmark decision of Brandenburg v. Ohio, 395 U.S. 444 (1969), which expressly overruled Whitney v. California, 274 U.S. 357 (1927) (a case in which a woman was imprisoned for aiding the Communist Party), the Supreme Court referred to the right to speak freely of violent action and revolution in broad terms:

[Our] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Anonymous speech

In Talley v. California, 362 U.S. 60 (1960), the Court struck down a Los Angeles city ordinance that made it a crime to distribute anonymous pamphlets.

Flag desecration

The divisive issue of flag desecration as a form of protest came before the Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989). The Supreme Court reversed the conviction of Gregory Lee Johnson for burning the flag by a 5-4 vote. Justice William J. Brennan, Jr. asserted that "if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable." Many Congressmen criticized the decision of the Court and the House of Representatives unanimously passed a resolution denouncing the Court.^[4] Congress passed a federal law barring flag burning, but the Supreme Court struck it down as well in United States v. Eichman, 496 U.S. 310 (1990). Many attempts have been made to amend the Constitution to allow Congress to prohibit the desecration of the flag. Since 1995, the Flag Desecration Amendment has consistently mustered sufficient votes to pass in the House of Representatives, but not in the Senate. In 2000, the Senate voted 63–37 in favor of the amendment, which fell four votes short of the requisite two-thirds majority. In 2006, another attempt fell one vote short.

Obscenity

The federal government and the states have long been permitted to restrict obscenity or pornography. While The Supreme Court has usually refused to give obscenity any protection under the First Amendment, pornography is subject to little regulation. However, the exact definition of obscenity and pornography has changed over time.

When it decided Rosen v. United States in 1896, the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin. The Hicklin standard defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." The Court ruled in Roth v. United States, 354 U.S. 476 (1957) that the Hicklin test was inappropriate. Instead, the Roth test for obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest."

Justice Potter Stewart, in Jacobellis v. Ohio, 378 U.S. 184 (1964), famously stated that, although he could not precisely define pornography, "I know it when I see it."

The Roth test was expanded when the Court decided Miller v. California, 413 U.S. 15 (1973). Under the Miller test, a work is obscene if it would be found appealing to the prurient interest by an average person applying contemporary community standards, depicts sexual conduct in a patently offensive way and has no serious literary, artistic, political or scientific value. Note that "community" standards—not national standards—are applied whether the material appeals to the prurient interest; thus, material may be deemed obscene in one locality but not in another. National standards, however, are applied whether the material is of value. Child pornography is not subject to the Miller test, as the Supreme Court decided in New York v. Ferber, 458 U.S. 747 (1982). The Court thought that the government's interest in protecting children from abuse was paramount.

Personal possession of obscene material in the home may not be prohibited by law. In writing for the Court in the case of Stanley v. Georgia, 394 U.S. 557 (1969), Justice Thurgood Marshall wrote, "If the First Amendment means anything, it means that a State has no business telling a man, sitting in his own house, what books he may read or what films he may watch." However, it is not unconstitutional for the government to prevent the mailing or sale of obscene items, though they may be viewed only in private. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), further upheld these rights by invalidating the Child Pornography Prevention Act of 1996, holding that, because the act "[p]rohibit[ed] child pornography that does not depict an actual child..." it was overly broad and unconstitutional under the First Amendment. Justice Anthony M. Kennedy wrote: "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought."

In United States v. Williams, 553 U.S. ___ (2008), by a vote of 7–2, the Supreme Court upheld the PROTECT Act of 2003. The Court ruled that prohibiting offers to provide and requests to obtain child pornography did not violate the First Amendment, even if a person charged under the Act did not possess child pornography.^[5]

Libel, slander, and private action

American tort liability for defamatory speech or publications—slander and libel—traces its origins to English law. The nature of American defamation law was vitally changed by the Supreme Court in 1964, in deciding New York Times Co. v. Sullivan 376 U.S. 254 (1964). The New York Times had published an advertisement indicating that officials in Montgomery, Alabama had acted violently in suppressing the protests of African-Americans during the Civil rights movement. The Montgomery Police Commissioner, L. B. Sullivan, sued the Times for libel on the grounds that the advertisement damaged his reputation. The Supreme Court unanimously overruled the $500,000 judgment against the Times. Justice William J. Brennan suggested that public officials may sue for libel only if the publisher published the statements in question with "actual malice."

The actual malice standard applies to both public officials and public figures, including celebrities. Though the details vary from state to state, private individuals normally need only to prove negligence on the part of the defendant.

In Greenbelt Cooperative Publishing Association, Inc. v. Bresler, 398 U.S. 6 (1970), the Supreme Court ruled that a Greenbelt News Review article, which quoted a visitor to a city council meeting who characterized Bresler's aggressive stance in negotiating with the city as "blackmail", was not libelous since nobody could believe anyone was claiming that Bresler had committed the crime of blackmail and that the statement was essentially hyperbole (i.e., obviously an opinion).

The Supreme Court ruled in Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974), opinions could not be considered defamatory. It is thus permissible to suggest, for instance, that someone is a bad lawyer, but not permissible to falsely declare that the lawyer is ignorant of the law: the former constitutes a statement of values, but the latter is a statement alleging a fact.

More recently, in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the Supreme Court backed off from the protection from "opinion" announced in Gertz. The court in Milkovich specifically held that there is no wholesale exemption to defamation law for statements labeled "opinion," but instead that a statement must be provably false (falsifiable) before it can be the subject of a libel suit.

Hustler Magazine v. Falwell, 485 U.S. 46 (1988), extended the "actual malice" standard to intentional infliction of emotional distress in a ruling which protected a parody. In the ruling, "actual malice" was described as "knowledge that the statement was false or with reckless disregard whether or not it was true."

Ordinarily, the First Amendment only applies to prohibit direct government censorship. The protection from libel suits recognizes that the power of the state is needed to enforce a libel judgment between private persons. The Supreme Court's scrutiny of defamation suits is thus sometimes considered part of a broader trend in U.S. jurisprudence away from the strict state action requirement, and into the application of First Amendment principles when private actors invoke state power.

Likewise, the Noerr-Pennington doctrine is a rule of law that often prohibits the application of antitrust law to statements made by competitors before public bodies: a monopolist may freely go before the city council and urge the denial of its competitor's building permit without being subject to Sherman Act liability. This principle is being applied to litigation outside the antitrust context, including state tort suits for intentional interference with business relations and SLAPP Suits.

The constitutions of most of the several states also provide free speech protections analogous to that of the U.S. Constitution. Some states, such as California, have treated their local constitutional protections as being more expansive than that of the U.S. Constitution. California's Pruneyard doctrine, prohibits private property owners whose property is equivalent to a traditional public forum (often shopping malls and grocery stores) from enforcing their private property rights to exclude political speakers and petition-gatherers.

The Pruneyard doctrine privileges protesters, who would otherwise be trespassers, from being ejected from the property, as would other trespassers. Moreover, the doctrine deprives the property owner of one of their rights, as well as forcing them to allow their premises to become a forum for speech for which they do not approve.^{[6][Need quotation on talk to verify]}

The U.S. Supreme Court has never interpreted the First Amendment as having the same power to alter private property rights, or provide any other protection against purely private action. When considering private authority figures (such as a child's parents or an employee's employer), Constitutional free speech provides no protection. A private authority figure may reserve the right to censor their subordinate's speech, or discriminate on the basis of speech, without any legal consequences. For example, per the at will employment doctrine, an employee may be fired from their occupation for speaking out against a politician that the employer likes.

Political speech

Main article: campaign finance reform

The Federal Election Campaign Act of 1971 and related laws restricted the monetary contributions that may be made to political campaigns and expenditure by candidates. The Supreme Court considered the constitutionality of the Act in Buckley v. Valeo, 424 U.S. 1 (1976). The Court affirmed some parts of the Act and rejected others. The Court concluded that limits on campaign contributions "serve[d] the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion." At the same time, the Court overturned the expenditure limits, which it found imposed "substantial restraints on the quantity of political speech."

Further rules on campaign finance were scrutinized by the Court when it determined McConnell v. Federal Election Commission, 540 U.S. 93 (2003). The case centered on the Bipartisan Campaign Reform Act of 2002, a law that introduced several new restrictions on campaign financing. The Supreme Court upheld provisions which barred the raising of soft money by national parties and the use of soft money by private organizations to finance certain election-related advertisements. At the same time, the Court struck down the "choice of expenditure" rule, which required that parties could either make coordinated expenditures for all its candidates, or permit candidates to spend independently, but not both, further stating that a "provision place[d] an unconstitutional burden on the parties' right to make unlimited independent expenditures." The Supreme Court also ruled that the provision preventing minors from making political contributions was unconstitutional, relying on the precedent on the Tinker case. In Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. ___ (2007), the Supreme Court sustained an "as applied" challenge to provisions of the 2002 law dealing with advertising shortly before a primary/caucus or an election. In Davis v. Federal Election Commission, 554 U. S. ____ (2008), the Supreme Court declared the "Millionaire's Amendment" provisions of the BCRA to be unconstitutional. The Court held that easing BCRA restrictions for an opponent of a self-financing candidate spending at least $350,000 of his own money violated the freedom of speech of the self-financing candidate.

The "free speech zone" at the 2004 Democratic National Convention.

Free speech zones are areas set aside in public places for political activists to exercise their right of free speech as an exercise of what is commonly called "TPM" or "time, place manner" regulation of speech. Free speech zones are set up by the Secret Service who scout locations near which the president is to pass or speak. Officials may target those displaying signs and escort them to the free speech zones prior to and during the event. Protesters who refuse to go to free speech zones could be arrested and charged with trespassing, disorderly conduct and resisting arrest. In 2003, a seldom-used federal law was brought up that says that "willfully and knowingly to enter or remain in any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting" is a crime.^[7][8]

Involuntary commitment

A small minority has questioned whether involuntary commitment laws, when the diagnosis of mental illness leading, in whole or in part, to the commitment, was made to some degree on the basis of the speech or writings of the committed individual, violates the right of freedom of speech of such individuals.

The First Amendment implications of involuntary administration of psychotropic medication have also been questioned. Though the United States District Court for the District of Massachusetts, in Mills v. Rogers, 457 U.S. 291 (1982), found that "whatever powers the Constitution has granted our government, involuntary mind control is not one of them," this finding was not of precedential value, and the Supreme Court ruling was essentially inconclusive. In Rennie v. Klein, 462 F. Supp. 1131 (D.N.J. 1978), the United States District Court for the District of New Jersey held that an involuntarily committed patient has the right to refuse medication.

In the landmark decision O'Connor v. Donaldson, 422 U.S. 563 (1975), the Supreme Court ruled that a patient cannot be involuntarily committed without due process. The mental health bar, spearheaded by the American Civil Liberties Union (ACLU), has interpreted this decision to mean it is unconstitutional to commit a person for treatment who is not imminently a danger to himself or others and is capable to a minimal degree of surviving on his own. This interpretation has hampered efforts to implement changes in commitment laws through out the United States, as most states insist the person meet the "imminent danger" standard, accepting the ACLU's interpretation of the Donaldson case.^[9]

Memoirs of convicted criminals

In some states, there are Son of Sam laws prohibiting convicted criminals from publishing memoirs for profit. These laws were a response to offers to David Berkowitz to write memoirs about the murders he committed. The Supreme Court struck down a law of this type in New York as a violation of the First Amendment in the case Simon & Schuster v. Crime Victims Board, 502 U.S. 105 (1991). That statute did not outlaw publication of a memoir by a convicted criminal. Instead, it provided that all profits from the book were to be put in escrow for a period of time. The interest from the escrow account was used to fund the New York State Crime Victims Board — an organization that pays the medical and related bills of victims of crime. Similar laws in other states remain unchallenged.

Freedom of the press

Main article: Freedom of the press

In Lovell v. City of Griffin, 303 U.S. 444 (1938), Chief Justice Hughes defined the press as, "every sort of publication which affords a vehicle of information and opinion." Freedom of the press, like freedom of speech, is subject to restrictions on bases such as defamation law.

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Court ruled that the First Amendment did not grant a member of the press the right to refuse a subpoena from a grand jury. The issue decided in the case was whether a reporter could refuse to "appear and testify before state and Federal grand juries" basing the refusal on the contention that such appearance and testimony "abridges the freedom of speech and press guaranteed by the First Amendment." The 5-4 decision was that such a protection was not provided by the First Amendment.

Taxation of the press

State governments retain the right to tax newspapers, just as they may tax other commercial products. Generally, however, taxes that focus exclusively on newspapers have been found unconstitutional. In Grosjean v. American Press Co. 297 U.S. 233 (1936), the Court invalidated a state tax on newspaper advertising revenues. Similarly, some taxes that give preferential treatment to the press have been struck down. In 1987, for instance, the Court invalidated an Arkansas law exempting "religious, professional, trade and sports journals" from taxation since the law amounted to the regulation of newspaper content.^[10]

In Leathers v. Medlock, 499 U.S. 439 (1991), the Supreme Court found that states may treat different types of the media differently, such as by taxing cable television, but not newspapers. The Court found that "differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas."

Content regulation

The courts have rarely treated content-based regulation of the press with any sympathy. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses. The state claimed that the law had been passed to ensure press responsibility. Finding that only freedom, and not press responsibility, is mandated by the First Amendment, the Supreme Court ruled that the government may not force newspapers to publish that which they do not desire to publish.

Content-based regulation of television and radio, however, have been sustained by the Supreme Court in various cases. Since there are a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies. The Supreme Court, however, has ruled that the problem of scarcity does not permit the raising of a First Amendment issue. The government may restrain broadcasters, but only on a content-neutral basis.

In Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court upheld the authority of the FCC to restrict the use of profane language in broadcasting.

Petition and assembly

Main articles: Right to petition in the United States and Freedom of assembly

The right to petition the government has been interpreted as extending to petitions of all three branches: the Congress, the executive and the judiciary. The Supreme Court has interpreted "redress of grievances" broadly; thus, it is possible for one to request the government to exercise its powers in furtherance of the general public good. However, a few times Congress has directly limited the right to petition. During the 1790s, Congress passed the Alien and Sedition Acts, punishing opponents of the Federalist Party; the Supreme Court never ruled on the matter. In 1835 the House of Representatives adopted the "Gag Rule," barring abolitionist petitions calling for the end of slavery. The Supreme Court did not hear a case related to the rule, which was in any event abolished in 1844. During World War I, individuals petitioning for the repeal of sedition and espionage laws (see above) were punished; again, the Supreme Court did not rule on the matter.

The right of assembly was originally closely tied to the right to petition. One significant case involving the two rights was United States v. Cruikshank, 92 U.S. 542 (1875). There, the Supreme Court held that citizens may "assemble for the purpose of petitioning Congress for a redress of grievances." Essentially, it was held that the right to assemble was secondary, while the right to petition was primary. Later cases, however, have expanded the meaning of the right to assembly. Hague v. CIO, 307 U.S. 496 (1939), for instance, refers to the right to assemble for the "communication of views on national questions" and for "disseminating information."

Freedom of association

Main article: Freedom of association#US Constitution

Although it is not expressly protected in the First Amendment, the Supreme Court ruled, in NAACP v. Alabama, 357 U.S. 449 (1958), freedom of association to be a fundamental right protected by it. In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Supreme Court ruled that a New Jersey law, which forced the Boy Scouts of America to admit an openly gay member, to be an unconstitutional abridgment of the Boy Scouts' right to free association.

International significance

Most provisions of the United States Bill of Rights are based on the English Bill of Rights and on other aspects of English law. The English Bill of Rights, however, does not include many of the protections found in the First Amendment. For example, while the First Amendment guarantees freedom of speech to the general populace, the English Bill of Rights only protected "freedom of speech and debates or proceedings in Parliament." The Declaration of the Rights of Man and of the Citizen, a French revolutionary document passed only weeks before Congress proposed the Bill of Rights, contains certain guarantees that are similar to the First Amendment's. For instance, it suggests that "every citizen may, accordingly, speak, write, and print with freedom."^[11]

While the First Amendment does not explicitly set restrictions on freedom of speech, other declarations of rights sometimes do so. The European Convention on Human Rights, for example, 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."^[12] Similarly the Indian constitution allows "reasonable" restrictions upon free speech to serve "public order, security of State, decency or morality."^[13]

The First Amendment was one of the first guarantees of religious freedom: neither the English Bill of Rights, nor the French Declaration of Rights, contains an equivalent guarantee.

See also

• Establishment Clause of the First Amendment
• Free Exercise Clause of the First Amendment
• Freedom of association
• Freedom of thought
• Lemon v. Kurtzman - Established the Lemon Test for evaluating government violations of the Establishment Clause.
• List of amendments to the United States Constitution
• List of United States Supreme Court cases involving the First Amendment
• Marketplace of ideas
• Military Expression
• Newseum - Entire text of First Amendment is etched in giant letters on front of building

References

1. ^ This was before the Supreme Court's decision in Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803)
2. ^ Civil Liberties: Kentucky and Virginia Resolutions
3. ^ Sullivan, at 276
4. ^ Flag Protection Amendment Passes House - July 2001
5. ^ Opinion of the Court in Williams
6. ^ PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980); See also Drye v. United States, 528 U.S. 49 (1999) (Ginsburg, J., speaking for a unanimous court, explaining the well-known principle that the right to possess property can be defined as the right to exclude others from it)
7. ^ 18 U.S.C. § 1752
8. ^ United States v. Bursey, 416 F.3d 301 (2005)
9. ^ "O'Connor v. Donaldson, 422 U.S. 563 (1975)". http://www.treatmentadvocacycenter.org/LegalResources/CaseLaws/Case1.htm. Retrieved on 2007-10-03. 
10. ^ Arkansas Writers' Project V. Ragland, 481 U.S. 221 (1987)
11. ^ English translation Declaration of the Rights of Man, art. 11
12. ^ European Convention on Human Rights art. 10 (entered into force Sept. 3, 1953)
13. ^ Constitution of India, art. 19, cl. 2 (English)

Sources

• Kilman, J. & Costello, G. (Eds). (2000). The Constitution of the United States of America: Analysis and Interpretation
• Haynes, C. "Religious liberty in public life" (2004)
• Hoover Institution. "Campaign Finance" (2004)
• Irons, P. (1999). A People's History of the Supreme Court New York: Penguin.
• Emerson, Thomas I. (1963). "Toward a General Theory of the First Amendment". Yale Law Journal 72 (5): 877–956. doi:10.2307/794655. 

External links

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