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The First Amendment to the United States Constitution is a part of the Bill of Rights. It was conceived to prevent Congress from establishing a state religion or prohibiting the free exercise of religion. Additionally, it warrants freedom of speech and the press, the right to peacably assemble and the right to petition the government for a redress of grievances (i.e. protest). A mnemonic device for these guarantees is GRASP: Grievances, Religion, Assembly, Speech and Press.

The First Amendment, along with the rest of the Bill of Rights, was proposed by Congress in 1789, to be ratified by the requisite number of states in 1791. As with the remaining Amendments of the Bill of Rights, the First Amendment was passed in order to answer protestations that the newly created Constitution did not include sufficient guarantees of civil liberties.

The First Amendment only explicitly disallows the infringement of the aforementioned five rights by Congress ("Congress shall make no law..."). The clause, however, has been extended to the executive and judicial branches. The basis of such an extension lies in the roles of the three branches: the legislature makes laws, the executive executes them and the judiciary interprets them. If there were no legislation, there would be nothing for the executive to enforce or the judiciary to interpret; thus, those two branches can only act in the presence of authorizing legislation. Congress, however, can in no event authorize the violation of the rights secured by the First Amendment. Thus, though not directly referring to them, the First Amendment binds the executive and the judiciary: those branches cannot obtain the necessary authority to act breach the liberties guaranteed by the Amendment.

The First Amendment has also been applied to the states (see Fourteenth Amendment).

Religion

The establishment clause of the First Amendment has generally been interpreted fairly widely by the courts. Thomas Jefferson, in a letter to Baptists in Danbury, Connecticut (who were formerly taxed to support the established church in the state), wrote that the establishment clause erected "a wall of separation between church and state." It was not, however, until the middle and later years of the twentieth century that the Supreme Court began to interpret the establishment and free exercise clauses in such a manner as to reduce the promotion of religion by government.

Free Exercise

During the twentieth century, many major cases involving the free exercise clause related to Jehovah's Witnesses. Many communities directed laws against the Witnesses and their attempts to convert individuals to their religion. From 1938 to 1955, the organization was involved in over forty cases before the Supreme Court, winning a majority of them. The first important victory came in 1938, when in Lovell v. City of Griffin, the Supreme Court held that cities could not require permits for the distribution of pamphlets. In 1939, the Supreme Court decided Schneider v. Town of Irvington, in which it struck down anti-littering laws that were enforced only against Jehovah's Witnesses who were handing out pamphlets. In 1940, the Court considered Cantwell v. Connecticut; the plaintiff, a Jehovah's Witness, was charged with soliciting donations without a certificate from the Public Welfare Council. The Council was to grant the certificate only if the organization requesting it was a charity or sponsored a religious cause. The Supreme Court ruled that any law granting a public body the function of determining if a cause is religious or not violates the First Amendment.

The year 1940, however, was also marked by a loss for the Jehovah's Witnesses, in the case of Minersville School Board v. Gobitis (the latter name was actually "Gobitas," but was misspelled by a clerk). The Minersville School Board had contended that the refusal of Gobitas' children to salute the flag and recite the Pledge of Allegiance constituted insubordination, and then expelled them. Gobitas charged that his children's faith required them to salute none but God. Two courts ruled against the School Board after Gobitas sued, but the Supreme Court disagreed in an eight to one vote. Justice Felix Frankfurter wrote that religion "does not relieve the citizen from the discharge of political responsibilities." He added that the flag "is the symbol of our national unity, transcending all internal differences."

The ruling in Minersville School Board v. Gobitis, however, did not stand for long. In 1943, West Virginia Board of Education v. Barnette, the Surpeme Court essentially reversed its previous opinion. Justice Frankfurter had, in the Gobitis case, suggested that the Witnesses attempt to reverse the School Board's policy by exercising their vote. In the Barnette case, however, Justice Robert Jackson suggested, "the very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond them beyond the reach of majorities ... One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assebly, and other fundamental rights may not be submitted to vote." The Supreme Court did not rule that the Pledge was unconstitutional; rather, they held that students may not be compelled to recite it.

The Supreme Court under Earl Warren adopted an expansive view of the free exercise clause. The Court required that states have a "compelling interest" in refusing to accomodate religiously motivated conduct as it decided Sherbert v. Verner in 1963. The case involved Adele Sherbert, an individual who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, as required by her faith. In Wisconsin v. Yoder (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 unconstitutional.

The "compelling interest" doctrine became much narrower in 1990, when the Supreme Court decided Employment Division v. Smith. Thus, as long as a law does not target a particular religious practice, it would normally be held to be constitutional insofarasmuch as the free exercise clause is concerned. In 1993, the Supreme Court revisited the free exercise clause when it decided Church of the Lukumi Babalu Aye v. City of Hialeah. The City had passed an ordinance banning ritual slaughter, a practice central to the Santeria religion, while providing exceptions for some practices such the kosher slaughter of Judaism. Since the ordinance was not "generally applicable," the Court ruled that it was subject to the compelling interest test, which it failed to meet. The Court therefore struck down the City's ordinance.

Also in 1993, Congress passed the Religious Freedom Restoration Act, which sought to restore the "compelling interest" standard. In City of Boerne v. Flores (1997), however, the Court struck down the provisions of the Act which forced states and local governments to provide more protections than required by the First Amendment. The Act, however, remains applicable to the federal government, which must therefore still meet the "compelling interest" standard in free exercise cases.

Establishment

After World War II, many cases involving the establishment clause came before the Supreme Court. When deciding if states could offer funding aiding religious organizations, Justice Hugo Black indicated that the establishment clause "requires the state to be neutral in its relations with groups of religious believers and non-believers." Under that test, a New Jersey law providing funding for transportation for students attending any private school (whether religious or not) was upheld, as it did not discriminate on the basis of religion.

Further important decisions came in the 1960s, when Earl Warren served as Chief Justice. One of the Court's most controversial decisions came in Engel v. Vitale, decided in 1962. The case involved a prayer written by the New York Board of Regents. Though the prayer was non-denominational, the Supreme Court deemed it necessary to strike it down. Justice Black wrote, "it is no part of the official business of government to compose official prayers for any group of American people to recite as part of a religious program carried out by the Government." The reading of the Lord's Prayer or of the Bible in the classroom by the teacher was ruled unconstitutional in 1963. Several Americans vehemently denounced the Court for its opinions. George Andrews, an Alabamian politician, was referring to the Court's decisions on desegregation of public schools and Engel v. Vitale when he famously lamented, "they put the Negroes in the schools, and now they've driven God out."

In Abington Township v. Schempp, the case involving the reading of the Lord's Prayer in class, the Supreme Court introduced the "secular purpose" and "primary effect" tests, which were to be used to determine compatibility with the establishment clause. Essentially, the law in question must have a valid secular purpose, and its primary effect must not be to promote or inhibit a particular religion. Since the law requiring the recital of the Lord's Prayer violated these tests, it was struck down. To the two aforementioned tests, the Court added a third, the "excessive entanglement" test, was introduced in 1973, when the Supreme Court decided Lemon v. Kurtzman. In that case, the Court struck down a Rhode Island law requiring that the state pay fifteen percent of salaries of private school teachers, including teachers in religious institutions. Since, in the opinion of the Court, the law excessively entangled religion with government, it was ruled unconstitutional. The secular purpose, primary effect and excessive entanglement tests are together known as the Lemon Tests, though two of them were introduced in Abington Township v. Schempp. The Lemon Tests are still used by the courts to determine the constitutionality of religion-related laws. Other Justices, however, advocate different standards. Justice Anthony Kennedy has relied on the "coercion test," under which the government is deemed to have violated the establishment clause only if it either provides direct aid to religious organizations or coerces individuals into participating in religious exercises. On the other hand, Justice Sandra Day O'Connor has used the simple "endorsement test," under which a law or government action endorsing religion would be considered unconstitutional.

The 1990s were marked by controversies surrounding religion's role in public affairs. In Lee v. Wesiman (1992), the Supreme Court ruled unconstitutional the offering of prayers by religious officials before voluntarily attended ceremonies such as graduation. Thus, the Court established that the state could not conduct religious exercises at public occasions even if attendance was not strictly compulsory. In Santa Fe School District v. Doe (2000), the Court suggested that even a vote of the student body could not authorize student-led prayer prior to school events.

A recent controversy surrounded Roy Moore, former Chief Justice of Alabama. Moore had in 2001 installed a monument to the Ten Commandments in the state judicial building. In 2003, he was ordered by a federal judge to remove the monument, but he refused to comply, ultimately leading to his removal from office. He argued that his right to acknowledge God was denied. It may be pointed out, however, that he retained his right to acknowledge God as a private person. It was only a violation of the establishment clause to erect a religious monument on government property; Moore was perfectly free to maintain that monument on private land. Another controversy centered on a recent ruling by the Court of Appeals for the Ninth Circuit struck down a California law providing for the recitation of the Pledge of Allegiance (which includes the phrase "under God") in classrooms. Each House of Congress passed resolutions reaffirming their support for the pledge; the Senate vote was 99-0 and the House vote was 416-3. The Supreme Court has heard arguments on the case, but a decision remains pending.

Speech and the press

Freedom of speech and freedom of the press have always had several limitations. Restrictions were often placed, for example, on seditious speech, which threatened the security of the state. The Supreme Court has recognized restrictions on speech based on the time, place and manner at or in which it is made. For instance, "fighting words," or speech that incites a breach of the peace, are not protected under the First Amendment; neither is the making of loud noises intended to disturb other individuals.

Sedition

Remarkably, the Supreme Court did not consider a single case in which it was asked to strike down a federal law on the basis of the free speech clause until the twentieth century. The Alien and Sedition Acts of 1798 were at the time considered unconstitutional, as they punished speech directed against the government. By 1802, before the Supreme Court could review the laws, the Alien and Sedition Acts either expired or were repealed.

After World War I, several cases involving certain Acts limiting speech came before the Supreme Court. 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." Under the Act, over two thousand prosecutions were commenced. For instance, 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. The Sedition Act of 1918 went even farther, criminalizing "disloyal," "scurrilous" or "abusive" language against the government.

The Supreme Court was for the first time requested to strike down a law violating the free speech clause in 1919. The case involved Charles Schenck, who had during the war published leaflets challenging the conscription system then in effect. The Supreme Court unanimously upheld Schenck's conviction for violating the Espionage Act when it decided Schenck v. United States. Justice Oliver Wendell Holmes, Jr., writing for the Court, suggested that "the question in every case is whether the words used are 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."

The "clear and present danger" test of Schenck was extended in Debs v. United States, again by Justice Oliver Wendell Holmes. The case involved a speech made by Eugene V. Debs, a political activist. Debs had not spoken any words that posed a "clear and present danger" to the conscription system, but a speech in which he denounced militarism was nonetheless found to be sufficient grounds for his conviction. Justice Holmes suggested that the speech had a "natural tendency" to occlude the draft.

Thus, the Supreme Court effectively shaped the First Amendment in such a manner as to permit a multitude of restrictions on speech. Further restrictions on speech were accepted by the Supreme Court when it decided Gitlow v. New York in 1925. Writing for the majority, Justice Edward Sanford suggested that states could punish words that "by their very nature, involve danger to the public peace and to the security of the state." Lawmakers were given the freedom to decide which speech would constitute a danger, thereby undermining the principle of free speech.

Freedom of speech was threatened by anti-Communism during the Cold War. In 1940, Congress replaced the Sedition Act of 1918, which had expired in 1921. The Smith Act passed in that year made punishable the advocacy of "the propriety of overthrowing or destroying any government in the United States by force and violence." The law was mainly used as a weapon against Communist leaders. The constitutionality of the Act was questioned in the case Dennis v. United States. The Court upheld the law in 1951 by a six-two vote (one Justice, Tom Clark, did not participate because he had previously ordered the prosecutions when he was Attorney General). Chief Justice Fred M. Vinson relied on Oliver Wendell Holmes' "clear and present danger" test when he wrote for the majority. Vinson suggested that the doctrine did not require the government to "wait until the putsch is about to be executed, the plans have been laid and the signal is awaited," thereby broadly defining the words "clear and present danger." Thus, even though there was no immediate danger posed by the Communist Party's ideas, their speech was restricted by the Court.

Dennis v. United States has never been explicitly overruled by the Court, but future decisions have in practice reversed the case. In 1957, the Court changed its interpretation of the Smith Act in deciding Yates v. United States. The Supreme Court ruled that the Act was aimed at "the advocacy of action, not ideas." Thus, the advocacy of abstract doctrine remains protected under the First Amendment. Only speech explicitly inciting the forcible overthrow of the government remains punishable under the Smith Act.

The Supreme Court under Chief Justice Earl Warren expanded free speech protections in the 1960s, though there were exceptions. In 1968, for example, the Court upheld a law prohibiting the mutilation of draft cards in United States v. O'Brien. The Court ruled that protesters could not burn draft cards because doing so would interfere with the "smooth and efficient functioning" of the draft system.

In 1969, the Supreme Court extended free speech rights to students in school while deciding Tinker v. Des Moines. The case involved a student who was punished for wearing a black armband to protest the Vietnam War. The Supreme Court ruled that the school could not restrict symbolic speech that did not cause undue interruptions of school activities. Justice Abe Fortas wrote, "state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students ... are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State."

The divisive issue of flag burning as a form of protest came before the Supreme Court in 1989, as it decided Texas v. Johnson. The Supreme Court reversed the conviction of Gregory Johnson for burning the flag by a vote of five to four. Justice William Brennan 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." Many in Congress vilified the decision of the Court. The House unanimously passed a resolution denouncing the Court; the Senate did the same with only three dissents. Congress passed a federal law barring flag burning, but the Supreme Court struck it down as well in United States v. Eichman (1990). Many attempts have been made to amend the Constitution to allow Congress to prohibit the desecration of the flag. Since 1995, the Amendment has consistently mustered sufficient votes to pass in the House of Representatives, but not in the Senate. Most recently, in 2000, the Senate voted 63-37 in favor of the amendment, which fell four votes short of the requisite two-thirds majority.

Obscenity

The federal government and the states have long been permitted to restrict obscene or pornographic speech. The exact definition of obsenity and pornography, however, has changed over time. Justice Potter Stewart famously said, "I can't define pornography, but I know it when I see it."

When it decided Rosen v. United States in 1896, the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin. The Hicklin standard defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." Thus, the standards of the most sensitive members of the community were the standards for obscenity. In 1957, the Court ruled in Roth v. United States that the Hicklin test was inappropriate. Instead, the Roth test for obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest."

The Roth test was expanded when the Court decided Miller v. California in 1973. Under the Miller test, a work is obscene if it would be found appealing to the prurient interest by an average person applying contemporary community standards, depicts sexual conduct in a patently offensive way and has no serious literary, artistic, political or scientific value. Note that "community" standards—not national standards—are applied; thus, material may be deemed obscene in one locality but not in another. Child pornography is not subject to the Miller test, as the Supreme Court decided in 1982. The Court felt that the government's interest in protecting children from abuse was paramount.

Though material may be obscene, its possession in the home may not be prohibited by law. In writing for the Court in the case of Stanley v. Georgia, Justice John Marshall Harlan suggested, "if the First Amendment means anything, it means that a State has no business telling a man sitting in his own house, what books he may read or what films he may watch." It is not, however, unconstitutional for the government to prevent the mailing or sale of obscene items, though they may be viewed only in private.

Libel and slander

The American prohibition on defamatory publications or speech—slander and libel—traces its origins to English law. The nature of defamation law was vitally changed by the Supreme Court in 1964, while deciding New York Times Co. v. Sullivan. The New York Times had published an advertisement indicating that officials in Montgomery, Alabama had acted violently in suppressing the protests of African-Americans during the Civil Rights Movement. The Montgomery Police Commissioner, L. B. Sullivan, sued the Times for libel on the grounds that the advertisement damaged his reputation. The Supreme Court unanimously overruled the $500,000 judgment against the times. Justice William J. Brennan suggested that public officials may sue for libel only if the publisher published the statements in question with "actual malice," a difficult standard to meet.

The actual malice standard applies to both public officials and public figures, including celebrities. Though the details vary from state to state, private individuals normally need only to prove negligence on the part of the defendant.

As the Supreme Court ruled in Gertz v. Robert Welch, Inc. (1974), opinions cannot be considered defamatory. It is thus permissible to suggest, for instance, that a lawyer is a bad one, but not permissible to declare that the lawyer is ignorant of the law: the former constitutes a statement of opinion, but the latter is a statement alleging a fact.

Campaign Finance

The Federal Election Campaign Act of 1971 and related laws restricted the monetary contributions that may be made to political campaigns and expenditure by candidates. The Supreme Court considered the constitutionality of the Act in Buckley v. Valeo, decided 1976. The Court affirmed some parts of the Act and rejected others. The Court concluded that limits on campaign contributions "serve 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." At the same time, the Court overturned the expenditure limits, which it found imposed "substantial restraints on the quantity of political speech."

Further rules on campaign finance were scrutinized by the Court when it determined McConnell v. Federal Election Commission in 2003. The case centered on the Bipartisan Campaign Reform Act of 2002, a law that introduced several 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 finance certain election-related advertisements. At the same time, 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, as such a "provision place an unconstitutional burden on the parties' right to make unlimited independent expenditures." The Supreme Court also ruled that the provision preventing minors from making political contributions was unconstitutional, relying on the precedent of Tinker v. Des Moines.

References

• Constitution of the United States.
• Haynes, Charles. "Religious liberty in public life." (2004).
• Hoover Institution. "Campaign Finance." (2004).
• Irons, Peter. (1999). A People's History of the Supreme Court. New York: Penguin.
• "Pornography." (2004). Microsoft Encarta Online Encyclopedia.