First Amendment to the United States Constitution

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The Bill of Rights in the National Archives.

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

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

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

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

Establishment of religion

The establishment clause is "[t]he First Amendment provision that prohibits the federal and state governments from establishing an official religion, or from favoring or disfavoring one view of religion over another."^[1]

Originally, the First Amendment applied only to the federal government. A number of the states effectively had established churches when the First Amendment was ratified, with some remaining into the early nineteenth century.

Subsequently, Everson v. Board of Education (1947) incorporated the Establishment Clause (i.e., made it apply against the states). However, it was not until the middle to late 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 the states. 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."^[2]

Separationists

Everson used the metaphor of a wall of separation between church and state, derived from the correspondence of President Thomas Jefferson. It had been long established in the decisions of the Supreme Court, beginning with Reynolds v. United States from 1879, when the Court reviewed the history of the early Republic in deciding the extent of the liberties of Mormons. Chief Justice Morrison Waite, who consulted the historian George Bancroft, also discussed at some length the Memorial and Remonstrance against Religious Assessments by James Madison, who drafted the First Amendment; Madison used the metaphor of a "great barrier."^[3]

Justice Hugo Black adopted Jefferson's words in the voice of the Court, and concluded that "government must be neutral among religions and nonreligion: it cannot promote, endorse, or fund religion or religious institutions."^[4] The Court has affirmed it often, with majority, but not unanimous, support. Warren Nord, in Does God Make a Difference?, characterized the general tendency of the dissents as a weaker reading of the First Amendment; the dissents tend to be "less concerned about the dangers of establishment and less concerned to protect free exercise rights, particularly of religious minorities."^[5]

Beginning with the Everson decision itself, which permitted New Jersey school boards to pay for transportation to parochial schools, the Court has used various tests to determine when the wall of separation has been breached. The Everson decision laid down the test that establishment existed when aid was given to religion, but that the transportation was justifiable because the benefit to the children was more important. In the school prayer cases of the early 1960s, (Engel v. Vitale and Abington School District v. Schempp), aid seemed irrelevant; the Court ruled on the basis that a legitimate action both served a secular purpose and did not primarily assist religion. In Walz v. Tax Commission, the Court ruled that a legitimate action could not entangle government with religion; in Lemon v. Kurtzman, these points were combined, declaring that an action was not establishment if

1. the statute (or practice) has a secular purpose;
2. its principal or primary effect neither advances nor inhibits religion; and
3. it does not foster an excessive government entanglement with religion.

This Lemon test has been criticized by Justices and legal scholars, but it remains the predominant means by which the Court enforces the Establishment Clause.^[6] In Agostini v. Felton, the entanglement prong of the Lemon test was demoted to simply being a factor in determining the effect of the challenged statute or practice.^[7] In Zelman v. Simmons-Harris, the opinion of the Court considered secular purpose and the absence of primary effect; a concurring opinion saw both cases as having treated entanglement as part of the primary purpose test.^[6]

Accommodationists

Accommodationists, on the other hand, read the Establishment Clause as prohibiting the Congress or any state from declaring an official religion or preferring one to another, but hold that laws do not have to be shorn of morality and history to be declared constitutional.^[8] As a result, they apply the Lemon Test only selectively, holding Justice Douglas' statement in Zorach v. Clauson, "[w]e are a religious people whose institutions presuppose a Supreme Being" 343 U.S. 306 (1952).^[8][9]

As such, for many conservatives, the Establishment Clause solely prevents the establishing of a state church, not from publicly acknowledging God and "developing policies that encourage general religious beliefs that do not favor a particular sect and are consistent with the secular government's goals."^[10][11]

Free exercise of religion

In Sherbert v. Verner, 374 U.S. 398 (1963), the Supreme Court required states to meet the "strict scrutiny" standard when refusing to accommodate religiously motivated conduct. This meant that a government needed to have a "compelling interest" regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court ruled that a law that "unduly burdens the practice of religion" without a compelling interest, even though it might be "neutral on its face," would be unconstitutional.

The need for a compelling interest was narrowed in Employment Division v. Smith, 494 U.S. 872 (1990), which held no such interest was required under the Free Exercise Clause regarding a law that does not target a particular religious practice. In Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the Supreme Court ruled Hialeah had passed an ordinance banning ritual slaughter, a practice central to the Santería religion, while providing exceptions for some practices such as the kosher slaughter. Since the ordinance was not "generally applicable," the Court ruled that it needed to have a compelling interest, which it failed to have, and so was declared unconstitutional.

In 1993, the Congress passed the Religious Freedom Restoration Act (RFRA), which sought to restore the compelling interest requirement applied in Sherbert and Yoder. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court struck down the provisions of the Act that forced state and local governments to provide protections exceeding those required by the First Amendment on the grounds that while the Congress could enforce the Supreme Court's interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities. According to the court's ruling in Gonzales v. UDV, 546 U.S. 418 (2006), RFRA remains applicable to federal laws and so those laws must still have a "compelling interest".

Freedom of speech

Speech critical of the government

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.^[12] The leading critics of the law, Thomas Jefferson and James Madison, argued for the Acts' unconstitutionality based on the First Amendment, among other Constitutional provisions (e.g. Tenth Amendment).^[13] In retrospect, dicta from New York Times Co. v. Sullivan, 376 U.S. 254 (1964) acknowledges that, "[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."^[14]

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." Over two thousand were convicted under the Act. 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.^[15] The Sedition Act of 1918 went even further, criminalizing "disloyal," "scurrilous" or "abusive" language against the government.

In the midst of World War I, Charles Schenck, then the general secretary of the Socialist party, was found guilty of violating the Espionage Act after a search of the Socialist headquarters revealed a book of Executive Committee minutes. The book contained a resolution, dated August 13, 1917, to print 15,000 leaflets to be mailed to men who had passed exemption boards.^[16] The contents of these leaflets intimated a fervent opposition to the draft, comparing conscripts to convicts and urging potential draftees to "not submit to intimidation."^[17] Schenck's appeal of his conviction reached the Supreme Court as Schenck v. United States, 249 U.S. 47 (1919). According to Schenck, the Espionage Act violated the Free Speech Clause of the First Amendment. The Supreme Court unanimously rejected Schenck's appeal and affirmed his conviction. Justice Oliver Wendell Holmes, Jr., writing for the Court, explained 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."^[18]

The "clear and present danger" test of Schenck was elaborated in Debs v. United States, 249 U.S. 211 (1919). On June 16, 1918, Eugene V. Debs, a political activist, delivered a speech in Canton, Ohio, the main theme of which "was socialism, its growth, and a prophecy of its ultimate success."^[19] Debs spoke with pride of the devotion with which his "most loyal comrades were paying the penalty to the working class – these being Wagenknecht, Baker and Ruthenberg, who had been convicted of aiding and abetting another in failing to register for the draft."^[20] Moreover, hours earlier, Debs had spoken with approval of an Anti-War Proclamation and Program adopted at St. Louis in April, 1917 which advocated a "continuous, active, and public opposition to the war, through demonstrations, mass petitions, and all other means within [their] power."^[21] Following his speech, Debs was charged and convicted under the Espionage Act. In upholding his conviction, the Court reasoned that although he had not spoken any words that posed a "clear and present danger," taken in context, the speech had a "natural tendency and a probable effect to obstruct the recruiting services[.]"^[21]

Benjamin Gitlow was convicted of criminal anarchy after he was found advocating the "necessity and propriety of overthrowing and overturning organized government by force, violence and unlawful means" in the Left Wing Manifesto, as well as publishing and circulating a radical newspaper called The Revolutionary Age advocating similar ideas.^[22] In arguing before the Supreme Court, Gitlow contended that "the statute as construed and applied by the trial court penalize[d] the mere utterance, as such, of 'doctrine' having no quality of incitement, without regard to the circumstances of its utterance or to the likelihood of the unlawful sequences[.]"^[23] While acknowledging "liberty of expression 'is not absolute,'" he maintained "it may be restrained 'only in instances where its exercise bears a causal relation with some substantive evil, consummated, attempted or likely[.]'"^[23] As the statute took no account of the circumstances under which the offending literature was written, it violated the First Amendment. The Court rejected Gitlow's reasoning. Writing for the majority, Justice Edward Terry Sanford declared that "utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion....Such utterances, by their very nature, involve danger to the public peace and to the security of the state."^[24] Gitlow v. New York, 268 U.S. 652 (1925) greatly expanded Schenck and Debs but established the general opinion of the Court that the First Amendment is incorporated by the Fourteenth Amendment to apply to the states.^[25]

In 1940, Congress enacted the Smith Act, making it illegal to advocate "the propriety of overthrowing or destroying any government in the United States by force and violence."^[26] The law provided law enforcement a tool to combat Communist leaders. After Eugene Dennis was convicted in the Foley Square trial for attempting to organize a Communist Party in the United States pursuant to the Smith Act § 2, he petitioned for certiorari, which the Supreme Court granted.^[27] In Dennis v. United States 341 U.S. 494 (1951), the Court upheld the law 6-2 (Justice Tom C. Clark did not participate because he had ordered the prosecutions when he was Attorney General). Chief Justice Fred M. Vinson explicitly relied on Oliver Wendell Holmes, Jr.'s "clear and present danger" test as adapted by Learned Hand: "In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger."^[28] Clearly, Vinson suggested, clear and present danger did not intimate "that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited."^[29]

Dennis has never been explicitly overruled by the Court, but its relevance within First Amendment jurisprudence has been considerably diminished by subsequent rulings. Six years after Dennis, the Court changed its interpretation of the Smith Act. In Yates v. United States, 354 U.S. 298 (1957). the Court ruled that the Act was aimed at "the advocacy of action, not ideas."^[30] Advocacy of abstract doctrine remains protected while speech explicitly inciting the forcible overthrow of the government is punishable under the Smith Act.

During the Vietnam Era, the Courts position on public criticism of the government changed drastically. Though the Court upheld a law prohibiting the forgery, mutilation, or destruction of draft cards in United States v. O'Brien, 391 U.S. 367 (1968), fearing that burning draft cards would interfere with the "smooth and efficient functioning" of the draft system,^[31][32] the next year, the court handed down its decision in Brandenburg v. Ohio, 395 U.S. 444 (1969), expressly overruling Whitney v. California, 274 U.S. 357 (1927) (a case in which a woman was imprisoned for aiding the Communist Party).^[33] Now the Supreme Court referred to the right to speak openly 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 allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.^[34]

Brandenburg discarded the "clear and present danger" test introduced in Schenck and further eroded Dennis.^[35] In Cohen v. California, 403 U.S. 15 (1971), wearing a jacket reading "Fuck the Draft" in the corridors of the Los Angeles County courthouse was ruled not to be punishable.

Political speech

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. In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Court struck down an Ohio statute that made it a crime to distribute anonymous campaign literature. However, in Meese v. Keene, 481 U.S. 465 (1987), the Court upheld the Foreign Agents Registration Act of 1938, under which several Canadian films were defined as "political propaganda," requiring their sponsors to be identified.

Campaign finance

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court affirmed the constitutionality of some parts, while declaring other parts unconstitutional, of the Federal Election Campaign Act of 1971 and related laws. These laws restricted the monetary contributions that may be made to political campaigns and expenditure by candidates. 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."^[36] However, the Court overturned the spending limits, which it found imposed "substantial restraints on the quantity of political speech."^[37]

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 federal law that imposed 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 fund certain advertisements related to elections. However, 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, which they agreed "placed an unconstitutional burden on the parties' right to make unlimited independent expenditures."^[38] The Supreme Court also ruled that the provision preventing minors from making political contributions was unconstitutional, relying on Tinker v. Des Moines Independent Community School District.

In Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (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. 724 (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.

In Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), the Court ruled that the BCRA's federal restrictions on electoral advocacy by corporations or unions were unconstitutional for violating the Free Speech Clause of the First Amendment. The Court overruled Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which had upheld a state law that prohibited corporations from using treasury funds to support or oppose candidates in elections did not violate the First or Fourteenth Amendments. The Court also overruled the portion of McConnell that upheld such restrictions under the BCRA.^[39]

Flag desecration

The divisive issue of flag desecration as a form of protest first came before the Supreme Court in Street v. New York, 394 U.S. 576 (1969). In response to hearing an erroneous report of the murder of James Meredith, Sidney Street burned a 48-star U.S. flag. When questioned by the police he responded: "Yes; that is my flag; I burned it. If they let that happen to Meredith, we don't need an American flag."^[40] Street was arrested and charged with a New York state law making it a crime "publicly [to] mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States]."^[41] Street appealed his conviction to the Supreme Court, arguing the law was "overbroad, both on its face and as applied," that the language was "vague and imprecise" and did not "clearly define the conduct which it forbids", and that it unconstitutionally punished the destruction of an American flag, an act which Street contended "constitute[d] expression protected by the Fourteenth Amendment."^[42] In a 5–4 decision, the Court, relying on Stromberg v. California, 283 U.S. 359 (1931), found that because the provision of the New York law criminalizing "words" against the flag was unconstitutional, and the trial did not sufficiently demonstrate that he was convicted solely under the provisions not yet deemed unconstitutional, the conviction was unconstitutional. The Court, however, "resist[ed] the pulls to decide the constitutional issues involved in this case on a broader basis" and left the constitutionality of flag-burning unaddressed.^[43]

The ambiguity with regard to flag-burning statutes was eliminated in Texas v. Johnson, 491 U.S. 397 (1989). In that case, Gregory Lee Johnson participated in a demonstration during the 1984 Republican National Convention in Dallas, Texas. At one point during the demonstration, Johnson poured kerosene over an American flag and set it aflame, shouting anti-American phrases. Johnson was promptly arrested and charged with violating a Texas law prohibiting the vandalizing of venerated objects. He was convicted, sentenced to one year in prison, and fined $2,000. In 1989, his appeal reached the Supreme Court. Johnson argued that the Texas statute imposed an unconstitutional content-based restriction on symbolic speech. The Supreme Court agreed and, in a 5–4 vote, reversed Johnson's conviction. 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."^[44] Many members of Congress criticized the decision of the Court and the House of Representatives unanimously passed a resolution denouncing the Court.^[45] 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.

Free speech zones

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 freedom of 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 before 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.^[46][47]

Commercial speech

Commercial speech is speech done on behalf of a company or individual for the purpose of making a profit. Unlike political speech, the Supreme Court does not afford commercial speech full protection under the First Amendment. To effectively distinguish commercial speech from other types of speech for purposes of litigation, the Supreme Court uses a list of four indicia:^[48]

1. The contents do "no more than propose a commercial transaction."
2. The contents may be characterized as advertisements.
3. The contents reference a specific product.
4. The disseminator is economically motivated to distribute the speech.

Alone, each indicium does not compel the conclusion that an instance of speech is commercial; however, "[t]he combination of all these characteristics...provides strong support for...the conclusion that the [speech is] properly characterized as commercial speech."^[49]

The Court in Valentine v. Chrestensen, 316 U.S. 52 (1942), upheld a New York City ordinance forbidding the "distribution in the streets of commercial and business advertising matter."^[50] Writing for a unanimous court, Justice Roberts explained:

This court has unequivocally held that streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in their public thoroughfares. We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.^[51]

In Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), the Court overruled Valentine and ruled that commercial speech was entitled to First Amendment protection:

What is at issue is whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients... [W]e conclude that the answer to this one is in the negative.^[52]

In Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), the Court ruled that commercial speech was not protected by the First Amendment as much as other types of speech:

We have not discarded the "common-sense" distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite a dilution, simply by a leveling process, of the force of the [First] Amendment's guarantee with respect to the latter kind of speech.^[53]

In Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), the Court clarified what analysis was required before the government could justify regulating commercial speech:

1. Is the expression protected by the First Amendment? Lawful? Misleading? Fraud?
2. Is the asserted government interest substantial?
3. Does the regulation directly advance the governmental interest asserted?
4. Is the regulation more extensive than is necessary to serve that interest?

Six years later, the Supreme Court, applying the Central Hudson standards in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328 (1986), affirmed the Supreme Court of Puerto Rico's conclusion that Puerto Rico's Games of Chance Act of 1948, including the regulations thereunder, was not facially unconstitutional. The lax interpretation of Central Hudson adopted by Posadas was soon restricted under 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), when the Court invalidated a Rhode Island law prohibiting the publication of liquor prices.

School speech

In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court extended free speech rights to students in school. The case involved several students who were punished for wearing black armbands 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, since 1969 the Supreme Court has placed a number of limitations on Tinker interpretations. In Bethel School District v. Fraser, 478 U.S. 675 (1986), the Court ruled that a student could be punished for his sexual-innuendo-laced speech before a school assembly and, in Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988), the Court found that school newspapers enjoyed fewer First Amendment protections and are subject to school censorship. More recently, in Morse v. Frederick, 551 U.S. 393 (2007) the Court ruled that schools could, consistent with the First Amendment, restrict student speech at school-sponsored events, even events away from school grounds, if students promote "illegal drug use."

Obscenity

The federal government and the states have long been permitted to limit obscenity or pornography. While The Supreme Court has generally 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, [1868] L. R. 3 Q. B. 360. 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."^[54] 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."^[55]

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".^[56]

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:

(a)...‘the average person, applying contemporary community standards’ would find the work, as a whole, appeals to the prurient interest,...(b)...the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c)...the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.^[57]

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.^[58]

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."^[59] 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.^[60] 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."^[61]

In United States v. Williams, 553 U.S. 285 (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.^[62]

Libel, slander, and private action

Libel and slander

American tort liability for defamatory speech or publications—slander and libel—traces its origins to English common law. For the first two hundred years of American jurisprudence, the basic substance of defamation law continued to resemble that existing in England at the time of the Revolution. An 1898 American legal textbook on defamation provides definitions of libel and slander nearly identical to those given by Blackstone and Coke. An action of slander required:^[63]

1. Actionable words, such as those imputing the injured party: is guilty of some offense, suffers from a contagious disease or psychological disorder, is unfit for public office because of moral failings or an inability to discharge his or her duties, or lacks integrity in profession, trade or business;
2. That the charge must be false;
3. That the charge must be articulated to a third person, verbally or in writing;
4. That the words are not subject to legal protection, such as those uttered in Congress; and
5. That the charge must be motivated by malice.

An action of libel required the same five general points as slander, except that it specifically involved the publication of defamatory statements.^[64] For certain criminal charges of libel, such as seditious libel, the truth or falsity of the statements was immaterial, as such laws were intended to maintain public support of the government and the truth of the statements merely eroded public support more thoroughly.^[65] Instead, libel placed specific emphasis on the result of the publication. Libelous publications tended to "degrade and injure another person" or "bring him into contempt, hatred or ridicule."^[64]

Concerns that defamation under common law might be incompatible with the new republican form of government caused early American courts to struggle between William Blackstone's argument that the punishment of "dangerous or offensive writings...[was] necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty" and the argument that the need for a free press guaranteed by the Constitution outweighed the fear of what might be written.^[65] Consequently, very few changes were made in the first two centuries after the ratification of the First Amendment.

The Supreme Court's ruling in New York Times Co. v. Sullivan.376 U.S. 254 (1964) fundamentally changed American defamation law. The case redefined the type of "malice" needed to sustain a libel case. Common law malice consisted "ill-will" or "wickedness". Now, a public officials seeking to sustain a civil action against a tortfeasor needed to prove by "clear and convincing evidence" actual malice. The case involved an advertisement published in The New York Times 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 claiming the advertisement damaged his reputation. The Supreme Court unanimously overruled the $500,000 judgment against the Times. Justice Brennan suggested that public officials may sue for libel only if the publisher published the statements in question with "actual malice" — "knowledge that it was false or with reckless disregard of whether it was false or not."^[66]

While actual malice standard applies to public officials and public figures,^[67] in Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1988), the Court found that, with regard to private individuals, the First Amendment does "not necessarily force any change in at least some features of the common-law landscape."^[68] In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. 472 U.S. 749 (1985), the Court held that "[i]n light of the reduced constitutional value of speech involving no matters of public concern...the state interest adequately supports awards of presumed and punitive damages – even absent a showing of 'actual malice.'"^[69] Despite varying from state to state, private individuals generally need prove only the negligence 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., clearly 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, therefore, permissible to suggest, for instance, that someone is a bad lawyer, but not permissible to declare falsely 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 exception 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.

Private action

Ordinarily, the First Amendment applied only to 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 encourage the denial of its competitor's building permit without being subject to Sherman Act liability. Increasingly, this doctrine has been applied to litigation outside the antitrust context, including state tort suits for intentional interference with business relations and SLAPP Suits.

State constitutions provide free speech protections similar to those of the U.S. Constitution. In a few states, such as California, a state constitution has been interpreted as providing more comprehensive protections than the First Amendment. The Supreme Court has permitted states to extend such enhanced protections, most notably in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). In that case, the Court unanimously ruled that while the First Amendment may allow private property owners to prohibit trespass by political speakers and petition-gatherers, California was permitted to restrict 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 such individuals. Writing for the majority, Justice Rehnquist rejected the appellants argument for the common law's protection of property against trespass, writing that such an interpretation would "represent a return to the era of Lochner v. New York, 198 U.S. 45 (1905), when common-law rights were also found immune from revision... [it] would freeze the common law as it has been constructed by courts, perhaps at its 19th-century state of development."^[70] The Court did, however, maintain that shopping centers could impose "reasonable restrictions on expressive activity."^[71] Subsequently, New Jersey, Colorado, Massachusetts and Puerto Rico courts have adopted the doctrine;^[72][73] California's courts have repeatedly reaffirmed it.^[74]

The U.S. Supreme Court has never interpreted the First Amendment as having the power to alter purely private property rights, or provide any other protection against purely private action. When considering private authority figures (such as parents or an employer), the First Amendment 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. "All may dismiss their employees at will,...for good cause, for no cause, or even for a cause morally wrong, without thereby being guilty of a legal wrong."^[75] With specific regard to employee free speech, a few court cases illuminate the limits of the First Amendment vis-a-vis private employment.

In Korb v. Raytheon, 574 N.E.2d 370, 410 Mass. 581 (1991), Raytheon terminated Lawrence Korb after receiving complaints of his public involvement in an anti-nuclear proliferation nonprofit known as the Committee for National Security (CNS) and his advocacy of reduced defense spending. On February 26, 1986 The Washington Post ran an article describing Korb's speech at a press conference held the day prior as "critical of increased defense spending." Following the publication of the article, several military officials "expressed their disapproval" of Korb's comments.^[76] Despite writing a letter of retraction which ran in The Washington Post, Raytheon terminated Korb's position after it continued to receive "Navy, Air Force, and Armed Services Committee objections."^[77] In adjudicating Korb's claim of wrongful discharge, the Supreme Judicial Court of Massachusetts found "no public policy prohibiting an employer from discharging an ineffective at-will employee." His claim under the State Civil Rights Act was dismissed as well. In affirming the lower courts decision to dismiss, Justice Abrams wrote: "Although Korb has a secured right to speak out on matters of public concern, and he has a right to express views with which Raytheon disagrees, he has no right to do so at Raytheon's expense."^[78]

In the similar case, Drake v. Cheyenne Newspapers, Inc., 891 P.2d 80 (1995), Kerry Drake and Kelly Flores, editorial employees at Cheyenne Newspapers, Inc. were fired for refusing to wear a button urging a "no" vote on the unionization of the editorial division.^[79] Drake and Flores filed an action claiming the management engaged in a "retaliatory discharge in violation of public policy, breach of covenant of good faith and fair dealing and breach of the employment contract."^[79] Drake and Flores argued that the "right to speech found in the Wyoming Constitution at Art. 1, § 20 represents an important public policy" which the Newspaper violated "when it terminated [their] employment because they exercised free speech[.]"^[80] In examining the court precedent, the Wyoming Supreme Court concluded that "[t]erminating an at-will employee for exercising his right to free speech by refusing to follow a legal directive of an employer on the employer's premises during working hours does not violate public policy."^[80] As for Drake and Flores' claim for breach of a covenant of good faith and fair dealing, the court found no "explicit promise by the Newspaper that they would terminate only for cause."^[81]

The precedent of Korb and Drake do not, however, demonstrate an absence of free speech protections at private employers, but merely the limits of such protections. In both Korb and Drake, public policy was mentioned as a possible cause of action. Since Petermann v. International Brotherhood of Teamsters, 344 P.2d 25 (Cal.App. 1959), courts have recognized public policy exceptions to at-will terminations. In that case, the California Court of Appeals held "it would be obnoxious to the interests of the state and contrary to public policy and sound morality to allow an employer to discharge an employee, whether the employment be for a designated or unspecified duration, on the ground that the employee declined to commit perjury, an act specifically enjoined by statute."^[82]

In some jurisdictions, courts have moved to expand some speech protections to political activity under the public policy doctrine. In Novosel v. Nationwide, 721 F. Supp. 894 (3d Cir. 1983), the court found some public policy protection of private-sector employee free speech, writing: "[T]he protection of an employee's freedom of political expression would appear to involve no less compelling a societal interest than the fulfillment of jury service or the filing of a workers' compensation claim."^[83] The court found "Pennsylvania law permits a cause of action for wrongful discharge where the employment termination abridges a significant and recognized public policy."^[84] Subsequently, however, the Pennsylvania courts rejected the Third Circuit's reasoning, "believing that you can't claim wrongful discharge under a provision of the Constitution unless you can show state action," which is impossible where the employer is a private enterprise.^[85]

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 prohibit 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 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

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."^[86] 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 give a journalist the right to refuse a subpoena from a grand jury. The issue decided in the case was whether a journalist could refuse to "appear and testify before state and Federal grand juries" basing the refusal on the belief that such appearance and testimony "abridges the freedom of speech and press guaranteed by the First Amendment."^[87] 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 Arkansas Writers' Project v. Ragland, 481 U.S. 221 (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.

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."^[88]

Content regulation

The courts have rarely treated content-based regulation of journalism 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 journalistic responsibility. The Supreme Court found that freedom, but not responsibility, is mandated by the First Amendment and so it 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 is a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies. However, the Supreme Court has ruled that the problem of scarcity does not allow 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 Federal Communications Commission's authority to restrict the use of "indecent" material in broadcasting.

Petition and assembly

The right to petition was an echo of the English Bill of Rights 1689 which stated "[I]t is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal".^[89]

The right to petition the government extends to petitions of all three branches of government: the Congress, the executive and the judiciary.^[90] According to the Supreme Court, "redress of grievances" is to be construed broadly: it includes not solely appeals by the public to the government for the redressing of a grievance in the traditional sense, but also, petitions on behalf of private interests seeking personal gain.^[91] Nonetheless, in the past, 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 abolished in 1844. During World War I, individuals petitioning for the repeal of sedition and espionage laws were punished; again, the Supreme Court did not rule on the matter.

The right of assembly was originally distinguished from the right to petition. In United States v. Cruikshank, 92 U.S. 542 (1875), the Supreme Court held that "the right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or duties of the National Government, is an attribute of national citizenship, and, as such, under protection of, and guaranteed by, the United States."^[92] Justice Waite's opinion for the Court carefully distinguished the right to peaceably assemble as a secondary right, while the right to petition was labeled to be a primary right. Later cases, however, paid less attention to these distinctions.^{[citation needed]}

Freedom of association

Although it is not explicitly 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 Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme Court held that associations may not exclude people for reasons unrelated to the group's expression. However, in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995), the Court ruled that a group may exclude people from membership if their presence would affect the group's ability to advocate a particular point of view. Likewise, 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

Some of the provisions of the United States Bill of Rights have their roots in the English Bill of Rights and 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 protected only "Freedome of Speech and Debates or Proceedings in Parlyament."^[93] The Declaration of the Rights of Man and of the Citizen, a French revolutionary document passed just weeks before Congress proposed the Bill of Rights, contains certain guarantees that are similar to those in the First Amendment. For instance, it suggests that "every citizen may, accordingly, speak, write, and print with freedom."^[94]

Article III, Sections 4 and 5 of the Constitution of the Philippines, written in 1987, contain identical wording to the First Amendment regarding speech and religion, respectively.^[95] These phrases can also be found in the 1973^[96] and 1935^[97] Philippine constitutions. All three constitutions contain, in the section on Principles, the sentence, "The separation of Church and State shall be inviolable", echoing Jefferson's famous phrase.

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."^[98] Similarly the Constitution of India allows "reasonable" restrictions upon free speech to serve "public order, security of State, decency or morality."^[99]

The First Amendment was one of the first guarantees of religious freedom: neither the English Bill of Rights, nor the French Declaration of the Rights of Man and of the Citizen, contains a similar 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
• Virginia Statute for Religious Freedom
• Censorship in the United States
• Bill of Rights 1689
• Magna Carta 1215
• Smith Act trials of communist party leaders

References

Further reading

• Daniel L. Dreisbach and Mark David Hall. The Sacred Rights of Conscience: Selected Readings on Religious Liberty and Church-State Relations in the American Founding (Indianapolis: Liberty Fund Press, 2009)
• Daniel L. Dreisbach, Mark David Hall, and Jeffry Morrison. The Forgotten Founders on Religion and Public Life (Notre Dame: University of Notre Dame Press, 2009)
• 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 (The Yale Law Journal Company, Inc.) 72 (5): 877–956. doi:10.2307/794655. JSTOR 794655. (Subscription required)
• Scarberry, Mark S. (April 2009). "John Leland and James Madison: Religious Influence on the Ratification of the Constitution and on the Proposal of the Bill of Rights". Penn State Law Review 113 (3): 733–800. http://pennstatelawreview.org/articles/113%20Penn%20St.%20L.%20Rev.%20733.pdf. 

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