First Amendment to the United States Constitution

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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 United States Bill of Rights. Textually, it prevents the U.S. Congress from infringing on six rights. It forbids laws that:

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 Supreme Court has held that the Fourteenth Amendment extends the limitations of the First Amendment to actions by the states.



The First Amendment reads, in its entirety:

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

The Meaning of the First Amendment

On its face, given the text of the First Amendment, it would appear that any law passed by Congress that would abridge the freedom of the speech or press would be unconstitutional. However, this does not consider the role of the doctrine of stare decisis, in which judges consider previous decisions they (and other courts) have rendered to be binding precedent, decisions to be followed as if they were themselves laws. This is extremely significant. In his law review article "Return to Philadelphia" (1 Cooley Law Review 1, 35-6), Thomas Brennan referred to this phenomenon as creating an “empirical Constitution":

There are those who hold that the American Constitution is not a written law at all, but is rather the sum total of all those customs, traditions, institutions and practices which have grown up over the years, and which influence or control the workings of our national government. In this view, the Constitution is considered coextensive with the governing Establishment. It is the way things are. It is the distribution of power, as it actually exists and is effectively exercised in modern American society. This might be termed the empirical constitution. . . .

This phenomenon has been discussed in several books, most notably Edward Corwin’s The Constitution And What It Means Today (Princeton). But it is not only academics who have recognized the phenomenon. The Supreme Court has itself formally acknowledged the extent to which it has revised/amended the Constitution by construction. In 1969, Judges Black and Douglas stated in their concurrence in Baldwin v. New York, 399 U.S. 66 (1969) that

Many years ago this Court, without the necessity of an amendment pursuant to Article V, decided that ‘all crimes’ did not mean ‘all crimes,’ but meant only ‘all serious crimes.’ Today three members of the Court would judicially amend that judicial amendment and substitute the phrase ‘all crimes in which punishment for more than six months is authorized.’ This definition of ‘serious’ would be enacted even though those members themselves recognize that imprisonment for less than six months may still have serious consequences. This decision is reached by weighing the advantages to the defendant against the administrative inconvenience to the State inherent in a jury trial and magically concluding that the scale tips at six months’ imprisonment. Such constitutional adjudication, whether framed in terms of ‘fundamental fairness,’ ‘balancing,’ or ‘shocking the conscience,’ amounts in every case to little more than judicial mutilation of our written Constitution.

While in the Baldwin case judges Black and Douglas were addressing the Fifth Amendment, the First Amendment has received the same treatment. Consequently, the literal text of the First Amendment has been functionally revised through the doctrine of stare decisis, as the Court has also acknowledged. For example, in Denver v. FCC (1996), [1], the Court stated that “this Court, in different contexts, has consistently held that the Government may directly regulate speech . . .”, even though the text of the 1791 First Amendment states clearly that "Congress shall make no law... abridging the freedom of speech, or of the press . . .".

This phenomenon of functionally revising literal text has also been referred to as creating a “virtual First Amendment”.

But if the literal text of the First Amendment is no longer used by the Supreme Court in rendering its decisions, what is? The text below is a brief representation of the virtual text used by the Supreme Court in its First Amendment jurisprudence over the years, from Thomas Ladanyi's book The 1987 Constitution.

Text of the Virtual First Amendment (heavily abridged)

No State legislature or the Congress of the United States shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press all media of information; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. This general prohibition shall be subject to the following elaborations, extensions, restrictions, limitations, interpretations and conditions: a. The absolute freedom of engaging in or refraining from speech and non-verbal communication, and receiving or refusing to receive information, without any coercion, shall be a rebuttable presumption in any administrative or judicial proceeding, concerning any attempts to abridge them. The onus of rebutting this presumption shall rest entirely on the party seeking such abridgment, by showing that the speech or non-verbal communication sought to be restrained, or the information to be withheld, do not, by virtue of some other conflicting and overriding considerations or necessities, fall within the categories of freedoms that this section is intended to protect; b. Any Congressional, State, or local legislation or regulation by any governmental authority, which is so imprecise, ambiguous, vague, overbroad, or excessively general in its terms that it provides a pretext for arbitrary or discriminatory law enforcement, uncertainty in the minds of persons of common intelligence as to the limits of protected communication, and creating a chilling effect on the unrestrained exercise of freedoms clearly not proscribed, shall be wholly void on its face; except that insubstantial defects may enable the courts to merely sever unenforceable parts or specific applications thereof; c. Prior restraint shall not be imposed on any communication by institutionalized or informal censorship or coercion, however subtle, unless, in each instance such restraint is sought, a fair judicial hearing, following proper notice, is held; except where the required delay may cause irreparable harm, upon which a temporary restraining order, subject to a prompt subsequent hearing, may be issued . . . (end excerpt)

This phenomenon is discussed extensively in the online book, Would The Real First Amendment Please Stand Up?


The original text of the Constitution generated some opposition on the ground that it did not include adequate guarantees of civil liberties. In response, the First Amendment, along with the rest of the Bill of Rights, was proposed by Congress in 1789. The process of adoption by ratifications by the requisite number of states was completed on December 15, 1791.

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 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.

There are those who would abuse the religion clause of the First Amendment by spreading unstable fabrications in order to push through a theocracy. Such resistence to liberty, equality, acceptance and properity(LEAP)can be curtailed, by not examining what has been written, but by discovering what should have been written.

Several Myths about Church and State Separation exist. Here are a few:

"IN 1962 MADALYN MURRAY O'HAIR KICKED GOD, THE BIBLE AND PRAYER OUT OF PUBLIC SCHOOLS..." And 10 Other Myths About Church and State "Separation of church and state isn't in the Constitution."

"Separation of church and state is a communist idea."

"Separation of church and state is anti-religion, and only atheists support it."

Misguided clerics and short-sighted politicians sometimes say things like this about the constitutional principle of church-state separation. But a quick review of history demonstrates that these charges just aren't true.

To help Americans be on guard against such distortions, Americans United for Separation of Church and State has compiled a list of the most common myths about separation of church and state along with the facts.

MYTH 1: Separation of church and state is not in the U.S. Constitution.

It is true that the literal phrase "separation of church and state" does not appear in the Constitution, but that does not mean the concept isn't there. The First Amendment says "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...."

What does that mean? A little history is helpful: In an 1802 letter to the Danbury (Conn.) Baptist Association, Thomas Jefferson, then president, declared that the American people through the First Amendment had erected a "wall of separation between church and state." (Colonial religious liberty pioneer Roger Williams used a similar phrase 150 years earlier.)

Jefferson, however, was not the only leading figure of the post-revolutionary period to use the term separation. James Madison, considered to be the Father of the Constitution, said in an 1819 letter, "[T]he number, the industry and the morality of the priesthood, and the devotion of the people have been manifestly increased by the total separation of the church and state." In an earlier, undated essay (probably early 1800s), Madison wrote, "Strongly the separation between religion and government in the Constitution of the United States."

As eminent church-state scholar Leo Pfeffer notes in his book, Church, State and Freedom, "It is true, of course, that the phrase 'separation of church and state' does not appear in the Constitution. But it was inevitable that some convenient term should come into existence to verbalize a principle so clearly and widely held by the American people....[T]he right to a fair trial is generally accepted to be a constitutional principle; yet the term 'fair trial' is not found in the Constitution. To bring the point even closer home, who would deny that 'religious liberty' is a constitutional principle?

Yet that phrase too is not in the Constitution. The universal acceptance which all these terms, including 'separation of church and state,' have received in America would seem to confirm rather than disparage their reality as basic American democratic principles."

Thus, it is entirely appropriate to speak of the "constitutional principle of church-state separation" since that phrase summarizes what the First Amendment's religion clauses do they separate church and state.

MYTH 2: Thomas Jefferson's 1802 letter to the Danbury Baptists was a mere courtesy and should not be regarded as important.

Religious Right activists have tried for decades to make light of Jefferson's "wall of separation" response to the Danbury Baptists, attempting to dismiss it as a hastily written note designed to win the favor of a political constituency. But a glance at the history surrounding the letter shows they are simply wrong.

As church-state scholar Pfeffer points out, Jefferson clearly saw the letter as an opportunity to make a major pronouncement on church and state. Before sending the missive, Jefferson had it reviewed by Levi Lincoln, his attorney general. Jefferson told Lincoln he viewed the response as a way of "sowing useful truths and principles among the people, which might germinate and become rooted among their political tenets."

At the time he wrote the letter, Jefferson was under fire from conservative religious elements who hated his strong stand for full religious liberty. Jefferson saw his response to the Danbury Baptists as an opportunity to clear up his views on church and state. Far from being a mere courtesy, the letter represented a summary of Jefferson's thinking on the purpose and effect of the First Amendment's religion clauses.

Jefferson's Danbury letter has been cited favorably by the Supreme Court many times. In its 1879 Reynolds v. U.S. decision the high court said Jefferson's observations "may be accepted almost as an authoritative declaration of the scope and effect of the [First] Amendment." In the court's 1947 Everson v. Board of Education decision, Justice Hugo Black wrote, "In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'" It is only in recent times that separation has come under attack by judges in the federal court system who oppose separation of church and state.

(Some Religious Right propagandists have take to outright fabrications in order to refute the Jefferson metaphor. They sometimes claim that Jefferson described his wall as "one- directional," forbidding government intervention into religion, but allowing church intrusion into government. In fact, Jefferson used no such language, as the text of the Danbury letter available from Americans United attests.)


This lie about separation of church and state still frequently espoused by religious broadcaster Pat Robertson is perhaps the most offensive to church-state separationists because it attempts to taint a vital American principle with the brush of communism. Even a brief review of the facts proves that this statement is nonsense. The modern Soviet state came into being after the Russian Revolution of 1917. The Soviet constitution was rewritten several times, and more recent versions included American-style guarantees of freedom of speech, press, religion and assembly. (These provisions, of course, were never obeyed by the Soviet government.)

Article 124 of the country's 1947 constitution has been translated by some scholars to read, "In order to ensure to citizens freedom of conscience, the church in the USSR is separated from the state, and the school from the church. Freedom of religious worship and freedom of anti-religious propaganda is recognized for all citizens."

Since Jefferson coined the phrase "wall of separation between church and state" in 1802, a full 145 years before the Soviet provision was written, it is obviously incorrect to suggest that the Soviets pioneered the separation principle.


Those who make this assertion confuse the founding of the United States as a political unit with the settlement of North America. It is true that a number of the first Europeans to arrive on our shores were religious dissenters who sought freedom to worship. Many of these people believed they were establishing some type of Christian utopia, and many supported religious liberty only for themselves. Most of the early colonies were theocracies where only those who worshipped according to state orthodoxy were welcome. Following the American Revolution, political leaders began to construct the new U.S. government. Although a minority clung to European notions of church-state union, a general consensus emerged that the new country should steer clear of officially established religion. States with government-favored religions gradually began moving toward separation also. Massachusetts, the last state to maintain an official religion, disestablished its state church in 1833.

During the Constitutional Convention, a minority faction favored some recognition of Christianity in the Constitution. In a report to Maryland lawmakers, delegate Luther Martin asserted that "in a Christian country, it would be at least decent to hold out some distinction between the professors of Christianity and downright infidelity or paganism." His views were rejected, and the Constitution was adopted as a secular document.

Incidentally, Ben Franklin did indeed urge the delegates of the Constitutional Convention of 1787 to open their sessions with morning prayers, as many Religious Right activists point out. However, the Convention, which had been meeting for a month without invocational prayers, did not concur. The Convention's records show that the delegates voted to adjourn rather than debate the issue. The matter was not brought up again when the Convention reconvened.

Further proof that the founders did not intend for the government to be Christian is found in the Treaty of Tripoli, a trade agreement signed between the United States and the Muslim region of north Africa in 1797 after negotiations under George Washington. The document, which was approved by the Senate under John Adams, states flatly, "[T]he Government of the United States is not, in any sense, founded on the Christian religion...." (The assertion remained a part of the trade agreement for eight years, until the treaty was renegotiated.)

The framers wrote the Constitution as a secular document not because they were hostile to Christianity but because they did not want to imply that the new federal government would have any authority to meddle in religion.


If all the framers wanted to do was ban a national church, they had plenty of opportunities to state exactly that in the First Amendment. In fact, an early draft of the First Amendment read in part, "The civil rights of none shall be abridged on account of religious belief, nor shall any national religion be established...." This draft was rejected. Following extensive debate, the language found in the First Amendment today was settled on.

The historical record indicates that the framers wanted the First Amendment to ban not only establishment of a single church but also "multiple establishments," that is, a system by which the government funds many religions on an equal basis.

A good overview of the development of the language of the First Amendment is found in scholar John M. Swomley's 1987 book Religious Liberty and the Secular State. Swomley shows that during the House of Representatives' debate on the language of the religion clauses, members specifically rejected a version reading, "Congress shall make no law establishing any particular denomination in preference to another...." The founders wanted to bar all religious establishments; they left no room for "non- preferentialism," the view touted by today's accommodationists that government can aid religion as long as it assists all religions equally. (The Senate likewise rejected three versions of the First Amendment that would have permitted non-preferential support for religion.)


In the Supreme Court's 1892 Holy Trinity Church v. United States decision Justice David Brewer wrote that "this is a Christian nation." Brewer's statement occurred in dicta, a legal term meaning writing that reflects a judge's personal opinion, not an official court pronouncement that sets legally binding precedent.

Historians debate what Brewer meant by the statement, some claiming that he only intended to acknowledge that Christianity has always been a dominant force in American life. Research by Americans United shows that five years after the Trinity ruling, Brewer himself seemed to step away from it in a case dealing with legalized prostitution in New Orleans.

The New Orleans dispute arose when a Methodist church sought an injunction to bar implementation of a city ordinance allowing prostitution in one zone in the city. The Methodists argued the measure would "destroy the morals, peace and good order of the neighborhood."

Citing the Trinity decision, church officials insisted that the ordinance encouraged prostitution, an activity inconsistent with Christianity "which the Supreme Court of the United States says is the foundation of our government and the civilization which it has produced...."

Writing for a unanimous court, Brewer completely ignored the church's religious argument and upheld the New Orleans law. Brewer's bypass suggests that he did not mean to assert in the Trinity case that the United States should enforce Christianity through its laws.

In any case, the Trinity decision is a legal anomaly that has been cited by the court only once since then. And obviously the opinion of one obscure Supreme Court justice does not amount to an official decree that the United States is a Christian nation. If a Christian republic had been the goal of the framers, that sentiment would have been included in the Constitution.


Jefferson and Madison held an expansive view of the First Amendment, arguing that church-state separation would protect both religion and government.

Madison specifically feared that a small group of powerful churches would join together and seek establishment or special favors from the government. To prevent this from happening, Madison spoke of the desirability of a "multiplicity of sects" that would guard against government favoritism.

Jefferson and Madison did not see church-state separation as an "either or" proposition or argue that one institution needed greater protection than the other. As historian Garry Wills points out in his 1990 book Under God, Jefferson believed that no worthy religion would seek the power of the state to coerce belief. In his notes he argued that disestablishment would strengthen religion, holding that it would "oblige its ministers to be industrious [and] exemplary." The state likewise was degraded by an established faith, Jefferson asserted, because establishment made it a partner in a system based on bribery of religion.

Madison also argued that establishment was no friend to religion or the state. He insisted that civil society would be hindered by establishment, charging that attempts to enforce religious belief by law would weaken government. In his 1785 Memorial and Remonstrance, Madison stated flatly that "Religion is not helped by establishment, but is hurt by it."


Atheist leader Madalyn Murray O'Hair played no role in the Supreme Court's school prayer decision of 1962.

In the Engel v. Vitale case, the U.S. Supreme Court ruled 6- 1 against New York's "Regents' prayer," a "non-denominational" prayer state education officials had composed for public schoolchildren to recite.

The government-sponsored religious devotion was challenged in court by a group of parents from New Hyde Park some atheists, some believers. O'Hair was not involved in the case at all.

One year later, a case originated by a Philadelphia-area man named Ed Schempp challenging mandatory Bible reading in Pennsylvania schools reached the Supreme Court. At the same time, Murray O'Hair was challenging a similar practice as well as the recitation of the Lord's Prayer in Maryland public schools. The Supreme Court consolidated the cases and in 1963 ruled 8-1 that devotional Bible reading or other government-sponsored religious activities in public schools are unconstitutional.

The Engel and Schempp cases were a result of the changing religious landscape of the United States. As religious minorities grew more confident of their rightful place in American society, they came to resent the de facto Protestant flavor in many public schools. Litigation was inevitable. The high court's rulings striking down mandatory prayer and devotional Bible reading in public schools would have occurred if O'Hair had never been born. The controversial Texas atheist serves as a convenient villain for Religious Right propagandists who hate religious liberty and church-state separation.

It is also important to remember that neither of these rulings removed prayer or Bible reading from public schools. Truly voluntary religious exercises in public schools have never been held illegal. The rulings of the early '60s simply prevented the government, through the public schools, from intervening in sensitive religious matters. Voluntary student-initiated Bible study and prayer clubs were reaffirmed by the Supreme Court in 1990, when the justices upheld the Equal Access Act, a federal law that permits students to form religion clubs at public high schools under certain conditions.

The rulings from the 1960s are also not hostile toward religion, as the justices took pains to point out. In the Abington decision, Justice Tom Clark wrote for the court majority, "[I]t might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment."


This argument is a common fallacy of logic known as post hoc ergo propter hoc, or, the assumption that if two events occur in sequence, that the first must have caused the second. (The phrase is Latin for "after this, therefore on account of this.")

It is true that some indices of school performance have decreased since 1962, but absolutely no evidence exists linking these developments to the school prayer issue. In fact, the drop has been caused by wholly unrelated factors. SAT scores, for example, are lower today simply because more students from a wider variety of socio-economic backgrounds take the test. In the years preceding 1962, the SAT was taken almost exclusively by upper class, well-educated students from wealthy backgrounds.

The problems experienced in American society today are due to complex socio-economic factors. It is simplistic thinking to blame every societal problem from the increase in teenage pregnancies to the escalating divorce rate on a lack of required prayer in schools.

It should also be pointed out that not all indicators of American society have declined since 1962. Life expectancy, for instance, is up, as is the average standard of living. Impressive medical advances have occurred in the past 30 years, and labor- reducing technologies are commonplace. School prayer advocates are quick to blame every bad thing that has occurred since 1962 on the prayer ruling, but they never mention the positive developments, which, under their premise, must also be a result of the decisions. The prayer and Bible reading decisions did cause two clear-cut results: Families gained greater religious liberty and the right to decide which religious exercises their children participate in, and church-state separation was strengthened.


Several state supreme courts had already removed government- sponsored school prayer and Bible reading from public schools prior to 1962. The Illinois Supreme Court, for example, declared mandatory public school religious exercises unconstitutional in 1910. By the time of the Engel decision, public school-sponsored religious exercises were most common in Northeastern and Southern states. Some Western and Midwestern states had already removed the practices.

A 1960 survey by Americans United determined that only five states had required Bible reading laws on the books. Twenty-five states had laws authorizing "optional" Bible reading. Eleven states had declared the practice unconstitutional. (The remaining states had no laws on the subject.) The trend was clearly running in favor of a voluntary phase out of these practices.


In a footnote to the Supreme Court's 1961 Torcaso v. Watkins decision, Justice Hugo Black wrote, "Among religions in this country which do not teach what would generally be considered a belief in the existence of God is Buddhism, Taoism, Ethical Culture, Secular Humanism, and others." The Torcaso case dealt with religious tests for public office; it had nothing to do with public schools. The justice's comment is far from a finding that humanism is being taught in the schools.

The Supreme Court and lower federal courts have ruled repeatedly that public schools and other government agencies may not establish "a religion of secularism" any more than they can promote any other religious viewpoint. The courts have decreed that public schools must be religiously neutral. Government neutrality toward religion is not the same thing as government hostility toward religion. They are synonymous only in the view of Religious Right groups that label as hostility any action by government that does not favor their beliefs.

Furthermore, the percentage of Americans who call themselves secular humanists is very small. It is not possible that such a minuscule group could take control of the entire public school system, which is highly decentralized and controlled by local school boards chosen by the voters or their representatives. "Secular humanism" is a bogeyman the Religious Right uses to attack public education.

The constitutional principle of church-state separation has given Americans greater religious freedom than any people in history. Thanks in large part to this concept, citizens from many different religious backgrounds live together in peace. The right of each individual to join and support a religious group or not do so is protected.

Americans United urges you to help spread the truth about church-state separation. If you see myths about separation repeated in local newspapers, magazines and other mass media, write in and set the record straight. Americans deserve to know the true story of the origins of religious liberty. Thomas Jefferson said it best: "To penetrate and dissipate these clouds of darkness, the general mind must be strengthened by education."


Since 1947 Americans United for Separation of Church and State has promoted the principle of church-state separation as an essential constitutional guarantee of religious liberty. A nonpartisan, nonprofit educational organization, we welcome as members all Americans who share our concern about freedom of conscience.

If you would like more information about the work of Americans United, write to our national office at 1816 Jefferson Place, N.W., Washington, D.C. 20036, (202) 466-3234. Membership is $25.

"Myths" is available as a pamphlet: one for fifty cents or three for one dollar.

If you see myths about church-state separation repeated in the media, use this information to set the record straight. Help us reach more people by providing e-mail addresses of people who should receive periodic information.

Freedom of Speech

Main article: Freedom of speech in the United States


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 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, 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 Flag Burning 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.


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 little regulation. The exact definition of obscenity and pornography, however, 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". 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."

In 1964 Justice Potter Stewart 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 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. National standards, however, 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.

Yet, 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, 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. Ashcroft v. Free Speech Coalition (2002) further upholds these rights by invalidating the 1996 Child Pornography Prevention Act, holding that "banning the depiction of pornographic images of children, including computer-generated images, 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."

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.

Free speech zones came into existence soon after the September 11, 2001 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

Main article: Freedom of the press

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.

In Branzburg v. Hayes (1972), the Court placed limits on the ability of the Press to refuse a subpoena from a Grand Jury based on claims of Freedom of the Press. 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. (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 Leathers v. Medlock (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 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

Main article: 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 (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.

See also


External links

United States Constitution

Original text: Preamble | Article 1 | Article 2 | Article 3 | Article 4 | Article 5 | Article 6 | Article 7

Amendments: (Bill of Rights: 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10) | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27

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