Learning Objectives
After reading this section, you should be able to answer the following questions:
- What two clauses protect freedom of religion?
- What exceptions apply to freedom of speech?
- What protections do the media enjoy under freedom of the press?
- What are the benefits of and limitations on the right to assemble and petition?
THE FIRST AMENDMENT
The First Amendment is perhaps the most famous provision of the Bill of Rights. It is arguably also the most extensive, because it guarantees both religious freedoms and the right to express your views in public. Specifically, the First Amendment says:
“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.”
Given the broad scope of this amendment, it is helpful to break it into its two major parts.
Freedom of Religion
The First Amendment addresses freedom of religion in two distinct clauses: the establishment clause and the free expression clause. The establishment clause protects people from having a set of religious beliefs imposed on them by the government, while the free exercise clause protects people from having their own religious beliefs restricted by government authorities.
Establishment Clause
The first of these two freedoms is known as the establishment clause. Congress is prohibited from creating or promoting a state-sponsored religion (this now includes the states). When the United States was founded, most countries around the world had an established church or religion—an officially sponsored set of religious beliefs and values. In Europe, bitter wars were fought between and within states, often because the established church of one territory was in conflict with that of another. Wars and civil strife were common, particularly between states with Protestant and Catholic churches that had differing interpretations of Christianity. Many settlers in the United States came to this continent as refugees from such wars; others came to find a place where they could follow their own religion with like-minded people in relative peace. The establishment clause bars Congress from giving any religion an official status. In Jefferson’s much-quoted line, the establishment clause erects a “wall of separation between church and state.” The establishment clause today tends to be interpreted a bit more broadly than in the past; it not only forbids the creation of a “Church of the United States” or “Church of Ohio” it also forbids the government from favoring one set of religious beliefs over others or favoring religion (of any variety) over non-religion.
The key question that faces the courts is whether the establishment clause should be understood as imposing, in Thomas Jefferson’s words, “a wall of separation between church and state.” In a 1971 case known as Lemon v. Kurtzman, the Supreme Court established the Lemon test for deciding whether a law or other government action that might promote a particular religious practice should be allowed to stand. The Lemon test has three criteria that must be satisfied for such a law or action to be found constitutional and remain in effect:
1. The action or law must not lead to excessive government entanglement with religion; in other words, policing the boundary between government and religion should be relatively straightforward and not require extensive effort by the government.
2. The action or law cannot either inhibit or advance religious practice; it should be neutral in its effects on religion.
3. The action or law must have some secular purpose; there must be some non-religious justification for the law.
For example, imagine your state decides to fund a school voucher program that allows children to attend private and parochial schools at public expense; the vouchers can be used to pay for school books and transportation to and from school. Would this voucher program be constitutional?
Let’s start with the secular-purpose prong of the test. Educating children is a clear, non-religious purpose, so the law has a secular purpose. The law would neither inhibit nor advance religious practice, so that prong would be satisfied. The remaining question—and usually the one on which court decisions turn—is whether the law leads to excessive government entanglement with religious practice. Given that transportation and school books generally have no religious purpose, there is little risk that paying for them would lead the state to much entanglement with religion. The decision would become more difficult if the funding were unrestricted in use or helped to pay for facilities or teacher salaries; if that were the case, it might indeed be used for a religious purpose, and it would be harder for the government to ensure that it wasn’t without audits or other investigations that could lead to too much government entanglement with religion.
The meaning of the establishment clause has been controversial at times because, as a matter of course, government officials acknowledge that we live in a society with vigorous religious practice where most people believe in God—even if we disagree on what God is. Disputes often arise over how much the government can acknowledge this widespread religious belief. The courts have generally allowed for a certain tolerance of what is described as ceremonial deism, an acknowledgement of God or a creator that generally lacks any substantive religious content. For example, the national motto “In God We Trust,” which appears on our coins and paper money (Figure 4.7), is seen as more an acknowledgment that most citizens believe in God than any serious effort by government officials to promote religious belief and practice. This reasoning has also been used to permit the inclusion of the phrase “under God” in the Pledge of Allegiance—a change that came about during the early years of the Cold War as a means of contrasting the United States with the “godless” Soviet Union.
Free Exercise Clause
The free exercise clause, on the other hand, limits the ability of the government to control or restrict religious practices. This portion of the First Amendment regulates not the government’s promotion of religion, but rather government suppression of religious beliefs and practices. The establishment clause tries to keep religion out of government; the free exercise clause tries to keep government out of religion. The two objectives are not always compatible. Much of the controversy surrounding the free exercise clause reflects the way laws or rules that apply to everyone might apply to people with particular religious beliefs.
This free exercise clause gained potency in 1943 when the Supreme Court ruled that Jehovah’s Witnesses could not be expelled from public schools for refusing to salute the American flag, an act contrary to their religion. Additionally, the rights of conscientious objectors—individuals who claim the right to refuse to perform military service on the grounds of freedom of thought, conscience, or religion—have also been controversial, although many conscientious objectors have contributed service as non-combatant medics during wartime.
Establishing a general framework for deciding whether a religious belief can trump general laws and policies has been a challenge for the Supreme Court. In the 1960s and 1970s, the court decided two cases in which it laid out a general test for deciding similar cases in the future. In both Sherbert v. Verner, a case dealing with unemployment compensation, and Wisconsin v. Yoder, which dealt with the right of Amish parents to homeschool their children, the court said that for a law to be allowed to limit or burden a religious practice, the government must meet two criteria.19 It must demonstrate both that it had a “compelling governmental interest” in limiting that practice and that the restriction was “narrowly tailored.” In other words, it must show there was a very good reason for the law in question and that the law was the only feasible way of achieving that goal. This standard became known as the Sherbert test.
Despite ongoing controversy, however, the courts have consistently found some public interests sufficiently compelling to override the free exercise clause. For example, since the late nineteenth century, the courts have consistently held that people’s religious beliefs do not exempt them from the general laws against polygamy, drug use, or human sacrifice. Yet, the public interest did not trump individual rights during the COVID-19 pandemic, when the Supreme Court overturned California’s ban on indoor gatherings.25 Other potential acts in the name of religion that are also out of the question are drug use and human sacrifice.
Freedom of Speech
Although the remainder of the First Amendment protects four distinct rights—free speech, press, assembly, and petition—we generally think of these rights today as encompassing a right to freedom of expression, particularly since the world’s technological evolution has blurred the lines between oral and written communication (i.e., speech and press) in the centuries since the First Amendment was written and adopted.
Controversies over freedom of expression were rare until the 1900s, even though government censorship was quite common. For example, during the Civil War, the Union post office refused to deliver newspapers that opposed the war or sympathized with the Confederacy, while allowing pro-war newspapers to be mailed. The emergence of photography and movies, in particular, led to new public concerns about morality, causing both state and federal politicians to censor lewd and otherwise improper content. At the same time, writers became more ambitious in their subject matter by including explicit references to sex and using obscene language, leading to government censorship of books and magazines.
The Supreme Court has held that “debate on public issues should be uninhibited, robust, and wide-open” (New York Time v. Sullivan, 1964). Offensive speech is less detrimental than the “chilling effect” of individuals being silenced for fear of retribution. Nevertheless, freedom of speech is not absolute. Governments can regulate or restrict it under certain conditions.
Thoughts, Words, and Actions
Thoughts are deemed beyond the scope of government regulation; actions are heavily regulated by government; words are somewhere in between. The distinctions between thoughts, words, and actions are not always clear. Two cases of protest against the Vietnam War show how lines are drawn (United States v. O’Brien, 1968; Tinker v. Des Moines Independent Community School District, 1969). In one, a protester burned his draft card and was charged with violating a federal law that makes it a crime to knowingly destroy draft cards. The Court upheld the law, saying that the law aimed to maintain draft records, not to stifle free expression. When two students wore black armbands to their high school to protest the war and were suspended for violating the dress code, the Court found the policy sought to suppress free expression and sided with the students.
When Speech Can Be Regulated
The First Amendment does not protect speech that fails to contribute to the exchange of ideas that is crucial in a democracy—for instance, libel, obscenity, and “fighting words”—but such forms of speech are narrowly defined.
Censorship reached its height during World War I. Americans who vocally supported the communist cause or opposed the war often found themselves in jail. In Schenck v. United States, the Supreme Court ruled that people encouraging young men to dodge the draft could be imprisoned for doing so, arguing that recommending that people disobey the law was tantamount to “falsely shouting fire in a theatre and causing a panic” and thus presented a “clear and present danger” to public order. We have seen that the Constitution protects most forms of offensive and unpopular expression, particularly political speech; however, incitement of a criminal act, “fighting words,” and genuine threats are not protected. So, for example, you can’t point at someone in front of an angry crowd and shout, “Let’s beat up that guy!” The Supreme Court has allowed laws that ban threatening symbolic speech, such as burning a cross on the lawn of an African American family’s home. Like fighting words, intimidation and harassment are not protected forms of free speech. The Supreme Court also found that various forms of symbolic speech—wearing clothing like an armband that carried a political symbol or raising a fist in the air, for example—were subject to the same protections as written and spoken communication.
MILESTONE
Burning the U.S. Flag
Perhaps no act of symbolic speech has been as controversial in U.S. history as the burning of the flag (Figure 4.9). Citizens tend to revere the flag as a unifying symbol of the country in much the same way most people in Britain would treat the reigning queen (or king). States and the federal government have long had laws protecting the flag from being desecrated—defaced, damaged, or otherwise treated with disrespect. Perhaps in part because of these laws, people who have wanted to drive home a point in opposition to U.S. government policies have found desecrating the flag a useful way to gain public and press attention to their cause.
One such person was Gregory Lee Johnson, a member of various pro-communist and antiwar groups. In 1984, as part of a protest near the Republican National Convention in Dallas, Texas, Johnson set fire to a U.S. flag that another protestor had torn from a flagpole. He was arrested, charged with “desecration of a venerated object” (among other offenses), and eventually convicted of that offense. However, in 1989, the Supreme Court decided in Texas v. Johnson that burning the flag was a form of symbolic speech protected by the First Amendment and found the law, as applied to flag desecration, to be unconstitutional.28
This court decision was strongly criticized, and Congress responded by passing a federal law, the Flag Protection Act, intended to overrule it; the act, too, was struck down as unconstitutional in 1990.29 Since then, Congress has tried and failed on several occasions to propose constitutional amendments allowing the states and federal government to re-criminalize flag desecration.
Should we amend the Constitution to allow Congress or the states to pass laws protecting the U.S. flag from desecration? Should we protect other national symbols as well, such as standing for the national anthem? Why or why not?
The speaking (slander) or publication (libel) of defamatory information can be challenged in court. The courts have recognized that government officials and other public figures might try to silence press criticism and avoid unfavorable news coverage by threatening a lawsuit for defamation of character. In the 1964 New York Times v. Sullivan case, the Supreme Court decided that public figures needed to demonstrate not only that a negative press statement about them was untrue but also that the statement was published or made with either malicious intent or “reckless disregard” for the truth. But officials and other public figures must demonstrate “actual malice” displayed by a “reckless disregard for the truth” (New York Times v. Sullivan, 1964). Thus slander and libel cases are hard to win. Nonetheless, some litigants sue to shame a media organization publicly or to force it to spend money defending itself in court.
Another key exception to the right to freedom of expression is obscenity, acts or statements that are extremely offensive under current societal standards. Defining obscenity has been something of a challenge for the courts; Supreme Court Justice Potter Stewart famously said of obscenity, having watched pornography in the Supreme Court building, “I know it when I see it.” Into the early twentieth century, written work was frequently banned as being obscene, including works by noted authors such as James Joyce and Henry Miller, although today it is rare for the courts to uphold obscenity charges for written material alone. In 1973, the Supreme Court established the Miller test for deciding whether something is obscene: “(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”34 However, the application of this standard has at times been problematic. In particular, the concept of “contemporary community standards” raises the possibility that obscenity varies from place to place; many people in New York or San Francisco might not bat an eye at something people in Memphis or Salt Lake City would consider offensive. The one form of obscenity that has been banned almost without challenge is child pornography.
Freedom of the Press
The media claim special privileges under the First Amendment’s guarantee of “freedom of the press.”
Prior Restraint
The government is rarely able to stop material from being published. Even the Sedition Act of 1798, discussed previously in this chapter, did not include this prior restraint. The Supreme Court extended the ban to the states in 1931 when it struck down a Minnesota law allowing the state to suppress a “malicious, scandalous and defamatory” publication as a “public nuisance”—in this case, an abusively anti-Semitic periodical. Prior restraint is rarely justified: in 1971, the Court refused to issue an injunction sought by the executive branch against the New York Times and Washington Post on grounds of violations of national security. In the absence of the government’s proof that the national interest would be harmed, the Court allowed the publication of the Pentagon Papers, a leaked classified set of documents revealing decisions leading to the Vietnam War (Near v. Minnesota, 1931; New York Times v. United States).
News Media Privileges
Reporters have privileges that the public lacks: greater access to the workings of government, the ability to question officeholders, legal protection from revealing confidential sources, and access to government public information offices that feed them quotations and stories. But such privileges stem from policy and practice, not from constitutional rights.
Laws aimed at public disclosure, such as sunshine laws preventing government from working behind closed doors, benefit reporters. The Freedom of Information Act (FOIA), enacted in 1966, allows for access to executive agencies and commissions’ records and files closed to public inspection (Foerstel, 1999). Information obtained under the FOIA provides documentation for stories like USA Today’s discovery of a huge increase in the use and dealing of crack cocaine by individuals under age fifteen. Such information can also reveal scandals. In 1990, Washington Post reporter Ann Devroy was frustrated with White House Chief of Staff John Sununu’s refusal to answer her dogged questions about his rumored use of perquisites of office for private gain. Devroy filed for documents under the FOIA and found Sununu had used government planes to get to a dentist’s appointment and to attend postage-stamp auctions. Sununu resigned in disgrace.
Broadcast Regulation
Public policy treats different media differently. Broadcast and cable slots, being inherently limited, can be regulated by government in ways that are not allowed for print media or the Internet (Red Lion Broadcasting Company v. Federal Communication Commission, 1969; Turner Broadcasting System, Inc. et al. v. Federal Communication Commission, 1997).
The Federal Communications Commission (FCC), established in 1934, has the power to issue licenses for a given frequency on the basis of “the public interest, convenience, or necessity.” From the start, the FCC favored big commercial broadcasters aiming at large audiences. Such limits on competition enabled the establishment of hugely profitable radio (and later television) stations and networks, whose licenses—sometimes jokingly termed licenses to print money—the FCC almost automatically renewed.
The FCC has regulatory authority to penalize the broadcast media, but not cable television, for indecent content. An infamous case of televised indecency occurred during the halftime show of the 2004 Super Bowl, during a performance by singer Janet Jackson in which a part of her clothing was removed by fellow performer Justin Timberlake, revealing her right breast. The network responsible for the broadcast, CBS, was ultimately presented with a fine of $550,000 by the Federal Communications Commission, the government agency that regulates television broadcasting. However, CBS was not ultimately required to pay.
Limits to Rights in Schools
The courts have ruled that student rights don’t stop at the school house doors. However, the First Amendment freedom of expression rights of children attending public schools are somewhat limited. In particular, in Tinker v. Des Moines (1969) and Hazelwood v. Kuhlmeier (1988), the Supreme Court has upheld restrictions on speech that creates “substantial interference with school discipline or the rights of others” or is “reasonably related to legitimate pedagogical concerns.” For example, the content of school-sponsored activities like school newspapers and speeches delivered by students can be controlled, either for the purposes of instructing students in proper adult behavior or to deter conflict between students. The Children’s Internet Protection Act, however, requires K–12 schools and public libraries receiving Internet access using special E-rate discounts to filter or block access to obscene material and other material deemed harmful to minors.
Rights to Assemble and Petition
Free expression includes the right to assemble peaceably and the right to petition government officials. This right even extends to members of groups whose views most people find abhorrent, such as American Nazis and the vehemently anti-LGBTQ Westboro Baptist Church, whose members have become known for their protests at the funerals of U.S. soldiers who have died fighting in the war on terror.37 Free expression—although a broad right—is subject to certain constraints to balance it against the interests of public order. In particular, the nature, place, and timing of protests—but not their substantive content—are subject to reasonable limits. The courts have ruled that while people may peaceably assemble in a place that is a public forum, not all public property is a public forum. For example, the inside of a government office building or a college classroom—particularly while someone is teaching—is not generally considered a public forum.
Rallies and protests on land that has other dedicated uses, such as roads and highways, can be limited to groups that have secured a permit in advance, and those organizing large gatherings may be required to give sufficient notice so government authorities can ensure there is enough security available. However, any such regulation must be viewpoint-neutral; the government may not treat one group differently than another because of its opinions or beliefs. For example, the government can’t permit a rally by a group that favors a government policy but forbid opponents from staging a similar rally. Finally, there have been controversial situations in which government agencies have established free-speech zones for protesters during political conventions, presidential visits, and international meetings in areas that are arguably selected to minimize their public audience or to ensure that the subjects of the protests do not have to encounter the protesters.
Key Takeaways
In this section we discussed the constitutional protections guaranteeing freedoms of religion, speech, the press, assembly, and petition. These important protections are far reaching but nonetheless subject to important exceptions.
Exercises
- What is the difference between the establishment and the free exercise clauses of the First Amendment? How do these clauses complement one another? How might they come into conflict?
- What kinds of speech are protected by the First Amendment? What factors determine whether speech is protected?
- Why might it be important for citizens of a democracy to have the right to assemble and to petition their government? In your opinion, what should the limits of these rights be?
References
Abington School District v. Schempp, 374 US 203 (1963).
Brandenburg v. Ohio, 395 US 444 (1969).
Dennis v. United States, 341 US 494 (1951)
Engel v. Vitale, 370 US 421 (1962).
Foerstel, H. N., Freedom of Information and the Right to Know: The Origins and Applications of the Freedom of Information Act (Westport, CT: Greenwood Press, 1999).
Jacobs, J. B. and Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics (New York: Oxford University Press, 1998), 112–21.
Lee v. Weisman, 507 US 577 (1992).
Lemon v. Kurtzman, 403 US 602 (1971).
Lumsden, L. J., Rampant Women: Suffragists and the Right of Assembly (Knoxville: University of Tennessee Press, 1997).
Miller v. California, 413 US 15 (1973).
Near v. Minnesota, 283 US 697 (1931).
New York Post, October 3, 1973, as reported in J. Gregory Payne, “Aftermath,” May4Archive.org, http://www.may4archive.org/aftermath.shtml.
New York Times v. Sullivan, 376 US 254 (1964).
New York Times v. United States, 403 US 713 (1971).
Red Lion Broadcasting Company v. Federal Communication Commission, 395 US 367 (1969)
Roth v. United States, 354 US 476 (1957)
Santa Fe Independent School District v. Doe, 530 US 290 (2000).
Schenck v. United States, 249 US 47 (1919)
Schuurman, S., “Kent State Killings Shock Nation: 28 Years Ago This Week,” Weekly Alibi, May 11, 1998, http://weeklywire.com/ww/05-11-98/alibi_skeleton.html. The leading historian of Kent State is J. Gregory Payne, who provides a valuable narrative at May4Archive.org, http://www.may4archive.org.
Stanley v. Georgia, 394 US 557 (1969)
Tinker v. Des Moines Independent Community School District, 393 US 503 (1969).
Turner Broadcasting System, Inc. et al. v. Federal Communication Commission, 520 US 180 (1997).
United States v. O’Brien, 391 US 367 (1968)
Wallace v. Jaffree, 472 US 38 (1985).
Zaeske, S., Signatures of Citizenship: Petitioning, Antislavery, and Women’s Political Identity (Chapel Hill: University of North Carolina Press, 2003).
