First Amendment: The Great Five!

The Passage

The First Amendment was passed along with nine others that together became known as the Bill of Rights in 1791. There was a huge concern that without written rights, the national government would obtain too much power and become oppressive. Recalling the tyranny under British rule, colonists designed the Bill of Rights, and the First Amendment, in particular, to safeguard people’s basic civil liberties. 

Amendment Text

“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.”

What Does It Mean?

The First Amendment establishes freedom of religion, speech, and press, as well as the right to assembly and petition.

Freedom of religion ensures citizens can practice whatever faith they choose and freely express it. The main purpose of this protection is to prohibit any religion from becoming the official US religion. It also creates a societal norm of religious tolerance. 

Freedom of speech is more tricky. It allows citizens to speak up without fear of punishment. However, not all speech is protected. 

The freedom of the press prevents the government from filtering information. It ensures information coming from the media is uncensored, which allows people to express themselves through publication. However, libel, or false information, is not protected under this clause.  

The rights to assemble and petition allows citizens to express discontent with their government. This means nonviolent protest and any planning of it is legal. If something unjust occurs, citizens can speak up about it. 

Major Court Cases

Supreme Court cases went on to clarify what rights the First Amendment guarantees. In 1971, the Court adopted the Lemon Test after the Lemon v. Kurtzman case, which pinpointed how to tell if the government is attempting to establish a religion. In essence, a policy must have a non-religious purpose, not promote any particular set of beliefs, and not overly involve the government with religion. A recent case in 2007, Morse v. Frederick, established that schools could limit their students’ free speech, at least when preventing the promotion of illegal activities.    

In 1988, Hazelwood School District v Kuhlmeier brought a question of the freedom of the press to the Supreme Court. Once again, the Court ruled that schools can filter written expressions considered inconsistent with shared values of a civilized social order. Meanwhile, in 2007, Federal Election Commission v. Wisconsin Right to Life, expanded upon the press’ right by declaring limitations on political advertising unconstitutional. 

One specific case involving the right to petition is Borough of Duryea v. Guarnieri from 2011. It ruled that the public concern test can limit public employees’ right to petition. To prove a violation of the petition clause, an employee must show their fight was a matter of public concern. This case is extremely significant because it established that lawsuits fall under the petition clause. 

Controversies

Controversies surrounding religious freedom today often pop up in public schools. There’s been debate over whether such institutions should be allowed to celebrate holidays such as Christmas and Easter, which can arguably be considered secular events in modern society. While the amendment successfully protects the freedom to practice religion, religious intolerance is common. Islam, in particular, has been heavily ostracized since the 2000s. 

What’s included under freedom of speech is hotly debated. Dangerous, incendiary speech is not protected, but what qualifies as that remains mostly undefined. The Supreme Court continues to analyze these on a case-to-case basis. Sometimes, the clause gets constricted, and other times, the Court protects or extends the right.  

Freedom of the press has been well-defined thanks to earlier court cases dealing with libel and protected information. Since the press involves written information, it is held to a standard of truth, unlike freedom of speech. With the growing digital age, one big First Amendment question includes social media. Social media blurs the hard line between freedom of speech and freedom of the press with its atmosphere of casual conversation but its permanent record format. Furthermore, platforms ban content as they see fit, often following arbitrary standards. Thus, freedom of press controversies involve reinterpreting the protection in the modern online world.  

The rights to freedom of petition and assembly have been controversial recently. In 2020, the Black Lives Matter movement spurred protests across the country and the world. The vast majority of protests were peaceful, but federal agents were sent to many cities, without a request from state officials, to “keep the peace.” Many videos circulated showing officers using excessive and often lethal force on non-aggressive protesters. The federal government blatantly violated the First Amendment in an effort to suppress criticism. 

Why Care?

The First Amendment protects the people’s essential democratic rights. Imagine not being able to speak out against the government, protest disagreeable policies, hear factual news, or practice your chosen faith. That is a reality for many people across the world who are still fighting for fundamental rights.

The First Amendment is first for a reason. The fact that the Founders listed individual freedoms before the other provisions in the Bill of Rights speaks volumes about the nature of democratic freedom. We exercise our First Amendment rights every day, and the freedom that we enjoy should be appreciated, protected, and used to fight for change.

Think Further

  1. Can you think of a court case not discussed that involves the First Amendment? What was it? Why was it important?
  2. Do you think any clauses should be added or removed from the First Amendment? If yes, which ones and why?
  3. What is one way the First Amendment is relevant in modern society? Are any of the clauses outdated?

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  1. “First Amendment.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/wex/first_amendment
  2. “First Amendment Rights.” Ushistory.org, Independence Hall Association, www.ushistory.org/gov/10b.asp
  3. “Notable First Amendment Court Cases”, American Library Association, July 24, 2006. http://www.ala.org/advocacy/intfreedom/censorship/courtcases.