The First Amendment

Adopted in 1791, the First Amendment of the U.S. Constitution protects many of the civil rights and civil liberties associated with life in the United States of America, including:

• Free speech

• Freedom of religion

• Freedom of the press

• The right to peaceful protest

• The right to petition the government

The First Amendment and nine others added to the Constitution at the same time became known as the Bill of Rights.

What Does the First Amendment Say?

The First Amendment states:

"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 First Amendment safeguards religious freedom, the free press, and free expression from interference by the federal government. Through more than two hundred years of court cases, the U.S. Supreme Court has been tasked with interpreting the First Amendment to determine the breadth of these fundamental rights. These Supreme Court cases have answered questions like:

• Can religious schools benefit from government funds?

• What actions are protected by freedom of expression?

• Does the First Amendment protect obscenity?

• Can public schools restrict a student's free speech?

• How does defamation fit into freedom of speech?

This collection of articles examines how the Supreme Court answered all these questions and more concerning First Amendment freedoms.

History of the First Amendment

Although the rights embodied in the First Amendment were not included in the original draft of the United States Constitution, they were essential in its ratification.

After the 1787 Constitutional Convention, several states refused to ratify the new Constitution because it lacked a Bill of Rights. These states only agreed to sign off on the new plan for the American government if Congress promised to add protections for freedom of speech, religion, and the press.

Freedom of religion was an especially important idea for many American colonists. Several religious groups, including Quakers, Episcopalians, and Presbyterians, emigrated to the colonies from England to escape persecution over their religious beliefs.

However, some members of the Constitutional Convention believed a bill of rights was unnecessary. In Federalist No. 84, Alexander Hamilton argued:

“[W]hy declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

But, in the end, it was clear that a Bill of Rights was the only way the new Constitution could take effect. James Madison agreed to write this Bill of Rights, which included the First Amendment, the Second Amendment right to bear arms, and due process rights. He based his draft on George Mason's Virginia Declaration of Rights.

The Bill of Rights originally included 19 amendments. However, the Senate and House of Representatives rejected seven, and the states tossed out two more.

Freedom of Religion

The First Amendment’s freedom of religion language breaks down into two essential parts: the free exercise clause and the establishment clause. This means the First Amendment guarantees that:

• A person can practice or exercise their religion without government interference
• The U.S. government cannot establish a national religion or favor one religion over another

Thomas Jefferson and others referred to this idea as the “separation of church and state,” although that language is not part of the amendment itself.

The establishment and free exercise clauses often push against each other, leaving the Supreme Court with the challenge of determining what result best complies with the First Amendment.

For example, many cases of freedom of religion involve religious schools. State and federal governments cannot favor religious schools, but is there a point where depriving them of government aid violates the free exercise clause?

In Lemon v. Kurtzman (1971), the Court established a three-part test to determine whether a law “entangled” government and religion in violation of the establishment clause:

1. Does the statute have a secular legislative purpose?

2. Is the primary effect of the statute a burden on religion, or does it advance religion?

3. Does the statute foster an “excessive entanglement” with religion?

But, the abstract nature of the Lemon test made it difficult to apply consistently. In a 1993 concurring opinion, Justice Scalia wrote:

“Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again.”

Over time, the Court began to focus more on whether a “reasonable observer” would consider the government’s action as an endorsement of religion. In Kennedy v. Bremerton School District (2022), a 6-3 majority rejected the Lemon line of case law. Although the opinion written by Justice Neil Gorsuch didn’t expressly overrule Lemon, it held that the Lemon test had been “long ago abandoned” by the Court.

Freedom of Speech

One of the most well-known constitutional rights, freedom of speech essentially means that government entities cannot restrict a person’s ability to express their opinions or ideas. Nor can the government retaliate against someone based on what they say. The Supreme Court stated in New York Times Co. v. Sullivan that the First Amendment’s central promise is that “debate on public issues should be uninhibited, robust, and wide-open.”

The free speech clause can also protect conduct, such as burning an American flag (Texas v. Johnson) or wearing a black armband to protest the Vietnam War (Tinker v. Des Moines Independent School District).

However, free speech does have its limits. For example, in Brandenburg v. Ohio (1969), the Supreme Court held that inciting a crowd to violence was not protected speech.

The Supreme Court’s approach to free speech cases has also evolved along with the nation. For example, in Schenck v. United States (1919), the court held that the government could infringe on a person’s free speech if they were a “clear and present danger” to the nation’s security. Schenck had been convicted under the Espionage Act for distributing leaflets encouraging men to refuse the army draft during World War I.

The Court later revised this approach in Brandenburg, holding that First Amendment protection extends to a broader range of speech as long as it doesn’t incite “immediate lawless action.”

Freedom of the Press

Freedom of the press was an important issue in the North American colonies long before they declared independence. The British government attempted to censor publications in the colonies by banning newspapers from printing anything that criticized the Crown or the colonial government.

The first court case involving freedom of the press in the States took place in 1735. In Crown v. Zenger, a New York jury highlighted the importance of a free press in the colonies.

John Peter Zenger was the printer for New York’s first independent newspaper, the New-York Weekly Journal. Unlike the government-funded New York Gazette, the Journal's articles and satire were highly critical of the royally appointed Governor William Cosby and his administration.

Instead of pursuing legal action against the paper’s editors, Governor Cosby tried to shut down Zenger. He accused Zenger of seditious libel, criminalizing statements that criticized the government. However, two grand juries failed to issue an indictment against Zenger.

Governor Cosby then went to the New York Assembly and asked them to order a ceremonial burning of Journal issues. They refused. He eventually convinced the Attorney General, Richard Bradley, to prosecute Zenger without a grand jury indictment.

Attorneys representing Zenger struggled with his defense. After all, at that time, the truth of the statements printed in the Journal didn’t matter. If they cast the government in a bad light and Zenger printed them, he had broken the law. His last attorney, Andrew Hamilton, asked the jury to not only consider the truth of the statements but what a guilty verdict would mean for the colonists, saying:

“The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty.”

The judge instructed the jury to focus only on whether Zenger had published the New-York Weekly Journal. But, in an act of jury nullification, they found Zenger not guilty.

Zenger’s case is not a binding precedent for courts in the United States. However, it does illustrate the colonists’ feelings on censorship and the need for a free press. Almost sixty years later, freedom of the press became a part of the U.S. Constitution.

Today, restrictions on speech and the press before publication are known as prior restraint. Courts treat such restrictions as highly suspect and often strike them down.

Freedom of Assembly and Petition

The rights of assembly and petition don’t come up in quite as many Supreme Court cases, but they still represent freedoms that are essential to life as we know it in the United States.

The right of assembly means that the government cannot prohibit people from gathering to protest. Some safety restrictions are allowed, but in general, the government cannot stop a group of people from protesting in a public place.

The right to petition “for a redress of grievances” generally means that there must be avenues for people to bring their issues to a government representative. This right dates back to as early as the 13th century in England. Both the 1215 Magna Carta and the 1689 English Bill of Rights included the right to petition.

In De Jonge v. Oregon (1937), Chief Justice Hughes said of the right to assembly:

“[It] is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions,—principles which the Fourteenth Amendment embodies in the general terms of its due process clause. . . . The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question . . . is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects.”