The Bill of Rights and Civil Liberties

How are your rights defined and protected under the Constitution?

5.3 Your First Amendment Rights

Many people regard the First Amendment as the most important amendment in the Bill of Rights. It guarantees various rights, including the freedoms of religion, speech, the press, and assembly. These rights are critical to life in a democratic society.

Freedom of Religion: The Establishment Clause

The First Amendment begins with freedom of religion. It reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This statement can be divided into two parts: the Establishment Clause and the Free Exercise Clause.

The Establishment Clause guarantees the separation of church and state. Influenced by European tradition, most places in colonial America had an official church. In the colonies, everyone had to pay taxes to support the church, and in some places, only church members could vote. Some communities even made church attendance mandatory. These practices discriminated against people who did not follow the established religion.

The founders of this country believed that having a state-sponsored church was incompatible with freedom of religion. Thomas Jefferson later wrote that a “wall of separation” should exist between church and state.

Still, religious references do exist in government. For example, politicians say “so help me God” when taking the oath of office. The phrase “In God We Trust” appears on currency. And Congress opens its daily sessions with prayer. Some critics say that these practices violate the founding ideals. Others argue that the founders never meant to deny religion a place in public life. The issue of church-state separation has provoked heated battles over the years.

One battle took place in 1875. In response to a growing number of Catholic schools, Congressman James Blaine proposed a constitutional amendment to deny public funding to religiously affiliated schools. The Blaine Amendment failed on the national stage, but many states adopted similar laws. Today, more than 35 state constitutions have a version of the law.

Still, until the early 20th century, most students were educated in church-sponsored schools. Even as public education expanded, prayers and Bible readings continued in many schools. In general, the courts considered such practices acceptable.

In the landmark case Engel v. Vitale (1962), the Court changed course and struck down a New York law that provided a daily prayer for students to recite. Although the Establishment Clause had previously been interpreted to mean Congress could not create a national church, the Court ruled that it also banned state-sponsored prayer, even if voluntary and nondenominational, in public schools.

The Court’s decision on the Engel case remains unpopular with many Americans, but it has led to a greater division between religious teaching and public education. Since school attendance is mandatory, the Court has argued that religious teachings in public schools would amount to forced teaching of religion by government.

In 1971, the Supreme Court decided in Lemon v. Kurtzman that the practice of using public funds to support private religious schools was unconstitutional. This case established a three-point “Lemon test” to determine if and when a government action violates the Establishment Clause. To be constitutional, a government action must

Freedom of Religion: The Free Exercise Clause

The Free Exercise Clause establishes that all people are free to follow the religious practices of their choice. They are also free to follow no religion. If a person’s religious faith conflicts with the law of the land, however, the law must prevail. This principle was established as a legal precedent in 1879 in the case of Reynolds v. United States.

George Reynolds was a member of the Mormon Church who followed the practice of polygamy, or having more than one spouse at a time. This practice violated a federal law, leading to Reynolds’s arrest and conviction in a Utah court. He appealed his conviction on the grounds that the law against polygamy violated his free exercise of his religion.

In deciding against Reynolds, the Court drew a distinction between religious beliefs and religious practices. It pointed out that although the law may not interfere with beliefs, it may interfere with practices. The Court argued that if people were able to disregard any law because it violated their religious beliefs, the effect would be “to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances."

The Court continued that line of reasoning in the 1940 case of Minersville School District v. Gobitis. In that case, the Court decided against two children who were suspended from school for refusing to say the Pledge of Allegiance. As Jehovah’s Witnesses, they viewed pledging allegiance to the flag as a form of idolatry prohibited by the Bible. Many supporters of religious freedom condemned the decision.

Just three years later, however, the Court reversed itself. In West Virginia State Board of Education v. Barnette, the Court said that Jehovah’s Witnesses could refuse to salute the flag. Their right to do so was protected under their First Amendment rights to religious freedom and free speech. In later cases, the Court has held that the government must show a compelling interest in forcing people to obey a law that violates their religious convictions.

Freedom of Speech

Freedom of speech is the second right listed in the First Amendment. It acts like an anchor for all the other rights in the amendment, because they are all linked in one way or another to free expression.

After its decisions in Schenck, Abrams, and Gitlow, the Supreme Court has generally supported freedom of speech. It has taken exception, however, to forms of speech that are harmful to others. Two clear examples of this are libel and slander – forms of speech, either written or spoken, that make false statements with intent to harm. Another form of speech not protected under the First Amendment is obscenity, or speech offensive to conventional standards of decency.

The issue of public safety was the key factor in the Court’s early decisions limiting free speech. In 1969, however, the Court took a closer look at the “clear and present danger” test as advised by Justice Holmes in his Abrams dissent. The opportunity to do so came in the case of Brandenburg v. Ohio, which centered on a Ku Klux Klan leader who was arrested for giving a speech advocating illegal activities.

In its decision, the Court offered a two-part test to determine whether a “clear and present danger” exists that might justify suppressing free speech. First, such speech has to be “directed to inciting or producing imminent lawless action.” Second, the speech must be “likely to incite or produce such action.” The Court found that the Klan leader’s speech, though containing hateful statements, was unlikely to produce any unlawful actions. Thus, the Brandenburg case did not pass the “clear and present danger” test.

In 1989, the Court extended this protection to include symbolic speech, or conduct that conveys a message without spoken words. Five years earlier, Gregory Lee Johnson had been arrested in Texas for burning a flag to protest government policies. His actions violated a state law against “flag desecration."

In Texas v. Johnson, the Court concluded that flag burning as an expression of opinion was protected symbolic speech. It said that a state could not prohibit such actions, even if it found them offensive. The Court struck down the Texas law as a violation of the First Amendment right to free speech.

The Court has also held that some forms of pornography are protected speech, although the government may restrict children’s access to sexually graphic materials. In 1996, Congress tried to do just that by passing the Communications Decency Act. The act was designed to regulate pornography on the Internet. The Court struck it down a year later in Reno v. American Civil Liberties Union. The Court found that the law was so vague that it could have limited most speech on the Internet.

In this decision, as in its flag-burning decision, the Court has made it clear that to protect all speech, some offensive speech must be allowed to exist. That trade-off is one of the cornerstones of a free society.

Freedom of the Press

Free speech can be interpreted to include most forms of expression. Nevertheless, freedom of the press was listed separately in the First Amendment to underscore its importance in a free society. “Were it left to me to decide whether we should have a government without newspapers or newspapers without government,” wrote Thomas Jefferson, “I should not hesitate a moment to prefer the latter."

By specifically protecting the press, the First Amendment makes it clear that free speech covers the media as well as individuals. However, this has not stopped government officials from trying to stop the publication of material they dislike. In Near v. Minnesota (1931), the Court declared such attempts at prior restraint to be unconstitutional.

The Near case involved a newspaper that Minnesota officials wanted to shut down. The paper had published articles exposing political corruption. The Court declared that a government had no right to call for prior restraint. Keeping information from being published could be allowed only under very special circumstances, such as protecting national security. If officials were worried about possibly libelous articles, they could sue the publisher after the materials were in print.

In 1971, during the Vietnam War, the federal government did invoke “national security” as grounds for prior restraint. It did so after a former government employee, Daniel Ellsberg, leaked classified documents to the New York Times. He leaked this information to show that officials had been lying about the war’s progress. After the Times published excerpts of the so-called Pentagon Papers, authorities sought to halt any further publication of the information.

In New York Times Co. v. United States, the Supreme Court decided against the government. The release of the papers, it said, had no notable impact on national security. This decision helped limit future efforts to use national security as a pretext for censoring the press.

The reporting on the Pentagon Papers was accurate. But what about news reports that are false? The First Amendment does not protect against libel. The fact is, however, that journalists sometimes make mistakes. Unless it can be shown that their errors were intentional and were meant to do harm, journalists are not guilty of libel.

Freedom of Assembly and the Right to Petition

Finally, the First Amendment protects “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The right to petition the government to solve problems was originally considered the more important of the two. But over time, the right to assemble has taken on a larger role and has been the issue in many cases.

In keeping with the principle of peaceable assembly, many communities require groups that want to gather in public places to apply for permits and to follow certain rules. Some officials have used these requirements to limit the activities of groups they dislike. In 1937, for example, Frank Hague, the mayor of Jersey City, New Jersey, refused to grant the Committee of Industrial Organization (CIO) a permit to assemble simply because he disliked labor unions. The union took Hague to court.

In Hague v. CIO, the Court decided in favor of the labor union. It found that Mayor Hague had applied the permit law unfairly to limit the CIO’s freedom of assembly. Although the Court acknowledged a city’s right to set rules for the use of public spaces, it said that such rules must be enforced equally for all groups. Such rules should also be limited to “neutral” issues, such as the time, place, and nature of the meetings

The right to petition has been the subject of only a few Court cases. One key case, however, arose during the civil rights movement. This case concerned the NAACP’s efforts to encourage African Americans who had suffered from discrimination to take their cases to court. The state of Virginia accused the NAACP of breaking a state law by seeking out legal business. The purpose of such laws is usually to prevent unethical lawyers from launching lawsuits for their own gain.

In NAACP v. Button (1963), however, the Court concluded that the civil rights group was not seeking financial gain. It was, instead, helping people petition the government for their lawful rights. On that basis, the NAACP’s efforts were protected under the First Amendment.

Next Section: 5.4 (Protections Against Abuses of Government Power)