The First Amendment: Freedom of Expression

Some people say the rights protected by the First Amendment are the most important in the entire Bill of Rights, because they are listed before the other nine amendments. However, in the original version of the Bill of Rights, what is now the First Amendment came third-after proposed amendments on reapportionment and congressional pay raises.

The states failed to ratify these amendments, moving the third amendment into first place.
Whatever its order in the original Bill of Rights, the First Amendment includes the rights many Americans hold most dear, and it forms the foundation of American democratic government. The five freedoms listed in the First Amendment-religion, speech, press, assembly, and petition-enable citizens to participate in the process of self-government. Together, these five rights are sometimes referred to as freedom of expression.

Because the First Amendment protects the expression of deep convictions, it can also expose deep differences among the American people. Thus, the First Amendment is often at the center of the nation’s most contentious debates. Without the freedoms in the First Amendment, it would be impossible for Americans to assert any other rights they have, thus making it the most important amendment in the Bill of Rights.

“Congress shall make no law”

This first phrase in the First Amendment has several implications. By specifically referring to Congress, the Bill of Rights limits only the government or its agents, not private parties. This requirement that the government be involved in any claim under the Constitution or the Bill of Rights is known as state action. For example, freedom of speech does not protect employees of private companies who criticize their supervisors.

In addition, the Supreme Court held in Barron v. Baltimore (1833) that the word “Congress” as used in the First Amendment meant that the Bill of Rights restricted only the national government, not the states. The Court
began to extend certain provisions of the Bill of Rights to the states in 1897 via the Fourteenth Amendment, a process known as incorporation.

Although the First Amendment says that Congress shall make “no law” regarding the freedoms it contains, the Supreme Court has ruled that almost all rights have limitations. Justice Hugo Black, however, believed that First Amendment rights were absolute. Yet the Court has held that the only unlimited right is the freedom to believe in abstract ideas-such as the Holy Trinity or communism. However, the government may regulate certain actions that embody those ideas.

“Respecting an establishment of religion, or prohibiting the free exercise thereof”

This portion of the First Amendment protects freedom of religion. It consists of two parts: the Establishment Clause and the Free Exercise Clause. The Establishment Clause prohibits the government from creating an official or established church, preferring one religion over another, or benefiting believers instead of nonbelievers. The Free Exercise Clause prohibits the government from interfering with the expression of religious beliefs. Sometimes these two clauses conflict, and it is difficult for the government to avoid an establishment of religion while at the same time protecting its free exercise.

Religious Liberty in Early America. In colonial America, established churches were the norm. Although many colonists had come to America to escape persecution from the established Church of England, they did not hesitate to create their own government-backed churches in the New World. The Puritan or Congregational Church became the official religion in the New England colonies, and the Church of England or Anglican Church was established in the southern colonies. The government compelled citizens of all faiths to support the established church through taxes. In addition, the established church punished sins as crimes. Colonists were forced to go to church on Sundays and could be whipped for failing to know religious doctrines.

In New England, Quakers-or the Society of Friends-were executed for their faith, and in southern colonies Baptists were required to be licensed in order to preach. Four colonies-Delaware, New Jersey, Pennsylvania, and Rhode Island-did not create established churches.

Other colonies, such as Maryland, practiced “toleration” for differing beliefs, but they did not protect the full civil rights of all faiths. As George Washington wrote to a Jewish synagogue in 1790, toleration implied the unacceptable premise that “it was by the indulgence of one class of people that another enjoyed the exercise of their natural rights.”

After the Revolutionary War, more Americans clamored for freedom of religion. In 1786, Virginia passed a law to protect religious liberty-the most extensive at that time. Drafted by Thomas Jefferson, the Virginia Statute for Religious Freedom proclaimed that “all men shall be free to profess… their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.” No longer could Virginians be denied the right to vote or hold public office because of their religious beliefs.

This same principle would be included in the U.S. Constitution in 1787. Article VI forbade religious tests for federal offices, one of the few protections of individual liberties specified in the original Constitution.
Nonetheless, several states believed that additional protections for religious liberty were needed, and they advocated such amendments during their ratification of the Constitution. James Madison drew on these proposals when he introduced his draft of the Bill of Rights after the First Congress convened in 1789.

The Establishment Clause

For information on the establishment clause, please see here.

The Free Exercise Clause

The second part of the First Amendment’s protection of freedom of religion is known as the Free Exercise Clause It prevents Congress from “prohibiting the free exercise” of religion. For information on the free exercise clause, please see here.

“Or abridging the freedom of speech”

Democracy is very difficult without freedom of speech. Unless there is a free exchange of opinions and ideas, the people do not have the information they need for effective self-government. Some legal scholars believe that the First Amendment only protects the political speech necessary to democratic government. Others argue that the right of self expression through art, literature, advertising, and even bad taste makes a society truly free. Another free speech issue is whether the First Amendment safeguards spoken words alone, or also includes symbolic speech such as flag burning. Freedom of speech is not unlimited, and the Supreme Court has restricted expression such as obscenity and defamation.

Campaign Finance Laws

The Supreme Court ruled in Buckley a Valeo (1976) that in political campaigns “money is speech” protected by the First Amendment. In that case, the Court struck down campaign finance laws (for more information on financing political campaigns, click here) that restricted how much an individual could spend on behalf of a candidate through independent expenditures. However, the Court upheld limits on direct contributions to the candidate’s campaign, ruling that large donations could give the appearance of corruption.

Some critics of the Court’s decision argue that campaign expenditures are property, not speech, and can be regulated by the government. Others believe that the First Amendment fully protects both contributions and expenditures-and a candidate should be punished only for actual corruption, not implied corruption. During the 1999-2000 election cycle, congressional candidates spent more than one billion dollars, according to the Federal Election Commission the largest amount in its twenty-five-year history. Advocates of campaign finance reform want to curtail the unlimited “soft money” that can now be donated to political parties, which they say evades the purpose of the restrictions on “hard money” contributions directly to political candidates. Opponents of campaign finance laws argue that the very purpose of the First Amendment is to protect political speech as fully as possible. And, may add, limits on individual contributions merely give incumbents and wealthy candidates an unfair advantage in elections.

What Are the Limits of Free Speech? Certain categories of speech are not protected at all by the First Amendment. These include obscenity, defamation, fighting words, and speech that incites illegal action. Odier categories of speech-such as speech in schools-are covered by the First Amendment, but in a limited manner.

Obscenity

For a full overview of Obscenity, please click here.

Defamation

The First Amendment does not protect defamation, or hurting another person’s reputation by spreading falsehoods. Defamation using spoken words is slander; defamation using written words is libel.

A person cannot prove defamation if the statements at issue are true. Lawsuits alleging defamation can exercise a chilling effect on free speech.

Therefore, in cases involving public officials and public figures, the Supreme Court has erected very high thresholds for defamation. Such cases are usually brought against the print or broadcast media, so they are discussed in greater depth under freedom of the press.

Fighting Words

Another type of speech that is not protected by the First Amendment is known as fighting words, abusive and insulting comments delivered face-to-face to a specific individual. In Chaplinsky v. New Hampshire (1942), the Supreme Court upheld the conviction of Chaplinsky, a Jehovah’s Witness, for calling a police officer “a damn Fascist and a racketeer.” Such “fighting words,” the Court said, “have a direct tendency to cause acts of violence.”

Hate speech

Some legal scholars maintain that racial and ethnic slurs are a type of “fighting words” that should be included among limitations on free speech, just like slander and libel. Certain colleges and cities have enacted “hate speech” codes that prohibit derogatory remarks on the basis of religion, gender, sexual orientation, or race. Critics of the codes charge that enforcing “politically correct” speech does not end bigotry. They argue that such codes punish any speech that hurts someone’s feelings.

In R.A.V. v. St. Paul (1992), the Supreme Court struck down a city ordinance in St. Paul, Minnesota, that prohibited the use of certain symbols “that arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” The statute applied to both public and private property. A white juvenile, R.A.V., was convicted under the statute for burning a cross in the yard of a black family. The Supreme Court overturned the conviction because the St. Paul law punished speech based on its content, but the Court noted that R.A.V. could be prosecuted for arson instead. However, in Wisconsin v. Mitchell (1993), the Supreme Court upheld a law that increased the penalties for “hate crimes” committed due to such factors as the victim’s race, religion, or sexual orientation. An assault was not expressive conduct under the First Amendment, said the Court, and different motives often lead to increased punishment in the criminal law.

Speech That Incites Illegal Action

Through a long line of cases, the Supreme Court has developed a standard for when speech that advocates unlawful action is not protected by the First Amendment. Originally, in Schenckv. United States (1919), the Court ruled that speech that creates a “clear and present danger” of illegal acts was not covered by the First Amendment. In that case, the Court upheld the conviction of Schenck under the Espionage Act for distributing pamphlets that encouraged young men to resist the draft during World War I.

In the 1950s, the Court ruled on several laws designed to prohibit membership in the Communist Party. Congress passed the Smith Act in 1940, which outlawed advocating the violent overthrow of the U.S. government. The Supreme Court upheld the Smith Act under the First Amendment in Dennis v. United States (1951), but in Yates v. United States (1957) the Court ruled that the law did not prohibit advocacy of violent revolution as an abstract idea, rather than as a specific action.

Finally, in Brandenburg v. Ohio (1969), the Court articulated its current standard for punishing speech that incites illegal action. Such action must be “imminent,” said the Court, and probable. Thus, the Supreme Court ruled that a Ku Klux Klan leader’s cry at a rally for members to violently oppose civil rights laws was protected speech. However, a specific call to bomb churches at a designated place and time would not be.

Free Press

For more information on this subject, see here.

“Or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”

The freedoms of assembly and petition have been linked both in history and in Supreme Court decisions. During the first century after the Bill of Rights was ratified, the right to petition overshadowed the right to assembly, but later on they reversed roles. In fact, fewer court decisions deal with freedom of petition than any other part of the First Amendment.

Freedom of Association

Although it is not specifically listed in the First Amendment, freedom of association is nonetheless protected by the Supreme Court. Some legal scholars argue that it is implied by other rights in the First Amendment such as the freedoms of assembly and petition. In NAACP v. Alabama (1958), the Court first recognized freedom of association, overturning a law that required civil rights organizations to turn over their membership lists. The Court also ruled in 1967 that state loyalty oaths forcing teachers to declare they were not members of the Communist Party violated the First Amendment.

Groups that exclude members based on their gender or sexual orientation also claim protection by the First Amendment. In 1995, the Supreme Court held that a privately sponsored St. Patrick’s Day parade can exclude homosexual groups whose viewpoint they oppose. And in Boy Scouts v. Dale (2000), the Court upheld the First Amendment right of the Boy Scouts to prevent gay men from becoming scoutmasters.