First Amendment

First Amendment of the Constitution

When the United States was first formed under the Articles of Confederation during the Revolutionary War, there were no individual rights codified into law. In fact, there wasn't even a president or a way to regulate commerce codified into law! Several years after the war, Congress met to draft the constitution at the Constitutional Convention.

Constitutional Convention

The Constitutional Convention happened in Philadelphia in 1787. Over three months of meetings, the proposal to include individual rights in the constitution happened towards the end. The convention split into two main factions: the federalists and the antifederalists. The federalists didn't think a bill of rights was necessary because they believed were already implied in the Constitution. Plus, they worried that they wouldn't be able to finish up the discussions on time. However, the antifederalists were worried that the new central government would become too powerful and abusive over time, so a list of rights was necessary in order to restrain the government.

Figure 1: A painting depicting George Washington chairing the Constitutional Convention. Source: Wikimedia Commons

Bill of Rights

Several states refused to ratify the Constitution unless a Bill of Rights was added. So, the Bill of Rights was added in 1791. It's made up of the first ten amendments to the Constitution. Some of the other amendments include things like the right to bear arms, the right to a speedy trial, and the right to be free from unreasonable searches and seizures.

First Amendment Rights

Now that we know the history, let's start with Freedom of the Press!

Freedom of the Press

Freedom of the press means that the government can't interfere with journalists doing their job and reporting the news. This is important because if the government was allowed to censor the media, it could impact both the spread of ideas and government accountability.

Leading up to the American Revolution, England attempted to censor news sources and weed out any talk of revolution. Because of this, the framers of the Constitution knew how important freedom of the press was and how much it can impact important political movements.

The press is also an extremely important Linkage Institution for keeping the government accountable for its actions. Whistleblowers are people who alert the public to possible corruption or government abuse. They are very important for helping the public know what's happening in government.

First Amendment: Freedom of Speech

Next up is Freedom of Speech. This right isn't just about making speeches to a crowd: it has been expanded to mean "freedom of expression," which includes any kind of communication, verbal or non-verbal.

Symbolic Speech

Symbolic speech is a non-verbal form of expression. It can include symbols, clothing, or gestures.

Certain types of protest have also been protected as Symbolic Speech. Flag burning has grown as a form of protest since the 1960s. Several states, as well as the federal government, passed laws making it illegal to desecrate the American flag in any way (see the Flag Protection Act of 1989). However, the Supreme Court has ruled that burning the flag is a protected form of speech.

Protestors burn a U.S. flag, Wikimedia Commons

Non-Protected Speech

While the Supreme Court has frequently stepped in to strike down laws or policies that violate freedom of speech, there are a few categories of speech that are not protected by the Constitution.

Fighting words and words that encourage people to commit crimes or acts of violence are not protected by the Constitution. Any form of speech that presents a clear and present danger or the intent to harass people is also not protected. Obscenity (especially items that are patently offensive or have no artistic value), defamation (including libel and slander), blackmail, lying in court, and threats against the president are not protected by the First Amendment.

Establishment Clause of the First Amendment

Freedom of religion is another important right! The Establishment Clause in the First Amendment codifies the separation between church and state:

The Establishment Clause means that the government:

• Can neither support nor hinder religion
• Can't favor religion over non-religion.

Free Exercise Clause

Alongside the Establishment Clause is the Free Exercise Clause, which says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" (emphasis added). While the Establishment Clause focuses on restraining government power, the Free Exercise Clause focuses on protecting citizens' religious practices. These two clauses are interpreted together as Freedom of Religion.

Freedom of Religion Cases

Sometimes the Establishment Clause and Free Exercise Clause can conflict. This comes up with the accommodation of religion: sometimes, by supporting citizens' right to practice religion, the government can end up favoring some religions (or non-religion) over others.

Many cases around the Free Exercise Clause have centered on whether religious beliefs can exempt people from following the law.

Freedom of Assembly and Petition

Freedom of Assembly and Petition is often thought of as the right to peacefully protest, or the right of people to gather together to advocate for their policy interests. This is important because sometimes the government does things that are undesirable and/or harmful. If people don't have a way to advocate for changes through protesting, then they have no power to change policies. The text says:

Exceptions

The First Amendment only protects peaceful protests. That means that any encouragement to commit crimes or violence or engage in riots, fights, or insurrections is not protected.

Civil Rights Era Cases

Figure 4: Many Supreme Court cases around Freedom of Assembly occurred during the Civil Rights era. Pictured above is the march from Selma to Montgomery in 1965. Source: Library of Congress

In Bates v. Little Rock (1960), Daisy Bates was arrested when she refused to reveal the names of the members of the National Association for the Advancement of Colored People (NAACP). Little Rock had passed an ordinance requiring that certain groups, including the NAACP, publish a public list of its members. Bates refused because she feared that revealing the names would put the members at risk due to other instances of violence against the NAACP. The Supreme Court ruled in her favor and said that the ordinance violated the First Amendment.

A group of Black students assembled to submit a list of grievances to the South Carolina government in Edwards v. South Carolina (1962). When they were arrested, the Supreme Court ruled that the First Amendment also applies to state governments. They said that the actions had infringed on the students' right to assembly and reversed the conviction.