First Amendment to the United States Constitution

From Academic Kids

The first ten Amendments to the U.S. Constitution make up the Bill of Rights.
The first ten Amendments to the U.S. Constitution make up the Bill of Rights.

The First Amendment to the United States Constitution is a part of the Bill of Rights. Textually, it prevents the U.S. Congress from infringing on six rights. These guarantees were that the Congress would not:

The First Amendment, along with the rest of the Bill of Rights, was proposed by Congress in 1789, to be ratified by the requisite number of states in 1791. As with the remaining Amendments of the Bill of Rights, the First Amendment was passed in order to answer protestations that the newly created Constitution did not include sufficient guarantees of civil liberties.

The First Amendment only explicitly disallows any of the rights from being abridged by Congress. Over time, however, the courts held that this extends to the executive and judicial branches. The Court has held that the Fourteenth Amendment incorporates the First Amendment against the actions of the 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.

Court interpretation

The Supreme Court has, over the years, established rules and tests for the constitutionality of legislation falling under the First Amendment. Lower courts tend to follow these rules in interpreting the text of the Constitution. Such classic phrases as "clear and present danger," "without redeeming social value," and "wall of separation between church and state" are not found in the text of the Constitution, but have been important in court decisions, and have entered the legal and popular culture.

Because these tests do not appear in the text of the Constitution itself, several commentators, including Thomas Ladanyi and Barry Krusch, believe that such interpretations have functioned to re-write the amendment, creating what they refer to as the virtual first amendment. On the other hand, some commentators argue that if the Supreme Court establishes a rule or test when interpreting a constitutional provision, it does not actually alter the underlying document; rather, they suggest, the court merely creates a standard by which cases are to be judged. According to the commentators who favor the concept of a virtual text, the alternative view does not adequately account for the disparity between the text of the tests (i.e. the Miller obscenity test and dozens of others) and the text of the Constitution itself.

Establishment of religion

Main article: Establishment Clause of the First Amendment

The Establishment Clause of the First Amendment plainly prohibits the establishment of a national religion by Congress or the preference of one religion over another. Prior to the enactment of the Fourteenth Amendment, the Supreme Court generally took the position that the substantive protections of the Bill of Rights did not apply to actions by state governments. 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 reduce substantially the promotion of religion by state governments. (For example, in the Board of Education of Kiryas Joel Village School District v. Grumet, Justice David Souter 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

The free exercise clause has often been interpreted to include two freedoms: the freedom to believe, and the freedom to act. The former liberty is absolute, while the latter often faces state restriction. Jehovah's Witnesses, a religious group, was often the target of such restriction. Several cases involving the Witnesses permitted the Court to expound the free exercise clause. The Warren Court adopted a liberal view of the clause, the "compelling interest" doctrine (whereby a state must show a compelling interest in restricting religion-related activities), but later decisions have reduced the scope of this interpretation.

Freedom of Speech


Remarkably, the Supreme Court did not consider a single case in which it was asked to strike down a federal law on the basis of the free speech clause until the twentieth century. The Alien and Sedition Acts of 1798 were never ruled upon by the Supreme Court, and even the leading critics of the law, Thomas Jefferson and James Madison, argued for the laws' unconstitutionality on the basis of the Tenth Amendment, not the First Amendment.

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, over two thousand prosecutions were commenced. 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 farther, criminalizing "disloyal," "scurrilous" or "abusive" language against the government.

The Supreme Court was for the first time requested to strike down a law violating the free speech clause in 1919. 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 when it decided Schenck v. United States. Justice Oliver Wendell Holmes, Jr., writing for the Court, suggested that "the question in every case is whether the words used are 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, 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 in 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, Congress replaced the Sedition Act of 1918, which had expired in 1921. The Smith Act passed in that year 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 the case Dennis v. United States. The Court upheld the law in 1951 by a six-two vote (one Justice, Tom 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, their speech was restricted by the Court.

Dennis v. United States has never been explicitly overruled by the Court, but future decisions have in practice reversed the case. In 1957, the Court changed its interpretation of the Smith Act in deciding Yates v. United States. 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.

The Supreme Court under Chief Justice Earl Warren expanded free speech protections in the 1960s, though there were exceptions. In 1968, for example, the Court upheld a law prohibiting the mutilation of draft cards in United States v. O'Brien. The Court ruled that protesters could not burn draft cards because doing so would interfere with the "smooth and efficient functioning" of the draft system.

In 1969, the Supreme Court ruled that free speech rights extended to students in school while deciding Tinker v. Des Moines. 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, "state-operated schools 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." The decision was arguably overruled, or at least undermined, by Bethel School District v. Fraser (1986), in which the Court held a student could be punished for his speech before a public assembly.

Also in 1969, the Court decided the landmark Brandenburg v. Ohio, which overruled Whitney v. California, a 1927 case in which a woman was imprisoned for aiding the Communist Party. Brandenburg effectively swept away Dennis as well, casting 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." Some claim that Brandenburg essentially sets forth a reworded "clear and present danger" test, but the accuracy of such statements is hard to judge. The Court has never heard or decided a case involving seditious speech since Brandenburg was handed down.

The divisive issue of flag burning as a form of protest came before the Supreme Court in 1989, as it decided Texas v. Johnson. The Supreme Court reversed the conviction of Gregory Johnson for burning the flag by a vote of five to four. 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 in Congress vilified the decision of the Court. The House unanimously passed a resolution denouncing the Court; the Senate did the same with only three dissents. Congress passed a federal law barring flag burning, but the Supreme Court struck it down as well in United States v. Eichman (1990). Many attempts have been made to amend the Constitution to allow Congress to prohibit the desecration of the flag. Since 1995, the Amendment has consistently mustered sufficient votes to pass in the House of Representatives, but not in the Senate. Most recently, in 2000, the Senate voted 63–37 in favor of the amendment, which fell four votes short of the requisite two-thirds majority.


The federal government and the states have long been permitted to restrict obscene or pornographic speech. While obscene speech generally has no protection under the First Amendment, pornography is subject to some regulation. The exact definition of obscenity and pornography, however, has changed over time. Justice Potter Stewart famously stated that although he could not define pornography, he "kn[ew] it when [he] s[aw] it."

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." Thus, the standards of the most sensitive members of the community were the standards for obscenity. In 1957, the Court ruled in Roth v. United States 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."

The Roth test was expanded when the Court decided Miller v. California in 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 as to whether the material appeals to the prurient interest; thus, material may be deemed obscene in one locality but not in another. Note, however, that national standards are applied as to whether the material is of value. Child pornography is not subject to the Miller test, as the Supreme Court decided in 1982. The Court felt that the government's interest in protecting children from abuse was paramount.

Mere 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, 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." It is not, however, unconstitutional for the government to prevent the mailing or sale of obscene items, though they may be viewed only in private.

U.S. courts have upheld certain regulation of pornographic speech. U.S. courts have found that regulation and banning pornography as a way of protecting children meets the strict scrutiny test. A zoning regulation which restricts where pornography can be viewed is valid if: the purpose for the statute is based on secondary effects, the zoning is not related to the suppression of the pornographic content and the statute makes other ways of viewing the content.

Libel, slander, and private action

The American prohibition on defamatory speech or publications—slander and libel—traces its origins to English law. The nature of defamation law was vitally changed by the Supreme Court in 1964, while deciding New York Times Co. v. Sullivan. 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," a difficult standard to meet.

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.

As the Supreme Court ruled in Gertz v. Robert Welch, Inc. (1974), opinions cannot be considered defamatory. It is thus permissible to suggest, for instance, that a lawyer is a bad one, but not permissible to 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.

In 1988, Hustler Magazine v. Falwell extended the "actual malice" standard to intentional infliction of emotional distress in a ruling which protected a parodic caricature. In the ruling, "actual malice" was described as "knowledge that the statement was false or with reckless disregard as to 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."

Similarly, some states have adopted, under their protections for free speech, the Pruneyard doctrine, which 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. This doctrine has been rejected as a matter of federal constitutional law, but is meeting growing acceptance as a matter of state law.

Political speech

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, decided in 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 in 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. For additional details, see campaign finance reform.

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Free speech zones came into existence soon after the September 11, 2001 terrorist attacks as part of George W. Bush's security campaign. Free speech zones are set up by the Secret Service who scout locations where the president is to pass through or speak at. Officials target those who carry anti-Bush signs (and sometimes pro-Bush signs) and escort them to the free speech zones prior to and during the event. Reporters are often barred by local officials from displaying protesters on camera or speaking to them within the zone. Protesters who refuse to go to the free speech zone are often arrested and charged with trespassing, disorderly conduct and resisting arrest. In 2003, a seldom-used federal law was brought up that says that "entering a restricted area around the President of the United States" is a crime.

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 psychiatric drugging have also been questioned. Though the District Court 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.


Freedom of the press, like freedom of speech, is subject to restrictions on bases such as defamation law. Restrictions, however, have been struck down if they are aimed at the political message or content of newspapers.

Taxation of the press

The Government retains the right to tax newspapers, just as it may tax other commercial products. Generally, however, taxes that focus exclusively on newspapers have been found unconstitutional. In Grosjean v. American Press Co. (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.

In 1991, deciding Leathers v. Medlock, the Supreme Court found that states may treat different components of the media differently, for instance 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 Pub. Co. v. Tornillo (1971), 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.

Petition and 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 1840. 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 (1876). 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 (1939), for instance, refers to the right to assemble for the "communication of views on national questions" and for "disseminating information."

International significance

Most provisions of the United States Bill of Rights are based on the English Bill of Rights (1689) 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."

Freedom of speech in the United States is more extensive than nearly any other nation in the world. 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," and in practice these loopholes have been interpreted quite broadly by the courts of Europe.

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. Neither is the United States a theocracy like Iran, nor is it an officially atheist state like the People's Republic of China, due to the constraints imposed by the First Amendment.

See also

External links


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