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The Bill of Rights in the National Archives.

The First Amendment (Amendment I) to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.

Originally, the First Amendment applied only to laws enacted by the Congress. However, starting with Gitlow v. New York, the Supreme Court has applied the First Amendment to each state. This was done through the Due Process Clause of the Fourteenth Amendment. The Court has also recognized a series of exceptions to provisions protecting the freedom of speech.

Text[link]

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.

Background[link]

Opposition to the ratification of the Constitution was partly based on the Constitution's lack of adequate guarantees for civil liberties. To provide such guarantees, the First Amendment (along with the rest of the Bill of Rights) was submitted to the states for ratification on September 25, 1789, and adopted on December 15, 1791.

Establishment of religion[link]

The establishment clause is "[t]he First Amendment provision that prohibits the federal and state governments from establishing an official religion, or from favoring or disfavoring one view of religion over another."^[1]

Originally, the First Amendment applied only to the federal government. A number of the states effectively had established churches when the First Amendment was ratified, with some remaining into the early nineteenth century.

Subsequently, Everson v. Board of Education (1947) incorporated the Establishment Clause (i.e., made it apply against the states). However, it was not until the middle to late twentieth century that the Supreme Court began to interpret the Establishment and Free Exercise Clauses in such a manner as to restrict the promotion of religion by the states. In the Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994), Justice David Souter, writing for the majority, concluded that "government should not prefer one religion to another, or religion to irreligion."^[2]

Separationists[link]

Everson used the metaphor of a wall of separation between church and state, derived from the correspondence of President Thomas Jefferson. It had been long established in the decisions of the Supreme Court, beginning with Reynolds v. United States from 1879, when the Court reviewed the history of the early Republic in deciding the extent of the liberties of Mormons. Chief Justice Morrison Waite, who consulted the historian George Bancroft, also discussed at some length the Memorial and Remonstrance against Religious Assessments by James Madison, who drafted the First Amendment; Madison used the metaphor of a "great barrier."^[3]

Justice Hugo Black adopted Jefferson's words in the voice of the Court, and concluded that "government must be neutral among religions and nonreligion: it cannot promote, endorse, or fund religion or religious institutions."^[4] The Court has affirmed it often, with majority, but not unanimous, support. Warren Nord, in Does God Make a Difference?, characterized the general tendency of the dissents as a weaker reading of the First Amendment; the dissents tend to be "less concerned about the dangers of establishment and less concerned to protect free exercise rights, particularly of religious minorities."^[5]

Beginning with the Everson decision itself, which permitted New Jersey school boards to pay for transportation to parochial schools, the Court has used various tests to determine when the wall of separation has been breached. The Everson decision laid down the test that establishment existed when aid was given to religion, but that the transportation was justifiable because the benefit to the children was more important. In the school prayer cases of the early 1960s, (Engel v. Vitale and Abington School District v. Schempp), aid seemed irrelevant; the Court ruled on the basis that a legitimate action both served a secular purpose and did not primarily assist religion. In Walz v. Tax Commission, the Court ruled that a legitimate action could not entangle government with religion; in Lemon v. Kurtzman, these points were combined, declaring that an action was not establishment if

1. the statute (or practice) has a secular purpose;
2. its principal or primary effect neither advances nor inhibits religion; and
3. it does not foster an excessive government entanglement with religion.

This Lemon test has been criticized by Justices and legal scholars, but it remains the predominant means by which the Court enforces the Establishment Clause.^[6] In Agostini v. Felton, the entanglement prong of the Lemon test was demoted to simply being a factor in determining the effect of the challenged statute or practice.^[7] In Zelman v. Simmons-Harris, the opinion of the Court considered secular purpose and the absence of primary effect; a concurring opinion saw both cases as having treated entanglement as part of the primary purpose test.^[6]

Accommodationists[link]

Accommodationists, on the other hand, read the Establishment Clause as prohibiting the Congress or any state from declaring an official religion or preferring one to another, but hold that laws do not have to be shorn of morality and history to be declared constitutional.^[8] As a result, they apply the Lemon Test only selectively, holding Justice Douglas' statement in Zorach v. Clauson, "[w]e are a religious people whose institutions presuppose a Supreme Being" 343 U.S. 306 (1952).^[8][9]

As such, for many conservatives, the Establishment Clause solely prevents the establishing of a state church, not from publicly acknowledging God and "developing policies that encourage general religious beliefs that do not favor a particular sect and are consistent with the secular government's goals."^[10][11]

Free exercise of religion[link]

In Sherbert v. Verner, 374 U.S. 398 (1963), the Supreme Court required states to meet the "strict scrutiny" standard when refusing to accommodate religiously motivated conduct. This meant that a government needed to have a "compelling interest" regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court ruled that a law that "unduly burdens the practice of religion" without a compelling interest, even though it might be "neutral on its face," would be unconstitutional.

The need for a compelling interest was narrowed in Employment Division v. Smith, 494 U.S. 872 (1990), which held no such interest was required under the Free Exercise Clause regarding a law that does not target a particular religious practice. In Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the Supreme Court ruled Hialeah had passed an ordinance banning ritual slaughter, a practice central to the Santería religion, while providing exceptions for some practices such as the kosher slaughter. Since the ordinance was not "generally applicable," the Court ruled that it needed to have a compelling interest, which it failed to have, and so was declared unconstitutional.

In 1993, the Congress passed the Religious Freedom Restoration Act (RFRA), which sought to restore the compelling interest requirement applied in Sherbert and Yoder. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court struck down the provisions of the Act that forced state and local governments to provide protections exceeding those required by the First Amendment on the grounds that while the Congress could enforce the Supreme Court's interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities. According to the court's ruling in Gonzales v. UDV, 546 U.S. 418 (2006), RFRA remains applicable to federal laws and so those laws must still have a "compelling interest".

Freedom of speech[link]

Speech critical of the government[link]

The Supreme Court never ruled on the constitutionality of any federal law regarding the Free Speech Clause until the 20th century. The Supreme Court never ruled on the Alien and Sedition Acts of 1798, whose speech provisions expired in 1801.^[12] The leading critics of the law, Thomas Jefferson and James Madison, argued for the Acts' unconstitutionality based on the First Amendment, among other Constitutional provisions (e.g. Tenth Amendment).^[13] In retrospect, dicta from New York Times Co. v. Sullivan, 376 U.S. 254 (1964) acknowledges that, "[a]lthough the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history."^[14]

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." Over two thousand were convicted under the Act. 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.^[15] The Sedition Act of 1918 went even further, criminalizing "disloyal," "scurrilous" or "abusive" language against the government.

In the midst of World War I, Charles Schenck, then the general secretary of the Socialist party, was found guilty of violating the Espionage Act after a search of the Socialist headquarters revealed a book of Executive Committee minutes. The book contained a resolution, dated August 13, 1917, to print 15,000 leaflets to be mailed to men who had passed exemption boards.^[16] The contents of these leaflets intimated a fervent opposition to the draft, comparing conscripts to convicts and urging potential draftees to "not submit to intimidation."^[17] Schenck's appeal of his conviction reached the Supreme Court as Schenck v. United States, 249 U.S. 47 (1919). According to Schenck, the Espionage Act violated the Free Speech Clause of the First Amendment. The Supreme Court unanimously rejected Schenck's appeal and affirmed his conviction. Justice Oliver Wendell Holmes, Jr., writing for the Court, explained that "the question in every case is whether the words used are used 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."^[18]

The "clear and present danger" test of Schenck was elaborated in Debs v. United States, 249 U.S. 211 (1919). On June 16, 1918, Eugene V. Debs, a political activist, delivered a speech in Canton, Ohio, the main theme of which "was socialism, its growth, and a prophecy of its ultimate success."^[19] Debs spoke with pride of the devotion with which his "most loyal comrades were paying the penalty to the working class – these being Wagenknecht, Baker and Ruthenberg, who had been convicted of aiding and abetting another in failing to register for the draft."^[20] Moreover, hours earlier, Debs had spoken with approval of an Anti-War Proclamation and Program adopted at St. Louis in April, 1917 which advocated a "continuous, active, and public opposition to the war, through demonstrations, mass petitions, and all other means within [their] power."^[21] Following his speech, Debs was charged and convicted under the Espionage Act. In upholding his conviction, the Court reasoned that although he had not spoken any words that posed a "clear and present danger," taken in context, the speech had a "natural tendency and a probable effect to obstruct the recruiting services[.]"^[21]

Benjamin Gitlow was convicted of criminal anarchy after he was found advocating the "necessity and propriety of overthrowing and overturning organized government by force, violence and unlawful means" in the Left Wing Manifesto, as well as publishing and circulating a radical newspaper called The Revolutionary Age advocating similar ideas.^[22] In arguing before the Supreme Court, Gitlow contended that "the statute as construed and applied by the trial court penalize[d] the mere utterance, as such, of 'doctrine' having no quality of incitement, without regard to the circumstances of its utterance or to the likelihood of the unlawful sequences[.]"^[23] While acknowledging "liberty of expression 'is not absolute,'" he maintained "it may be restrained 'only in instances where its exercise bears a causal relation with some substantive evil, consummated, attempted or likely[.]'"^[23] As the statute took no account of the circumstances under which the offending literature was written, it violated the First Amendment. The Court rejected Gitlow's reasoning. Writing for the majority, Justice Edward Terry Sanford declared that "utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion....Such utterances, by their very nature, involve danger to the public peace and to the security of the state."^[24] Gitlow v. New York, 268 U.S. 652 (1925) greatly expanded Schenck and Debs but established the general opinion of the Court that the First Amendment is incorporated by the Fourteenth Amendment to apply to the states.^[25]

In 1940, Congress enacted the Smith Act, making it illegal to advocate "the propriety of overthrowing or destroying any government in the United States by force and violence."^[26] The law provided law enforcement a tool to combat Communist leaders. After Eugene Dennis was convicted in the Foley Square trial for attempting to organize a Communist Party in the United States pursuant to the Smith Act § 2, he petitioned for certiorari, which the Supreme Court granted.^[27] In Dennis v. United States 341 U.S. 494 (1951), the Court upheld the law 6-2 (Justice Tom C. Clark did not participate because he had ordered the prosecutions when he was Attorney General). Chief Justice Fred M. Vinson explicitly relied on Oliver Wendell Holmes, Jr.'s "clear and present danger" test as adapted by Learned Hand: "In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger."^[28] Clearly, Vinson suggested, clear and present danger did not intimate "that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited."^[29]

Dennis has never been explicitly overruled by the Court, but its relevance within First Amendment jurisprudence has been considerably diminished by subsequent rulings. Six years after Dennis, the Court changed its interpretation of the Smith Act. In Yates v. United States, 354 U.S. 298 (1957). the Court ruled that the Act was aimed at "the advocacy of action, not ideas."^[30] Advocacy of abstract doctrine remains protected while speech explicitly inciting the forcible overthrow of the government is punishable under the Smith Act.

During the Vietnam Era, the Courts position on public criticism of the government changed drastically. Though the Court upheld a law prohibiting the forgery, mutilation, or destruction of draft cards in United States v. O'Brien, 391 U.S. 367 (1968), fearing that burning draft cards would interfere with the "smooth and efficient functioning" of the draft system,^[31][32] the next year, the court handed down its decision in Brandenburg v. Ohio, 395 U.S. 444 (1969), expressly overruling Whitney v. California, 274 U.S. 357 (1927) (a case in which a woman was imprisoned for aiding the Communist Party).^[33] Now the Supreme Court referred to the right to speak openly 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 allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.^[34]

Brandenburg discarded the "clear and present danger" test introduced in Schenck and further eroded Dennis.^[35] In Cohen v. California, 403 U.S. 15 (1971), wearing a jacket reading "Fuck the Draft" in the corridors of the Los Angeles County courthouse was ruled not to be punishable.

Political speech[link]

Anonymous speech[link]

In Talley v. California, 362 U.S. 60 (1960), the Court struck down a Los Angeles city ordinance that made it a crime to distribute anonymous pamphlets. In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Court struck down an Ohio statute that made it a crime to distribute anonymous campaign literature. However, in Meese v. Keene, 481 U.S. 465 (1987), the Court upheld the Foreign Agents Registration Act of 1938, under which several Canadian films were defined as "political propaganda," requiring their sponsors to be identified.

Campaign finance[link]

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court affirmed the constitutionality of some parts, while declaring other parts unconstitutional, of the Federal Election Campaign Act of 1971 and related laws. These laws restricted the monetary contributions that may be made to political campaigns and expenditure by candidates. 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."^[36] However, the Court overturned the spending limits, which it found imposed "substantial restraints on the quantity of political speech."^[37]

Further rules on campaign finance were scrutinized by the Court when it determined McConnell v. Federal Election Commission, 540 U.S. 93 (2003). The case centered on the Bipartisan Campaign Reform Act of 2002, a federal law that imposed 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 fund certain advertisements related to elections. However, 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, which they agreed "placed an unconstitutional burden on the parties' right to make unlimited independent expenditures."^[38] The Supreme Court also ruled that the provision preventing minors from making political contributions was unconstitutional, relying on Tinker v. Des Moines Independent Community School District.

In Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007), the Supreme Court sustained an "as applied" challenge to provisions of the 2002 law dealing with advertising shortly before a primary, caucus, or an election.

In Davis v. Federal Election Commission, 554 U.S. 724 (2008), the Supreme Court declared the "Millionaire's Amendment" provisions of the BCRA to be unconstitutional. The Court held that easing BCRA restrictions for an opponent of a self-financing candidate spending at least $350,000 of his own money violated the freedom of speech of the self-financing candidate.

In Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), the Court ruled that the BCRA's federal restrictions on electoral advocacy by corporations or unions were unconstitutional for violating the Free Speech Clause of the First Amendment. The Court overruled Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which had upheld a state law that prohibited corporations from using treasury funds to support or oppose candidates in elections did not violate the First or Fourteenth Amendments. The Court also overruled the portion of McConnell that upheld such restrictions under the BCRA.^[39]

Flag desecration[link]

The divisive issue of flag desecration as a form of protest first came before the Supreme Court in Street v. New York, 394 U.S. 576 (1969). In response to hearing an erroneous report of the murder of James Meredith, Sidney Street burned a 48-star U.S. flag. When questioned by the police he responded: "Yes; that is my flag; I burned it. If they let that happen to Meredith, we don't need an American flag."^[40] Street was arrested and charged with a New York state law making it a crime "publicly [to] mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States]."^[41] Street appealed his conviction to the Supreme Court, arguing the law was "overbroad, both on its face and as applied," that the language was "vague and imprecise" and did not "clearly define the conduct which it forbids", and that it unconstitutionally punished the destruction of an American flag, an act which Street contended "constitute[d] expression protected by the Fourteenth Amendment."^[42] In a 5–4 decision, the Court, relying on Stromberg v. California, 283 U.S. 359 (1931), found that because the provision of the New York law criminalizing "words" against the flag was unconstitutional, and the trial did not sufficiently demonstrate that he was convicted solely under the provisions not yet deemed unconstitutional, the conviction was unconstitutional. The Court, however, "resist[ed] the pulls to decide the constitutional issues involved in this case on a broader basis" and left the constitutionality of flag-burning unaddressed.^[43]

The ambiguity with regard to flag-burning statutes was eliminated in Texas v. Johnson, 491 U.S. 397 (1989). In that case, Gregory Lee Johnson participated in a demonstration during the 1984 Republican National Convention in Dallas, Texas. At one point during the demonstration, Johnson poured kerosene over an American flag and set it aflame, shouting anti-American phrases. Johnson was promptly arrested and charged with violating a Texas law prohibiting the vandalizing of venerated objects. He was convicted, sentenced to one year in prison, and fined $2,000. In 1989, his appeal reached the Supreme Court. Johnson argued that the Texas statute imposed an unconstitutional content-based restriction on symbolic speech. The Supreme Court agreed and, in a 5–4 vote, reversed Johnson's conviction. 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."^[44] Many members of Congress criticized the decision of the Court and the House of Representatives unanimously passed a resolution denouncing the Court.^[45] Congress passed a federal law barring flag burning, but the Supreme Court struck it down as well in United States v. Eichman, 496 U.S. 310 (1990). Many attempts have been made to amend the Constitution to allow Congress to prohibit the desecration of the flag. Since 1995, the Flag Desecration 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. In 2006, another attempt fell one vote short.

Free speech zones[link]

The "free speech zone" at the 2004 Democratic National Convention.

Free speech zones are areas set aside in public places for political activists to exercise their right of freedom of speech as an exercise of what is commonly called "TPM" or "time, place, manner" regulation of speech. Free speech zones are set up by the Secret Service who scout locations near which the president is to pass or speak. Officials may target those displaying signs and escort them to the free speech zones before and during the event. Protesters who refuse to go to free speech zones could be arrested and charged with trespassing, disorderly conduct, and resisting arrest. In 2003, a seldom-used federal law was brought up that says that "willfully and knowingly to enter or remain in any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting" is a crime.^[46][47]

Commercial speech[link]

Commercial speech is speech done on behalf of a company or individual for the purpose of making a profit. Unlike political speech, the Supreme Court does not afford commercial speech full protection under the First Amendment. To effectively distinguish commercial speech from other types of speech for purposes of litigation, the Supreme Court uses a list of four indicia:^[48]

1. The contents do "no more than propose a commercial transaction."
2. The contents may be characterized as advertisements.
3. The contents reference a specific product.
4. The disseminator is economically motivated to distribute the speech.