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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, infringing on 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 only applied to the Congress. However, starting with Gitlow v. New York, 268 U.S. 652 (1925), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment applies the First Amendment to each state, including any local government.

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.

Background

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

The Establishment Clause of the First Amendment prohibits the establishment of a national religion by the Congress or the preference of one religion over another, non-religion over religion, or religion over non-religion. Originally, the First Amendment only applied to the federal government. Subsequently, McCollum v. Board of Education, 333 U.S. 203 (1948) incorporated certain select provisions. 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 state governments. 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."

Free exercise of religion

In Sherbert v. Verner, 374 U.S. 398 (1963), the Warren Court applied the strict scrutiny standard of review to this clause, holding that a state must demonstrate a compelling interest in restricting religious activities. In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court retreated from this standard, permitting governmental actions that were neutral regarding religion. The Congress attempted to restore this standard by passing the Religious Freedom Restoration Act, but in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court held that such an attempt was unconstitutional regarding state and local government actions (though permissible regarding federal actions).

Freedom of the press

In Lovell v. City of Griffin, 303 U.S. 444 (1938), Chief Justice Hughes defined the press as, "every sort of publication which affords a vehicle of information and opinion." Freedom of the press, like freedom of speech, is subject to restrictions on bases such as defamation law.

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Court ruled that the First Amendment did not give a journalist the right to refuse a subpoena from a grand jury. The issue decided in the case was whether a journalist could refuse to "appear and testify before state and Federal grand juries" basing the refusal on the belief that such appearance and testimony "abridges the freedom of speech and press guaranteed by the First Amendment." The 5–4 decision was that such a protection was not provided by the First Amendment.

Taxation of the press

State governments retain the right to tax newspapers, just as they may tax other commercial products. Generally, however, taxes that focus exclusively on newspapers have been found unconstitutional. In Grosjean v. American Press Co. 297 U.S. 233 (1936), the Court invalidated a state tax on newspaper advertising revenues. Similarly, some taxes that give preferential treatment to the press have been struck down. In Arkansas Writers' Project v. Ragland, 481 U.S. 221 (1987), for instance, the Court invalidated an Arkansas law exempting "religious, professional, trade and sports journals" from taxation since the law amounted to the regulation of newspaper content.

In Leathers v. Medlock, 499 U.S. 439 (1991), the Supreme Court found that states may treat different types of the media differently, such as by taxing cable television, but not newspapers. The Court found that "differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas."

Content regulation

The courts have rarely treated content-based regulation of journalism with any sympathy. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses. The state claimed that the law had been passed to ensure journalistic responsibility. The Supreme Court found that freedom, but not responsibility, is mandated by the First Amendment and so it ruled that the government may not force newspapers to publish that which they do not desire to publish.

Content-based regulation of television and radio, however, have been sustained by the Supreme Court in various cases. Since there is a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies. However, the Supreme Court has ruled that the problem of scarcity does not allow the raising of a First Amendment issue. The government may restrain broadcasters, but only on a content-neutral basis.

In Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court upheld the Federal Communications Commission's authority to restrict the use of "indecent" material in broadcasting.

Petition and assembly

The right to petition the government extends to petitions of all three branches of government: the Congress, the executive and the judiciary. According to the Supreme Court, "redress of grievances" is to be construed broadly: it includes not solely appeals by the public to the government for the redressing of a grievance in the traditional sense, but also, petitions on behalf of private interests seeking personal gain. Nonetheless, in the past, Congress has directly limited the right to petition. During the 1790s, Congress passed the Alien and Sedition Acts, punishing opponents of the Federalist Party; the Supreme Court never ruled on the matter. In 1835 the House of Representatives adopted the Gag Rule, barring abolitionist petitions calling for the end of slavery. The Supreme Court did not hear a case related to the rule, which was abolished in 1844. During World War I, individuals petitioning for the repeal of sedition and espionage laws were punished; again, the Supreme Court did not rule on the matter.

The right of assembly was originally distinguished from the right to petition. In United States v. Cruikshank, 92 U.S. 542 (1875), the Supreme Court held that "the right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or duties of the National Government, is an attribute of national citizenship, and, as such, under protection of, and guaranteed by, the United States." Justice Waite's opinion for the Court carefully distinguished the right to assemble, labeled a secondary right, from the right to petition, a primary right. Later cases, however, paid less attention to these distinctions.

Freedom of association

Although it is not explicitly protected in the First Amendment, the Supreme Court ruled, in NAACP v. Alabama, 357 U.S. 449 (1958), freedom of association to be a fundamental right protected by it. In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme Court held that associations may not exclude people for reasons unrelated to the group's expression. However, in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995), the Court ruled that a group may exclude people from membership if their presence would affect the group's ability to advocate a particular point of view. Likewise, in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Supreme Court ruled that a New Jersey law, which forced the Boy Scouts of America to admit an openly gay member, to be an unconstitutional abridgment of the Boy Scouts' right to free association.

International significance

Most provisions of the United States Bill of Rights are based on the English Bill of Rights and on other aspects of English law. The English Bill of Rights, however, does not include many of the protections found in the First Amendment. For example, while the First Amendment guarantees freedom of speech to the general populace, the English Bill of Rights only protected "Freedome of Speech and Debates or Proceedings in Parlyament." The Declaration of the Rights of Man and of the Citizen, a French revolutionary document passed only weeks before Congress proposed the Bill of Rights, contains certain guarantees that are similar to those in the First Amendment. For instance, it suggests that "every citizen may, accordingly, speak, write, and print with freedom."

While the First Amendment does not explicitly set restrictions on freedom of speech, other declarations of rights sometimes do so. The European Convention on Human Rights, for example, permits restrictions "in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." Similarly the Indian constitution allows "reasonable" restrictions upon free speech to serve "public order, security of State, decency or morality."

The First Amendment was one of the first guarantees of religious freedom: neither the English Bill of Rights, nor the French Declaration of the Rights of Man and of the Citizen, contains a similar guarantee.

See also

• Establishment Clause of the First Amendment
• Free Exercise Clause of the First Amendment
• Freedom of association
• Freedom of thought
• Lemon v. Kurtzman – Established the Lemon Test for evaluating government violations of the Establishment Clause.
• List of amendments to the United States Constitution
• List of United States Supreme Court cases involving the First Amendment
• Marketplace of ideas
• Military expression
• Virginia Statute for Religious Freedom

References

1. Grumet, at 703
2. Lovell, at 452
3. Branzburg, 667
4. Leathers, at 453
5. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972)
6. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961)
7. Cruikshank, at 552
8. 1688 c.2 1 Will. and Mar. Sess 2
9. "Declaration of the Rights of Man".
10. European Convention on Human Rights art. 10 (entered into force Sept. 3, 1953)
11. Constitution of India, art. 19, cl. 2 Template:En icon

Further reading

• Daniel L. Dreisbach and Mark David Hall. The Sacred Rights of Conscience: Selected Readings on Religious Liberty and Church-State Relations in the American Founding (Indianapolis: Liberty Fund Press, 2009)
• Daniel L. Dreisbach, Mark David Hall, and Jeffry Morrison. The Forgotten Founders on Religion and Public Life (Notre Dame: University of Notre Dame Press, 2009)
• Kilman, J. & Costello, G. (Eds). (2000). The Constitution of the United States of America: Analysis and Interpretation
• Haynes, C. "Religious liberty in public life" (2004)
• Hoover Institution. "Campaign Finance" (2004)
• Irons, P. (1999). A People's History of the Supreme Court New York: Penguin.
• Emerson, Thomas I. (1963). "Toward a General Theory of the First Amendment". Yale Law Journal. 72 (5). The Yale Law Journal Company, Inc.: 877–956. doi:10.2307/794655. {{cite journal}}: Cite has empty unknown parameter: |coauthors= (help)

External links

2. Part 2

• Cornell Law School – Annotated Constitution
• First Amendment Center – The First Amendment Library
• First Amendment Articles at the Legal Satyricon

• 1791 in law
• Civil rights and liberties
• First Amendment to the United States Constitution
• Amendments to the United States Constitution
• Separation of church and state
• 18th-century laws in Christianity
• 1791 in American politics